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Feb 28, 2017

CPF To File "Underground Regulations" Petition Concerning X-Ray Scanner Searches

By Kim Rohrbach

keywords: X-ray scanners, Petition, Office of Administrative Law, California Penal Code section 6402, Administrative Procedures Act

Prison Focus Issue 51
Spring 2017

Note: Since the time that this article was published, CPF has filed its petition with the OAL, which is currently under review. And, an earlier and apparently similar petition was filed on December 21, 2016, according to information published at the OAL's website. For further details, see http://www.oal.ca.gov/underground_regulations/underground-regulations-under-review/ (as of March 9, 2017) and https://oal.blogs.ca.gov/files/2017/03/Underground-Regulations-Currently-Under-Review.pdf (as of March 9, 2017.)
______________________________________________________________________________________________________________________________________________________

Starting in October 2016, volunteers with the Prisoner Hunger Strike Solidarity Coalition and California Prison Focus began hearing reports about X-ray scanners acquired by the California Department of Corrections and Rehabilitation (CDCR or Department).

By this time, many of our incarcerated readers will have encountered or been subject to the use of X-rays scanners firsthand. Some may have received a November 30, 2016 memo with the subject line "Use of Low Dose Full Body X-ray Scanner," signed by Kathleen Allison, Director of the Department's Division of Adult Institutions.

The November 30 memo states that "the implementation of the Low Dose Full Body X-ray Scanners will begin at selected institutions and expand to incorporate all CDCR adult institutions." Per the memo, the scanners are part of a strategy to prevent the introduction of contraband. The Memo further and presumptuously advises, "It is expected when you are selected to be scanned with the Low Dose Full Body X-ray Scanner, you do so in compliance with the California Code of Regulations, Title 15, Section 3005, Conduct." (Section 3005, in relevant part, requires those in custody to obey "all laws, regulations and local procedures.")

Since October, information on all topics scanner-related has been pouring in from visitors and those in custody, and advocates and activists alike. Concern over the X-ray scanners is widespread and, in our view, well-placed. In response, we are researching grounds for filing an "underground regulation" petition with the Office of Administrative Law (OAL).

BACKGROUND ON UNDERGROUND REGULATIONS AND CALIFORNIA'S ADMINISTRATIVE PROCEDURES ACT (APA)[1]

The APA says that state agencies "shall not" issue, use, enforce, or attempt to enforce any regulations that have not been adopted and filed with the Secretary of State.

Regulations that have been properly filed with the Secretary of State undergo the administrative review (notice and comment) process, which is administered by the OAL. The process can be slow, and the OAL's ultimate approval is not guaranteed. In response to public input and external oversight, an agency may end up revising or amending proposed regulations, or withdrawing them altogether.

By issuing underground regulations, however, an agency can conveniently although unlawfully bypass the process.
This brings us back to Kathleen Allison's memo. Existing (OAL-approved) Title 15 regulations regarding searches and seizures—namely, sections 3287, 3173.2 and 3410.1—do not explicitly contemplate, much less provide for, the use of X-ray scanners per se to search people. Yet, by means of merely issuing a memo, the CDCR can re-interpret and implement sections 3287, 3173.2 and 3410.1 as it sees fit, in disregard of the law.

Notwithstanding the APA's prescription against underground regulations, there are circumstances in which a regulation may be exempt from the APA. To cite one key example: If a regulation "embodies the only legally tenable[2] interpretation of a provision of law," it is exempt per Government Code section 11349, subdivision (f) [3]. This becomes relevant here due to the recent amendment of Penal Code section 6402, effective June 27, 2016.

AMENDED PENAL CODE SECTION 6402

Section 6402 is found in Part 3 of the Penal Code, Title 7 (Administration of the State Correctional System), Chapter 10.7 (Prison Visitation). The amended statute requires the CDCR to "develop policies related to its contraband interdiction efforts for individuals entering CDCR detention facilities." Per section 6402, subdivision (a), the term "all individuals" includes "all individuals, including visitors, all department staff, including executive staff, volunteers and contract employees entering CDCR detention facilities." The word "inmate" or "prisoner," though, nowhere appears in section 6402, inclusive of its subdivisions.

Section 6402, subdivision (f) additionally requires that all individuals "who have a positive alert for contraband by an electronic drug detection device, a passive alert dog, or other technology" be informed of or offered "further potential search or visitation options." Per subdivision (i), the CDCR "shall consider the use of full-body scanners" in determining which "additional search options to offer" visitors and employees. Subdivision (i), however, does not preordain or require that the Department adopt or implement the use of X-ray scanners, or any other specified method of search. This is plain from the language.

Returning to the issue of exemption from the APA raised earlier, we see no single interpretation of section 6402 as being the "only legally tenable interpretation." But we do find that the most plausible and legally tenable interpretation of section 6402 is:

* It is inapplicable to prisoners—although it could be interpreted to allow for an exception where prisoners are just passing through an institution on "standby" (in which case, they become like visitors, staff, volunteers, and contractors circulating in and out of an institution).

* It authorizes the CDCR only to promulgate regulations—for administrative review—that permit the qualified or conditional use of full-body scanners to search individuals entering prison grounds. By its terms, subdivision (i) merely requires the Department's consideration of the use of full-body scanners. Precisely for that reason, any regulations permitting the actual use of full-body scanners would have to go through the administrative review process and would not be exempt from the APA.

NEWS FROM THE GROUND

Information we've received about the X-ray scanners, from allies both inside and outside prison walls, has been invaluable to our efforts. This can not be overstated. Information coming directly to CPF from CDCR officials has been minimal, evasive, and/or inconsistent with other information we have.

What seems to be the case is that X-ray scanners are currently being used to scan only incarcerated people, and on a routine basis following visits. To date, we believe that at least twelve prisons for men and two prisons for women, (CIW and CCFW) have scanners. They are now in use in most of these institutions.

