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Mar 10, 2016
keywords: security threat group, prison industrial complex, step down program, racism, government oppression, torture, RCGP, Ashker v. Brown settlement
From Prison Focus Issue 48
It is said, “In times of war, the laws fall silent."
In no time in modern history are these words more relevant than now. It is a time of undeclared class warfare, of oppression by the top 1%, the ruling class, and of tyranny of the despotic oligarchs. It is absurd to see the paradox of our democracy: that in the so-called land of the free there are more people incarcerated and executed, per capita, than in any other western country (at 2.4 million, with a recidivism rate of 43%). Furthermore, political prisoners that do not conform to the rules of the corrupt, despotic oligarchs are validated as a “Security Threat Group” (STG) and are subjected to prolonged or indefinite solitary confinement, aka torture.
The minority/lower class (MLC) is arrested and incarcerated at a higher rate, exceeding any other western nation, under little more than suspicions, speculation and/or assumed gang association. Government officials sanction, commission and conduct widespread torture (in violation of international, constitutional and domestic law which the US wrote and ratified) as well as senselessly kill unarmed minorities with impunity. As I sit and wonder why prisons are taking our lives, it's wise to ask who is to blame for the trials and pains we are forced to endure? Who is to blame for stripping our fathers, mothers and children away from their friends and family for years, decades or lifetimes (often with no physical contact) at the drop of a hat?
Is it the fault of the big businesses that lobby extensively to stay and corrupt politicians with massive campaign contributions, that help pass subversive legislation aimed at furthering prosecuting, incarcerating and oppressing the MLC?
Is it the fault of the government officials in collusion with the bought and paid for media (government mouthpiece) that exaggerate and manipulate facts, isolated incidents and targeted survey statistics, as well as play on people's emotions in order to obfuscate policies in legislation, to further the gain of the private prison industrial complex (PIC) and guards unions (such as corrections Corporation of America, CCA, Association of State Correctional Administrators, ASCA and American Correctional Association, ASA) to control the mobility of the MLC?
Is it the fault of the legislators (primarily Republican) who continue to deprive the MLC of essential benefits that strengthen and sustain a community’s prosperity?
Who is to blame?
Totalitarian culture dictates that in order to subordinate the masses, instruments of oppression need to be imposed and enforced. The manner in which these instruments are utilized and imposed varies drastically:
• Racial Profiling
• Convicting and incarcerating the MLC (with such draconian policies as gang injunctions, gang enhancements, 3 strike laws, mandatory minimums, stop and frisk, vague and ambiguous indictments and gang validations and ‘special circumstances’.
• Sentencing political prisoners who refuse to conform to the oppressive ideology and status quo to indefinite solitary torture!
• Imposing felonies for any major crime/infraction in order to deprive the MLC the right to vote, bear arms and attain financial support and assistance, affordable housing, vocational training and other opportunities.
• Cutting the programs, benefits and financial support for mental and physical health care, higher education, substance-abuse programs, prison alternative programs, welfare, food stamps, vocational/liberal arts/afterschool programs, unemployment benefits etc.
• Inflating college tuition prices, raising taxes and refusing to raise minimum wages to coincide with increased costs of living.
• Intentionally squandering and/or mismanaging tax payer dollars, passing detrimental policies that benefit big business corporations and other institutions aimed at oppressing the MLC, while rerouting public funds to build more prisons and push their agendas.
• Manipulating the American people by means of tautology by the government-controlled media that shapes and corrupts public opinion with excessive coverage of government based agendas, demagoguery, fear mongering, omission of facts, obfuscation of political events, and depriving the MLC of a voice on any news outlets, agencies, Sunday talk shows, or political debates. (This is more prevalent for Mexicanos in matters of immigration, refugee status and border security, despite being Mexican - Americans are excluded from news agencies "immigration specialist" panels.)
These are but a few instruments of oppression used to keep the MLC (and to some extent, the remaining 99%) oppressed, dependent, controlled, incarcerated, and in solitary torture (for the strong-willed political prisoner).
I ask myself, who is to blame?
It's a fact, that in the United States, the American government accepts democracy only insofar as it increases the "legitimacy” of their state objectives. Politicians should take measure, first and foremost, to uphold their integrity and that of their constituency, make changes and implement legislation that advances the prosperity of the people. Michael Chrighton spoke best when he said, "it is the proper function of the government to set standards for the integrity of information it uses to make policies."
It is amazing how easily the masses can be manipulated (by the 1% ruling class) into believing anything they are told, content with meager incomes, by means of low/stagnant jobs/wages and stronger financial gross domestic product (GDP) that only benefits the rich. We are content with an autocratic government/Congress intent to impose subversive policies and laws, with the pretext of change, while strengthening and expanding the ramifications of draconian policies by means of obfuscation through rebranding and relabeling. It is amazing to see the people, time and again, believing the lies spoken by politicians as they are elected to the government offices, in hopes of change, and more so failing to believe that being blinded to reality is not only detrimental to themselves but to their friends, family, children, and generations that preceded them. And so, to those who continue to elect the same government officials that refused to take action, I ask…who is to blame?
The paradox perpetuated by the US government lies in the hypocritical demonization of other countries’ governments (primarily Russia, China, Iran, and the Democratic People's Republic of Korea [North Korea]), civil rights violations, censorship of the press, freedom of speech and expression to government controlled media, while at every step taking more draconian measures and actions. A recent United Nations investigation confirmed that the US has fallen short of the civil rights responsibilities for its handling of protesters in Ferguson and the prolonged solitary confinement of prisoners.
The UN rightly defines solitary confinement as torture. Civil rights violations and ethnic discrimination is emphatically evident through the ever present draconian policies aimed at repressing the disenfranchised, by means of military weapons and equipment, patrolling the streets, and actions taken to suppress protesters, rivalling that of any country. Other examples are the prosecution of children as adults in order to impose life sentences (while criticizing other countries for utilizing child laborers), and authority’s senseless killings of our class with impunity, and repressing any opposition to government policies with violent crackdowns, from occupy Wall Street to immigration protests to Ferguson.
