Supplementary Report and Update: Ashker v. Brown, the DRB and the Step Down Program

Kim Rohrbach

From Prison Focus Issue 46
Fall 2015

Note: This report is substantiated through approximately sixty in-person interviews conducted within the past four months, and through correspondence received by Prison Focus during that same period. Information gleaned from a July visit to Tehachapi (CCI) is not incorporated herein, due Prison Focus's publishing deadlines. As usual, the names of interviewees and correspondents have been replaced with anonymous designations.

As we reported in Issue #45, earlier this year the plaintiffs in Ashker v. Brown* requested leave from the court to file a supplementary complaint. Judge Claudia Wilken issued an order granting their request on March 9, allowing class representatives who were transferred to other SHUs after spending ten or more years in Pelican Bay's SHU to remain in the lawsuit.
Plaintiffs' Motion for Leave to File a Supplementary Complaint, we further reported, was sought to preempt the CDCR's cynical effort to get around the lawsuit by moving people with ten years or more in Pelican Bay's SHU—parties to the first cause of action for cruel and unusual punishment, aka the Eighth Amendment class —to other SHUs.
In May 2012, when the First Amended Complaint in Ashker v. Brown was filed, over 500 individuals in Pelican Bay's SHU had been there for at least ten years. By the end of January 2015, only 213 remained. According to members of Plaintiffs' litigation team, just eighty-six such individuals were still left at Pelican Bay as of early July.
Judge Wilken's March 9 order and Plaintiffs' Supplementary Complaint will result in two trials, as we explained in Issue #45. This is assuming, of course, that no settlement occurs (more on the topic of settlement will be said in a moment). During the first trial, the court will determine among other things whether confining a person to the SHU at Pelican Bay constitutes cruel and unusual punishment under the 8th and 14th Amendments. If Plaintiffs prevail on that issue, the court will determine through a second trial 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.

The latest round of settlement discussions has been underway for many weeks and it's possible that a settlement could be reached, or not, before the end of this month. Although the discussions are confidential, the litigation team has generally indicated that they've been substantive, serious and far-reaching.

In view of negotiations with the CDCR, Plaintiffs have held off on filing a motion for summary judgment. That motion specifically relates to the second cause of action in Ashker, claiming lack of due process under the 14th Amendment. If successful, it would void as unconstitutional the six-year active/inactive review process, hence all validations of the Due Process class in Ashker.

In a noteworthy development running parallel to the settlement talks, on July 6, Plaintiffs in Lopez v. Brown (No. C 15–2725 YGR, N.D. Cal. 2015) filed a motion to relate their case to Ashker. The motion is currently pending before Judge Claudia Wilken. Lopez v. Brown challenges the conditions of confinement at San Quentin's Adjustment Center on essentially on the same constitutional grounds as Ashker. In the event that Plaintiffs' Motion to Relate is granted, it appears that Lopez would be reassigned to Wilken rather than the current judge, Yvonne Gonzales Roger.

What a settlement in Ashker could portend overall is up in the air until and unless a settlement is announced. However, it appears that those with ten-plus years in Pelican Bay's SHU continue to be prioritized for case-by-case (CBC) reviews by the Departmental Review Board (DRB). The filing of Plaintiffs' Supplemental Complaint, and the expansion the Eight Amendment class to include people shipped to other SHUs following prolonged confinement at the Bay, does not seem to have altered the DRB's demonstrated pattern.

As of February 20, 2015, according to the CDCR, 1070 reviews had been completed system-wide, with another 1600 left to go. Since the CBC reviews** were initiated in late October 2012, this averages out to about 38.2 reviews per month for a period of roughly twenty-eight months. We don't have confirmation of how many reviews have taken place since February. But, assuming that 38.2 reviews per month were also completed in each of the five or so months intervening between then and early July, another 191 reviews would have been completed during that period. Of those 191 reviews, about 66% of them would have involved men at Pelican Bay with ten-plus years in the SHU. (This is based on information provided in paragraph three of this article to the effect that, between February and July, the numbers of men at Pelican Bay with ten-plus years in the SHU was reduced from 213 to eighty-six; a difference of 127.)

As discussed in Issue #45, the CDCR claimed in February that two new DRB reviewing teams would be trained and would focus on Corcoran and Tehachapi. The addition of two new teams to the two existing teams, which are respectively headed by Susan Hubbard and George Giarbino, would ostensibly increase capacity to conduct reviews. But if any new teams are out in the field, the Prisoner Hunger Strike Solidarity coalition's mediation team has not heard about it. Neither has anybody inside informed us or suggested to us that any new teams are up and running, either.