We have heard some reports regarding the frequency with which people may be scanned, as well as whether scanning will occur on a routine basis other than during visits. We welcome additional information along these lines, particularly if it is specific. (If a cop made a remark to you, what was their name and rank? What exactly did they say, and when? If you witnessed or experienced something firsthand, what exactly was it? How many times did you witness/experience the same thing, if more than once, and when?)

It appears that at least two different X-ray machines are being used: the Adani Conpass and the Rapiscan Secure 1000. Visitors have identified a model they've seen as the Adani Conpass; this is corroborated with secondhand information some have received from employees. In January 2016, the Department put in a Budget Change Proposal which included funding for three Rapiscan Secure 1000 SP Body Scanner Maintenance contracts (relative to California State Prison, Solano and Los Angeles County, and Calipatria State Prison). We have a copy of the proposal.

The Conpass is geared toward use in prisons, diamond and mines, and other locations. The Secure 1000 is a much bigger rig qualified by the Transportation Security Administration (TSA) for use in airports.

PRIVACY AND SAFETY-RELATED COCNERNS

The images produced using the Conpass, as depicted in promotional materials available on the internet, are so explicit as to allow for a person's genitals to be seen. An earlier-generation model of the Secure 1000 was pulled from airports in 2013 due to the explicit nature of the images they produced and concerns over privacy. (On an incidental note: We've heard one rumor that the CDCR may have acquired scanners donated by or acquired directly from the TSA, but this information is unsubstantiated. This technology is not cheap, though, and the expenses add up when tallied for some 35 odd facilities).

The CDCR is no stranger to the privacy issue. In a class action filed in 2001, the plaintiffs—visitors at Lancaster State Prison who were being scanned with the Secure 1000—alleged multiple counts including violations of plaintiffs' federal and state privacy rights. The Department stipulated to removing the X-ray scanners in 2008, and as of April 2015, it appears, the litigation was still ongoing.

The privacy "rights" of those in custody are severely abridged, of course, by the "strip, squat, spread, and cough" procedure people undergo during spot checks and visits. However, concern over the cumulative effects of exposure to even very small amounts of ionizing radiation—the type found in X-rays or gamma rays— has also long been part of a broader controversy over X-ray scanners. While the TSA has always maintained that the technology poses no hazard, the European Union prohibited the use of X-ray scanners in 2011 "in order to not jeopardize citizens' health and safety."

The research arm of the National Academy of Sciences,[4] the National Research Council (NRC), publishes periodic reports on the risks associated with low-level exposure to ionizing radiation. Its most recent report came out in 20065 (updating its prior 1990 report). In the preface thereto, the NRC acknowledged the difficulties in understanding the cumulative health effects of low doses of radiation. Yet, it concluded that there's (1) a "linear dose-response relationship between exposure to ionizing radiation and the development of radiation-induced solid cancers in humans"; and (2) there's "no compelling evidence" suggesting this risk is "zero" at any threshold of exposure, though it will be "small" at low doses. Without additional data, the NRC also noted, an assessment can't be made of any connection between low doses of radiation and health effects beyond cancer. We understand these findings to mean that getting cancer is a known risk of being exposed to even low levels of X-rays; a risk that may increase with the number of times you are exposed over time.

The NRC defines the term "low dose," as it pertains to ionizing radiation, as doses "in the range of near zero up to about" 100 mSV (millisievert), or 0.1 Sv.

Relative to the CDCR's current use of X-ray scanners, the concerns discussed above are compounded by questions having to do with their maintenance and repair—not to mention, the adequacy of any training received by officers operating them. The Department's willingness to be accountable to its wards and the broader public is up in the air here, as is too often the case. And, its ongoing expenditure of public funds to acquire and use X-ray scanners raises further questions, to say the least.

POSSIBLE OUTCOMES OF PETITIONING THE OAL

In response to our petition, the CDCR could elect to provide a certification to the OAL that it won't issue or act on the regulations we allege are underground. Action by the OAL or any other state agency would then be suspended, pursuant to Code of Regulations, section 280, subdivision (h). So, while the CDCR would agree to stop issuing or acting on regulations around X-ray scanners, there would be no formal determination from the OAL.

A determination would issue absent such certification, were our petition considered. The determination would state whether the regulations contested are “regulations” for the purposes of the APA, which should have been adopted per the administrative review procedure, but weren’t.

Per Government Code section 11340.[5], a determination, once issued, must be filed with the Secretary of State. The OAL must additionally make the determination known to the CDCR, Governor Brown, and the Legislature, and make it available to the public and the courts. Within thirty days of the date that the determination is published, judicial review of the determination may be sought, asking that it be modified or set aside.

The possibility of a drawn-out legal battle awaits. Yet, because of broad concern over the X-ray scanners—as well as to bring attention to the CDCR’s actions and ensure that it follows that law as required—we feel it necessary to intervene.

______________________________________________________________________________________________________________________________________________________

1 The APA is codified in Government Code sections 11340–11365. Provisions concerning underground regulations are found in Code of Regulations, Title 1, sections 250–280.
2 "Tenable" means " capable of being held, maintained, or defended: defensible, reasonable." See Merriam-Webster, 2017, https://www.merriam-webster.com/dictionary/tenable.
3 Additional exemptions are set forth in Government Code section 11349, inclusive, and Penal Code sections 5058–5058.3
4 The National Academy of Sciences, established by an Act of Congress in 1863, has long advised the federal government on scientific and technical matters.
5 National Research Council of the National Academies, Health Risks from Exposure to Low Levels of Ionizing Radiation (2006)

Feb 28, 2017

Sleep Deprivation Update

By The Prisoner Hunger Strike Solidarity (PHSS) Committee to End Sleep Deprivation

keywords: Sleep Deprivation, PHSS, Security/Welfare Checks

Prison Focus Issue 51
Spring 2017

Dr. Jamie Zeitzer, PhD, recognized worldwide as an expert in sleep and circadian rhythms, concluded in his 10/25/2015 report: “The current practice of 30 minute wellness [sic] checks of inmates housed in the SHU is likely a cause of severe sleep disruption. This type of sleep disruption is likely worse than anything that has been provocatively studied in a laboratory. The known consequences of chronic sleep loss, including disruptions to metabolism, memory, mood, and health, are likely even more severe in these individuals. The mandated purpose of these wellness checks (i.e., suicide prevention) is, in fact, likely to have the opposite effect and inadvertently increase suicidality in these individuals. ...There have been no direct studies of intentionally waking an individual every thirty minutes every night for days, weeks, or months, as doing so would be considered highly unethical in a research environment.”