With the most recent forced outage of Bill Moyers and friends, the oppressive censorship of the government and corporate-controlled media has come full circle. Freedom of speech does not exist in our communities, as the laws fall silent and the only media coverage is to push the agenda of the despotic oligarchs. It's not surprising that excessive civilian casualties by US actions, such as airstrikes in the Middle East, are not covered by the media. The NSA continues their mass surveillance on the American people, government bailouts with tax-payer money, and Wall Street-friendly bills, legislation, and tax breaks/subsidies for the rich are spun as a positive. Now the Senate Intelligence Committee CIA interrogation investigative report on torture has been transitioned from cruel and unusual punishment to a debate on effectiveness at best, or accepted as essential at worst.
As a youth, I, as well as our community, was subjected to a poor and inadequate educational system with limited opportunities to pursue advanced education or scholastic studies, due to limited resources. Across the state of California, there are multiple policies and laws put in place to restrict and criminalize the association between neighbors in the MLC communities, deemed Gang Injunction laws, which categorizes practically every minority in our community as a criminal gang member simply for being a Mexicano (or minority). Any trivial arrest or alleged crime in our community is overwhelmed by excessive, vague, and ambiguous charges to link any crime to a street crime, in order to impose a gang enhancement to double any sentence mandated. Furthermore, any speculation of association with your neighborhood friends can potentially find you on a gang injunction federal indictment, subject to excessive prosecution and indefinite solitary torture.
These are but a few of the subversive policies implemented in a minute to appease the P/PIC in corporate interest lobbyists who vie extensively for political favors, in exchange for gifts and immense campaign contributions, in order to pass draconian policies that serve their vested interests, on the pretext of change, while obfuscating their objectives of undermining the peoples and constitutional rights, while propagating the reinstitution of oppressive card for ration, prolonged or indeterminate solitary torture, life in prison and execution on a broader spectrum with no constraints. The policy and instruments of oppression that CDCR utilized to validate me as an ‘associate of an associate’ of a prison gang are the same policies that they rebranded as STG/SDP (Step Down Program) in response to the Ashker vs. Brown class action case, in order to sanction all held in the SHU torture chambers, while providing no reform to which it speaks. The STG/SDP policy upholds all of the previous guidelines with a delusion of additional draconian, big, and ambiguous policies which attribute any action, infraction and/or ‘behavior’ to an assortment of so-called STG/SDP behaviors; behaviors including the prior history of communities, handshakes, workouts, cultural arts and reading material, or the gathering of two or more people allegedly looking suspicious, labeled as “association”). This policy ultimately reverts any ambiguous policy to the discretion of the ICC Staff (§3341.5, §3378.2).
I'd like to take the time here to praise the strong efforts of the collective on both sides of these walls of oppression, for our historical achievements in drawing back the major injustices suffered by all of us here in Pelican Bay SHU, as well as Ad-Seg Units throughout California. Through dedication, sacrifices, and the collective efforts and actions of those of us in SHU, as well as our strong, dedicated supporters on the streets, we were able to make positive changes that have propelled our struggle and efforts forward to meet our ultimate objective of abolishing solitary confinement entirely.
Many individuals who have been in the SHU for years, even decades, are getting released to GP. Though as the great Delores Canales said, "This is only the beginning."
They continue to uphold the same structure and policies of the STG/SDP that condemned us to solitary torture for years with impunity. They continue to uphold the same discriminatory policies that equate any action and assumption to a STG behavior. They continue to uphold the same instruments of oppression to validate individuals on vague speculation, and not actual behavior. They have included many calculated, open ended, and ambiguous policies to allow them to arbitrarily abuse the regulations.
They have upheld the same coercive, self-implicating journals in attempt to compel us to validate any STG label they want to impose on - with no base to any actual "behavior". In addition, they have created a whole new SHU relabeled Restrictive Custody General Population Unit (RCGP) that allows them to circumvent all regulatory policies based on assumed threats to the institution/GP, as they revert back to their same old subversive tactics. As always, we must thank the strong leadership of the representatives, legal counsel, and the collective for having the foresight to institute themselves into the regulatory proceedings, as our struggle moves forward.
Furthermore, the obscene material section essentially restricts/sensors all free speech, press and reading material that they deem oppositional to the status quo, the authority, or CDCR. In addition, the new subversive policies being imposed on the pretext of change are intentionally aimed at expanding CDCR's reach to sanction torture, and expand the scope and spectrum to include any and all inmates in CDCR custody with no constraints, notwithstanding false claims of being a "voluntary program", and that journals are not being used against you, as 33378.3 (b) states "voluntary journals is the only way to progress through the steps", and 33378.3 (a) "participation in the journal program is not intended to be used against you, however, if the information is intended to convey STG threats or activity, it will be evaluated."
These draconian policies are strategically structured to produce adverse effects, as is true for the parole/probation system. I.e. the ramifications of recidivism and failure, assuring a continuation of revalidation, re-incarceration (revolving door policy) and assure as one can never pay their debt to the state. Who are they trying to fool and who is to blame?
We have come to live at a time and place that restricts us of our federal, state, and constitutional rights, with impunity. We as a whole are deprived of our freedom of speech, due process, rights to be free from punishment based on gang association, and right to be free of cruel and unusual punishment (i.e.: solitary torture), to name a few. It is due to the vested interest of the P/PIC that we live in such an oppressive policed state that advocates their ‘war on drugs’, ‘war on crime’, and ‘war on gangs’ that the prison population is ever expanding and the ramifications are more emphatic – at the expense of the MLC communities. Furthermore, politicians, government officials and their lackeys are quick to advocate for leniency, accepting ‘apologies’ ("everyone deserves a second chance", "let's put the past behind us ", and "one should be forgiven for one's mistakes"), and for utilizing their laws for themselves and their cronies when it's to their advantage. On the other hand, they are quick to push for zero tolerance laws and bills to restrict and oppress the disenfranchised.
In our community, this ever present war on the poor and lower class, “leniency, apologies, and the laws” apply to, and benefit, the top 1% and upper-class. They do not exist nor apply to us, as for us the ‘Laws Fall Silent’.