People who've been left to languish for up to twenty-four hours per day in cramped concrete-and-steel cages, often enduring torture for years to decades on end, should not have to indefinitely wait to simply go before the DRB. This is an intolerable abuse of internationally recognized standards of human rights and an affront to human decency.

Moreover, as we reported in Issue #45, most captives in the SHUs don't belong there according to the CDCR's own (exceedingly loose) standards. Departmental data have repeatedly born out that, of those who are receiving CBC reviews, nearly three-quarters of them are being placed in Step 5. This means that they are being placed on the mainline for a one-year observation period, wherever relevant Title 15 regulations are being adhered to. The nearly three-quarters percentage held true as February 20, the last time this writer is aware that any data were provided. This affirms the spirit and substance of the Five Core Demands issued in 2011 by incarcerated activists, exhorting against capricious and arbitrary placement and retention in the SHU. Segregation should only be used as a last resort, the Demands emphasize. (The Five Core Demands can be accessed at )
Many of our interviewees have offered the observation that the DRB is currently only reviewing the cases of "Step 5-ready" people, and/or those up for six-year active/inactive reviews under former rules. Yet, as discussed above, the CDCR reported on February 20 that 1070 CBC reviews had been completed, with some 1600 reviews still to go. Forty percent of all CBC reviews had been completed, in other words. So, if nearly three-quarters of those who've been reviewed have been placed in Step 5, appearances may be deceiving where it comes to whose cases are currently being reviewed.

As CBC reviews continue to glacially proceed, our interviewees and correspondents inside indicate that significant delays are ongoing even after people have seen the DRB and have been placed in steps.

At Pelican Bay in March, Mr. B reported that two individuals had respectively waited forty-six and fifty days to be transferred after being placed in Step 5. (Mr. B himself had not yet seen the DRB.) Mr. O reported more extreme waits— up to six months—for those in queue to get on a bus to Corcoran or Tehachapi. Mr. Q mentioned that people in his pod who'd been placed in Steps 3–5 two to three months earlier had still not been transferred. He'd been told before the first of the year that he was sixth on the list for DRB reviews, but said he'd been "bumped" each month since and had heard nothing recently.

Others determined to be inactive by Internal Gang Investigation (IGI) personnel, pursuant to six-year active/inactive reviews, are kept in limbo because the DRB has not gotten to them yet. Several interviewees or correspondents from two different SHUs have stated or strongly indicated that they are in this situation. Moreover, in July, Mr. XX informed us in writing that, out of about fifty people found inactive at Pelican Bay's SHU, thirty were waiting to receive DRB reviews. Twenty had been seen in absentia, he specified, but the DRB wanted to see the remainder in person.

How long any of these people have been waiting we don't know. Mr. RR, who's currently in inactive purgatory, said that a friend in like circumstances waited a year before he was finally transferred. In any event, the 2015 Department Operations Manual outlines the following procedure and requirements, at p. 399:

If it has been determined by the IGI that the inmate has had no gang activity for a period of six (6) years, the IGI shall submit a request to the SSU [Special Services Unit] to change the inmate’s status to “inactive.” If the SSU concurs with the IGI’S recommended gang status change, a new CDC Form 128B-2 shall be issued identifying the inmate as an “inactive” member/associate. Upon issuing a new CDC Form 128B-2 identifying the inmate as “inactive,” the DRB shall be notified by the housing institution. At its convenience, but not to exceed 180 days, the DRB shall meet and consider the inmate for placement in a level IV, 180 design housing unit [non-SHU maximum-security unit] for a period of observation. At the DRB’S discretion, the inmate may be transferred to a level IV, 180 design institution.

Granted that the only time limit explicitly spelled out above is the 180-day time period within which the DRB has to meet after receiving notification.

As stated above, Mr. XX informed us of twenty people at the Bay who'd received DRB "reviews" in absentia.
Mr. PP at Corcoran reported that he found out his case had been "reviewed" in absentia, without any notice to him that a review would be occurring. This was in 2013. One day the IGI came to his door wanting to talk to him, without explaining why. So, he declined the invitation. Two weeks later he received a notice regarding a "post-DRB" review. He was told that the DRB folks had been there and left because he "refused to come out" of his cell. It was then that he realized that he'd never gotten notice of the DRB review.
Only an idiot would refuse to see that DRB, he added.

During his "post-DRB" review Mr. PP learned he'd been placed in Step 2 and was asked to sign a Step Down contract. Taking the contract as an admission of gang-related activity, he declined. He was therefore regressed to Step 1, and there he remains, after spending more than ten years in Corcoran's SHU.

To be clear, the highest level of internal review that a person in the CDCR's custody can receive is review by the DRB. The DRB is a Secretary-level board; the Secretary of the CDCR being the highest official with the Department. (A DRB team is comprised of a Deputy Director or Assistant Deputy Director of the Division of Adult Institutions, and Chief of the Classification Services Unit). A decision made by the DRB is not subject to administrative appeal and can only be challenged by directly going to court.

