Here you can search for articles that have been published in our newsletter. Our newsletter is primarily written by and for prisoners, their friends, and families. You can receive a paper copy at your home (or send one to your relative or friend in prison). We request a donation of $20 or more for four issues to help cover editing, printing, and mailing costs.
Please visit our archive if you would like to download pdf versions of our past issues.
Click on an article's title to see the full text.
Feb 28, 2017
keywords: solitary confinement, torture, step down program, SHU, Prison Human Rights Movement, retaliation, family
From Prison Focus Issue 49
Published in the San Francisco Bayview on December 29, 2017 http://sfbayview.com/2016/12/sitawa-exiting-solitary-confinement-and-the-games-cdcr-plays/
It is very important that you all clearly understand the depth of human torture to which I was subjected for 30-plus years by CDCr and CCPOA.* The torture was directed at me and similarly situated women and men prisoners held in California’s solitary confinement locations throughout CDCr, with the approval and sanctioning of California governors, CDCr secretaries and directors, attorneys general, along with the California Legislature for the past 40 years.
They have allowed for their own citizens – prisoners – to suffer horrible crimes with their systematic process of physically and mentally killing prisoners for decades, with no regard for human life.
I was placed in solitary confinement – the SHU – on May 15, 1985, on trumped-up, illegal and fabricated state documents by two leading CDCr lieutenants, Criminal Activity Coordinator (CAC) Lt. L.O. Thomas and Lt. Suzan Hubbard of North Block Housing (NBH) at San Quentin State Prison. Yes, these two leading lieutenants removed me from San Quentin general population, not for alleged criminal acts or rule violations, but for the politics of the revolutionary New Afrikan political organization and the beliefs and cultural views of the New Afrikan revolutionary leftist organization titled the Black Guerrilla Family (BGF).
I was targeted by CDCr prison officials at San Quentin during 1983 on up until I was removed from the general population (GP) and housed in San Quentin’s Control Units within their solitary confinement housing building, North Housing Unit (NHU). The sole reason for my housing there was that I was educating all New Afrikan prisoners on San Quentin’s GP about our rich New Afrikan history behind California prison walls and across the United States.
I was teaching them that we as a people shall not be forced to deny ourselves the rights in the U.S. Constitution and the California Constitution. Yes, I personally believe that every New Afrikan woman and man has the right to protest any CDCr Jim Crow or Black Code-type rules or laws which violate our human rights as a person or prisoner.
And so I was educating my people to our civil rights and human rights in the California prison system during the 1980s while I was within the GP. I continued to educate my people, the New Afrikan nation, when I was placed in solitary confinement from 1983 to Oct. 11, 2015. It was a tragedy for three decades – yes, 30-plus years I was forced to suffer all forms of torture and witness killings of human life at the hands of CDCr officials and staff for decades, aided and abetted by governors, stakeholders, the Legislature, CDCr directors and secretaries etc.
The New Afrikan Prisoner Government (NAPG) has suffered and endured the violent attacks upon our prisoner community for decades on all levels and functions at the hands of CDCr employees. We have a U.S. constitutional right to resist any form of torture, repression and violations of both our human and civil rights.
I was placed in the SHU, not for alleged criminal acts or rule violations, but for the politics of the revolutionary New Afrikan political organization and the beliefs and cultural views of the New Afrikan revolutionary leftist organization titled the Black Guerrilla Family (BGF).
I shall not be found among the broken men and women! I shall live and die a warrior for our New Afrikan Nation and humanity!
After being transferred from CDCr’s solitary confinement at the Pelican Bay SHU to its Tehachipi SHU during the period of July 10-17, 2014, including a layover in the hellish Ad Seg (Administrative Segregation) unit at Deuel Vocational Institution (DVI), it would not take long before the CDCr officials at CCI (Tehachapi) would show their collective scheme to have me assassinated as the New Afrikan principal negotiator plaintiff in the Ashker v. Brown class action lawsuit.
