Supplemental Report: Step-Down Program & Departmental Review Board Case-by-Case Reviews

Kim Rohrbach

From Prison Focus Issue 45
Spring 2015

This supplemental report substantiates through in-person interviews and correspondence four key findings:

1) The pace of the reviews remains sluggish as CDCR has only had two qualified persons to chair DRB reviewing teams since the inception of case-by-case reviews in October of 2012. CDCR officials informally reported in February that they plan to add two more individuals who can also chair DRB teams, and that these additions should speed up the process. Be that as it may, it's unconscionable that men who are likely to be released from solitary confinement upon review—after being subjected to inhumane conditions for years or decades on end—have been indefinitely waiting in SHU just to go before DRB. There is no excuse for CDCR's bureaucratic moroseness. Justice delayed is justice denied.

2) The pattern of case-by-case (CBC) reviews, when and where they take place, is being cynically driven by the Ashker v. Brown lawsuit. CDCR's demonstrated intent is to render that case moot by moving men who've been caged in Pelican Bay's SHU for ten years or more to the other SHUs—that is, to reduce and eventually eliminate the class of plaintiffs in Ashker v. Brown who are party to the cause of action brought under the 8th and 14th Amendments (Cruel and Unusual Punishment). This violates the spirit of those who participated in the recent hunger strikes and demanded, among other things, an end to CDCR's administrative abuses and debriefing policies. It also violates the United Nations Convention against Torture, to which the US and its subjugate territories are signatories.

3) CDCR continues to pressure individuals to enter the debriefing program at penalty of remaining in the SHU. In one recent case, CDCR decided to hold a person who'd refused to debrief in the SHU, citing nebulous security concerns as a justification. This was despite an earlier DRB finding that there was no reason to hold this person in the SHU any longer.

4) Linked to the previous item, we are receiving indications from various sources that several men have qualified for transfer directly to Step 5 (monitored status within the general population), but are being retained in SHU due to alleged security concerns. This is especially true where confidential informants are involved in raising security concerns. Under existing regulations, there's generally no way to corroborate such concerns or to ensure that they're being adequately investigated if at all. Hence, the status quo constitutes a continued abridgment of due-process rights.

The information that follows herein is based on:

-Interviews conducted with about two-dozen individuals at Pelican Bay SHU and at Corcoran SHU (respectively, in late December 2014 and in late February 2015)

-Information supplied by members of the Prisoner Hunger Strike Solidarity Coalition (PHSS), including members of the mediation and legal teams.

-Letters recently sent to CPF by those in the SHUs.
Random letters (italicized) are used herein instead of names to identify sources inside so as to guard those sources' anonymity.

Ashker v. Brown is driving DRB priorities: Pelican Bay is the focal point, not movement out of SHU
In August 2013, Michael Stainer, then Director of CDCR's Division of Adult Institutions, said that STG associates with the earliest validation dates would be prioritized for CBC reviews. By now, CDCR practice has revealed a clear alternative priority, as indicated above: The focus is to conduct CBC reviews of those people who have been at Pelican Bay SHU for the longest amount of time. DRB's George Giurbino corroborated this as much during deposition in December. This has resulted in many being transferred from Pelican Bay, often to other SHUs. CDCR has therby succeeded in vastly reducing the numbers of class members party to the first cause of action (Cruel and Unusual Punishment) in Ashker v. Brown. When the plaintiffs thereto filed their Second Amended Complaint back in May 2012, an estimated 500+ people held in Pelican Bay's SHU had been there for over ten years (based on CDCR's own statistics for 2011). As of January 31, 2015, only 213 people remained in that category compared, to 232 for the previous month. Many of these men, however, were not let out of SHU, but simply transferred to other SHUs. By end of February, a little over 200 remained so classified at Pelican Bay.

Due to this practice of SHU-shuffling, the plaintiffs in Ashker v. Brown recently petitioned the court to expand the class action to those who have been transferred out of Pelican Bay and placed in other institutions. The majority of those transferred out of Pelican Bay have been sent to Tehachapi (CCI)—where conditions are reportedly even worse than those at Pelican Bay (see, e.g., the Tehachapi Report included in Issue #44 of this publication). Oral argument on was heard on February 12. Although a written decision from Judge Claudia Wilken is forthcoming, she did rule from the bench in favor of expanding the class. This judgment will result in a bifurcated trial; i.e., two trials. The first is set for December 2015, whereupon it will be decided whether confining a person to the SHU at Pelican Bay constitutes cruel and unusual punishment. If the plaintiffs prevail, the court will decide during a second trial (in 2016) whether confining a person to Pelican Bay's SHU for ten years or more, then transferring that person to another SHU, also constitutes cruel and unusual punishment.

