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Jun 01, 2015

THE “HANDS OFF” DOCTRINE REVISITED

Ed Mead

keywords: 13th Amendment

From Prison Focus Issue 46
Summer 2015

At one point in my political career I was the co-found-er of a publication called Prison Legal News, and as such I had occasion to write many articles on decisions from various state and federal courts involving prisoner rights issues. I don’t think I’ve written much about the law since I ended my relationship with PLN.

I first became involved in prisoner oriented litigation in the early 1960s; indeed, I received my first legal-related infraction at the U.S. Prison at Lompoc, California, in 1963, for “illegal procedure in writing a writ” (my crime was to assist another prisoner with his post conviction relief petition). In those days there was something called the “hands off doctrine,” which essentially held that prisoners have no rights the federal courts are bound to respect—that they are liter-ally slaves of the state. After all, the courts reasoned, the 13th Amendment to the U.S. constitution legitimizes this condition of slavery. With the advent of a growing prisoner rights movement, however, that old reasoning slowly changed. By 1972 I had won a case in the Ninth Circuit Court of Appeals holding that federal prisoners had a right to file class action habeas corpus petitions to challenge their conditions of confinement. See, Mead v. Parker, 464 F.2d 1108, 1111 (9th Cir. 1972). In those days I naively believed the courts would fairly apply the law to achieve the ends of justice.

While we have not totally gone back to the hands off doctrine, we’ve now got pretty much the same thing. Today they say while prisoners do have due process rights, the needs of the state, however frivolous they may be, trumps those rights—meaning of course that we have no rights at all.

In 2005 a unanimous U.S. Supreme Court has dashed the hopes of those liberal prisoners who look to the courts as an avenue of salvation from the ever-increasing levels of deprivation and repression being visited upon them by their cap-tors. In the case of Wilkinson, Director, Ohio DOC, et al. v. Charles Austin et al., No. 04-495, decided June 13, 2005, the high court noted that “In the OSP [a Supermax or SHU facility] almost every aspect of an inmate’s life is controlled and monitored. Incarceration there is synonymous with extreme isolation. Opportunities for visitation are rare and are always conducted through glass walls. Inmates are deprived of al-most any environmental or sensory stimuli and of almost all human contact. Placement at OSP is for an indefinite period, limited only by an inmate’s sentence. Inmates otherwise eligible for parole lose their eligibility while incarcerated at OSP.” The court went on to note that: “For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; his cell’s light may be dimmed, but is on for 24 hours; and he may exercise only one hour per day in a small indoor room.” Moreover, such placement is reviewed only once per year. Yet when all is said and done, the court held “that courts must give substantial deference to prison management decisions before mandating additional expenditures for elaborate procedural safeguards when correctional officials conclude that a prisoner has engaged in disruptive behavior.” So how much process is due before locking someone up in one of these dungeons for an indefinite period? According to the court the answer is an “informal, non adversary procedures comparable to those we upheld in Greenholtz and Hewitt.” (See, Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U. S. 1 (1979) and Hewitt v. Helms, 459 U. S. 460 (1983).)

Which brings us to the question of how relevant is the legal front in today’s struggle for the rights of prisoners? As mentioned above, and as any astute prisoner rights activist knows, the 13th Amendment banned slavery except for those convicted of a crime. In other words, slavery still exists for some 2.2 million Americans. Worse, there are countless mil-lions more who have been disenfranchised (a modern Jim Crow) as a result of their status as previously convicted per-sons. While the issue of prisoner enfranchisement (right to vote) is pending appeal in the U.S. Court of Appeals for the 2nd Circuit, in a lawsuit filed by political prisoner Anthony Jalil Bottom, the outcome of that litigation will most likely turn on a political rather than legal rationale. Democrats know that if formerly incarcerated individuals had been permitted to vote in Florida’s 2000 presidential election George W. Bush would have never been president.

From California to Florida there is a push by liberals to en-franchise ex-felons. This has nothing to do with their love of prisoners, and everything to do with their love of the Democratic Party. Even the New York Times has editorialized on the need to give ex-felons and, shudder, prisoners the right to vote. They understand that, for the most part, prisoners will not be voting for pro-lock ‘em up; pro-death penalty, anti-parole Republicans. So here comes the vote, not from the courts, but from bourgeois politicians. Oh, the courts may hand down the ruling, but it will be the existing political climate that caused it to happen. In the late 1960s and early 1970s it was the prisoners that created the climate for judicially mandated reform and the expansion of our meager rights. Today, sadly, it is the liberal wing of the bourgeoisie that is providing the necessary impetus.