During our peaceful protest by the solitary confinement prisoner class (SCPC) against Steps 3 and 4 of the CDCr-CCI Step Down Program (SDP), we collectively stopped participating in the dysfunctional SDP at CCI-Tehachipi Prison on May 11, 2015. This was because the SDP has been violating our SCPC liberty interest arising from the Due Process Clause itself, and CDCr had to stop its SDP from imposing stigmatizing classifications and concomitant behavior modification. I realize now that the SDP between 2012 and 2015 violated our constitutional rights, and it still does.
In an obviously sinister campaign to undermine the collective solidarity of our historic Agreement to End Hostilities, these officials tried to manipulate the other racial groups supporting the AEH to turn against me.
First, SHU Counselor Vanessa Ybarra went to one of our 16 Prisoner Human Rights Movement representatives, Gabriel Huerta, and tried to get him and other reps to turn against me, asking Huerta, “Why do you all let that Black inmate speak for you all during this boycott of the Step Down Program? My supervisors want to know.” Correctional Counselor II B. Snider, Capt. P. Matzen, Associate Warden J. Gutierrez, Chief Deputy Warden W. Sullivan, Chief Deputy Warden Grove and Warden Kim Holland are the supervisors she was referring to.
However, things did not go as planned because Brother Gabriel saw right through what this counselor and her supervisors were trying to do in creating a hostile, antagonistic atmosphere and consensus against me by my peers. First, Gabriel asked the counselor, “Who are you talking about?” Then the counselor replied, “Dewberry.” Dewberry is my given last name.
And Gabriel told that counselor, “Dewberry is one of the four principal negotiators who represent the Prisoner Human Rights Movement’s prisoner SHU class. And he is one of the main plaintiffs in the Ashker v. Brown class action lawsuit against CDCr, and he has been speaking on behalf of prisoners from 2010 to right now and he speaks for our best interests as our principal prisoner negotiator!” The counselor turned around and walked out of the sallyport area.
In an obviously sinister campaign to undermine the collective solidarity of our historic Agreement to End Hostilities, these officials tried to manipulate the other racial groups supporting the AEH to turn against me.
Next, the second attempt was by another SHU counselor from 4B building named Vaca, who approached the PHRM representative and other prisoners, then said, “You prisoners should go back to participating in the Step Down Program or all of you who are boycotting the SDP will not be released to the general population this year (2015) or next year (2016), all because you are listening to that Black prisoner.”
When Gabriel Huerta asked Vaca, “What Black prisoner are you referring to?” the counselor responded, “I’m talking about Dewberry. By the way, Huerta, since when do you Mexicans follow what this Black prisoner says?” The Rep refused to play into that old CDCr manipulation game and terminated the conversation by telling the counselor, “You can take me back to my cell,” and left.
So neither of the attempts worked, because Brother Gabriel recognized what time it was. He summed it up in these words: “CDCr had been manipulating and playing us against each other in the past. They can’t do that any longer.”
This life-threatening CDCr campaign leading up to my release out of SHU in October 2015 would be followed by the unprofessional, illegal attitudes and actions by CDCr employees awaiting me as I entered the general population. It was necessary to understand their motives in their dealings with and around me.
Upon my preparing to allegedly be released to general population, I was notified on Aug. 11, 2015, that I would be attending my first Institutional Classification Committee (ICC) hearing in over 30 years which had any meaning. Let’s put this “ICC” into perspective as to why these ICC hearings now have merit for the solitary confinement prisoner class (SCPC).
We the SCPC had to take our struggle to the streets of this world by participating in three non-violent peaceful protests. In the first, commencing July 1, 2011, a total of 6,600 woman and men participated. And when CDCr failed to honor the agreements made to end it, we the SCPC were compelled to enter our second non-violent peaceful protest on Sept. 26, 2011, in which a total of 12,600 men and women participated across this state.