It is the policy of the Republican Party and corrupt government officials that continuing to cut funding for public programs and benefits that deprive us of the opportunities we need to sustain a productive community. It is our tendency to blind ourselves to the reality of the blatant actions of government officials who continue to pass draconian policies to further incarcerate peers, take from our communities, grant subsidies, tax breaks, loopholes, and impunity to the oil barons, Wall Street execs, and big businesses that fund their campaigns and write their laws. It is only in our communities that the wars against our class are being waged, and only for us that the Laws Fall Silent.
It is no wonder that in our times, the most educated minds remain incarcerated around the world, the most fervent informed advocates and those that have the power to produce positive change are demonized as gang members for challenging the status quo and enclosed indefinitely in solitary confinement - torture. In a time when sending meager signs, messages or hashtags on the internet, are being touted as an act of advocacy in support of civil rights, while ignoring the atrocities of the real advocates, demonstrators, and protesters out on the streets, making real change. It is imperative that people reassess their perspectives, values and proclivities. People have an inherent tendency to scrutinize those who do not conform to their views and beliefs, to demonize the ignorant as opposed to inform them, to berate children to get A's in school, homework and tests (when they themselves are not highly educated), and to belittle individuals instead of lifting them up.
We should stop finding it necessary to blame the next man/woman to take responsibility for our own inability to inform and advance our people with the right modes and tools to bring about real change. We need not allow these walls and chains to ever contain nor define us. It is our responsibility to educate our children and instill in them the proper values and morals they will need to sustain them throughout life. It is up to us, whom the youth look to for leadership and guidance, to inform and advance our people with the right moves in tools to bring about real change. We need not allow these walls in chains to ever contain nor define us. It is our responsibility to educate our children and instill in them the proper values and morals they will need to sustain them throughout life. It is up to us, whom the youth look to for leadership and guidance, to inform them that ‘knowledge is power’, not guns and violence. We must organize and strive to inform our people and community of the wrongs and corruption taking place in CDCR and every facet of the government. It is on us to give them the tools and methods they need to produce change; to petition government officials, pass legislation, challenge the court/government’s devious policies, bills, and decisions.
We must have a counterbalance for all of the subversive government's devious policies, bills and decisions.
WE must have a counter balance for all of the subversive government controlled media, which attempts to corrupt the masses into believing any lie, ideology or anything they want one to believe. Such as, but not limited to, distributing informative pamphlets, newsletters and publications, creating instrumental coalition blogs, internet sites and think tanks that address key issues, as well as organizing group discourses, attending town hall meetings, peacefully organized demonstrations, protests and so on. Communication, discourses and organization are imperative factors to precipitate action and change. We need to capitalize on all of the instrumental achievements by such organizations as CFASC, PHSS coalition, CURB and all of our loved ones - our supporters and backbones. It is only by these methods that we will produce change in that we may come to cease asking, who is to blame?
In conclusion, I ask, who is to blame? Who is to blame for being compelled to sign for a violent crime that produced no weapon or witness, for my validation as a political prisoner because I'm Mexicano with strong convictions, tattoos, and because I refuse to be subjected to the status quo (being subjected to a prolonged or indefinite period of time confined in a solitary torture unit)? Who is to blame for being indicted on a RICO for hearsay, assumed association and speculation, or for the 1% ruling class, corporate interest groups and P/PIC utilizing every instrument of oppression to keep us suppressed? Who is to blame for the ‘laws falling silent’ on our communities?
Madness is not the perpetual actions one takes to try to produce change. Madness is a cowardice, using excuses to standby and do nothing! Edward Dowling said, in 1941, "the two greatest obstacles for democracy in the US are first, the widespread delusion by the poor that we have a democracy, and second, the chronic terror of the rich lest we get it." As they continue to try to utilize their instruments of oppression to weaken our resolve, trust that our resolve grows stronger. As the laws fall silent in our times of class warfare, torture, and oppression, trust we will not, as we ask who is to blame?
(The Brown Movement Coalition promotes peace, prosperity, social and economic opportunities and equality for my brown brothers and sisters, minorities and all of our disenfranchised, suffering under oppression.)
Mar 10, 2016
keywords: sleep deprivation, Pelican Bay State Prison, solitary housing unit, "welfare" checks
From Prison Focus Issue 48
For over 5 1/2 months, men in Pelican Bay State Prison Security Housing Unit (PB SHU) have suffered ongoing sleep deprivation from jarringly noisy “security/welfare checks.” The 'checks,' being done every 30 minutes in CA solitary confinement units, are particularly loud and distressing for the women on death row, due to guard aggressiveness, and in PB SHU, where there's an additional problem-- cramped, concrete architecture that amplifies noise.
Forty to forty-eight times daily, checks in PB SHU subject prisoners in small concrete cells to the reverberating “boom” of steel unit doors opening and slamming shut, guards stomping up and downstairs through pods that echo, rattling keys and chains, striking Guard One metal pipes on cells, banging metal buttons to beep loudly at each cell, and shining flashlights into people’s eyes.
In PB SHU, these malicious 'checks' occurred for approximately a month before the 2013 historic prisoner hunger strike. Then stopped. Then restarted on August 2, 2015, as prisoners and the California Department of Corrections and Rehabilitation (CDCR) finalized a settlement in landmark civil rights case, Ashker v. Brown. The 2013 hunger strike, initiated in PB SHU, involved more than 30,000 CA prisoners protesting prolonged solitary confinement and the cruel, inhumane and tortuous conditions. The Ashker case, also initiated by PB SHU prisoners, in California, eliminates indeterminate SHU sentences, prohibits SHU punishment based solely on (alleged) gang affiliation, and is resulting in many people's liberation from SHU to prison general population. It appears that CDCR is attempting to prevent further effective human rights work by prisoners in solitary by instituting a debilitating and internationally-condemned torture technique: sleep deprivation.
These 'checks' in PB SHU must stop! Here in the words of the affected prisoners:
“...[A]s you know, they're killing us with these Guard One/Welfare Checks. ... I don't know what to do? We really are suffering right now and I can assure you that this is worse than the hunger strikes.” PB SHU prisoner Oct 2015
Prisoners in PB SHU consider the 'checks' retaliation for their successes, including the Agreement to End Hostilities (created in 2012): “The prisoners collective spirit is alive! And I believe this is something that the administration feels, and fears! And I think is the reason they have implemented the security/welfare checks!!” Letter from PB SHU, Oct 2015
Awakened 24/7, prisoners are experiencing severe stress, weight loss, dizziness, nausea, headaches, eye problems, stomach and bowel problems, faintness, depression, and accelerated heart rates. They cannot concentrate, exercise, read, write, or do legal work- the things that help them survive.