That reviews are occurring—are allowed to occur—in absentia at the highest level available is outrageous, and evinces that lack of even minimal due process that those held in the CDCR's torture chambers have access to.

More than thirty-five years ago, Mr. VV purportedly was involved in a riot at an out-of-state prison during which a guard was killed. He was later transferred to the CDCR in the mid '90s at the request of the state incarcerating him. Since that time, he's spent about twenty-one consecutive years in two different SHUs. Mr. VV sent us a detailed account of his history in segregated housing, and included with his letter documentation from the DRB, the IGI and the Institution Classification Committee (the highest level committee within a given California prison, abbreviated ICC).

In late 2012, Mr. VV 's case was considered by the DRB. His minimal disciplinary history while in CDCR custody and in the SHU was noted on a contemporaneously issued Form 128-G, aka Classification Chronology, as was the lack of information supporting "any degree of leadership or influence" with others. Indeed, Mr. VV had received but a single Rules Violation Report since being put in the CDCR's custody, for participating in a mass hunger strike in 2011.

Mr. VV's exemplary record aside, the DRB cited during its 2012 review his "involvement" in the aforementioned riot—he was scarcely an adult when it occurred—as a "concern." The Board therefore recommended his transfer to another prison as a "gradual step-down measure," claiming that he however "requested retention" where he was. These things are recorded on the aforementioned Form 128-G, which the DRB signed off on.

The same form also shows that the Classification Services Unit (CSU) independently recommended to the DRB that Mr. VV be transferred as a gradual step-down measure"—and at the inmate's request. To further complicate things, the form chronicles the DRB's 2001 application of "the administrative determinate PUB," which designates a public interest case, to Mr. VV's case. The DRB "removed" this designation in 2003, according to the official narrative. However, the narrative simultaneously avers that, during Mr. VV's 2012 review, the CSU brought up the fact that Mr. VV's name was still on the monthly PUB list. This was approximately nine years later after Mr. VV should have been removed from the list!

It's is possible that all of this is the result of astounding bureaucratic bungling or ineptitude, but more likely it reveals good cop-bad cop tactics used to disguise retaliation. In the alternative, or in addition to evincing good cop-bad-cop tactics, it could point to internal tensions between the CSU and the Division of Adult Institutions. Whatever it comes down to, it's Mr. VV who pays the price in a dungeon.
Mr. VV was eventually transferred 2013. Yet, his letter to Prison Focus did not mention that he'd since been placed in a step. After the transfer, an ICC official claimed, on a second Form 128G, that he'd refused to sign an Advisement of Expectations regarding Security Threat Groups. The official recommended that he be returned to the DRB within two years of his previous review in late 2012. According to Mr. VV, the latter DRB appointment never happened.

Mr. EE's history, as he recounted it in an interview, is somewhat similar. He told us in June that he was implicated some years ago in an incident between staff and prisoners at one state prison. In the aftermath, he was sent to Ad Seg (Administration Segregation) at a different prison and given an indeterminate SHU sentence. It appears that he was concurrently validated. Within the past year or thereabout—the timeline he provided was uncertain—the IGI found that there was no evidence linking him to any gang/Security Threat Group. He added that he'd had no Rules Violation Reports for about five years. Despite having gone before the DRB, he did not mention that he'd been placed in any step. It was the sense of the attorney-representative who interviewed him that he was still waiting for some type of decision; for a date to move out of the SHU, or to at least be placed into a step.

Mr. BBB said in July that he was "not eligible" for the Step Down Program (SDP). He is validated with an indeterminate sentence, but did not specify why he considered himself ineligible. That stated, we are aware from current and past interviews that Mr. BBB has filed more than one viable lawsuit against the Department. In addition, he has suffered well-documented incidents of physical abuse by guards, and was criminally and unfairly prosecuted relative to an assault on staff. Officers' reports of the assault, which he provided to Prison Focus, did not support a prosecution.