CDCr begged for us to discontinue our protest and allow for them to make the necessary interdepartmental major changes which would release the longest held SCPC first. The four principal negotiators – Brutha Sitawa, Arturo Castellanos, Todd Ashker and George Franco – along with our 16 Prisoner Human Rights Movement (PHRM) representatives decided to suspend our protest in mid-October 2011 and allow for CDCr to show their good faith efforts to reform their illegal solitary confinement policies, laws and rules and place all 10,000 SCPC women and men onto a fully functional general population by Feb. 1, 2013.
We vowed to resume our protest to death or until CDCr negotiates with us in a real way. Yes, on Feb. 1, 2013, the four principal negotiators announced to our tormentors – CDCr, the governor, the Legislature, the attorney general and stakeholders – that we would resume our protest on July 8, 2013, being that CDCr wants to wage their war of attrition against me and similarly situated SCPC.
We the SCPC had to take our struggle to the streets of this world by participating in three non-violent peaceful protests.
On July 8, 2013, we entered into the largest hunger strike in prison history. Some 30,000 prisoners participated and our just cause forced Gov. Brown, California Attorney General Kamala Harris, all CDCr secretaries between 2010 and 2016 and their stakeholders, who all had the current data, to recognize the torturous conditions we SCPC had to endure for decades. I was one of thousands held at Pelican Bay, and I don’t want another woman, man or child to be forced to suffer what I went through. We SCPC observed and suffered the cruel and devastating harm caused by CDCr.
On Aug. 11, 2015, I was approached by Building 8 Correctional Counselor I Vaca at approximately 8:25 a.m. at my cell door for the sole purpose of preparing my central files for possible release to a general population. Vaca informed me that I am the first solitary confinement prisoner class member whose case files he is currently reviewing and that I am scheduled to appear before a full ICC on Aug. 19, 2015.
Now, within a two-hour time period, this same counselor, Vaca, appeared at my cell door with a sinister smirk on his face suggesting that I could now appear before this ICC hearing “tomorrow,” Aug. 12, 2015.
Counselor Vaca was too enthusiastic for me to attend the earlier hearing, so I told Vaca, “I’ll stick to the original schedule date of Aug. 19, 2015,” instead of his suggested new schedule. This counselor was upset at me for sticking with the original ICC hearing date, which was very strange to me and it warranted me to reflect upon his previous misconduct of trying to manipulate and influence other California racial groups – Southern Mexican, White and Northern Mexican – to breach our Agreement to End Hostilities (AEH).
I was one of thousands held at Pelican Bay, and I don’t want another woman, man or child to be forced to suffer what I went through. We SCPC observed and suffered the cruel and devastating harm caused by CDCr.
Vaca had personally tried to have a leading prisoner of each racial group to silence – assassinate – my voice of prisoner activism directed at CDCr and CCI (Tehachapi) officials. These veteran prisoners did not fall for Vaca’s tactics of divide and conquer; they stayed true to our Agreement to End Hostilities.
Now, on Aug. 12, 2015, Hugo Pinell was set up by CDCr officials at New Folsom Prison and killed [by white prisoners]. CDCr delayed my scheduled hearing for over a month and during said time period, three special agents came to interview me about the murder of Mr. Pinell. These three special agents pulled me out of my Tehachapi Prison cage for an interview on Aug. 14, 2016, two days after the murder of Mr. Pinell.
These agents were dispatched by CDCr Secretary Jeffrey Beard and then Undersecretary Scott Kernan [now Secretary Kernan] to come and interview me and two other New Afrikan prisoners and others. The concern that was expressed to me was, how do I feel about the death of Mr. Pinell and would there be an all-out war between the two racial groups?
