California agrees to move thousands of inmates out of solitary confinement

Sept. 1, 2015 8:09 PM PT

reporting from Sacramento — Ending years of litigation, hunger strikes and contentious debate, California has agreed to move thousands of state prisoners out of solitary confinement under the terms of a landmark lawsuit settlement.

Corrections officials, who have long used indefinite isolation to control violent prison gangs, will cease the practice and return nearly 2,000 inmates to the general population, according to the agreement announced Tuesday.

Some of those inmates have been in isolation, without significant human contact, for more than three decades.

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California has been among a shrinking number of states that keep inmates isolated on the grounds of gang membership rather than behavior, at a time of increasing national criticism over the use of solitary confinement.

“This is a game-changer. California had led the nation in keeping people in cold storage,” said forensic psychiatrist Terry Kupers, one of several criminal justice experts who had filed research findings in the case, contending that prolonged time in solitary left inmates with psychological damage, increased anxiety, disordered thinking and a high risk of suicide.

The settlement between the state and a group of inmates at Pelican Bay State Prison calls for limiting solitary confinement to those who commit serious offenses such as murder, extortion or assault while in prison.

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It also calls for the state to create high-security units that nevertheless allow some group activity for prisoners who are deemed too dangerous for mainline housing.

The settlement agreement is subject to a comment period, hearings and likely acceptance by U.S. District Judge Claudia Wilken. If she approves, the state will have a year to make the changes. Lawyers for inmates and a federal magistrate would then monitor the outcome for two years.

California is not doing away with solitary confinement. About 4,600 prisoners will remain in isolation for shorter terms. Nearly 1,000 others, including hundreds of mentally ill offenders, remain in modified isolation, allowed more time out of their cells.

Typically, inmates in solitary spend 22 to 23 hours a day in their cells, most without windows. Telephone calls are limited to rare emergencies and visits with family take place through thick glass. The prisoners exercise alone in small pens with a small handball or pull-up bar.

Among the criteria the state has used to isolate prisoners are certain tattoos, possession of artwork with gang symbolism and statements from informants. And until recently, the only way out of solitary was to become an informant, a policy that critics said endangered inmates’ lives.

The prisoner who served in solitary longest was Hugo Pinell, who after 43 years in isolation was released to the general prison population earlier this month. He was killed days later during a prison yard riot.

The litigation settled Tuesday was filed in 2009 by two inmates accused of membership in the Aryan Brotherhood, Todd Ashker and Danny Troxell. Both denied active membership with the gang. Ashker was among the leaders of a series of mass hunger strikes, including one in 2013 that was the largest in the nation.

Their lawsuit was picked up and argued by the Center for Constitutional Rights, a New York-based advocacy group. Its president and lead attorney in the case, Jules Lobel, said he hoped the settlement would be a model for other states.

“I would get rid of [solitary] totally,” Lobel said. “I think it is inhumane.”

The state prison guards union, which was blocked by the court from intervening in the case, opposed the settlement, raising fears of a return to the prison violence of the 1980s that pushed the state to enlarge its use of solitary confinement.

On Tuesday, a spokeswoman for the California Correctional Peace Officers Assn. said the union was disappointed that “the practitioners who are actually doing the work are just now seeing the settlement.”

Last year, U.S. Supreme Court Justice Anthony Kennedy questioned the human toll of indefinite solitary, citing the case of a California death row inmate who had been isolated for 26 years.

In July, President Obama told guests at an NAACP convention that long-term isolation was “not smart.” He asked for a Justice Department investigation of solitary confinement in federal penitentiaries.

And a human rights monitor for the United Nations was among the experts to file reports in the California case.

Juan E. Mendez, special rapporteur on torture for the U.N., concluded that treatment of prisoners in solitary at Pelican Bay amounted “to torture or cruel, inhumane or degrading treatment or punishment” and was “contrary to the practices of civilized nations.”

Other states have been more aggressive about dismantling solitary. Colorado, for instance, has reserved isolation for those who commit prison offenses, and it caps those sentences at 12 months.

Ending a practice in heavy use in California for more than 30 years is difficult, said Jeffrey Beard, who took over the Department of Corrections and Rehabilitation in 2012. The state prison system was overcrowded and in crisis, subject to federal oversight, court monitors and expensive litigation.

“You had a system that was so overcrowded over the years they just went from one crisis to another and didn’t have the time to look at some of these operational issues,” Beard said.

In the last three years, he has overseen reductions in prison crowding and improvements in inmate healthcare and ended a number of litigated practices, including the use of pepper spray to control mentally ill prisoners.

In the last two years, the state has removed about 1,100 inmates from solitary confinement who showed no evidence of gang activity. Beard said that success, as much as anything, paved the way for Tuesday’s settlement.

Beard said he expects 1,800 of the 2,800 prisoners currently in long-term isolation to work their way into the general prison yard over the next two years. Those who fail a transition program would be sent to the new high-security unit.

At the same time, a new form of solitary unit will be created to house inmates who are deemed too risky for a group setting. That unit is expected to be small and less restrictive than existing solitary confinement areas, and the state will seek behavior changes that would ultimately allow those prisoners to move.

“We’re not going to just … leave them there,” Beard said. “We don’t believe that its good for anybody to keep them locked up for 10, 20, 30 years.”

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