Contrary to the state’s official narrative, it was prisoner activism, along with a class-action lawsuit, that set in motion the sweeping changes to the state’s solitary confinement policies that were announced this week.
Years of hunger strikes and litigation culminated on Tuesday with the announcement that California prison officials had reached a settlement with attorneys representing prisoners held in long-term solitary confinement.
“Today is a historic day,” declared Jules Lobel, president of the Center for Constitutional Rights, chief counsel the plaintiffs in Ashker v. Brown, a federal class-action lawsuit seeking to end the prolonged isolation of California prisoners.
Under the terms of the agreement, California will review and release to the general population all individuals in the state’s Security Housing Units (SHUs), which essentially serve as supermax units, who haven’t committed behavior-based violations. The agreement is expected to affect up to 2,000 prisoners.
The plaintiffs in the Ashker case are incarcerated at Pelican Bay State Prison in Crescent City, California, held for ten or more years in the SHU. At the time the lawsuit was filed in 2012, over 500 people in the Pelican Bay SHU had been there for at least a decade, including some who had been there over twenty years.
The Pelican Bay SHU, built in 1988 as the state’s most secure supermax facility, holds over 1,000 people, most of them in solitary confinement. The few who do have a cellmate are crammed together into cells designed for one. In the small, windowless cells of the SHU, prisoners stay in their cells for 22 and a half hours a day, with limited access to programming or stimuli of any kind.
Historically, California used the SHU to house not only individuals who broke prison rules, but also prison gang affiliates, who were identified on often tenuous grounds, such as possession of Black Nationalist literature or artwork deemed proof of involvement in black, white or Hispanic prison gangs. Worse, SHU sentences were indeterminate rather than finite, and the only way to get out was summed up by the saying, “Parole, snitch, or die.”
The ease of placement and retention in the SHU prompted the construction of additional SHUs at other prisons across the state. There are now three SHUs in addition to the one at Pelican Bay, at California State Prison in Sacramento, California State Prison, Corcoran and California Correctional Institution.
The prolonged terms in the SHU and difficulty of being released to the general population prompted the plaintiffs in the Ashker case to lead three statewide hunger strikes. The first began in July 2011, the second in September 2011 and the third in July 2013. The hunger strikes prompted multiple state legislative hearings and spurred a grassroots movement around reforming California’s use of solitary confinement.
In light of the lawsuit’s settlement, an important question remains: How influential were the three hunger strikes held by California prisoners in spurring the sweeping changes to solitary confinement policies that were announced Tuesday?
The California Department of Corrections and Rehabilitation has repeatedly stated that they were already planning to reform long-term solitary confinement before the hunger strikes of 2011 and 2013. But internal documents obtained by Solitary Watch dispute that narrative, showing the hunger strikes did in fact directly spark the first movements toward reform.
In a Tuesday morning conference call announcing the settlement of Ashker v. Brown, CDCR Secretary Jeffrey Beard told reporters that the settlement was only made possible by the department’s proactive efforts to reform segregation policies. Beard explained that the department began looking into reforms of solitary confinement in 2007 and later worked to create a Step Down Program to help transition inmates out of the SHU and back into the general population. Without that program, Beard said, the settlement would not have been resolved.
CDCR spokesperson Jeffrey Callison later clarified Beard’s remarks as saying that “the effect of the hunger strikes and the Ashker lawsuit may well have influenced some of the details of today’s settlement, but that the general direction had already started.”
It is understandable that corrections officials want to avoid giving too much credit to the hunger strike leaders, who were also the plaintiffs in the lawsuit, as doing so might empower future actions against perceived ills.
In downplaying the power of the prisoner protests, the CDCR has proclaimed that they were already working to reform solitary confinement before the July 2011 hunger strike, which was subsequently followed by another in September-October of that year and a third, massive strike in the summer of 2013.
In a press release put out by the department in August 2013, at the conclusion of the last hunger strike, CDCR issued a public response to the demands of hunger strikers. “In May 2011, prior to two hunger strikes that year, the California Department of Corrections and Rehabilitation (CDCR) began revising its gang validation and Security Housing Unit (SHU) confinement policies and procedures,” the statement read.
In October 2013, CDCR released a fact sheet providing background information on the hunger strikes which explained that the July 2011 hunger strike ended “after Pelican Bay strike leaders better understood the…plans already in progress to review and change policies regarding SHU confinement and gang management.”
Most recently, this narrative surfaced in response to a July 1 piece on Solitary Watch, when CDCR sent an email requesting a correction. They said that the Warden’s Advisory Group which proposed reforms to the SHU and prison gang management, was formed two months before the July 2011 hunger strike, not afterwards, as we reported.
The truth, however, is that the first hunger strike directly served as a catalyst for change, and CDCRs own documents verify that.
In a special review dated October 17, 2011, the Office of the Inspector General informed State Sen. Darrell Steinberg of its findings reviewing CDCR’s response to the July hunger strike. “As a result of the July 2011 hunger strike, the department formed a Warden’s Advisory Group (WAG) to review the current gang management program and to develop recommendations for improvement,” the OIG reported. An internal CDCR memo further clarifies that the WAG was formed in October 2011.
In other words, the WAG wasn’t formed before the July 2011 hunger strike, but “as a result” of it.
In September 2011, the hunger strike leaders issued a statement clarifying why the July hunger strike ended, and why they were set to resume strike activity. According to the strike leaders, CDCR Undersecretary of Operations Scott Kernan repeatedly promised the department intended to address their demands. While there was “vague” talk of a step-down program, nothing concrete was presented, prompting an additional hunger strike.
As it turned out, the objectives of the WAG closely mirrored the demands of the hunger strikers: “On October 11 and 12, 2011, the group met to begin development of an improved, meaningful gang management strategy that is consistent with national standards, including: a review of validation and debriefing policies; SHU inmate programming; criteria for SHU placement, retention and release; and the improvement of inmates’ due process protections in relation to gang validation and SHU placement.”
Presented with this evidence, CDCR responded by email to Solitary Watch a brief statement reading, “The OIG’s characterization is accurate.
As explained in a previous post, in 2007 CDCR did commission a report by staff from California State University, Sacramento to review segregation policies in other states and jurisdictions. But the report went unused until the formation of the WAG. The WAG ended up bringing the “vague” talk of a step-down program into reality, and led to the ongoing process of case-by-case reviews of all individuals in the SHU to determine the appropriateness of their isolation.
The stance by CDCR that the hunger strikes did not directly influence the department’s actions doesn’t surprise Taeva Shefler of California Prison Focus, a group working to end long-term isolation in California prisons.
“For them to acknowledge in any form that they did something because interracial, interfaith people from the deepest depths called for changes and 30,000 people responded…that shows there’s still power from within and any admission would be a sign of weakness,” said Shefler.
“On the outside, in tandem with what seems to be a developing movement against mass incarceration, we see a greater focus on torture,” Shefler continued. “You see a lot of groups getting increasingly involved. You see media being created by independent groups. You see legislators taking interest.”
While it may be true that, in the years before the hunger strikes, CDCR did invest some resources in considering SHU alternatives, it is also true that CDCR did not actually do anything with this information until after the hunger strikes began. What this means for dynamics between prison officials and prisoners is an interesting question, but it remains the case that the hunger strikes are what prompted reforms, not the unforced will of CDCR.