“Security/welfare checks” persist in SHU's, Ad-seg's, Psychiatric, and Condemned Units throughout CA prisons, waking people locked in solitary confinement every 30 minutes, night and day. The PHSS Committee To End Sleep Deprivation works to end these checks.

In May 2016, we published a survey to elicit information from prisoners about the checks. Soon we'll have a more detailed survey for you to answer about the harmful effects. We want to document the effects in detail to get the checks stopped.

Systematic abuse and neglect caused and/or contributed to six recent deaths at California Institution for Women (CIW). A campaign by surviving family members and CA Coalition for Women Prisoners demanding investigation into those deaths has led to the current Joint Legislative Audit of CIW and all CDCr suicide prevention policies & practices. We have sent materials and communicated with both the Audit Committee and the CA State Auditor, the body conducting the audit for the legislature, urging they recommend a STOP to the “security/welfare checks.”

Suicide expert and Special Master in Coleman v. Brown, Lindsay Hayes and Matthew Lopes, still claim the "security/welfare checks" are suicide prevention despite the sleep deprivation and excruciating mental and physical health problems they cause. Write to Hayes and Lopes (and send us a copy) about how the checks affect(ed) you and what you think true mental health and suicide prevention require, or send one letter to the PHSS Committee, and we will forward it to Hayes and Lopes.

We also ask people not in prison to write Hayes and Lopes and urge them to stop this harmful practice. Share any personal or professional understandings of the need for sleep and the effects of sleep disruption/deprivation.

Mr. Lindsay M. Hayes,
40 Lantern Lane, Mansfield, MA 02048

Matthew A. Lopes Jr., Pannone Lopes Devereaux & West LLC,
317 Iron Horse Way, Suite 301
Providence, RI 02908
PHSS Committee to End Sleep Deprivation, P.O. Box 5692, Eureka, CA 95502

Thank You.

Feb 28, 2017

Proposition 57 Report

By Tom McMahone

keywords: Parole, Credits, Juvenile

Prison Focus Issue 51
Spring 2017

On November 8, 2016 California voters approved Proposition 57, the “Public Safety and Rehabilitation Act.” Governor Jerry Brown sponsored the initiative and the “Yes on 57” campaign outraised opponents, $14.98 million to $1.51 million, despite vocal opposition from law enforcement organizations across the state. Just months before the election, the California District Attorneys Association (“CDAA”) filed a lawsuit to remove Prop 57 from the ballot, citing “unrelated amendments.” Though the CDAA initially succeeded in the lower courts, the California Supreme Court reversed, and the measure went forward. Voters overwhelmingly approved the measure with 64.46% in favor, a total of 8,790,723 votes for and 4,847,354 against.

Prop 57 is the most recent ballot initiative in a series of efforts being made in California to address persistent overcrowding in our prisons. It should be viewed as the next step in the process, following the 2009 order by federal judges in Plata v. Brown that California reduce its prison population to 137.5% of the prisons’ design capacity, the 2011 ruling by the United States Supreme Court in the same case that the overcrowding of California’s prisons violates the 8th Amendment of the Constitution, and the adoption of Proposition 47 by voters in 2014.

This article breaks down exactly how Prop 57 will work in practice so that you can understand which offenses will be eligible, when sentences will be up for consideration, how the CDCR plans to implement Prop 57 parole cases, and the current status of the new regulations. Since the new rules are still in the process of being adopted, this article also updates you on how that process is unfolding, and what it should look like once it’s finished.

WHAT IS PROP 57?

Prop 57 adds a new section to the California Constitution: Article I, section 32. It has three major provisions:
(1) Parole consideration: Any person convicted of a “non-violent” felony offense and sentenced to state prison is eligible for parole consideration after completing the full base term of the primary offense (defined as the longest term of imprisonment for any offense, excluding enhancements, consecutive or alternative sentences).
(2) Credit earning: the Department of Corrections and Rehabilitation will have the authority to award credits earned for good behavior and approved rehabilitative and educational achievements. The Department of Corrections and Rehabilitation will adopt new regulations to implement this process.
(3) Juvenile prosecution: the authority to decide whether or not to try juveniles 14 years and older as adults is removed from prosecutors and conferred to judges.

WHO WILL BE ELIGIBLE?

To be eligible for Prop 57’s parole consideration provision, you must have (1) a conviction for a “nonviolent” offense; and (2) complete the full term of your primary offense. It does not apply to persons serving time in county jail – only those serving time in prisons.

As of the date of publication, CDCR has not yet formally proposed new regulations under Prop 57. Therefor, “Nonviolent” offenses for purposes of Prop 57 are currently still undefined. Until the CDCR writes the new regulations, it is not known which crimes will be considered violent and not eligible for early parole.
The Governor’s office has stated sex registrant crimes will be excluded. Other than that clarification, there is currently a great deal of misinformation circulating about this issue; it is important to understand that these are rumors only. There is disagreement in the legal community over whether the criteria should include all offenses not listed as “violent” offenses in Penal Code § 667.5(c), and the eligibility of second and third strikers. The CDDA campaigned against 57 on the basis that crimes such as Assault with a Deadly Weapon (“ADW”) and Domestic Battery (“DB”) will not be included.

