Ashker Bulletin

Kim Rohrbach

From Prison Focus Issue 50
Fall 2016

This bulletin is informed, in part, by in-person interviews conducted at Corcoran and Pelican Bay State Prisons in August and September, 2016, as well as by letters recently received from both prisons. It is also informed by the record and documents in Ashker v. Brown (N.D. Cal. No. 4:09-cv-05796) and reports from the Ashker plaintiffs' litigation team.

As usual, the identities of individual interviewees/correspondents have been safe-guarded through the use of anonymous designations.

A note to those new to the Prison Focus newsletter and/or unfamiliar with Ashker v. Brown: The majority of our regular readers are incarcerated in California, most of whom are directly impacted by Ashker in one way or another. They are generally familiar with matters discussed below, and this bulletin is primarily oriented towards them. That being said, some background info is provided here and there for those of you who are unfamiliar with the lawsuit and the issues surrounding it.

To begin with, Ashker is a federal class action (now settled) brought primarily on behalf of people held in indefinite solitary confinement/isolation at Pelican Bay State Prison's Security Housing Unit (SHU). All of the named plaintiffs spent a minimum of ten continuous years in Pelican Bay's SHU, and some were so caged for decades on end.
This was a result of the California Department of Corrections having deemed them gang (or in the Department's current parlance, "Security Threat Group," aka STG) affiliates. So long as a person's status as a gang affiliate remained "active," in the Department's estimation, that person remained in the SHU. Remaining "active" did not require, and to this day does not require, any actual misconduct or criminal activity. But under the settlement reached, being an alleged active STG affiliate alone does not suffice to get you a SHU sentence.
Class members in the lawsuit also included alleged gang/STG affiliates who prospectively stood to be confined in Pelican Bay's SHU for ten-plus years. The lawsuit contended that long-term isolation in Pelican Bay's SHU is cruel and unusual punishment prohibited by the US Constitution, and that class members' due-process rights under the US Constitution were violated.

The California Department of Corrections and Rehabilitation (referred to CDCr herein ) has repeatedly denied that solitary confinement is used in California. This is false. Of the 865 total individuals remaining in California's SHUs, according to recent statistics, nearly seventy percent were single-celled —i.e., alone without cellmates (not that sharing a concrete-and-steel bunker the size of a parking space, where you spend up to 24 hours each day, isn't without its own problems). Meanwhile, others suffer similar or even worse torture within the CDCr's Administrative Segregation Units (ASUs) and other isolation or maximum-security facilities.

PROGRESS OF CASE REVIEWS REQUIRED BY THE ASHKER SETTLEMENT
As of August, 17, court records indicate, the reviews of everybody who is going to receive a review under Ashker were "almost complete." This was substantially confirmed by the plaintiffs' litigation team, who informed us that initial ICC reviews were on schedule to be completed within the one-year deadline mandated by the settlement. Only about 75 people were still waiting for initial ICC reviews as of early August.
That being said, there is a bottleneck in cases that the Internal Classification Committees (ICCs) have referred to the Departmental Review Board (DRB) for further review. Details of the situation with the DRB will be discussed in a moment.

The most recent COMPSTAT data available , published in July, show that as of July 2016, there were:
• 440 people in Pelican Bay's SHU (as opposed to 1124 in July 2015)
• 324 people in Corcoran's SHU (as opposed to 1229 in July 2015)
• 76 people in Tehachapi's aka CCI's SHU (as opposed to 484 in July 2015)
• 25 people in New Folsom's aka SAC's SHU (as opposed to 52 in July 2015)

Given the progress of initial ICC reviews, it appears that Ashker class members presently constitute only a very small percentage of the people currently in the state's four SHUs. Others remaining there are ostensibly serving determinate SHU sentences based on alleged misconduct, as clarified below.

BOTTLENECK AT THE DRB; PLAINTIFF'S MOTION TO COMPEL COMPLIANCE
In early June, the litigation team informed us that about 80% of people receiving Ashker reviews were being released from the SHU immediately. Of those referred to the DRB for further review, about half were getting out of the SHU after seeing the DRB. These figures seem to hold true at present. Yet, as of June, there were some 100 people whose cases had yet to be reviewed by the DRB, and the DRB was only reviewing around six to eight cases per month.