These are my thoughts in relation to Mr. Pinell’s assassination and my release to a general population: I had expressed to these three special agents, first and foremost, “Why did you all travel from another part of California to speak with me about a death that I have no facts on other than listening to the radio?” I told said agents, “I shall be engaging myself in pushing the Agreement to End Hostilities (AEH). Mr. Pinell would not want for us to enter into a war conflict, especially after we signed the AEH back on Aug. 12, 2012.
“And we, the PHRM, must see that our historical document, the Agreement to End Hostilities, remains firm to our cause and objectives, which are to radically change CDCr’s behavior directed at the Solitary Confinement Prisoner Class, and those of us who have been released to the general population are responsible for enforcing our AEH here behind the walls of California prisons and jails and to curb all community violence across this state outside of prison."
“You agents wasted a trip to come and speak with me. So, when you go back to report on my pro-AEH comments concerning Mr. Pinell’s murder, let your superiors – that is, Gov. Brown, CDCr Secretary Beard, Undersecretary Kernan and the chief of the Office of Correctional Safety (OCS) – know I shall request that you, CDCr, allow for us to be released to the general population forthwith. For we have been held illegally for the past one to 40 years.”
These three special agents never did answer my question as to why did they travel from the state capital to the mountain of Tehachapi Prison to speak with me prior to my being released to the general population. It became a concern to me, because I know that CDCr did not condone our AEH historical collective solidarity document and its objectives. This raised some serious questions in my mind as to why these government officials would direct these agents to interview me. A question they refused to answer.
As you all can imagine, I was suspicious at best about whether I could expect any good faith from CDCr supervisors, officials or staffers upon my release from Tehachapi Prison solitary confinement housing, heading toward Salinas Valley State Prison (SVSP).
On Oct. 13, 2015, I arrived at SVSP receiving and release (R&R), and upon my exiting the CDCr transportation bus and entering the R&R, I was met by three Institution Gang Investigators (IGI), the welcoming crew awaiting me. I was then escorted into a property storage room where it was only the four of us.
Now, these three IGI officers wanted to know my state of mind as it related to the assassination of Mr. Hugo “Yogi” Pinell. I simply informed them that I will be pushing the AEH when I’m allowed to be released to the yard with all racial groups and especially with all of my New Afrikan Prisoner Government (NAPG) and explain to all people the importance of the AEH and that I personally signed off on that historical document. Yes, the IGI made their usual threats.
Now, within the next 10 days, I was allowed to attend the exercising yard, where all of the Afrikan tribes embraced me as their own Big Brutha! As in all situations, I went into my political prisoner activism mode in changing this modified general population prison into an actual functional general population.
There is minimal change. The CCPOA (prison guards) have been doing everything in their power to stop, delay or hinder and obstruct prisoners from being afforded work assignments and real educational opportunity. We are denied full exercising yard hours, vocational trades, the same dayroom time as other 180-design prisoners.
Correctional officers and sergeants continue verbal harassment with their Green Wall attitudes. It is clear that the above-mentioned CDCr employees have an ingrained dislike for all prisoners who are being released from California solitary confinement (SHU) chambers to CDCr modified general populations.
There is minimal change. The CCPOA (prison guards) have been doing everything in their power to stop, delay or hinder and obstruct prisoners from being afforded work assignments and real educational opportunity.
Now, just consider having to be faced with the above matters being denied to me and similarly situated prisoners, while preparing to have my first contact visit with my family in 30 years. Yes, I was compelled to close the lid on the jar and withhold all of this corruption and wrongdoing from my family.
Upon my first visit to see my Queen, my sister, Marie A. Levin, and her husband, Randy Levin, my sister Marie left home in such a rush to come see me that she left her California ID at home, and I was unable to see her that Saturday, but I did have the opportunity to have a conversation with my brother-in-law. It was a great time for the two of us. Now, the following day, Sunday, I was able to see Marie and Randy together, without that thick shield of plexiglas between us.