However, it is likely that the following “violent” felonies listed in Penal Code § 667.5 will not be included: murder; attempted murder; voluntary manslaughter; mayhem; forcible sex offenses; rape in concert; robbery; arson; kidnapping; carjacking; certain gang offenses; first degree burglary where a victim is present; any felony punishable by death or life in prison; any felony where great bodily injury is inflicted; and any felony involving use of a gun.

The base term means the normal, base Determinate Sentencing Law (“DSL”) term, without enhancements. For example, even if the court imposed double the term because of a strike prior, you should still be eligible for parole consideration after completion of the normal, unmodified DSL term. It is still not known how much time must be done on the primary term before it is considered “completed” in full. Until the CDCR writes the new regulations, it is not known whether good time/work credits can be applied to the completion of the primary term.

The Governor’s office estimates that 7,000 inmates should be immediately eligible once the regulations take effect and that 25,000 inmates in total will be affected. Over the next year, the prison population should be reduced by approximately 2,000 persons, and by 9,500 persons in 2020-21.

WHEN DOES PROP 57 TAKE EFFECT?

The CDCR is still in the process of adopting the new regulations (changes to Title 15) to implement Prop 57. According to the Governor’s Office, the proposed parole and credit changes are expected to go into effect by October 1, 2017. It is not known when the CDCR will start screening prisoners for eligibility or start holding Prop 57 parole hearings.

Before the rules are adopted, inmates and the public will have an opportunity to participate in a “notice and comment” period. At some point soon, the CDCR will publish the text of the new proposed rules. So make sure you are checking with your law library. Inmates and the public will then have several weeks to send written comments to the CDCR about the proposed rules. The CDCR can then respond and issue revised rules, which will be open to another round of comments. At the end of this process, the CDCR will file the new Title 15 rules with the Secretary of State.

HOW WILL THE NEW CREDITS SYSTEM WORK?

Though many unknowns remain until CDCR publishes its proposed rules, the Governor’s office has released some information describing what it expects the credit earning rules will look like. Generally, it has publicly expressed the goal that the regulations provide more incentives for positive programming. Specifically, in its 2017-18 state Budget Summary, it has suggested promulgating credit earning rules that:
(1) Increase and standardize good-time credit earnings from avoiding rule violations; (2) Allow all prisoners except life without parole and condemned inmates to earn “milestone credits” for completing specific education or training programs; (3) Increase time earned from milestone credits from 6 weeks per year to 12 weeks; (4) Create new, enhanced milestone credits for significant achievements like B.A.’s, high school diplomas, Mentor Certification program and career technical education certifications; (5) Apply retrospectively; (6) Add new achievement credits for sustained participation in rehabilitative programs of up to four weeks per 12-month period; (7) Credit lifers toward the Minimum Eligible Parole date; and (8) Are revocable based on violations.

Ultimately the new rules are supposed to encourage more participation in programs and services, with the overall effects of making the prison environment safer and reducing recidivism.

WHAT'S THE LATEST NEWS?

As of right now, CDCR has not yes released its proposed rules. This means it will be several months at the least before the changes from Prop 57 go into effect. It is estimated that Prop 57 will create net governmental savings of $22.4 million in 2017-2018 and over $140 million by 2020-21. Organizations such as Californians United for a Responsible Budget (“CURB”) are reviewing the Governor’s proposals and sending letters urging responsible use of the funds to invest in affordable housing, community reentry programs, and better mental health care and access. The next step is to check with your law library for a copy of the proposed rules, and to participate in the upcoming notice and comment process.

Feb 28, 2017

Proposition 64 Report

By Tom McMahone

keywords: Marijuana, Legalization, Resentencing

Prison Focus Issue 51
Spring 2017

In one of the many world-changing decisions made by voters on November 8, 2016, California joined several other state jurisdictions that have legalized recreational use of marijuana by passing Proposition 64, the “Control, Regulate and Tax Adult Use of Marijuana Act,” commonly known as the “Adult Use of Marijuana Act” (“the Act”). The passage of Proposition 64 represents a major change in marijuana law.

The Act has four major provisions. First, it permits adults, 21 years of age or older, to legally possess, transport, purchase, consume, or share up to one ounce (? 28.5g) of marijuana, and up to 8 grams of marijuana concentrates. Second, it permits adults, 21 years of age or older, to grow up to 6 marijuana plants per household out of public view. Third, in addition to its legalization provisions, the Act drastically reduces the penalties for other marijuana-related offenses, including the reduction of some felonies to misdemeanors, and some misdemeanors to infractions. Among these are offenses including Health and Safety Code Section 11357(a) (possession of concentrated cannabis), Section 11358 (cultivation), Section 11359 (possession for sale), and Section 11360 (sale, transportation for sale).

Fourth, the Act has a resentencing provision which permits persons previously convicted of designated marijuana offenses to obtain a reduced conviction or sentence, if they would have received the benefits of the Act had it been in place when the crime was committed. In other words, if you were convicted for a crime based on conduct that is now legal under the Act, there is a provision requiring the court to “dismiss and seal” the record of conviction.

In addition to these major changes, the Act creates a number of new statutes to regulate the consumption of marijuana in public and establishes a comprehensive system to control the cultivation, distribution and sale of nonmedical marijuana and marijuana products. As part of that system, the Act creates a marijuana tax to be imposed on sale of marijuana and marijuana products.

Before you get too excited, we note that it is still forbidden for incarcerated individuals in state prisons and county jails to possess or use marijuana. (See 15 CCR § 3315(a)(2)(D) and (a)(3)(E)-(F).) Also, Prop 64 does not make any changes to the laws that make it a felony for incarcerated individuals in state prisons and county jails to possess alcohol or controlled substances without authorization. (See Penal Code § 4573.6 and § 4573.8.)

