Solitary Forever?
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Solitary Forever?

May 2013

At a March hearing in the Oakland federal courthouse, state Deputy Attorney General Adriano Hrvatin barely had time to clear his throat before losing an argument in an ongoing prisoner rights case. "I can tell you I'm not inclined to grant a motion to dismiss," said U.S. District Judge Claudia Wilken. Hrvatin then pleaded for a two-year stay, giving the California Department of Corrections and Rehabilitation (CDCR) time to implement a pilot program updating its gang management policy.

Judge Wilken wasn't buying that, either. "You're describing a changing landscape," she told Hrvatin. "I won't issue a stay for two years - the case would go on for too long. And I'm thinking it's a bench trial." Later during a case management conference, she set dates for a class certification hearing, deposition of expert witnesses, and a trial (next June).

And just like that, the abstract issue of indeterminate solitary confinement in the state's prisons became concrete. The federal lawsuit was filed pro se in 2009 by two members of the Aryan Brotherhood held in the Security Housing Unit (SHU) at Pelican Bay State Prison, built in 1989 just north of Crescent City.

The original hand-written complaint alleged that indeterminate terms of solitary confinement in the Pelican Bay SHU violate the Eighth Amendment prohibition against cruel and unusual punishment, and the 14th Amendment guarantee of due process as applied to gang-membership validation. It languished for two years, was partially dismissed, and then got refiled in 2012 following prisoner hunger strikes at Pelican Bay and other CDCR institutions. The ten current named plaintiffs - all validated members of prison gangs - have been in continuous administrative segregation for periods ranging from 13 years to 28 years. (Ashker v. Brown, No. 09-CV-5796 (N.D. Cal.).)

"No court has ruled on the Eighth Amendment claim," says plaintiffs co-counsel Charles F. A. Carbone, a San Francisco prisoner rights attorney. "The definition of torture is exacting punishment to get information. So-called 'debriefing' to be eligible for release from the Pelican Bay SHU looks a lot like extracting information."

If the SHU Fits
Solitary confinement is the hallmark of so-called supermax prisons, constructed in the wake of inmate rebellions in the 1970s. California houses 5,000 prisoners in SHUs at five institutions, including about 1,100 at Pelican Bay. These prisoners - called "the worst of the worst" by the CDCR - are all validated gang members or associates serving indeterminate terms in solitary. They are confined alone in small, windowless cells for 22 1/2 to 24 hours a day, many of them for gang affiliation rather than for actual behavior.

The corrections department reports that in 2010-11 it cost the state $70,641 on average to house a prisoner in the Pelican Bay SHU. As of 2011, more than 500 prisoners had been in there for more than 10 years; more than 200 for more than 15 years, and 78 for more than 20 years. The only way out is debriefing - convicts call it snitching - as a gang dropout. Somewhere on the "short corridor" reserved for validated gang leaders, Hugo Pinell - convicted of assaulting a San Quentin guard during a 1971 prison uprising - has been in solitary confinement for more than 42 years.

Conditions for segregation in the SHU are subject to a matrix of procedures, distinguished by the CDCR as either administrative or disciplinary, which involve different standards of due process. Prisoners are subject to administrative segregation if they present "an immediate threat to the safety of the inmate or others" (Cal. Code Regs. Tit. 15, § 3335(a) (2013)), and any inmate who affiliates with a prison gang is deemed to present such a threat. Officials must show three independent source items showing "some evidence" of gang affiliation to validate a gang member or associate. (§ 3378(c)(4).) In one recent case, those items included a drawing found in the inmate's cell, testimony from confidential sources, and a signature on a handmade birthday card for a validated gang associate. (Castro v. Terhune, 2013 DJDAR 4458).)

A marathon constitutional challenge to general conditions and procedures at Pelican Bay - filed in 1992 and finally terminated in 2011 - yielded a landmark opinion by U.S. District Judge Thelton E. Henderson. His 345-page ruling led to improved conditions, but it also found that indeterminate terms in the SHU lasting up to three years were constitutional unless prisoners were already mentally ill or at risk of mental instability when placed there. (Madrid v. Gomez, 889 F. Supp. 1146, 1265-66 (N.D. Cal. 1995).)