So before too the vote will come, at least to ex-convicts very possibly to those still on the inside. And in time, lots of time, the 13th Amendment may be modified to abolish slavery once and for all. But that's a story for another day. Today we need to talk about how we can use out small amount of influence to insure that this vote thing does not unfold in a manner that is anti-thetical to prisoner interests. The liberals will try to get the vote to felons using the absentee ballot, thus dispersing the impact of our ballot over the entire state. But prisoners are counted in the census for the county in which they are con-fined, and those counties receive funds from the state on the basis of that count. The prisoner vote should be concentrated in the respective county where the prison is located, not scat-tered by absentee ballots. Since most prisons are located in remote areas, with such a condensed voting block prisoners will be able to have local politicians catering to their legiti-mate needs—visiting, vocational facilities, etc.

There was a time when the rights of prisoners could be ex-tended through use of the bourgeois judicial system. As can be seen by Wilkinson, cited above, and the numerous cases just like it, those days are all but over. The courts can from time-to-time still be used for the occasional defensive strug-gle, but to expect any significant advances to be made as a result of litigation is an exercise in futility—we are merely throwing wadded up paper balls at them. The task of today’s advanced prisoners is not litigation, but organization. And the issues we should be organizing around are the right to vote (winning the franchise for prisoners) and the final aboli-tion of slavery in the United States. Conjugal visits, wages, and myriad other issues can be raised at the same time, but the guiding star should be the elimination of the pro-slavery segment of the 13th amendment.

Jun 01, 2015

OBAMA, MASS INCARCERATION AND THE “EXTREME CENTER”

James Kilgore

keywords: Obama, Mass Incarceration

From Prison Focus Issue 46
Summer 2015

In his most recent book, British writer Tariq Ali refers to a political phenomenon which he calls the “extreme center.” For Ali, this represents the convergence point where the established political left and political right unite behind a free market, pro-corporate agenda. Ali views this as the defining political feature of this era, both in Europe and the US. The convergence is more pronounced in most European countries where powerful trade union movements had historically amalgamated with Labor or Social Democratic parties. These combined forces were able to advance pro-working class, social welfare agendas that delivered national health plans, free mass education, enormous expanses of low-cost public housing and a general safety net that protected the poor and the unemployed from the miserable fate that awaits the marginalized in most US cities today. In Ali’s view, these working class-oriented parties stood on principles for which they were willing to fight. The dividing line between the conservatives and the welfarist parties was clear and, on most is-sues, irreconcilable. The answer to the question “which side are you on?” was unequivocal.

In the last three decades, especially since the rise to power of British Prime Minister Margaret Thatcher in 1979 and her crushing of the 1984-5 mineworkers strike, the official Left has melted into the extreme center. They may quibble with conservatives over small issues, fight over electoral seats and public opinion poll numbers but essentially both parties of the extreme center share the same overall “dream” – electoral democracy and a free market economy unfettered by high taxes and redistributive “madness.” The invisible hand of Adam Smith has replaced the clenched fist of solidarity. What Ali says about Britain seems almost universal: “We live in a country without an opposition.”

I read Ali’s book the same day President Obama made his path-breaking speech to the NAACP on mass incarceration. Like perhaps anyone who has spent years fighting the US compulsion to criminalize the poor and throw them into prisons and jails, my reaction combined joy, relief, and suspicion. Why now? Why on the heels of commuting the sentences of 46 people? Why when the parade of unlikely partners: Van Jones and Newt Gingrich, Rand Paul and Cory Booker, the Koch Brothers and the NAACP has already grown quite long? No real answer to those questions. Yes, the President arrived late to the party, but at least he came.

My graver concern, thinking about Ali’s theses, was not the why behind Obama’s speech but rather the possibility that the extreme center is hijacking the movement to reverse/ eliminate/smash mass incarceration. As Ali so eloquently argues, one of the key tasks of the extreme center is to take center stage, to ensure that no alternative seems either reasonable or possible. For years, left-wing critics have framed the debate. Angela Davis, Ruthie Gilmore, Marc Mauer and, more recently, Michelle Alexander gave us the terminology to speak about all this: the prison industrial complex, abolition, non-reform reform and The New Jim Crow. Those no-tions are falling to the wayside now. Enter the discourse of gradualism and technicism: risk assessment tools, evidence-based solutions, and re-packaged justice reinvestment. Enter the institutions of carceral humanism: gender responsive jails, family friendly detention centers, mental health therapy complexes inside electrified fences. The extreme center is a change management force, like those corporate consultants who so glibly calm the waters of race, gender and class conflict by assuring everyone that we all share the same goals and we need to calm our anger and understand how the other side is feeling. They provide us with a new language to describe our problems, help us create a Facebook like world where everyone is our friend.