CDCR claims these 'checks' are suicide prevention, although there have been no suicides in PB SHU for over 10 years. These checks are causing serious psychological and physical harm. They “are counter-productive to their so called intended purpose (mental health care) and serve zero legitimate penological purpose other than to harass and mentally torment us prisoners,” PB SHU prisoner, late August 2015.
Sleep deprivation is a torture tactic used to break people. It can actually lead to suicidal thinking and/or tendencies.
Research shows that interrupted or deprivation of sleep threatens people, living otherwise healthy lives, with numerous chronic and potentially terminal conditions, including brain deterioration, diabetes, cardiovascular disease, strokes, heart attacks, and certain cancers. Risks are remarkably higher for people living in solitary confinement, an already traumatizing environment, with horrendous or completely denied medical care, inadequate and unhealthy food, and a lack of natural light and human contact.
In January 2016, under pressure from the American Public Health Association; demonstrations at PBSP and CDCR; phone, email, and letter campaigns; administrative grievances by prisoners; and inspections by attorneys and the judge monitoring the Ashker settlement, PB SHU checks from 10pm to 6am were reduced to once an hour. However, this change does not alleviate the debilitating and inescapable loud noise and lights, now assaulting the prisoners 40 times daily, rather than 48.
Keep the pressure on to end this torture.
Mar 10, 2016
keywords: Ashker v. Brown settlement, Hinojosa, security housing unit, step down program, RCGP, Institutional Classification Committee
From Prison Focus Issue 48
This report is informed by (1) updates from the Prisoner Hunger Strike Solidarity’s litigation and mediation teams, (2) in-person interviews conducted at Pelican Bay State Prison and Corcoran State Prison within the past approximately two months, and (3) correspondence received by Prison Focus during that same time frame.
The names of incarcerated interviewees and correspondents have been replaced with anonymous designations to guard their confidentiality. Any overlap with anonymous designations used in other reports herein is purely coincidental; each of our contributors assigns their own anonymous designations to individual interviewees or correspondents.
The SHU (Security Housing Unit) law libraries are required to make copies of the full Ashker v. Brown settlement agreement available. The settlement terms in their entirety as proposed in September 2015 were published in Prison Focus #47, available to the public at http://www.prisons.org/publications.htm.
As we go to press, final approval of the settlement agreement in Ashker v. Brown, No. 09-5796 CW (N.D. Cal. filed 2009) is expected pending a January 26 fairness hearing before federal Judge Claudia Wilken.
We are informed that no prisoner has opposed the settlement outright, although one class representative declined to affirmatively approve it. Yet, many have voiced concerns and/or specific objections in correspondence with the Court. Indeed, the case docket reflects the Court’s receipt of letters or successive letters from nearly thirty incarcerated individuals.
Judge Wilken’s order granting preliminary approval of the settlement agreement was signed and entered into the record on October 2, 2015. In conferences before Magistrate Judge Nandor Vadas, Plaintiffs’ attorneys have since raised a number of issues, including but not limited to:
-The order in which reviews are being conducted, especially with respect to those who would be released from prison once released from the SHU due to the recalculation of credits going forward for good behavior and participation (“good time” credits)
-The prosecution of leadership and recruitment as SHU-eligible offenses, absent any evident connection to actual conduct
-Overall conditions at the soon-to-be-opened Restricted Custody General Population (RCGP)
-The execution of thirty-minute “welfare” checks, a particular problem at Pelican Bay and one that has forced prisoners to endure sleep deprivation for about half a year
Plaintiffs’ attorneys have additionally been concerned that the CDCR will be unable to review the cases of all prisoners affected by the agreement within the one-year period mandated under its terms. Yet, we are informed that the most recent figures disclosed by the state (not available at the time of publication) have somewhat assuaged this concern.
A subject that has been on our minds at CPF is how the Step Down Program (SDP) is currently being implemented. The SDP was initially launched well in advance of any real movement on the Ashker settlement, but we are wondering how things have played out since a tentative settlement was reached. We hope to hear more specifics in the weeks and months ahead.
A discussion of most of the above topics follows, supplemented by such relevant information as CPF has directly received from inside.
"GOOD TIME" CREDITS
Our non-incarcerated readers may be unaware that "good time" credits are a matter of critical importance to those in prison. Credits earned amount to a sentencing reduction, one that can prove significant. Indeed, the recalculation of credits moving forward, for those who’ve spent time in a SHU, may mean not only release from the SHU but release from prison altogether.
An untold number of the CDCR’s wards have endured torment in the hole (as the SHUs and other forms of restricted custody are referred to) for up to decades on end as a result of having been deemed gang-affiliated. Some persons so confined have gone years on end without being written up for substantive rules violations. These facts are central to the claims asserted in Ashker. Regardless, good time credits have been unavailable in any recent year to those serving indeterminate SHU sentences due to their status as gang affiliates.
Many who fall into this camp have release dates that would be changed to a much earlier date had they been earning good time credits while in the SHU. Mr. G is an example. He informed CPF’s investigative team in November that his earliest possible release date was currently set for after the year 2030. Had he been earning good time credits while in SHU, he indicated, his earliest possible release date would be just four years from now.
To be clear and to counter any rumors to the contrary, the settlement agreement in Ashker will not restore good time credits lost due to time spent in a SHU. But it will allow those released from the SHU to earn good time credits moving forward.
Also, independent of the Ashker settlement, there’s hope that the latest decision in Hinojosa v. Davey (No. 13–56012, 9th Cir., September 25, 2015) may provide relief to some individuals depending on their individual case factors. A word of caution here, though: A petition for writ of certiorari, filed by the state in December, is currently pending with the US Supreme Court. The possible effect of the writ and of the aforementioned 9th Circuit decision will be taken up in a moment.
AN ASIDE REGARDING HINAJOSA
In Hinojosa, the plaintiff was “validated” as a “gang” associate in 2009 and was placed in the SHU. At that time, he was eligible for good time credits under Penal Code section 2933.6, although at a reduced rate. Section 2933.6 was however later amended, and effective January 25, 2010, good time credits were completely eliminated for those in the SHU because of validation.