Ashker challenges that arbitrary standard, claiming that indefinite terms in solitary confinement entail a qualitative difference in punishment. "The key issue is duration," Jules Lobel, co-lead plaintiffs counsel at the Center for Constitutional Rights in New York, told Judge Wilken at the hearing. Conditions at the Pelican Bay SHU, Lobel said, differ from those in the Madrid case in four key ways: intensity, physical and mental harm "akin to torture," denial of socialization and environmental stimulation, and punishment disproportionate to the offenses committed.

"You have to balance the harm with the offense," Lobel said. "The acts of the inmates in this case are trivial compared to the punishment."

Deputy AG Hrvatin contended the plaintiffs had failed to allege specific harm, and failed to show that officials had expressed "deliberate indifference" to the denial of basic human needs. He argued that any due process concerns had been addressed by the CDCR's pilot program for "step-down" debriefings. Authorized by Penal Code section 5058.1, the program, according to Hrvatin, has led to the reassignment of 43 SHU prisoners statewide since its implementation last October.

"The good news is procedural reform," Judge Wilken responded to Hrvatin at the hearing. "The bad news is that a lot of people in the SHU should not have been there."

But who can say? In early February Assemblyman Tom Ammiano (D-San Francisco) and five staff members from the Committee on Public Safety he serves on traveled to Pelican Bay for an inspection tour led by Warden Greg Lewis and CDCR officials. "The visit was scheduled and we had a set itinerary," says Carlos Alcalá, Ammiano's communications director. "We went into the SHU and saw the cells and exercise yard - but not the short corridor. I can tell you we expected harsher, more isolated conditions. In some places there was yelling going on between the cells, so it wasn't entirely devoid of human contact."

Alcalá adds, "The officials emphasized how effective it was to isolate gang leaders on the short corridor, and how their reinterviewing of 150 prisoners calls into question charges of arbitrary administration of the rules. But there was no way to evaluate what we were told." After the group returned, Ammiano chaired a day of hearings before the public safety committee that included testimony from CDCR officials and relatives of Pelican Bay prisoners. Alcalá says Ammiano has no plans to introduce legislation related to the visit.

Carbone, however, emphasizes that legislative involvement is "terribly important" to the Ashker plaintiffs. "The CDCR fears the Legislature because it holds the purse strings, and it can write policy," he says. "If it's smart, the CDCR can moot out the due process claims in our suit by making the pilot program permanent."

Beyond that, plaintiffs counsel - a mix of civil rights lawyers and Gregory D. Hull and Bambo Obaro of the Silicon Valley office of Weil, Gotshal & Manges - anticipate a huge battle over class certification and expert witness discovery. They have focused solely on conditions at the Pelican Bay SHU - and they are realistic about their prospects at trial.

"What do we do with a positive ruling?" Carbone asks. "The biggest question is one of remedy. We know the CDCR will not release these prisoners to the main line. It may be better to agree on a [new] number of years in the SHU before the government has to renew its proof of gang affiliation. The term between validations is arbitrary - we have experts who will testify that for some individuals, just two weeks in solitary is toxic. So we're using a maximum of ten years as a safe bet."

Perverse Results
Ten years in solitary, simply for "some evidence" of gang affiliation? More than a century ago, in response to a habeas writ sought by a convict held in solitary while he awaited the hangman, U.S. Supreme Court Justice Samuel F. Miller chose to notice and review the perverse results of the country's first experiment with the practice, at a Philadelphia penitentiary in 1787. "A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community." (In re Medley, 134 U.S. 160, 168 (1890).)

Justice Miller noted that Massachusetts, New Jersey, and Maryland had also experimented with "the complete isolation of the prisoner from all human society," and found that solitary confinement was "too severe." But that was then. Whether solitary is found to be too severe in the 21st century will be argued this year and next in a federal courtroom in Oakland.


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