According to one PHSS legal team member, almost 900 people remain in the Due Process class (14th Amendment), according to statistics for February. This class consists of those men at Pelican Bay's SHU who were validated under regulations formerly in place under California Code of Regulations, Title 15, and have yet to receive a DRB CBC review. The length of time spent at Pelican Bay doesn't matter. The Due Process class increased by four people between January 31 and the previous month. Thus, it seems that CDCR is moving people who've not yet received DRB reviews into Pelican Bay's SHU, from other SHUs or from Administrative Segregation.

In their recent meeting with CDCR on February 20, the PHSS mediation team was told that 1,070 CBC reviews had been completed, and about 1600 remained. Of the 1,070 who received reviews, about 72.5% (776 total) had been placed in Step 5, whereas the other 294 had been placed in Steps 1–4. These statistics evince the legitimacy of one of the prisoners' five demands: that SHU only be used as a last resort. If over 70% of them men in SHU have been qualified for general population, with CDCR reporting few if any problems of post-SHU release adjustment, then the SHU hasn't been (and continues not to be) used as a last resort.

CDCR further told the mediation team that they plan to complete the CBC reviews by December 2015. At present, only two DRB teams handle all reviews, each headed by Susan Hubbard or George Giurbino. However, CDCR says that two new teams are currently being trained and will focus on Corcoran and Tehachapi. The current wardens at Wasco State Prison and Central California Women's Facility (CCWF)—respectively, Deborah Johnson and Jon Katavich—will lead these new teams. These additional teams will allegedly increase CDCR capacity to do the CBC reviews.

Members of the PHSS mediation team, including CPF volunteers, complained about the low number of teams since 2012. They consider the refusal to implement additional teams until now as a violation of the men's basic rights not to be held in SHUs indefinitely and without due process—especially in light of the fact that the great majority of them will be released to general population.
News from Pelican Bay SHU

Mr. A told us, "The way I see it, it's a con game. They got the biggest con game in there." He has already heard that people who have gone to the DRB or have been deemed inactive are coming back from the mainline (general population), and cited two specific examples. The same holds true, he indicated, for those who have successfully challenged their validations under the Castillo settlement.
Mr. A was placed in Step 3 some time ago and was almost regressed to Step 2 when he refused transfer to Tehachapi. His refusal was primarily due to medical concerns. "Why would I want to go from bad to worse?" he rhetorically asked when discussing his situation. A lot of men just want to "get the hell out" of Pelican Bay, he added—noting that when they see how bad the alternatives are, they may reconsider. In his own case, he asked to be transferred to New Folsom rather than Tehachapi and ultimately was not regressed to Step 2.
Mr. B had his active/inactive review in mid February 2014. While he was in the shower the around the time of his review, his cell was searched—as were the cells of two others on his tier who were not up for review. Mr. B speculated that IGI (Institution Gang Investigation Unit) perhaps thought the latter two were holding something for him. One IGI officer told him that they were conducting random cell searches. Another told Mr. B, "No, we're doing your active/inactive review." The search slip he received cited that the reason for the search was his active/inactive review.

In July 2014, IGI did another search of Mr. B's cell, again saying that they were conducting his active/inactive review. He told IGI that he thought he had already received it. They told him, "No, that was something else." This time they came up with a validation point, based on Mr. B having records of some other peoples' birth dates in his cell. He filed an administrative grievance (602) and as of late December was waiting for his final appeal decision from Sacramento. He contends that the theory used by IGI to deem him an active STG (Security Threat Group or prison gang) member is unsupported by the evidence. For example, no inmate ID numbers or anything else in the documentation shows that the persons cited by the IGI for the purpose of affirming association are who the IGI says they are. In addition, no evidence shows points to any Security Threat Group/gang-related conduct, he said.

Mr. C reported that he's been on inactive status since May 2014. He met with the DRB in November 2014, and was told that he would be placed in Step 5 and go to the mainline. When we spoke with him, he had been waiting to be transferred for some seven weeks, and noted that others had only waited four weeks. Again, CPF finds such wait times in solitary confinement due to inept management to be a clear violation of basic human and legal rights.

Mr. D, who at the time of our interview with him was not in the SHU but on the mainline, indicated that a lot of people who had supported the Agreement to End Hostilities (AEH) had been kicked down to his yard. Why these latter men remain at Pelican Bay, as opposed to being transferred to a different institution, is not clear.
Mr. E discussed new guidelines released three weeks prior to CPF's visit: If somebody is placed on “inactive” status, he will go to the Internal Classifications Committee (ICC), which, Mr. E noted, is less desirable than appearing before the DRB. The ICC tends to be less impartial and part of an institution-specific operation, he explained. Mr. E has been in the SHU for around twenty-five years, and therefore didn't understand how others were receiving CBC reviews ahead of him.