Prior to the settlement, when case-by-case reviews by the DRB were happening under the Pilot Program, the CDCr had represented that it would be training/implementing additional DRB teams to conduct reviews.
At that time (February 2014 or thereabout), there were only two teams of two up and running. This substantially delayed the DRB's progress. During the two and a half years intervening, however, the DRB's capacity does not appear to have increased.

Meanwhile, the CDCr has increased the capacity of its Institution Gang Investigators (IGI). Earlier this year, the Department requested millions of dollars from the California Legislature to employ new IGIs. The legislature ended up approving $2.7 million (which paid for 22 new IGIs), despite adverse recommendations from the state's Legislative Analyst Office.

Because of the bottleneck at the DRB, the Ashker team filed a motion to compel compliance with the settlement agreement (SA) in June. Specific time-tables were requested with respect to completion of the backlogged reviews. Magistrate Judge Nandor Vadas however denied the motion in August. In his opinion, the CDCr was substantially compliant with its obligations set forth in the SA pertaining to reviews.

OTHER ISSUES BROUGHT TO THE COURT BY THE ASHKER TEAM
Since the settlement, a number of issues have been brought to the attention of and litigated before Magistrate Judge Vadas and/or (District) Judge Claudia Wilken. Due to limitations of space and publishing exigencies, we regret that only a couple of these issues can be summarized here.

Recruitment as a "SHU-eligible" offense
Attachment B to the SA, the SHU Term Assessment Chart, lists offenses punishable by a determinate (fixed) SHU sentence under the SA. "Recruiting others to become an STG affiliate or to take part in STG activities that is behavior [sic] listed in" the SHU Term Assessment is one such offense: It can land you in the SHU for up to eighteen months.

As such, "recruiting" is punishable whether or not you have recruited anybody to engage in any misconduct or criminal activity whatsoever—a state of affairs that the litigation team had objected to when settlement negotiations were still underway. A premise of the Ashker class action was that affiliation in and of itself should not be treated as misconduct.

In addition, it's possible, although unreasonable, that the CDCr could at its discretion construe "recruiting others" to include nothing more than greeting or talking to somebody on the yard. That class members lacked due-process rights was in fact one of two causes of action in Ashker. (The CDCr determines a person's placement in the SHU without any judicial oversight or review).

During settlement negotiations, the CDCr had verbally assured that the language around recruitment would be revised. When it was not revised, Plaintiffs' objected in a December 2015 letter brief to Magistrate Judge Vadas.
During a subsequent conference with Vadas on December 28, 2015 (roughly one month before the settlement agreement received the Court's final approval), the CDCr verbally agreed to formulate a policy concerning recruitment "that incorporates a coercive element." This was to be done no later than March 28, 2016. But when March 28 rolled around, the state's counsel emailed the litigation team, saying that the defendants were "unable" to revise the language defining recruitment to include a coercive element.

Plaintiffs responded by filing a motion for enforcement of the December 28 agreement. They were denied by Vadas and took the matter to Judge Claudia Wilken, requesting a determination de novo ("from the new"). Judge Wilken too refused Plaintiffs on September 14, 2016. In both judges' estimation, the December 28 agreement was not enforceable as a modification of the SA.

Alleged conspiracy by class members still retained in SHU
Another still-pending matter taken up by the litigation team is the situation of several (initially six) class members still being retained in the SHU. As of January 2015, when the CDCr began investigating these individuals for an alleged conspiracy to murder a fellow prisoner, each had been serving indeterminate SHU sentences due to their "validation" as STG affiliates. By that time, they'd respectively done between 16 and 25 continuous years in the hole (as the SHU is colloquially known).

The CDCr continues to justify keeping four of the six accused in the SHU based on the alleged conspiracy. No murder or harm ever happened, however, and when the case was referred to the local DA for prosecution, the DA declined to prosecute. Administrative charges against two of the men initially accused have furthermore been dropped.