By far the most important part of these changes for the incarcerated reader are the provisions related to resentencing of previously convicted individuals. As a general matter, most changes in the criminal law tend to be increasing in severity rather than becoming more lenient, and it is also rare that changes in the law such as this are explicitly retro-active in their affect. There are several exceptions to eligibility, most of which involving specified prior convictions, including: (1) “super strike” prior convictions (See Pen. Code, § 667, subd. (e)(2)(C)(iv)); (2) prior convictions requiring sex offender registration (Pen. Code, § 290, subd. (c)); or (3) two or more prior convictions of Section 11359, subd. (b) (18 or over). (See Health and Safety § 11359, subds. (c)(1)-(2).). This means that if you are currently in prison, but eligible for dismissal, the court may still decide that while you are eligible under the law, that resentencing would pose “an unreasonable risk of danger to public safety.”

If you have a marijuana-related conviction and believe you may be eligible for dismissal or reduction, here are the steps you should take:
(1) Contact the trial attorney who handled the case or the Public Defender’s office in the county of conviction to request the list of affected offenses and the Prop 64 Petition Form (you should not expect representation);
(2) Determine whether your offense is on the list of those offenses which are now lawful or qualify for reduction;
(3) Determine that you do not fall into one of the “exceptions” precluding relief based upon a super-strike, prior convictions, or 290 registration status;
(4) Fill out and file a Prop 64 Petition Form. As part of your application, contact the court in the county of conviction to determine if the county will be holding formal hearings on Prop 64 petitions.
(5) This is a filing with the court so you must also file a Proof of Service and serve a copy to the district attorney (“DA”), city attorney, or other prosecuting agency;
(6) Prepare for and attend the hearing.

Under the requirements of Prop 64, the judge is required to presume that you qualify for belief unless the DA proves by “clear and convincing evidence” that you do not. If released, you may still be subject to parole, probation, or another form of supervised release.
The State Judicial Counsel has been tasked with developing forms for you to use in petitioning the court under prop 64, but they are not yet widely available to the public.


Feb 28, 2017

Formerly Incarcerated Advocates Speak Out At California Prison Focus's 25th Anniversary Event

By Kim Rohrbach

keywords: Cointelpro, New Jim Crow, Gary Webb, healing, Watani Stiner, Troy Williams, Mianta McKnight, Raymond Aguilar

From Prison Focus Issue 51

On November 12, 2016, California Prison Focus held its 25th anniversary commemoration at the First Congregational Church in Oakland. The highlight was a panel discussion with Watani Stiner, Mianta McKnight, Troy Williams, and Raymond Aguilar—all formerly incarcerated Californians. Together, their experiences span a significant half-century in this nation's history, from the Civil Rights Movement through what's being called the New Jim Crow era.

Before the discussion got underway, Kim Pollak greeted the public with an introduction into CPF's history and ongoing work. Bato Talamantez, a founding member of CPF absolved in the 1971 San Quentin Six trial, then weighed in with some personal remarks, excerpted here:

"Everything about California Prison Focus started around Pelican Bay a hell of a long time long ago. We didn't have a name at first. We just responded to our friends inside. We had a lot of friends and still do. And they were the ones who ultimately led the Hunger Strike twenty years later: They figured out that it's do-or-die time."

Sharing his recollections of Holbrook Teter, a co-founder off CPF who passed in 1999, Talamantez continued:

"He came to us and used the word 'torture.' And he told us he had been around the world where people had been tortured. And what was happening at Pelican Bay [SHU] was torture. We were saying 'cruel and unusual punishment,' 'the Eighth Amendment,' and all that stuff. That's absurd. None of that works. The constitution does not apply at Pelican Bay."

Each panelist had experienced firsthand—three of them, as mere juveniles—the torture that Talamantez described and had himself experienced: being held in solitary confinement or isolation.

Following introductions, Robert Monico, a CPF volunteer and a graduate student in San Francisco State University's Ethnic Studies Department, facilitated the discussion.

THE PANELISTS' BACKGROUNDS

The senior member of the panel, Watani Stiner, informed the audience that he refers to himself as a Cointelpro[1] survivor, instead of a "political prisoner" or "ex-political prisoner." The term "Cointelpro survivor," he noted, acknowledges the government's role in his incarceration; a topic he briefly took up later.

Stiner spent his early childhood in the Jim Crow south. He remembered it as separate water fountains, separate beaches, having to enter the grocer's through the back door, and so forth.

When he was seven, his mother moved his family to Watts, California. Watts was "a whole different world" than the one he'd previously known. In the south, it had been a "sin" in the eyes of a Catholic-raised child such as he to drink from the whites-only fountain.

As a young adult in California, Stiner married his highschool sweetheart and landed a well-paying job at an aircraft company. But in 1965, Stiner's life was changed forever by the Watts revolt. At that time of the revolt, Stiner explained, "Young people across the country were breaking through racist barriers; we were raising questions about the unequal distribution of power and wealth … and the war in Vietnam." He himself got involved with the Us organization[2] and "found culture, identity" and "a way of resisting oppression." He enrolled at UCLA, and fought to a establish the Black Studies program there.

Stiner's life was soon to change again because of a 1969 shoot-out at the UCLA campus, in which he was wounded and two Black Panthers (Bunchie Carter and John Huggins) were killed. "At the time," Stiner said about the shoot-out, "I didn't know about Cointelpro, and how they instigated and … turned that whole incident into a violent thing, where it caused the death of two human beings." He and his brother were tried and convicted for the murder. They were sentenced to life and sent to San Quentin, then escaped and fled to Guyana in 1974. About twenty years after that, out of concerns for his family, Stiner finally turned himself in to the US Embassy and land back in San Quentin, in solitary confinement. When he was released from San Quentin in January 2015, he hadn't walked the streets of the US as a free man since 1969.

/ / /

Restorative justice advocate, journalist and filmmaker Troy Williams turned fifty in late December 2016. He would have been but a toddler during the heyday of resistance and self-determination organizations like the Black Panthers and Us. Williams prefatorily remarked that he often talks with Stiner (the two both live in the same community in East Oakland) about how the decline of the Black Power Movement gave rise to gangs.[3] "And I was sucked into that world," he added, "even though I didn't want to be."