Plaintiff Hinojosa filed a writ of habeas corpus in superior court in protest. He argued that amended section 2933.6 constituted an ex post facto law (meaning one with retroactive force) prohibited by the Constitution. As such, he asserted, it effectively increased his sentence for the underlying 2003 conviction that had landed him in prison.
The trial court denied Mr. Hinojosa’s application for relief. California’s Court of Appeal and Supreme Court did the same, without issuing opinions. Hinojosa then filed in the US District Court, was again denied relief and appealed once more. In September 2015, the US Court of Appeal for the 9th Circuit ended up reversing/remanding the lower court’s decision, ordering that a writ be granted.
Amended section 2933.6, the 9th Circuit panel held, violates the Constitution’s Ex Post Facto Clause as applied to prisoners who, like Hinojosa, “committed their underlying criminal conduct” before the amendment’s enactment.
Absent a higher state court or US Supreme Court ruling stating otherwise, the state appellate cases that reject the Penal Code section 2933.6/ex post argument are binding on superior courts. Meanwhile, California’s appellate courts and Supreme Court may follow but don’t have to follow the 9th Circuit’s ruling in Hinojosa, because 9th Circuit decisions aren’t binding on state courts.
Further complications arise concerning the applicability of the 9th Circuit’s latest ruling in federal district court. These have to do with rules under AEDPA (The Anti-Terrorism and Effective Death Penalty Act). Hinojosa successfully argued before the 9th Circuit that AEDPA was inapplicable, since no state court had decided his petition on its merits. But this circumstance won’t be present in every case in which a plaintiff raises the ex post facto argument.
The Prison Law Office is recommending two courses of action for those who believe, for the same reasons set forth in Hinajosa, that they should get credits for time spent in a SHU. The first it to wait and see if the US Supreme Court reviews the state’s writ and agrees with the 9th Circuit; and, if the CDCR takes action to more broadly apply the it other prisoners. The second is to file an administrative appeal (602) citing Hinojosa to support a request for additional credits. As for the latter option, the Prison Law Office qualifies in a bulletin date November 2, 2015, that the CDCR will “almost certainly deny administrative appeals and the state courts at all levels will very likely deny habeas petitions on the ex post facto issue” (see http://prisonlaw.com/wp-content/uploads/2015/12/Hinojosa-v.-Davey-Nov-2015.pdf).
PROSECUTION OF LEADERSHIP AND RECRUITMENT ABSENT ACTUAL CONDUCT
Since September, when a proposed settlement in Ashker was announced, hundreds of prisoners have been released from the SHUs into the general population, aka the main line. Scores have been recommended for release and are awaiting transfer. Others still face placement in the Step Down Program (SDP) while remaining in SHU. The latter are eligible for future release to the main line, contingent upon successful completion of the program, which is nominally shortened to twenty-four months under the settlement agreement.
Within the past year or so, CPF has heard reports of people released from SHU being returned to segregated housing/solitary on new 115s (Serious Rules Violation Reports). We’ve also repeatedly heard about people in the SDP being retained in a step, or regressed to an earlier step, for purported disciplinary reasons. (The settlement agreement doesn’t allow a person to be regressed to an earlier step. But refusal to participate in the SDP or to complete program “components” can result in a person being kept in Step 3 for an extra six months, and eventually being put in the Restricted Custody General Population [RCGP] to resume in Step 3.)
These accounts, coming by and large from persons caged at Pelican Bay, continue regardless of the developments in Ashker. Many of them tend to be generalized and short on detail. That being said, we have recently received a couple of particularized reports of individuals being placed in Administrative Segregation, for possible or likely return to the SHU, following their release into the general population.
In both of the aforementioned reports, allegations of leadership and/or recruitment are implicated. Moreover, in both, it appears that “information” supplied by sources whose identities are kept confidential has been relied on to support allegations. This is according to Mr. B, who we interviewed in November, as well as Ms. W, who wrote to us in October about an incarcerated loved one. In the incident described by Mr. B, allegations were pursued against several prisoners.
Mr. A similarly informed CPF’s investigative team in November that he’d been written up twice for leadership. He was in Step 2, and wondered if he’d be kicked out of the SDP due to the new 115s. Our interviewer did not ask him the dates of the write-ups. So, we don’t know if they occurred before or after the settlement in Ashker was tentatively announced, or before or after it was preliminarily approved.
Many class representatives and class members are considered de facto “leaders” by the CDCR, irrespective of their records of actual conduct. Among them are a number of outspoken and politicized individuals, as our regular readers are aware. Meanwhile, the use of confidential information in support of accusations levied against prisoners is not barred by the settlement agreement.
The agreement does require that a SHU assignment be conduct-based. Yet, leadership and recruitment remain recognized as “SHU-eligible” offenses. The SHU Term Assessment Chart attached as part of the proposed settlement agreement submitted to the court in September 2015 includes:
-“Acting in a leadership role by directing or controlling STG [security threat group/gang] behavior” listed as SHU-eligible behavior
-“Recruiting inmates to become an STG affiliate, or take part in STG activities that is a behavior [sic]” listed as SHU-eligible behavior
Leadership and recruitment are respectively punishable by a SHU sentence of 6, 12 or 18 months, and 3, 6 or 9 months, the Chart specifies. (All SHU-eligible conduct, from indecent exposure to attempted murder or voluntary homicide, is punishable by a finite SHU sentence ranging between months and years.)
A major victory with respect to the settlement agreement is its proscription against indefinite SHU sentences, and more specifically, against indefinite SHU sentences based on validation status alone. That being said, one’s validation status becomes highly relevant where SHU-eligible conduct with an “STG nexus” is alleged and followed by a “guilty” finding. The implications of such a finding may vary for individuals, depending on extenuating circumstances. But they will often involve spending more time in restricted custody once the sentence for the offense itself (or for any sentences imposed consecutively for additional offenses) has been completed.
A finding of guilt on SHU-eligible offense with an “STG nexus” (or two such findings within the past four years, if you are labeled “STG II” rather than “STG I”) will mean that, after completing a finite SHU sentence, you will not be sent back to the general population. Instead, you’ll remain in the SHU to participate in the SDP.