Between March and July, we received numerous reports of people being placed in Step 5 (ostensibly being placed on the mainline for a one-year observation period) then being returned to SHU, or otherwise being regressed to earlier steps after being place in Steps 2–4.
Several of these reports have been quite specific in the details. Others have been not so specific.
Here is a summary of some of the general reports that we've received:
• SDP is a "revolving door" with no merit because the intelligence is not transparent
• They're "recycling" people.
• A sergeant comes into your unit and says loudly, so that all can hear, that guards should write people up for any little thing they can find. This is retaliation, and a way to move people steps back, so they stay at the SHU.
• People in Step 5 don't last. They get in trouble and go back. Officers are on them a lot and their property is taken.
• Officers plant drugs or weapons in a person's cell.
• Those newly released to the yard are getting beaten up, or are seen talking to someone they have not seen in decades. They therefore get written up for fighting or for “conspiracy," which sends them back into the SHU.
• Staff provokes people who get off the bus when they arrive to a new prison. Staff harasses and physically intrudes upon them, in an attempt to get a rise.
• When you're out on the mainline, they assume you are running yard and are
dropping kites and notes.
• The IGI revalidates those in Step 5 for being mentioned in a kite or note.
• The IGI accuses those in people of having mail from an illegitimate sender. People so accused get written up for association and are regressed to an earlier step.
• The IGI takes pictures of guys before they leave for the mainline. The IGI then circulate the pictures to informants, who are instructed to keep a watch on and try and get information on those just let out.

This won't come as a surprise to most readers, but our interviewees report that information supplied by confidential informants frequently comes up during DRB reviews.

Title15 hasn't been amended to exclude this type of information, which countervails the Five Core Demands. The Demands denounce the practice of debriefing and the extortion of flimsy or false information from desperate prisoners eager to earn points with their captors and torturers. They also denounce the CDCR's general use of superficial abstracted information to put people in the SHU or retain them there.
As to how the DRB is typically treating information supplied by confidential informants, opinions from inside are mixed. What is clear, though, is the resentment universally engendered by the reliance of CDCR personnel on such information.

For readers new to this topic, information from confidential informants is recorded on a Form 1030, aka a Confidential Informant Disclosure Form. Form 1030s go into a prisoner's central file, yet the prisoner is kept ignorant of specific contents and has no opportunity for meaningful rebuttal.

We've heard a lot from our interviewees and correspondents in recent months about the DRB process and the SDP; too much to be covered or coherently synthesized in one issue. (As if anything is ever coherent where it comes to the CDCR.) But we include below some observations from those inside that don't neatly fall into earlier portions of this article.

Mr. FF emphasizes that, after the CBC review by the DRB, any new hearings are in front of the local classification committee; the same people [assuming that you've not been transferred to another prison] who have kept you where you are.

Mr. TT raises a subject—the COMPAS Assessment—that Prison Focus has not heard much about lately, although we covered it at length in ##42–44. According to Mr. TT, who we spoke with in June at Corcoran, CDCR personnel are attempting to extort folks to complete the COMPAS Assessment by telling them, "If you don't complete it, we won't take you to committee." Another threat used is the threat of a Rules Violation Report.

Under the 2007 Public Safety and Offender Rehabilitation Service Act, data collected by the CDCR through COMPAS or similar assessments "shall be used to place inmates in programs that will aid in their reentry to society and that will most likely reduce the inmate's chances of reoffending." We have no way of knowing if information collected through the COMPAS Assessment is in fact being so used, but we do know that it goes into peoples' central files. We also know that the questions on the COMPAS Assessment are incredibly intrusive in nature, as well as self- and/or other-incriminating. In past issues, we provided examples of many of the questions.

Mr. E says that the majority of new people admitted into Ad Seg at Pelican Bay are coming from Corcoran. (We've received reports that, in the converse, many people arriving at Corcoran are coming from the Bay.) They're accused of being "associates of associates" of people validated as gang/security threat group affiliates, Mr. E elaborates. Some come for Step Down; some come because of initial validations. The latter make up the majority, in his estimation. Ad Seg is treated like a reception center from which up to twenty at a time are moved into the SHU.

Mr. ZZ is in Step 3 at Corcoran. He very much appreciates his group's facilitator and seems optimistic overall about the SDP. On the other hand, he considers the steps are far too long. And, like most everybody we've heard from over the past year or so, he objects to the journaling requirements required in Steps 1 and 2.

Prison Focus discussed these journaling requirements in detail in past issues, ##43–45. The journals issued have insinuating if not outright insulting titles and pose highly intrusive and leading questions that some have fairly categorized as "set-up" questions or debriefing questions. Mr. ZZ regards them as being calculated to dissuade people from participating in the SDP.

Mr. ZZ remains positive about the SDP despite misgivings, but his sense is that most officers are violently against it. During a July interview, he described with particularity and vividness a couple of incidents substantiating his perception about resistance from staff. He also talked about how one sympathetic person otherwise aligned with the state noted the fear that the IGI and others have about losing their jobs, on account of the SDP and other changes. At the same time, Mr. ZZ faults Sacramento for falling down on the job. Certain officers opposed to the SDP have complained that they've received inadequate information about or training on the program. He wonders why the CDCR isn't looking for or identifying officers who want to support the program and participate in it on the tiers.

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