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Will Court and Legislative Delays Threaten CA’s Solitary Confinement Limits?

Advocates say the settlement and the ensuing monitoring have resulted in significant changes even beyond California.

Arthur (a solitary survivor), Dolores Canales, Arthur's wife Jennifer and Dolores's husband Jack Morris take part in a lobbying day in Sacramento, California, on September 7, 2023.

The movement against prolonged solitary confinement in California is facing new challenges on two different fronts.

First, on August 24, a three-judge panel handed down a ruling ending a federal magistrate’s ability to monitor and limit California’s use of prolonged solitary confinement. However, prisoners’ rights advocates aren’t giving up – they appealed the ruling and continued pressing lawmakers to pass the Mandela Act, limiting isolation to no more than 15 days.

The California State Assembly had passed the bill by 56 to 16 in May and the California State Senate by 21 to 12 in mid-September.

Less than one month after the court ruling, however, on September 13, Assemblymember Chris Holden, the bill’s sponsor, agreed to hold (delay) the bill in the final days of the 2023 legislative session. It had faced sharp opposition from law enforcement. Last year, California governor Gavin Newsom had vetoed a similar measure directing the state’s prison system to draft regulations instead.

A Landmark Settlement Limited Solitary

In 2015, the California Department of Corrections and Rehabilitation (CDCR) settled Ashker v. Governor of California, a class-action lawsuit challenging the use of indefinite solitary. Until then, California prisons had placed those accused of gang affiliation into security housing units (or SHU) for an indeterminate period of time. These accusations, or Security Threat Group (STG) validations as they are called in the prison system, often relied on confidential informants and circumstantial evidence, such as reading materials, drawings, tattoos or associations with others. Until 2012, the only ways out of the SHU were to debrief (inform on other alleged gang affiliates), parole or die.

The California prison system does not use the term solitary confinement. Instead, prison officials call the practice restricted housing. But in the SHU, people were confined to windowless cells for at least 23 hours each day. When they were allowed out of their cells — for a shower, a visit separated by glass or an hour of recreation alone in an exercise pen — they were handcuffed and ankle chained.

By 2015, more than 500 people had been isolated in the SHU for more than a decade. Seventy-eight people, including lead plaintiff Todd Ashker, had spent more than 20 years in isolation. Many were in Pelican Bay State Prison, a super-max prison near the Oregon border, and far from their families and communities.

That settlement changed the ways in which California prisons utilized solitary confinement. Hailed as a “landmark settlement” by advocates, family members and those in solitary units, it came after a class-action lawsuit, years of protests and three mass hunger strikes that rocked the state prison system.

The Ashker settlement stipulated that those who have spent 10 or more years in the SHU would be reviewed and placed in general population or a newly created restrictive custody general population unit, which was not to mimic solitary. Those who had spent the longest time in the SHU would be reviewed first.

The settlement also prohibited the CDCR from placing people in the SHU based solely on alleged gang affiliation and from indeterminate SHU placements, a prohibition that was codified into the agency’s regulations. It also limited an individual’s time in Pelican Bay’s SHU to five years. Finally, the settlement included at least two years of compliance monitoring by federal Judge Claudia Wilken. That oversight has now stretched to eight years.

Compliance monitoring revealed ongoing concerns. The judge found that officials falsely attributed statements to informants, highlighting a number of discrepancies between transcripts of interviews with informants and the memos summarizing those interviews that were used in disciplinary procedures that resulted in SHU placement. They did so 151 times during the second monitoring period, which ended in 2020.

She also found that prison officials gave parole boards alleged evidence of gang affiliation without acknowledging that its previous system for validating affiliation had been unreliable and violated due process. Finally, Wilken found that prison officials had placed certain people, including Ashker, in the restricted custody general population units without providing reasons for their confinement or meaningful periodic reviews.

“It’s a reasonable fear that CDCR will backslide in a number of ways without that oversight,” CJ Sandley, staff attorney at the Center for Constitutional Rights, told Truthout. “That’s why we felt like it was warranted to extend the settlement agreement. And Judge Wilken did too.”

In late August, a three-judge panel for the Ninth Circuit Court of Appeals ruled to end that oversight. The panel also ruled that prison officials can place people in prolonged solitary confinement without fully disclosing their reasons.

Prisoners’ rights advocates aren’t giving up — they plan to appeal the ruling and continue pressing lawmakers for legislation limiting isolation to no more than 15 days.

In an email to Truthout, CDCR Information Officer Tessa Outhyse wrote, “CDCR is developing regulations to reform the use of segregated confinement, also known as restricted housing, in prisons. The regulations will restrict the use of segregated confinement except in limited situations where individuals have engaged in violence or have serious safety concerns that cannot be handled otherwise.”

Outhyse also stated that current CDCR policy prohibits placing a person in restricted housing based solely on Security Threat Group (STG) validation.