In terms of addressing mass incarceration, the extreme center will doubtless make some changes that will be very important, that will make a difference in the lives of thou-sands of people who have been slammed in the nation’s hell-holes without a reasonable explanation or, in some cases, without even a legal justification. This will all be welcome. Every bill, every policy change that will get people out of prison, that will stop more prisons and jails from being built, that will soften the daily burdens of those held in Pelican Bay, Angola or Pontiac, that will re-direct resources away from corrections to communities is a positive. Absolutely. These changes are opportunities, windows not to be missed.

But let us not confuse the agenda of the extreme center with keeping our eye on the prize. All the sentencing reform that a thousand lawyers can draft will not get at the roots of the problem. For that we need more than across the aisle smiles and handshakes. That requires the voices of the people who have been directly affected by mass incarceration and mass criminalization, the youth of Black Lives Matter, the immigrants’ rights activists who have slowed deportations, the former prisoners and their loved ones who have battled to ban the box. But most of all that requires a fundamental shift away from the most cherished icon of the extreme center-the free market. Mass incarceration and mass criminalization don’t end until billions are ploughed back into the communities that have been devastated not only by imprisonment and over-policing but by a whole host of policies that have undermined social welfare and accelerated the inequality between the rich and the poor. To address this requires far more than sentencing reform and will take us far beyond the comfort zone of the handshakes and smiling faces of the extreme center.

Oct 01, 2015

Paradigm Shift

Wilbert Jefferson

keywords:

From Prison Focus Issue 47
Fall 2015

Let’s paint the picture of tragedy, my social decline impulsive thoughts go unchallenged, truly, it’s all in my mind

The perception that’s given, are airbrushed in the wind so with these lyrics it’s quoted, noted, and unspoken soon

My upbringing was Calais, malice, I lacked self-respect overly defensive and bitter, the ripple of this affect

Forever scared by decisions made, in the prime of my youth arrested for murder, at 16, my confinement is proof

I disenfranchised the future, do you railed desires and dreams my household was broken, dysfunctional as a teen

I’m steady fighting a battle, pride will soon pay the cost my beliefs that are routed, triggered, that now set me off

I occupied this space, place, to protest that latter do police fear black people, I wonder, all lives matter

With a swing goes the splatter, better, a river of tears the stereotype that’s projected, can now account for my peers

Now for the sake of reality, I must change or get drugged I say a prayer to the father, please God, awaken my thugs.

Oct 01, 2015

GOOD MEN, NOT WORST OF THE WORST

Johnny Aguilar

keywords:

From Prison Focus Issue 47
Fall 2015

We are coming up on three years since the End of All Hostilities with all races has been implement-ed. I am feeling mighty proud for this historic mark in history that has no doubt seized the moment and put an end to more than 20-30 years of hostilities between different groups.

Had the honor to be amongst the prestigious class of good men of all walks of life during the historic hunger strike in 2013. In August of 2013, after being released from the ASU (hole), I arrived at Pelican Bay B-yard and collectively we all submitted 602s (administrative appeals, or complaints) on behalf of people of each race wrongly being given 115s (notices of serious rules violation, write-ups) by Pelican Bay staff when they were handing them out like sweepstakes tickets.

I was placed on an add list to Calipatria State Prison. I arrived at Calipatria on Oct. 28, 2013, only for the prison to go on lockdown in December 2013 and again in February 2014. Then when he came off lockdown, a collective of good people came together and started to really push the Agreement to End Hostilities at Calipatria.

Setting aside the few hick-ups, all in all we started to see the positive results and the major positive effects that were evolving. We also started to see that despite CDC’s tactics, their ASUs (Administrative Segregation Units) were no longer being flooded. For 11 months we diligently kept the peace and honored the collective agreement that was set in stone for the betterment of all people, all classes, all groups and all parties.

Now I’ve been sent to a 180 design maximum prison here at High Desert State Prison’s D upper yard in general population. High Desert opened up the upper yard, which was previously Ad-Seg overflow. Currently Blocks 5, 6 and 7 are mainline and we’re awaiting Block 8 to be opened for a mainline program. So the general population yards can be filled with plenty of those still in the SHUs in Pelican Bay, Tehachapi and Corcoran.