If you’ve spent ten-plus continuous years in the SHU and are found guilty within the past two years of a SHU-eligible offense with an STG nexus, you will not be released to the regular general population. Instead, you will be placed in the RCGP to complete the SDP and any remaining time on your finite SHU sentence. This holds true even if your overall disciplinary record throughout your confinement has been for the most part clean.
If you complete the SDP “components” while in the RCGP, yet are found guilty of one serious or two administrative “STG-related” rules violations during a 180-day review period, you will remain in the RCGP for another 180 days. At the end of the 180-day period, you’ll be reviewed again to determine your eligibility for release to the regular general population.
For our readers on the outside, it must be said that attorneys are not allowed to represent people who are administratively challenging write-ups for rules violations. Attorneys can only enter into the picture once a prisoner has exhausted administrative remedies and is taking action in court.
To further complicate things, let us return to the earlier mentioned language contained within the SHU Assessment Chart. The definition of “acting in a leadership role” implicitly equates “leadership” with successfully “directing or controlling” others to engage in SHU-eligible conduct that actually occurs. In other words, an “STG nexus” is seemingly built in to the definition—notwithstanding the fact that any alleged nexus must be “proven” under the settlement agreement to be of consequence. The same is true of the definition of “recruiting others,” inasmuch as it implies that this activity has the inherent or inevitable result of causing others take part in actual SHU-eligible behavior.
As earlier stated, those with ten-plus years in the SHU can be placed in the RCGP if found guilty within the past two years of a SHU-eligible offense with an STG nexus. The settlement agreement further recognizes that prisoners subject to transfer to the RCGP include those who:
-“Refuse to complete required Step Down Components”
-“Are found guilty of repeated [three to five] STG rule violations while in the Step Down Program”
-“Face a substantial threat to their personal safety if released to the general population”
We are informed that the RCGP unit at Pelican Bay (the sole RCGP unit affirmatively contemplated by the settlement agreement) will be opened by the time that this issue of Prison Focus is distributed, absent extraordinary problems.
As of January 12, we understand, the CDCR had at least five individuals ready to be put in the RCGP. The state has indicated that all persons placed there, regardless of why, will get a contact visit soon after they arrive there.
As for those transferred to the RCGP strictly for the reason of personal security, they will get one contact visit every sixty days under the agreement. The Ashker plaintiffs’ attorneys contend that they should get contact visits as frequently as people in the general population: To be clear, no pretense of guilt in regard to any prohibited conduct is needed where personal security is invoked as the reason for putting somebody in the RCGP. Nevertheless, word is that the CDCR will grant regular visits only if the logistics can be worked out.
The RCGP comprises sixty-four cages, arranged in rows of ten or twelve up and down. All of them, we understand, will be converted to double-cell. All have windows of a sort, although some (maybe eight or so) were covered with Lexar or other material when the Ashker plaintiffs’ attorneys initially toured the RCGP in October. The attorneys have asked that these windows be replaced.
A day room is provided with affixed tables, affixed benches along the walls, a toilet and a sink. There are also telephones. Although the room is said to be spacious, it admits no natural light.
The RCGP’s yard also has a toilet and sink, as well as a shower. It was devoid of equipment as of October, but some equipment is/was be installed, we are told. Sixteen exercise cages are located near the yard, for those whose personal safety is deemed a concern.
Those in the RCGP, we are told, will be let into the day room for some three to four hours daily, and will be let into the yard for around two hours daily. Four outside groups, including AA and NA, will run programs on site.
A kiosk might be installed in an anteroom (passage or hallway) between the day room and yard, to provide computer access to materials from the law library.
In short, the RCGP unit will not be in every aspect a SHU. Barring lock-downs, people there will have daily interactions with others who are not cellies or guards, will daily be able to spend a few hours out of their cells, and will be able to make calls to loved ones, depending upon phone access and on their/their loved ones’ ability to afford Global Tel Link calls.
INSTITUTIONAL CLASSIFICATION COMMITTEE (ICC) REVIEWS MANDATED BY THE SETTLEMENT
Pursuant to the settlement agreement, the ICCs shall review the cases of all STG-affiliated individuals in the CDCR’s SHUs at Pelican Bay, Corcoran, Tehachapi and New Folsom; all of which are male-only facilities. (The ICCs are the same committees that placed STG-validated individuals in the SHU to begin with.) These reviews must be completed by October 12, 2016.
We understand that as of January 12, 631 such reviews had been conducted, with 503 people having been recommended for transfer to a GP facility, and 397 of the latter having actually been transferred. The remaining 128 people who received reviews either “decided” to debrief, or were referred to the Departmental Review Board (DRB) for further review. The DRB can order people released to the main line, to the RCGB, or to other housing assignments.
A large number of reviews are required at Pelican Bay in order to comply with the October 2016 deadline for completing reviews. We are informed that reviews at Pelican Bay have been happening at an accelerated pace lately, as compared with earlier in 2015.
A failure by the CDCR to comply with the deadline, or with other terms of the settlement, could be used to show a preponderance of the evidence in support of extending the monitoring period afforded by settlement agreement. The monitoring period, initially established at two years, may be consecutively extended for one-year periods upon an evidentiary hearing. Yet, this is cold comfort for those disappeared into the SHUs and still waiting for relief.
On a related note, CPF has repeatedly heard over the months from men in the SHUs as they watch long-time cellies or neighbors depart to the mainline, or to other institutions for placement in the SDP. Entire pods empty out and/or turn over, with younger and more recently “validated” prisoners replacing those who’ve left. This appears especially true at Pelican Bay, and was a resounding theme when CPF was there a couple of months ago.
A boon to those of us on the outside has been hearing reports from fellows who have been physically reunited with loved ones after up to decades of separation, laughing and sharing food with them and taking pictures. Many have described in vivid terms the positive effect that contact visits have had for those formerly in a SHU. It’s been an equal boon to hear reports from fellows who, for the first time in a decade or more, can enjoy being able to unhurriedly shave with real razors in front of real mirrors that allow them to see their entire faces; being able to control the light in their cell, switching it on or off or to dim; being able to eat chicken off the bone and warm up food in a microwave; being able to move outside of their cell without being shackled, as disorienting as the experience may initially be after dealing with the converse for so long….