Indeed, when Williams first learned from his brother at age ten what Crips and Bloods were, his response had been: "That's dumb. Like, why we fightin each other? That don't make sense to me." Yet, the reality was that violence was everywhere around him, and supposed role models, who preached non-violence, did not necessarily practice nonviolence themselves.

Before much longer, when Williams was thirteen, he found himself confronted by six fully grown guys who insisted that he fight. Two of them had beards. He couldn't fight six men, and was chased. He was faced with a devil's bargain: He could run in the direction of the sheriff's station (the scarier of his two options); or, he could try to make it to the other side of the park, where his pursuers wouldn't go, because their rivals would be there.

"I didn't make it," Williams remembered, "so I got stomped out … beat up with chains and all that. And, guess who came to my rescue?

"That rival gang showed up. And they ran the guys off, and next thing I know, I got thirty muscled-down men around me telling me how they got my back. Givin' me some attention that I wish I would have gotten in the household, but I didn't get."

So began William's involvement in "the lifestyle." Two years later, he was in juvenile hall for murder. That was just the beginning of a long story prefaced by getting into about thirty-six fights during his first year in juvenile hall."I've been in the hole [solitary confinement or isolation] countless times," commented Willliams, "I can't even count the amount of times that I've been in the hole in juvenile hall."

At some point after getting out of juvenile hall, Williams became a youth counselor and returned to school for cinemaphotography. Maxine Waters, then Representative for California's 35th Congressional District (which includes South Central Los Angeles), sponsored the organization he was working for as counselor.

Around that time—1996—Maxine Waters was calling for investigations by the D.O.J. and the House Judiciary Committee into journalist Gary Webb's revelations published in the San Jose Mercury News. Webb had exposed that: (1) the CIA-backed Contras in Nicaragua were using profits from cocaine trafficking to fund their guerilla effort to overthrow the (left-wing) Sandinista government; (2) this had been going on for the better part of a decade, with the US government's knowledge and tacit support; and (3) the cocaine being trafficked was being sold to the Bloods and the Crips in Los Angeles by the tons, leading to the crack cocaine epidemic that had spread from L.A. across the urban U.S..

"I was there when Gary Webb broke the story about Cointelpro and all the drugs coming into the community," Williams said, "and … I understood what had happened." Just the same, his understanding was at least initially somewhat superficial, or so he indicated. It wasn't until around 2005, after he'd received a life sentence and eventually got sent to the hole for a long spell, that he began to understand his "internal journey." Gradually he came to more deeply appreciate the connections between the external events that Gary Webb had written about, and his own life, decisions and actions.

"Sittin' in the hole, I started to realize what my part in all of this was," he explained. "Deep down inside, I knew that I was participating in something that I never should have been participated in."

/ / /

The youngest of the four panelists, Mianta McKnight, in her late 30s, and Raymond Aguilar, age 41, are children of yet a third era. When they were born, the so-called War on Crime declared by Lyndon B. Johnson in 1965 had been going on for a decade or more, having ramped up during Nixon's presidency. When they were around kindergarten age, the Reagan administration, proclaiming "Just Say No" on the one hand, was giving the wink and a nod to the Contras' drug trafficking on the other. And, within their lifetimes and before either hit the age of thirty-five, the incarcerated population within this country insanely ballooned by almost six hundred percent.[4]

McKnight and Aguilar were both arrested as juveniles and tried as adults.

McKnight grew up in San Francisco, California, and has been out of prison for about three years. She gave birth to a baby girl almost a year ago, and is employed with Justice Now, an organization located in Oakland that specifically works with people inside of women's prisoners.[5]

McKnight's parents divorced when she was young; a situation common to many born in the 1970's. Her overall circumstances as a juvenile and young adult, however, were less than typical. Regarding her arrest at seventeen, and her experience over the next few years after her arrest, she recounted in painfully clear language:

"My father had married somebody else, and she was molesting my brother and I. She molested me from the age of two until I was about eight, so that went on for six years. And when the sexual abuse stopped, the physical, mental and verbal started, so I held some resentment against her.

"At seventeen, I had a boyfriend—thought we were gonna be together forever—and we decided to rob my house. The ultimate goal was to make her feel what it felt like to lose something, not to kill her; and the end result is that she died in that robbery.

"I was tried as an adult; they did not want to hear what was going on in my house beforehand—because I did say something, I did tell, and nothing changed. So, that changed my belief system, in terms of: The truth mattered. And since I did not feel safe at home, I sought acceptance outside the house, and that's how I ended up with this guy to begin with.

"I made a decision, and my decision cost me something far greater than I was willing to bargain— —cost me the trust of my family; it cost somebody their life, and I ruined many, many things along the way.

"So I entered juvenile hall in Redwood City. They lied and told me I was going home. I didn't see home for a very, very long time.

"I was locked up in X Unit, which was solitary confinement … I did not know what day it was. There were no windows. I hadn't seen my parents yet; I hadn't seen my attorney yet; they came and opened the door and slammed it and told me I was never getting out. I believed them. I told my parents … that if they keep me forever, I'm going kill myself, and I meant it.

"I went through trial; I went to prison when I was twenty-one. … When those gates closed after I made it to prison, I had a panic attack because I knew I'm not gonna make it outta this place. … And, I was told as a young person coming inside, 'Don't worry about it: go ahead and get in trouble: You're never gonna get out; the only way you're gonna leave is in a pine box.' And I almost believed them."

Of how prison guards treat women and girls, McKnight stated, again in painfully clear terms:

"They have … batons now that they use, like they're Ninjas. … They have smoke bombs. They beat us, they rape us, they—kill us. … They would never cram eight dudes in one room, but they'll sardine us in there. … It's dehumanizing to have to ask for sanitary supplies, and prove that you're on your menstrual cycle and say, 'I really need a pad dude.' And still not get it. Use a sock."