Now, for the first time in my imprisonment, I was somewhat shaken to the inner core of this New Afrikan revolutionary nationalist man by a simple hug from my younger sister, Queen Marie, during our October 2015 visit. A hug should be a natural form of affection between a brother and sister. However, while my sister was squeezing me so tightly, all I could think about during those moments was of the family members who died, and I will never be able to hug or speak with them again.
They include 1) Stella, my cousin, who died in 1989; 2) Leon, my big brother, who died in 1991; 3) Steven, my nephew, 1994; 4) Morris, my uncle, 1994; 5) Tanner Birk, my uncle, 1995; 6) Tutter, my aunt, 1995; 7) Lonnie, my uncle, 1995; 8) Hillard Jr., my uncle, 1997; 9) Ardis, my cousin, 1997; 10) Ardis Sr., my uncle, 2002; 11) Bobbie Dean, my cousin, 2004; 12) Clifton, my uncle, 2009; 13) James “Ba-ba,” my cousin, 2009; 14) Carol, my big sister, 2010; 15) Nathan, my cousin, 2010; and 16) Queen Mama, lost April 28, 2014.
Each one of them was denied the right and opportunity to physically touch me for over 30 years illegally, due to my political and cultural beliefs – three decades for a “thought crime,” which did not exist. Yet, my family members who have died never having had the opportunity to sit and touch me for decades, because CDC and CDCr chose to make attempts at destroying me physically and psychologically for no other purpose than to break my mind and spirit and those of similarly situated prisoners held within CDCr’s solitary confinement – Ad Seg, SHU etc.!
This is just a window into what we prisoners had to suffer for decades by order of our tormentors – CDCr – and it continues to this day within the realm of CDCr modified general population. Our struggle for justice, equality and human rights continues.
We need the support of all people in California and the world to stop the injustice we suffer at the hands of CDCr officials and especially by the CCPOA and their ilk.
I would be extremely irresponsible if I didn’t seek the support of my New Afrikan people – for example, Marie “FREE” Wright, Erykah Badu, Jada Pinkett Smith, Will Smith, Kerry Washington, Taraji P. Hansen, John Legend, Beyonce Knowles Carter, Dominique DiPrima, Shauntae “DaBrat” Harris, Azadeh Zohrabi, Common, Gabrielle Union, Chrissy Teigen, Alicia Keyes, Lupita Nyong’o, Sanaa Hamri, Kellita Smith, Snoop Dogg, Serena Williams, Jamie Foxx, Janelle Nonee’, Sanaa Lathan, Dana “Queen Latifa” Owens, Keisha Cole, Danny Glover, Yolanda “YoYo” Whitaker, Maya Harrison, Whoopi Goldberg, Harry Belafonte, Tatyana Ali, Tyress Gibson, Tracee Ellis Ross, Oprah Winfrey, Angela Bassett, Bryan “Baby” Williams, Shaun “Jay Z” Carter, and all sista and brutha entertainers across Oakland, the Bay Area and the country.
Yes, our New Afrikan Lives Matter here behind the enemy lines of California’s unjust prison system. On behalf of our New Afrikan prisoner community, I pray that you will show your support for our freedom campaigns and whatever you all can donate shall be greatly appreciated. Please send your donations to FREEDOM OUTREACH, P.O. Box 7359, Oakland, CA 94601-3023.
Note for those less familiar…
*CDCr stands for the California Department of Corrections and rehabilitation – the last word uncapitalized by many prisoners to signify how little rehab exists. CCPOA – California Correctional Peace Officers Association – is the guards’ union, which exerts great influence within CDCr and on state policy and legislation.
Feb 28, 2017
keywords: 13th Amendment, Slavery, Abolish Legal Slavery In Amerika Movement
From Prison Focus Issue 51,
The Thirteenth Amendment marked the discursive
link between the civilly dead felon and the slave or
social nonperson… Once the connection to prisons
and slaves had been made, slavery could resurface
under other names… – Colin Dayan
Amerika is a slave State. A nation who’s wealth and prestige
rests upon the subjugation and exploitation of other humans.