In dispute has been the CDCr's use of old and newly introduced confidential "information" in administratively prosecuting the accused and finding them guilty. Plaintiffs have challenged a lack of transparency in the CDCR's and the Court's processes. They have further contended that the Department's use of confidential information is in violation of the SA's provisions concerning such use.

The dispute has gone back and forth between Magistrate Judge Vadas and Judge Wilken during the past several months. In response to Plaintiff's latest motion, Wilken most recently (on September 6) issued an order: (1) denying Plaintiff's request that she conduct an evidentiary hearing de novo; (2) granting Plaintiff's request to file, under seal, documents in support of their argument that the CDCr is in violation of the SA; (3) recommitting the motion to Vadas to consider the parties' new information and arguments.

RELEVANT REPORTS FROM CORCORAN AND PELICAN BAY
California Prison Focus's latest interviews with people at Corcoran and Pelican Bay happened in late August and early September. Of California's four SHUs, the SHUs at Corcoran and Pelican Bay have historically held the largest numbers of people (the remaining two SHUs are located at CCI, aka Tehachapi, and at SAC, aka New Folsom).
What is discussed below is supplemented with information provided within the past few months by correspondents at both prisons. The overwhelming majority of Interviewees/correspondents whose remarks are drawn from are Ashker class members, who recently or fairly recently got out of the SHU.

Particularly concerning in these remarks is the appearance of animus, or stigma, that emerges in regard to prison staff's conduct towards class members. Individuals provided a variety of accounts lending toward this appearance, but we only have space enough to elaborate on a few of the most recurrent or critical ones.

While retaliation towards class members is specifically prohibited by the SA, convincing a court (in this case, a judge or judges, rather than a jury) of retaliatory intent is a difficult thing. This is especially true when you're dealing with occurrences unwitnessed by third parties/outsiders, prisons largely impregnable by the public, and an entity whose independent discretion is as enormous as the CDCr's.

Uptick in Rules Violation Reports (115s) reported by class members; 115s being issued for petty reasons
A number of our interviewees report that people are being issued more 115s than usual and/or report having received new 115s themselves. Around 70+% of these interviewees are Ashker class members, judging from information that they either gave us or that we already had before interviewing them.

Several described receiving 115s for petty reasons (the equivalent of rolling though a stop sign out here). Details are given in the Pelican Bay Report and Corcoran Report in this issue of Prison Focus.

A 115, if sustained in a hearing by staff, results in discipline. In the worse-case scenario, you can be thrown into the SHU for months, even years, if the alleged offense is a SHU-eligible offense. 115s can otherwise affect your work group status and your ability to parole or obtain a parole date, if you are eligible for parole.

Disproportionate placement of class members on "C" status; "underground" rules for those on "C" status
Multiple class members have shared their observations about people being placed on "C" status, i.e., being assigned to Work Group C.

Mr. YB compiled a list of over a hundred people on "C" status, the majority of whom are class members, he says.
The CDCr assigns various "Work Group" statuses to those in its custody. (See California Code of Regulations, Title 15, § 3044, Inmate Work Groups."Work Group" is a misnomer, in that so-called jobs are hard to come by. And many are simply not permitted to work for the cents per hour that the CDCr pays, because they are prohibited from doing so by their work group status.)

The "privileges" you're granted in prison are commensurate with your work group status. i.e., the amount of money you're allowed to spend at the commissary, the restrictions placed on your visits with loved ones and on your out-of-cell exercise time, your permission or lack thereof to make limited phone calls and to work, etc., all depend on the Work Group you've been place in.

Relevant to our interviewees'/correspondents' comments,"privileges" for those specifically in Work Group C are even less than those for those in SHU (See § 3044 and its subparts pertaining to those place in Work Groups C and D).

Moreover, Mr. ZA additionally informed us, individuals on "C" status are being subjected to mail restrictions. These include certain individuals whose mail was restricted after receiving correspondence from California Prison Focus. What these specific restrictions may be, we don't know. But we do know that, regardless of your work group status, Title 15 regulations around mail remain the same. (See §§ 3130–3153.) The withholding or partial withholding of mail, for example, is authorized only in limited instances, and according to the procedures set forth in Title 15.
Along similar lines, other interviewee's comments suggest that those on "C" status are receiving special treatment not authorized under Title 15.