Until 2005, male guards had free reign to violate incarcerated females under the pretense of conducting searches for contraband. But, as reported in Prison Focus Number 50, CPF successfully campaigned to prohibit male guards from conducting searches on females. Regarding the prohibition, McKnight had to say, "That was a huge victory, because we were being touched in every way possible by them. So, even if you had nothing on you, they … could grope, touch, grab, feel and everything else. And most of us had been sexual abuse victims; been raped; been beaten; been in abusive relationships. And they knew that and they would use it to their advantage to get us to 'submit': to get us to snitch and everything else under the sun."

Raymond Aguilar had been released from Tehachapi just four months prior to the panel discussion. He lives in Stockton, California, where he grew up, and works as a youth counselor for Fathers and Families of San Joaquin.

"As it stands right now," said Aguilar, "in Stockton—San Joaquin Valley—ninety percent of the kids that are in juvenile hall facing [a] life sentence are boys and men of color. Ninety percent." And, before voters approved Prop. 57 in November, he elaborated, juveniles as young as fourteen were being tried as adults.

"What does that say about the system?" What does that say about our community, that we are gonna give up on our youth and try them as … adults?"

Aguilar's childhood and adolescence, as described by him, underscore a common-sense point that can also be drawn from William's and McKnight's remarks: The lack of a supportive familial environment can have devastating long-term repercussions for a youngster. This is particularly true in a society that throws, foremost, its most oppressed members and those in most need of help into the gullet of the prison system.

Aguilar was tried as an adult at age sixteen after fatally shooting a man who'd robbed his grandmother a year earlier. He told the audience:

"At sixteen, I had a fifth-grade comprehension level. I wasn't going to school. [I] grew up out of a foster care system; I was in and out of shelter homes. … I was being adopted by foster parents who didn't care and who beat the shit out of me, and neglect was all that I knew. …

"When I was sent to the prison system … I was affiliated with an organization inside of prison, because, like brother Troy [Williams] said, that's my family."

At age eighteen, Aguilar was booted from the California Youth Authority into the prison system, and into Pelican Bay, no less. "I was— —young, foolish child thinking I was grown when I really wasn't," he observed.

Of his time at Pelican Bay's SHU, he recalled:

"I started reading books, I started reading newspapers, magazines, just readin to pass the time. … Most of the time, we're learning and educatin' about the organization, and the history of our organization and of our people. When I got to prison and I seen the California Prison Focus newsletter, I looked at it as another newsletter that I could read to pass my time. It took me many days, many months, perhaps even a few years to really understand what the Prison Focus was really teachin' me. …

"This is an intimidating magazine to a kid who don't have an education. I'm lookin' at the pictures. I'm looking at, 'Where's the color up in here?' You know what I'm saying? We're makin' clothes hangers out of this. We're using this as our napkins. One day, maybe I'm using the restroom. Maybe I need this. You know what I'm saying? And it wasn't until that Moses moment when I seen the light. I'm like—sittin' here—and I'm like, 'Should I use this to wipe, or should I use this to read?' So, I'm sittin' here, and I'm looking at this Prison Focus, and when I was done, I said, 'Man, I got to read this again'; I think, 'Somethin caught my attention.' And it was one of the bills that they were trying to pass to help juveniles like myself get out of prison. I said, 'Damn, well this can give me some kind of information that I could use.' "

These days, Aguilar doesn't like to define himself as a gang member, or an ex-gang member. "I'm a formerly incarcerated individual who has educated himself," he specified, "and I want a second chance at life."

CHALLENGES ON THE OUTSIDE

A topic of the November 12 discussion, unsurprisingly, was the different challenges that release from prison entails.

With humor in his voice, Watani Stiner remembered, "I always thought that … the biggest challenge I would have is how to operate a cell phone; a computer." Instead, his relationship with his children proved to be far more fraught than learning to use digital technology.

"Prison provides this buffer between you and your … family," Stiner continued. "Once I got out, I had to deal with all the emotions, the sense of abandonment, the anger." No matter what he knew himself about why he'd turned himself in to the US authorities, it did not negate what his children had gone through during his incarceration. He had to learn to "stand there and accept the anger, and the love," and get to know his children anew.

Troy Williams, too, talked about his own difficulties in dealing with family, particularly when he got out of juvenile hall as a much younger man:

"Corporations didn't want me; jobs didn't want me. I really couldn't even relate to my family, because I didn't understand how the emotional things that I went through— —they was just put to rest; they never were really dealt with. So, as soon as I found myself back in the home, all of that stuff flared up, and I found myself not wanting to be in the home, but not knowing why."

The "not wanting to be in the home" left the younger Williams, who loved his family, feeling conflicted on top of everything else he was going through. Yet, at bottom, he did not know how to cope with, explain, or even understand on his own terms what he was experiencing on an emotional level. "And, in all of the rejection from everybody else in life," Williams added, "even in the appearance of rejection from my family, guess who never rejected me? Right? Duh. … I can go get whatever I wanted from them soon as I hit the block."

Raymond Aguilar described coming out of prison and the SHU thinking: "I'm gonna get myself acclimated … and try to make a difference in my community. Especially, for all the things that I've done wrong, let me now turn around and do something positive and constructive." As his remarks evinced, though, the tentacles of the prison system extend well beyond any prison's walls or the duration of anybody's sentence:

"When I'm paroled, part of my parole conditions is that, I'm on high control. … I'm a validated gang member, and I'm on a gang injunction. How am I gonna be a productive citizen in my community if I'm being paroled 'High Risk, Gang Injunction'? That's putting a bad light on me already. How do you then expect me to get out here and get a job? … How am I going to go into the educational departments and say, 'Hey, let me tell you something: I was once where you guys were at: Let me make a difference?' "

For Aguilar, the "how" was supplied in part by others who were there to extend helping hands. Fathers and Families of San Joaquin, an organization working with low-income fathers and men of color in San Joaquin County, including those formerly incarcerated, engaged him as an employee. In addition, a comrade, who'd himself been in prison and later started his own advocacy organization, also gave Aguilar a break.