Hundreds of Bills to Limit Solitary

The court’s decision does not become finalized until the court issues a mandate. Meanwhile, attorneys for the hunger strikers are appealing the decision.

On September 7, the Center for Constitutional Rights filed for an en banc review by the Ninth Circuit Court, effectively pausing the process of permanently ending the settlement agreement.

If the majority of the court’s 29 judges vote in favor of a review, the case will be heard and decided upon by 11 of the court’s judges. If the judges decide against a review or vote to uphold the panel’s decision, then the settlement agreement will end.

Regardless of the court’s decision, advocates — including the hunger strikers who became the lead plaintiffs for the class-action lawsuit — say that the settlement and the ensuing monitoring have resulted in significant changes, and not just in California.

“The Ashker litigation has achieved, through the fierce organizing and advocacy of incarcerated people, the release of hundreds of people from indeterminate solitary confinement and significant reforms in CDCR’s gang validation process and use of confidential information,” said Sandley. “Whether or not the Ninth Circuit panel’s decision stands and the Ashker litigation ends, the struggle to hold California and CDCR accountable to those reforms and push for even greater reforms in other venues must continue.”

Jessica Sandoval is the director of Unlock the Box, a national advocacy campaign to end solitary in the U.S. She told Truthout that the mass hunger strikes and the lawsuit changed the public perception of solitary confinement as a penological necessity. “People started talking about how solitary is torture,” she said.

Furthermore, the changed understanding and ensuing public outrage has spurred legislative action across the country. “Over 1,000 pieces of legislation [limiting solitary confinement] have been introduced since 2009,” Sandoval said, adding that 175 of those bills were introduced in 2023 alone. “People are geared up and ready to do what needs to be done in terms of building more political capital and finding other viable political ways to keep the spirit of Ashker alive.”

In California, anti-solitary organizers pressed lawmakers to pass the California Mandela Act (AB 280) to limit solitary to no more than 15 consecutive days and no more than 45 days in any 180-day period. Last year, a similar bill passed both houses but was vetoed by Gov. Gavin Newsom, who instead directed the CDCR to offer expanded opportunities for rehabilitative programs and increased out-of-cell time for those in restricted housing.

The court’s decision does not become finalized until the court issues a mandate. Meanwhile, attorneys for the hunger strikers are appealing the decision.

Todd Ashker filed the initial 2009 complaint, which became the class-action lawsuit. He spent 29 years in the SHU before being released to general population under the terms of the settlement bearing his name. But his relative freedom was short-lived. Thirteen months later, high-level prison officials ordered him to be placed in administrative segregation even though he had broken no rules. He spent the next six years in isolation until Judge Wilken ruled that his isolation was retaliation for his continued organizing and ordered officials to place him in general population.

Now in general population at Ironwood State Prison, Ashker learned about the panel’s decision from an e-message from Dolores Canales, cofounder of California Families to Abolish Solitary Confinement. “Did you hear about the ruling? We lost,” her message said.

But Ashker disagrees. “We didn’t lose nothing,” he told Truthout in a phone interview. “We exposed CDC[R] for torturing people and we had the whole world condemning them for that. We ended indefinite solitary confinement based on [validation] status. That’s something to be proud of.”

Hundreds have been released from the SHU under the settlement and can now have contact visits where they can hug and kiss their family members. This includes Ashker who, in 2016, was able to hold hands, hug and kiss his wife.

Ashker pointed out that many who have been released after years of isolation can also have overnight visits with immediate family members. Some have even been paroled. This includes Jack Morris, who spent 35 years in the SHU, participated in the 2013 hunger strike, was paroled in 2017, then met and married anti-solitary organizer Dolores Canales in 2022. The couple continues to fight to eliminate solitary.

Anti-solitary advocates pose in front of a life-sized mock SHU cell that they brought to the capitol in Sacramento, California, for a lobbying day on September 7, 2023.
Anti-solitary advocates pose in front of a life-sized mock SHU cell that they brought to the capitol in Sacramento, California, for a lobbying day on September 7, 2023.

On September 7, two weeks after the court’s decision, the pair were among 200 people who converged in Sacramento to lobby lawmakers to pass the California Mandela Act. Over half were people who, like both Canales and Morris, had survived solitary confinement.

“We’re not going anywhere,” Canales told Truthout that afternoon. “We’re still going to be watching, overseeing and exposing anything that CDC[R] does. One thing we have all committed to is making sure that California never returns to the practice that so many people risked their lives to expose.”

Meanwhile, after the assembly paused the bill, Morris told Truthout: “The termination of Ashker underscores the need for a lasting solution on the issue of solitary confinement in California.”

He added: “CDCR has demonstrated time and again that it cannot operate without oversight and accountability. The people of California and the legislature have shown broad support for the Mandela Act and comprehensive legislation on the issue of solitary confinement. It is time that the Governor joined this effort and provides us the safety and accountability we deserve.”

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