For a few weeks now, I’ve been seeing people from all walks of life and groups observing the Agreement to End Hostilities. Walking together, going to school together, working together, going to visiting together, carrying on conversations, respecting one another. It is really good to see such peace and such positive actions.

These are human beings, human lives, yet CDC chooses to ignore the psychological trauma involved. They continue to house them in suffering, inhumane, deplorable conditions.

We will continue to stand up for human lives because these brave men in the class action lawsuit, locked away in all the SHUs and ASUs across the state, every man and woman in solitary confinement – all of us are created equal. We will continue resisting the bad policies and guard terrorism that are only meant to hurt us. This is real lives we are talking about, human retaliation issues, human rights, as well as racial profiling issues under false pretense with their STG (Security Threat Group) policy that is only widening the net for more abusive gang validations (being labeled a gang member or associate – a ticket to solitary confinement).

We will stand up and defend ideas of positive social re-form that will be beneficial to us all as a whole class. The irony here is good men are creating better environments for us. Stop labeling these good men “worst of the worst”!

What CDC could not do in 20-30 years, these brave men in the Short Corridor prison collectives accomplished in just a short period of three years. Yet CDC continues to label them “worst of the worst.” That’s complete bullshit!

The Agreement to End Hostilities means no more group conflict. That and many more ideas and policies CDC needs to try and learn from the Short Corridor Collectives at Pelican Bay, Tehachapi and Corcoran SHUs. This is a movement I will continue to be in ‘til death.

Oct 24, 2016

PHSS Monthy Actions: Together to End Solitary

Ron Kelch

keywords: Solitary

From Prison Focus Issue 50
Fall 2016

For a couple years now Prisoner Hunger Strike Solidarity Coalition (PHSS) has organized actions on the 23rd of each month, to draw the public’s attention to the fact that prisoners in solitary confinement are isolated 23 hours or more of every day. We have also asked people to organize their own actions wherever they are.

In recent months the actions had several different forms: The committee on sleep deprivation has created leaflets and letters alerting people to the on-going torture of sleep deprivation in all isolation cells in California prisons. We bring those petitions and letters to various tables and events.

Santa Cruz has regular readers’ theater and speak-out every month. Sarah Shourd’s play, The Box, performed during the month of August, was a very powerful portrayal of life in the SHU and showed the seeds of rebellion against it. PHSS had tables at the play to connect with the audience and distribute information about current struggles in California prisons. Charlie Hinton’s play, Solitary Man, is growing in content— most recent addition is original music—and performances.

On March 23rd, 2016, PHSS cosponsored spoken word event with Hip Hop 4 Change. If the SHU Fits play has been performed on the 23rd of each month in various venues since the beginning of the organized events.

California Families Against Solitary Confinement and Chicano/Mexicano Prison Project in San Diego holds demonstrations on the 23rd of every month, passing our flyers, promoting the Agreement to End Hostilities and talking to people. PHSS folks in the Bay Area set up tables in Oakland at Fruitvale BART station and at farmers’ market. PHSS also returned to the SF pier to connect with tourists visiting Alcatraz. Here is a report from the most recent action there:

From Alcatraz to Pelican Bay: On August 23rd, 2016, we handed out an informational leaflet, “From Alcatraz to Pelican Bay,” at the National Park Service staging area for trips to Alcatraz, an immensely popular international tourist attraction in the middle of San Francisco Bay. We wanted to draw attention to what replaced Alcatraz, a notorious prison from 1934 to 1963 that was made famous by Hollywood movies and its own ghoulish history of guard abuse.

Alcatraz prison erected extreme physical barriers to the prisoners’ rights movement. New supermax prisons were built with the aim of not only physical but total psychological control. Control units were designed by behavioral psychologists. Another early consultant was MIT professor Edgar Schein, who advised using totalitarian methods. Schein learned those methods from POW’s held in Chinese prisons during the Korean War.

In the late 1970s prisoners in the Marion control unit went on hunger strikes. Strikers explained at that time, that the authorities had learned how to control their outward behavior, but the men had minds of their own that the authorities could never get to.

As we pointed out in our leaflet, prisoners have been using that power of an independent mind. A multi-ethnic non-violent movement staged a series of hunger strikes, forcing the California Department of Corrections to end their use of indeterminate solitary confinement. Strike representatives now are challenging the entire “justice” system. The most gratifying aspect the many discussions engendered by our leaflet was the reaction of ordinary people, locals and tourists from around the world. Many concluded that the only solution to the absolute inhumanity governing today’s world is the kind of human solidarity on the ground personified by these prisoners.

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