STEP DOWN PROGRAM (SDP)
CPF wants to know how the SDP is currently being implemented on the ground. We have limited information on this subject, but what information we have could use some clarification and precision.
The SDP, as contemplated within the settlement agreement, is not the SDP as implemented by the CDCR some years ago. The question therefore arises, which SDP-related regulations or guidelines apply to whom? It is possible that those who’ve been placed in the SDP, but who have yet to be reviewed under the Ashker settlement, are receiving treatment that differs from those currently being placed in the SDP.
The below provisions are contained within a document entitled “Inmate Privilege Groups,” attached as part of the proposed settlement agreement submitted to the court in September 2015. As confusing as all of this is, please be advised that below references to Step 5 are moot, inasmuch as paragraph 19 of the agreement explicitly eliminates Step 5.
“Small group yard” in Step 4 is supposed to be provided “as determined by the ICC” for a minimum of ten hours per week in Step 4, under the settlement agreement. The opportunity to participate in “small group programs” is supposed to be afforded at least four hours per week in Step 4, and two hours per week in Step 3.
The agreement also allows SDP participants, no matter what step they’re in, to make “emergency” phone calls. It also provides for one additional phone call per each 90, 60, 45, or 30 days, depending on whether you’re in Step 1, 2, 3, or 4, and contingent upon your participation in “programming” without incurring serious discipline. (Those in [eliminated] Step 5 get one additional call, period.)
The latter contingencies also apply in regard to allowances for photographs for those in Steps 2–4, who may receive an additional photograph per progression. (Those in Step 1 get one photograph, period. By way of comparison, those in the SHU but not in the SDP get one photograph annually.)
People in Steps 1–3 are allowed one package, not to exceed thirty pounds “exclusive of special purchases.” Those in Step 4 are under the same restrictions, except that they may receive “an additional fifteen-pound food package.”
In (eliminated) Step 5, a person gets four packages “per year,” not to exceed thirty pounds each. Special purchases may also be allowed under Title 15 subsections 3190(j) and (k). A person in (eliminated) Step 5 additionally gets one photograph upon of each 180-day review, as well as one phone call per month in addition to emergency phone calls.
In Steps 3–4, “all inmates shall have access to GED, high school, and college level educational programs, with adequate academic support.”
This writer presently has no information that clarifies why certain information is absent from this document. E.g., it is specified that those in (eliminated) Step 5 get four packages per year, whereas there is no similar qualifying language about the one package that people in Steps 2–4 are allowed. (Under the agreement, a person can spend a year or upward completing Steps 3–4 in the RCGP.) And, while access to GED, high school, and college level educational programs is mentioned in regard to Steps 3–4, it is not mentioned with respect to other steps. Why should equal access to educational programs not be a no-brainer no matter what step a person is in? Providing such access would be consistent with the CDCR’s intent, as stated within the settlement agreement, of promoting critical life skills.
Mar 10, 2016
From Prison Focus Issue 48
As stated at the beginning of Mr. Perez’s article, his lawsuit, Perez v. Prelip (No. C 13-5359 (N.D. Cal. filed 2013)), alleged two causes of actions against the defendants: First Amendment Retaliation and Conspiracy. Punitive damages were additionally sought for malicious and willful conduct.
The defendants found guilty on the retaliation count, to be specific, were Officers Anthony Gates, Daniel Gongora, Eric Healy and Guillermo Pimentel. According to Officer Pimentel’s testimony, they and the remaining defendant, Sean Burris, constituted five out of seven Assistant Internal Gang Investigators (AIGIs) employed at Pelican Bay at the time of the events alleged in the lawsuit. *
Of the guilty defendants, all but Pimentel were promoted after violating Mr. Perez’s constitutional rights. Gongora was raised to the position of a correctional counselor, and Healy and Gates were made sergeants. David Barneburg, key witness for the defense and at relevant times the lieutenant overseeing Pelican Bay’s Internal Gang Investigation Unit, was also promoted—repeatedly. As of the November trial, he was serving as Pelican Bay’s Associate Warden of Healthcare and Operations, he testified.
No affirmative finding was returned on the count of conspiracy: As the jurors informed Judge Chhabria in writing before delivering their verdict, they were “hopelessly deadlocked” as to two defendants. A mistrial was therefore declared as to the two defendants in question, Gates and Healy, whereas Officers Gongora, Pimentel and Burris were absolved. With respect to the claim of malicious and willful conduct, Officer Gates was however found guilty, unlike his co-defendants.
Regardless of the jury’s partially hung verdict on conspiracy, some discussion of the facts and evidence relevant to this claim is instructive.
First, there was no dispute as to the following facts: Mr. Perez was validated as an associate in 2003, and challenged his validation in a lawsuit filed in 2005. The cell search precipitating his second lawsuit occurred October 10, 2012. As of October 10, 2012, Mr. Perez had no serious rules violation (RVR). He was subsequently issued a serious RVR, on October 21, in connection with the cell search. This was for allegedly willfully resisting or obstructing a peace officer. The RVR was dismissed on November 18, 2012—but as of October 21, an associate found guilty of a serious RVR with a gang connection, otherwise eligible for release into the general population, could be retained in the SHU under the Security Threat Group (STG) Pilot Program.
At trial, David Barneburg testified that he sent an email to three IGIs on October 10, 2012, including Pimentel and Burris, as well as to Sergeant Dornback, a first-line IGI supervisor. In the email he stated: “FYI review inmate Jesse Perez…for new validation. (Think Castro case.) This needs to be completed as soon as possible….See attached.” The attachment referred to was entitled Request for Settlement Authority, and referred to Mr. Perez’s case challenging his validation. That case was in the process of settling but had not yet settled.
Barneburg claimed that he had sent the October 10 email after receiving an email from his counterpart IGI lieutenant at Tehachapi, Josh Tyree.** Tyree, he further testified, had informed him that John Prelip, a senior special agent at the Office of Correctional Safety, “would be asking for us to complete a cell search—excuse me, complete a validation review.”