Mr. F observed that that, although CDCR approved the SDP, "they don't even know if it works." (Implicit in his words was that the SDP had been rubber-stamped.) He was supposed to have his active/inactive review in February 2014, but it got postponed until September 2014—two days before his parole date, it just so happened. He was given a six-year denial, he said, but he was supposed to get a four-year denial, like others who were validated around the same time as he. He filed a 602 on this issue up to the third level, but Sacramento denied his appeal.

Mr. G was placed in Step 5 and was consequently released from Pelican Bay's SHU on inactive monitored status. He was then transferred to Kern State Prison. His yard, he reported in a letter, is full of gregarious people—many of whom, like himself, have recently been returned to the mainline from the SHU. Otherwise, there is no program to speak of. One can have a microwave in one's cell, or purchase a tablet computer, but that's as far as it goes. (The tablets appear to be e-readers preloaded withVoluntary Educational Program (VEP) materials, including remedial education and GED materials, and materials relating to self-help programs [AA, Anger Management, etc.]. This is indicated by information available through CDCR's website.)

NEWS FROM CORCORAN

Two people at Corcoran commended Susan Hubbard—one of the two people currently leading the two DRB teams, as earlier discussed herein—for rejecting weak evidence in the course of conducting CBC reviews. (In contrast, Mr. A at Pelican Bay mentioned that a St. Paddy's card he had hanging on his wall for year had been construed as evidence of "gang activity" at his DRB review. He did not say who headed the team handling his case.)

Mr. H reported agreement amongst the men at Corcoran to participate in the widely loathed aspect of the Step-Down Program that requires the completion of numerous so-called self-directed journals. (Issue ## 43 and 44 of this publication detail the make-up of these journals. Some have insulting and/or presumptuous titles such as "The Con Game," "Thinking Errors," "Criminal Lifestyles," and "Reviewing my Drug Use.") Mr. H is not himself in favor of completing the journals, but is going along with it for the sake of solidarity with the mens' collective decision to do so.

On a separate note, Mr. H reported that people placed in Step 2 at Corcoran have access to a new programming opportunity: a book club. The book club includes three other men and a staff person (?), Ms. Done, besides Mr. H. Ms. Done asked an officer by the name of Bailey—who apparently heads the implementation of Step-Down at Corcoran and apparently "chaperones" the book club—if men participating in the club could receive certificates for doing so. (Such certificates help when the men go up for parole). She did this in front of the group participating in the book club. Bailey denied the request, but stated that the participation of individuals would be noted in their central files.

Mr. H estimated that around 90% of those validated at Corcoran are still waiting for DRB reviews. In his area, he reported, he knew of just two people who were placed in Step 1, two people who were placed in Step 3, two people who were placed in Step 4, and four others who were placed in Step 2. To his knowledge, DRB will next be visiting Corcoran in April.

Mr. J told us that, as a result of his 2013 DRB CBC review (he was one of the first to receive one), it was determined that evidence used to revalidate him in 2010, pursuant to his six-year inactive review, didn't substantiate gang activity. The DRB concluded that there was no reason to hold him in the SHU any longer. Yet, confidential informant information suggested that he had a security concern--i.e., that others wanted to hurt him, for events going back to 1996. The DRB decision was to retain him in SHU for another year, but during this time, the IGI was supposed to investigate and determine if security concerns remained valid. Mr. J. claimed that IGI interviewed nobody, but filed a report saying that since they found no new evidence to discredit security concerns, they remained valid.

In anticipation of a follow-up DRB hearing in November 2014, Mr. J submitted letters of support from his family and other materials in October. He has been free of write-ups since 2007. However, the DRB didn't come in November. At first he was told that the teams busy doing reviews at Pelican Bay, and he could expect his follow-up DRB in January. January came and went with no review. Upon inquiry with his counselor in February, Mr. J learned that a DRB decision was reached in his case in Sacramento in absentia. The decision was to retain him in SHU for another 24 months. Mr. J was then asked to enter the debriefing program. He refused. This refusal was noted on his paperwork and it was recommended that he continue in SHU due to security concerns.

Mr. J happens to be a successful litigant who in the past won a significant settlement against CDCR for guard misconduct. Thus, this case has the clear appearance of retaliation. Furthermore, CDCR has put him in a Catch-22 situation. The only way he can prove that he does not have security concerns is to associate with other supposed STG members or associates. But if he associates with them in any way, this will be misconstrued as gang activity and he will be revalidated. This situation further exemplifies the lack of due process otherwise remarked upon herein.

Mr. K affirmed that although CDCR claims many men are placed in Step 5, many of these same individuals remain in the SHU.

overflow: scroll;