In Amerika this process of transforming People from humans into slaves
is carried out through the “Rule of Law.” Slavery is legal
in the United States. We do not mean it was legal, but it
is legal, and has always – in one form or another – been
a corner-stone of the hierarchal structure of Amerikan
That slavery remains legal in the
U.S., though disturbing, is not as
shocking as the fact that the vast
majority of U.S. citizens don’t know
slavery remains legal.
The U.S. Constitution states, “Neither slavery nor
involuntary servitude, except as punishment for a crime
whereof the party shall have been duly convicted, shall
exist within the United States.” From 1862 to the present
day, Amerikan criminology and legislative effect would be
a series of refinements on this single theme: the systematic
criminalization of New Afrikans, other oppressed
nationalities and the poor; populations designated for
exploitation or disposal by the U.S. from its inception.
The primary rationale for “Amend the 13th” is simple:
There are thousands of dynamic progressive groups
and activists engaging the system in anti-PISC (Prison
Industrial Slave Complex) work – waging the same
struggle at many different points. But this beast is so big,
so powerful, so imbedded in social life in the U.S., that
it is able to ignore, absorb or superficially reform away
our individual attacks, while keeping the heart of all these
contradictions protected under layers of Constitutional
legitimacy and conditioned public support. The heart of
these contradictions is the slavery provision of the 13th
The maintenance of slavery in the U.S. for those subject
to the courts is designed to maintain both the physical
structures of race/class oppression and the (psychological/
ideological) character structures upon which the capitalist
system is based.
U.S. capitalism can not function
without these populations forced to
the bottom rung of society, acting
as surplus labor, human chattel or
Sexism and xenophobia play roles just as crucial as
racism and classism in the U.S. capitalist arrangement.
Amerika, to our knowledge, is the only nation on the
planet Earth which maintains a “legal” provision by
which its own citizens can be reduced to “slaves of the
state” within its national Constitution. Before there can
be any serious talk of degrading the social foundations of
supremacy and hate, we must eliminate their embodiment
The “Amend the 13th: Abolish “Legal” Slavery in
Amerika Movement” is an all-inclusive, coalition-based
national campaign and community-based organizing
effort which is determined to remove the legal and
social basis for the dehumanization of those subject to
the judicial machinery of the United States, and finally
abolish slavery in Amerika once and for all.
The Movement has three (3) basic aims:
1) To amend the 13th Amendment to the U.S.
Constitution to remove its “legal” slavery provision for
all persons; including those found guilty and sentenced
for a felony offense.
2) To abolish and/or repeal all “Civil Death” laws and
social containment statutes which do not afford Prisoners,
x-offenders and their communities full human, political,
economic and participatory rights in social life in Amerika
that derive their power from the 13th Amendment.
3) To develop and implement as quickly as possible
autonomous community-based economic, political and
social infrastructure capable of eliminating, mitigating or
diminishing to the greatest degree the negative impact of
mass incarceration, criminalization and “legal” slavery in
We will seek to accomplish this end via a three-prong
strategy designed to raise social awareness of, and public
opposition to the continuation of “legal” slavery in
Amerika, while simultaneously undermining its basis:
A) Organize a national petition-drive to Amend the 13th
Amendment to remove its “legal” slavery provision at the
Federal level, and a corresponding petition in each state
to rescind all “Civil Death” and social containment “laws”
which derive their powers from the legal slavery provision
of the 13th Amendment.
B) To carry out targeted demonstrations which highlight
the negative social impact and continued existence of legal
slavery in Amerika. Central to this point is educating,
organizing and mobilizing as many People as possible
to support and/or participate in the MILLIONS 4
PRISONERS MARCH on Washington, D.C. on August
C) Promote and seek formal authority for the
implementation of community-based parole, pardon and
clemency review boards based on the concept of “Strategic
Building a successful movement with these aims begins
with developing a competent and effective structure.