Mr. QW, who is preparing his own list of persons on "C" status, likens being on "C" status to "stop-and-frisk" on the outside. You get petty 115s. Your cell is raided, and the cops just barge in yelling and telling you to get on the ground, rather than following the standard procedure of cuffing you up prior to before raiding your cell. People on "C" Status don’t really know what legitimate rules adhere outside of the SHU, but staff expects them to know. At any rate, they do know what the "underground" rules are.

Mr. JJ mentioned that appliances (TVs, e.g.) are being taken away from those on "C" status. But he also heard about a memo going out from Sacramento instructing cops not to do this.

Mr. RE believes that the cops are using 115s ten or fifteen years old, and petty 115s, to put people on "C" status. It's not clear whether or not he's a class member, but he told us that's he's spent time in the SHU.

Ongoing repercussions of information supplied by confidential prisoner-informants
The SA does not substantively address the CDCr's taking into consideration of confidential information when making administrative decisions, including decisions about housing/SHU assignments which are at the heart of Ashker. It only states, at ¶ 34, that the CDCr shall follow its own rules set forth in Title 15 and shall "develop and implement appropriate training for impacted staff members" making administrative decisions. (Training requirements are an issue that the Ashker's litigation has brought to court in recent months.)

Confidential information is largely supplied by debriefers or "drop-outs", meaning those renouncing/denying any gang affiliation and supplying information to prison staff. That such people would feel strong incentive to talk (truthfully or not) is clear enough. Failure to debrief, for example, has been cited as a reason to deny parole to many.

When confidential information is used to an individual's detriment, Title 15 does not require that the specific content of that information be disclosed to that individual. Instead, s/he is issued a Confidential Information Disclosure Form (1030) stating the general nature of the information.

Once issued, any 1030 stays in your central file forever and can generally be invoked in support of a variety of actions adversely affecting you. The only limitations of which this writer is aware are those set forth in the SA, pertaining to 115s and the manner in which they're used in determining housing assignments.

How the use of confidential information—a critical topic for all people in California's prisons—will play out for class members in coming months remains to be seen. Yet, the potential for ongoing abuse is apparent.

Mr. TE indicates that people awaiting Ashker reviews are being told by the ICC, during 180-day reviews otherwise required under Title 15, that their cases have been referred to the IGI. Mr. TE is an apparent class member. In 2010, he received a 1030 concerning information allegedly proffered by somebody he'd allegedly disrespected. He mentioned this within the context of saying that his case had been referred to the IGI a couple of weeks earlier. Prior to being so advised, he'd been advised that his Ashker review was soon forthcoming.

This raises the questions: To what extent is confidential information being used by the CDCr to justify housing assignments? And how many people receiving initial Ashker reviews are having their cases referred to the DRB based on confidential information?

Mr. OU believes that debriefers are increasingly being used to get people off the mainline, i.e. out of the general population and into more restrictive housing units such as the SHU or Ad Seg. The CDCr can no longer do so (under the SA) by just saying they're gang members, he notes. Mr. OU is a class member who spent well over a decade in the SHU. He was released from the SHU earlier this year, then was put in Ad Seg scarcely more than two months later. The IGI informed him that this was because of a 1030 they'd received from a prison where he'd previously been held, to the effect that he was subject to attack by other prisoners.

The SA specifies, at ¶13, that the CDCr shall not place anyone in an ASU or SHU on the basis of validation status (status as "gang" or "STG affiliates) alone. But it cannot be emphasized strongly enough that the use of Ad Seg is not otherwise addressed in any detail by the SA, since it is outside of the scope of Ashker. (As explained at the beginning of this article, Ashker was brought on behalf of those confined at Pelican Bay's SHU for ten years or more, and on behalf of those subject to being so confined. It was not brought on behalf of those confined at Pelican Bay's or any other prison's ASU.) It too cannot be emphasized strongly enough that, while California's prisons for women do not have SHUs and are to that extent out of the scope of Ashker, they do have ASUs. All prisons in this state have ASUs.