Why any “validation review” would have been required or justified is a fundamental question. Under the six-year active/inactive review policy that predated the Pilot Program, Mr. Perez was not up for an active/inactive review any time soon, having received his latest in 2009. Under the Pilot Program, he would have been eligible for a four-year review by the Departmental Review Board (DRB). But no evidence was presented at trial to suggest that any “validation review” had to do with any DRB process.
What is in any event clear is that under the Pilot Program, which was endorsed on October 18, 2012, a serious rules violation with a gang connection was needed to keep an associate in the SHU.
Barneburg was moreover well aware of the details of the soon-to-be-endorsed STG Pilot Program when he sent the October 10 email. He testified about his participation in a work group for the program, and said he had provided feedback to the (then) Warden and Chief Deputy Warden. He additionally testified that, prior to October 2012, he had attended a training on the Pilot Program.
Also worth mentioning here is some testimony provided by Officer Pimentel. Although it does not apparently relate to Barneburg’s October 10 email or to any “validation review,” it does in a general sense evince the reality of retaliation within the CDCR’s gulags.
This testimony concerns an email sent to Pimentel and a co-worker, John Silveira (“Gill”). Another guard, Scott Ellery, wrote the email, sending it on September 11, 2012. In the subject line, Ellery identified the cell numbers of Mr. Perez and Mr. Perez’s neighbor, Mr. Sims. He continued: "Hey John & Gill, just wondering if you could do a little cell search on these guys when I was picking up mail tonight, they both became disrespectful towards me because of a 128 [report] I wrote on Sims last week regarding the hunger strike. Both Sims and Perez…were telling me to get off their tier, saying I was just as corrupt as IGI, anyhoot I would be very happy if you guys could pay them a little visit and clean their house. Thanks, Scott."
Pimentel affirmed during cross-examination that understood the words “clean their house” to be in reference to a retaliatory cell search. He knew such a search would have been a violation of regulations as well as an ethical violation, he further testified; and, because Ellery’s request was improper, he forwarded the email to a supervisor, Jeremy Frisk.
/ / /
CPF has just learned that, on January 8, 2016, the defendants filed a motion for judgment notwithstanding verdict, in an attempt to override the jury's decision delivered on November 24, 2016. Mr. Perez's counsel filed their opposition to the motion on January 22. A hearing on the defendants' motion is currently schedule before Judge Chhabria on February 18.
During Trial, Elliot Seals, co-counsel for the defendants, moved for judgement as a matter of law and was denied by Judge Chhabria. If the defendants' latest motion for judgement is denied, the defendants may end up appealing to the 9th Circuit.
* Mr. Perez’s complaint and amended complaint named six defendants; the sixth being John Prelip, who Mr. Perez’s counsel stipulated to dismiss from the case.
** Years earlier, Mr. Perez had been confined at Tehachapi.
Mar 10, 2016
keywords: prison conditions, California prison conditions, Pelican Bay State Prison, guard prisoner abuse, Ashker v. Brown, retaliation, security housing unit
From Prison Focus Issue #48
[Editorial note: Mr. Perez prepared this article shortly after the trial on his matter, which took place in the last two weeks of November 2015 (the jury returned their verdict on November 24). It has been edited to eliminate third-person references to Mr. Perez, since he is the author.]
In what amounts to an improbable plaintiff victory, a federal jury unanimously found several Pelican Bay State Prison guards liable for retaliating against me for successfully exercising my first amendment right to file a prior lawsuit against other guards.
In the case, I alleged that after favorably litigating a near decade-long federal suit challenging my placement in Pelican Bay’s harsh isolation unit [Security Housing Unit or SHU] as a “gang associate,” the guard defendants conspired to retaliate and did retaliate against me.
The guards’ unlawful conduct, I claimed, was also spurred by my participation in peaceful civil disobedience actions that included the 2011 and 2013 California Prisoners’ Hunger Strikes, as well as my authoring articles critical of the department’s solitary housing policies and advocating for the scaling-up of prisoners’ engagement in the public political process.
The retaliation at issue in the case was exacted in various forms. Specifically, I accused the guards of stripping me naked, trashing my cell, improperly taking legal documents relevant to my prior lawsuit (ongoing at the time), vocalizing threats about pursuing lawsuits against department employees, and falsifying a disciplinary report with a gang nexus intended to keep me in solitary longer.
In defending against the lawsuit, the defendants—all guards assigned to the gang squad at Pelican Bay—denied the retaliatory accusations and argued that they were merely “following orders” and “standard procedures.” On the stand, however, their factual testimony, [invocations of] spurious safety issues, asserted ignorance of the regulations governing their acts, and rationalizations contained gripping inconsistencies and inherent incredibility, and were ultimately unpersuasive—at best.
Following the parties’ decision to rest their respective cases, a gender-balanced jury of eight retreated to deliberate for two days. After considering the evidence and counsels’ arguments, the unanimous verdict returned was against several of the guard defendants.
The jury saw plenty of evidence to convince them that the guards’ actions were not the bumbling creature of ignorance and error. But, rather, a well-designed and malicious strategy to retaliate against me for pursuing constitutionally protected legal action in court contesting my placement in isolation.
While prisons are ultimately about public safety, this case lifts the cloak of secrecy to provide a rare window for the public to see how the department’s [CDCR’s] Institution Gang Investigators (IGI) violate the public’s trust, and abuse the practice of solitary confinement the state continues to engage.
The large number of prisoners released from isolation since the class action Ashker v. Brown was settled also reflects the IGI’s heavy-handed influence in placing and retaining prisoners there under the rhetoric of safety and security.
There is also a compelling underlying truth here: What was proven at trial is emblematic of a deeper pathology existing within the department, one pointing unerringly to the sheer inefficiency of the ‘leadership’ of the agency’s administration. The public frankly deserves better.
This is particularly so when prison officials willingly violate the constitution and refuse to remedy those violations, instead choosing to engage in protracted litigation—which only results in greater cost for taxpayers.
This alone is basis to ratchet up the tempo in the growing drumbeat calling for substantive reforms to the state’s correctional system.
My prevailing case was presented at trial by the outstanding team from the WilmerHale law firm, including attorneys Randall Lee, Matt Benedetto, and Katie Moran, assisted by Jessica Lewis, Tiffany Tejada-Rodriguez and other incredible support staff who contributed to the favorable outcome.