Slavery and involuntary servitude for anyone – even those
convicted of a crime – is itself criminal, morally repugnant
and indefensible. In the final analysis, the complete
abolition of slavery in Amerika is a historical imperative.
We invite you to join us in this crucial work.●
Support “Amend the 13th”!
For more information: visit Amendthe13th.org.
AMEND THE 13TH
Let’s Bring It Together
Message from Comrade Malik in Texas
“What I’m proposing is y’all in Cali, us in Texas and the
dudes in Alabama with F.A.M. form a bond of solidarity so
we can push forward on abolishing slavery and amending
the 13th [V]. … I’m just trying to open up the lines of
communication so we can begin our work!”
Feb 28, 2017
keywords: suicide, CIW, mental health
From Prison Focus Issue 51
California Institute for Women (CIW) is responsible for six suicides
in the past two years, the highest rate of any California prison.
Despite new leadership after the warden, Kimberly Hughes, forced
retirement in August 2016, CIW has repeatedly failed
to follow their own mental health crisis policies and
procedures. To date, no correctional officers have lost their
jobs despite the systematic, neglectful failures that led to
these six deaths. Since the start of 2017, there have been
more suicide attempts in the mental health crisis unit at
People are committing suicide because of the inhumane
conditions at CIW, including forcing people into solitary
confinement when they are the most vulnerable. Guards
are indifferent to these deaths and blatantly refuse to follow
CIW’s suicide prevention policy with no repercussions.
When the women experiencing mental crisis ask the COs
for help, they are told to “calm down” and sent back to
their cells where at least two people have hung themselves
in the past year alone. There is a culture of disrespect,
disregard and neglect that is unacceptable!
California Coalition for Women Prisoners (CCWP)
has been working with people inside the prison, family
members and other advocates outside for years: issuing
press releases and legislative memos since the Fall of
2013; having family members and former prisoners
give testimony at legislative hearings; doing petition
and phone campaigns; and demonstrating in front of
Since early 2016, CCWP advocates in the
Los Angeles area have been visiting people inside on a
weekly basis, struggling to see people on suicide watch,
insisting that it cannot be “business as usual” at CIW. We
have called, written, petitioned and emailed to officials in
Sacramento. In early August 2016 , Sen. Connie Leyva
(D, 20th District-Corona) helped family advocates win a
demand for a State audit to examine suicide prevention
and reduction policies, procedures and practices at all the
California prisons. The California State Auditor’s office
is currently in the initial research phase of the audit and has
been contacting community and family advocates (Audit
objectives can be found at: https://www.auditor.ca.gov/
A state audit and a new warden are NOT enough. We
urge the CDCR to interview and listen to family members
and former prisoners; to hold staff accountable for cruel,
inhumane, treatment of our loved ones inside; to emphasize
decarceration as key to addressing the mental health needs
of people inside. We will continue to raise the issues that
people inside say are most critical, and demand justice and
change. Here are some of the key changes people inside
•Change abusive suicide watch policies that only increase
isolation and despair. (See Sleep Deprivation article.)
•Allow people to provide help to each other in need,
Without Punishment. A culture of care and support must be
encouraged and allowed to grow.
•Investigate drug combinations given to people in mental
•Respect and implement bed move requests to keep
Please contact us at :firstname.lastname@example.org and
check our website for updates and action campaigns at:
www.womenprisoners.org Bring our loved ones home
Feb 28, 2017
keywords: X-ray scanners, Petition, Office of Administrative Law, California Penal Code section 6402, Administrative Procedures Act
From Prison Focus Issue 51
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)
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 interpretation of a provision of law," it is exempt per Government Code section 11349, subdivision (f) . 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, 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., 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
keywords: Sleep Deprivation, PHSS, Security/Welfare Checks
From Prison Focus Issue 51
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