Not everybody released from prison, though, meets with the same fortune as Aguilar. Relevant to finding a job and the significant practical hurdles that people face once free of prison walls, Mianta McKnight elaborated:

"One of my target projects [at Justice Now] is working on Prop. 47 and figuring out where the resources are going. … Where's the money going that's supposed to be there for people of color? Women of color; girls? Because those resources are not available. And, as a person of color … that has survived the prison industrial complex [PIC], I see the importance of the resources, and, not just getting out. Cause once you get out, then what? Who's gonna help you? Whose gonna support you? Who's gonna advocate for yourself out here?"

FORGING A PATH FORWARD

In prison, McKnight had to advocate for and rehabilitate herself. The CDCR does not do it for you, she emphasized; in fact, "they actually put every roadblock in your path." Nonetheless, she specified, the skills she acquired inside, that eventually aided her in paroling, are skills she uses each and every day. She fights against the PIC so that her infant daughter "will never see the inside of it." She does so, too, "to help the people inside that don't have a voice currently, as a result of trying to be snuffed and choked out by CDCR."

In contrast, Williams, whose final stop within the system was the mainline at San Quentin, benefitted from the relative abundance of educational opportunities available there. (In this regard, San Quentin is an outlier among the CDCR's thirty-five-odd institutions, thanks to outsiders' efforts.) While at San Quentin, he got a leg up as a journalist and video producer in the making, and as a restorative justice advocate. After regarding an ecology program run by Van Jones with initial skepticism—why should he be worrying about some trees when people died where he grew up?—he reconsidered. That "the way we treat the very thing that sustains us is reflected in the way we treat each other," he ended up realizing, "just made a lot of sense."

Despite having benefitted from the programs at San Quentin, however, Williams is clear on where the keys to personal and social transformation ultimately lay. If you're relying on somebody else to come in and take care of your community, that's "never gonna happen." Instead, people "need to stand up and figure out ways that work for us," regardless of "what comes at us" and "what's going on with this [Trump] election" and everything else. He explained:

"This system is running exactly the way it supposed to run. And if we don't stand up to make a change, then change is never gonna happen. … This is our generation: This is our time: It's not just about the old people or the young people. We gotta get out of that old Willie Lynch-type syndrome, right? And we all gotta figure out a way to come together so that …we can allow our communities to heal in the way that they need to heal. Because irregardless of what goes on, if I don't respond to it, then it has no effect. … An' when we really wanna stop the system, then we gotta stop feeding the system. We gotta stop allowing our young to be fed to the system."

Raymond Aguilar echoed these sentiments. In his hometown, Stockton, he said, politicians foster initiatives like gun buy-back programs; initiatives that happen to make for great publicity, but end up dividing neighbor against neighbor rather than helping anyone.He continued:

"What works is when we go, as formerly incarcerated brothers, and people in our neighborhood, and we take back our community. And we say, 'We are Stockton. We are Oakland. We are Frisco. … And we're gonna take care of our community because, for years, we have harmed our community.' "

A critical aspect of healing one's community, the panelists agreed, is engaging with the young. On this score, Williams remarked:

"I think it's critical that when we drive by a young dude, or a young lady … we stop and have some dialogue with them. Right? Like, 'Wha's up? How you doin? How was your day?'
"If I'm on the yard, we can be mortal enemies, but I'm gonna acknowledge that you standin' in front of me. Nowadays you will walk by … and people won't even acknowledge that you breathin'. Like, that's bad on your spirit. Right? So when we see our young people, let's—listen to them. Let's quit telling them how to think and how to be, and just hear them."

"Because they haven't been heard," added McKnight.

Watani Stiner commented furthermore on the older generation's role in "passing the historical baton" on to the youth. " But at the same time," he cautioned, "we can't just talk about all of the glorification … how great we were during the sixties."

"We also have to talk about … the mistakes, the weaknesses that we had, in order for them to understand and not make the same mistakes … I think that the older generation have that responsibility: Not to become this 'I know it all' or guru ... whose gonna pass that information on to them, but to interact and engage with the younger people. And I find so much hope in…young people today. I mean, I really find a lot of hope."

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1 The FBI says at its website: "The FBI began COINTELPRO—short for Counterintelligence program—in 1956 to disrupt the activities of the Communist Party of the United States. In the 1960s, it was expanded to include a number of other domestic groups, such as the Ku Klux Klan, the Socialist Workers Party, and the Black Panther Party." FBI, "COINTELPRO," May 5, 2011, https://vault.fbi.gov/cointel-pro; last accessed January 26, 2017.

2 Us was formed by Dr. Maulana Karenga (famously the creator of the Kwanzaa festival) and several others on the heels of the Watts revolt. Organization US, "Forty-Eight Years of Struggle, Service and Institution Building," February 2, 2014, http://www.us-organization.org/30th/30yrs.html; last accessed January 27, 2017.

3 During the November 12 discussion, Stiner expounded on this theme, "Once you create a vacuum, that vacuum is filled by something." This phenomena, he noted, can be seen at even the international level—whether with the US in Iraq, or what happened in Syria or Libya. Stiner continued:

"What happened after the demise—or the destruction, the discreditment—of the Black Power movement and most of the other movements— — this vacuum was created and gangs emerged in that. … When I got to prison, I found out that some of the young men I met there are sons and nephews of people who used to be in the movement— —who got chased out of the country, or been killed, or in prison, or into drugs. It's just a whole other dimension."

4 See Mary D. Looman and John D. Carl, A Country Called Prison (New York: Oxford University Press, 2015), 12–13. By 2008, over 2.3 million adults in the US—or 1 out of every 48 working-aged individuals—was locked up. Less than 330,000 were locked up back in 1980.

5 Not everybody inside a woman's prison, as McKnight specified, identifies as a woman.

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