Menus Subscribe Search

The Law Won

pelican-bay-prison

Pelican Bay State Prison. (Photo: Jelson25/Wikimedia Commons)

Are We Approaching the End of Solitary Confinement?

• June 23, 2014 • 8:00 AM

Pelican Bay State Prison. (Photo: Jelson25/Wikimedia Commons)

As a new class-action lawsuit out of California’s infamous Pelican Bay State Prison that may definitively determine the future of solitary in that state moves forward, more people are taking the position that the practice amounts to inhumane punishment.

Earlier this month, a federal judge in Oakland held that five inmates currently locked up in California’s Pelican Bay State Prison are permitted to move forward with their class action, Ashker v. Brown, on behalf of over 500 other inmates, all of whom have been held in Security Housing Units (SHU), the administrative term for solitary confinement, for over a decade. Some of those inmates have been in solitary for over 20 years now, and many are there on the basis of alleged gang affiliation only. One of the plaintiffs, Todd Ashker, has been in solitary for over 25 years, and he’s only 50. This means that he has spent over half of his life in solitary lockdown.*

This lawsuit seriously challenges the California Department of Corrections and Rehabilitation’s (CDCR) widespread use of solitary confinement for prolonged periods of time, arguing that the use of solitary confinement violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Inmates housed in solitary confinement, which the Istanbul Statement defines as “the physical isolation of individuals who are confined to their cells for 22 to 24 hours a day,” are generally denied access to edible food, medical care, stamps, writing materials, and visitors, according to one complaint. Their exercise period is held in a small concrete “dog run” where sunlight and air are obscured by Plexiglas and mesh. The named plaintiffs are the leaders of last summer’s hunger strikes, where over 30,000 prisoners across California refused to eat in order to protest the inhumane conditions at Pelican Bay and the CDCR’s draconian methods to curb gang activity by sending alleged members to the SHU.

This isn’t the first time that a federal judge has intimated that matters of California prison policy will be decided in court. The CDCR is still struggling to comply with a federal order, upheld by the Supreme Court, to reduce prison overcrowding (Plata v. Brown) as well as another order to improve the treatment and services available to mentally ill inmates (Coleman v. Brown). The implementation of both Plata and Coleman has been going on for over a decade. From all appearances, the CDCR seems to view these court-ordered mandates as burdens imposed by an outside authority, resulting in what appears to be petulance at being the loser. Dr. Raymond F. Patterson, a suicide expert and one of special masters assigned to Coleman, stated in his 14th and final report that he would no longer participate in the process because the CDCR showed no signs of improvement: “It has become apparent that continued repetition of these recommendations would be a further waste of time and effort.”

Little dissent exists in the medical community that solitary confinement for even short periods of time can cause long-term effects like psychotic disturbances, depression, paranoia, suicidal thoughts, and a severe incapacity to re-integrate into society.

Solitary confinement has been the subject of a previous lawsuit in California, Madrid v. Gomez, where a judge held that confining inmates with mental illnesses in SHU conditions at Pelican Bay violated the Eighth Amendment. The case left open the question as to whether or not the use of solitary confinement was similarly illegal for all inmates, a question that Ashker seeks to answer.

The tide of public opinion has gradually been turning against the use of solitary confinement, and it’s hard to find any evidence in support of the practice. International groups, like Human Rights Watch and the United Nations, have determined that solitary confinement amounts to inhumane punishment, causing hosts of mental and physical problems; it’s widely considered torture under most international conventions. Little dissent exists in the medical community that solitary confinement for even short periods of time can cause long-term effects like psychotic disturbances, depression, paranoia, suicidal thoughts, and a severe incapacity to re-integrate into society. Solitary confinement for indefinite periods of time may have untold additional consequences.

This lawsuit may definitively determine the future of solitary confinement and force the CDCR to phase it out completely. This is no small task. California holds more people in solitary than any other state. Famously foreboding because of its remoteness, Pelican Bay has over 1,000 inmates in SHU alone, and two other prisons—Corcoran State Prison and CCI Calipatria—hold over 2,000 more inmates in SHU confinement.

While it may seem unusual that solitary confinement would have such widespread use in California, the history of that state’s prisons is one of extreme fear and violence. Since the 1970s, when the serial killer phenomenon entered the social consciousness, government officials have responded to public anxiety by deciding that people who are prone to violence—who may commit a violent act even if they haven’t yet—should be restrained in order to prevent any harm. The famous “San Quentin Six,” a group of inmates who attempted to escape in 1971, resulting in a riot that ended in the gruesome deaths of three correctional officers, further encouraged policies that favor restraint and confinement over rehabilitation. The 1971 riot is still cited as major support for the increased use of supermaxes, and all of California’s supermax prisons, like Pelican Bay, were commissioned after the riot, according to author and law professor Jonathan Simon.

The CDCR justifies the long-term use of solitary confinement at Pelican Bay as a way to deter gang violence. Currently, individuals who are determined to have a gang affiliation can be held in SHU indefinitely until they “debrief”—provide prison authorities full information on gang-related activities. The debriefing process is describing as chillingly threatening—inmates are asked before debriefing if they want to contact their family members to let them know they may be in danger.

The way the CDCR determines gang affiliations is particularly shrouded in mystery. Todd Ashker, for example, is an alleged member of the Aryan Brotherhood, based on some drawings found in his cell and confidential informants. The Ashker case calls into question these tactics, but from the CDCR’s point of view, Pelican Bay houses the most dangerous gang leaders, necessitating the extreme control tactics implemented there.

Despite the clear and convincing evidence that solitary confinement must be curtailed, lawsuits aren’t always the most effective way to solve problems of public policy. They are costly and take a long time. As the results from Plata, the overcrowding lawsuit, show, decades pass before the CDCR complies—California prisons are still over the judicially mandated population limit. I was told by people within the CDCR that courts misinterpret prison management and unfairly set standards to which the CDCR cannot immediately adhere. Plus, for the money the CDCR spends to defend its policies, it could fund dozens of rehabilitative programs in California prisons, programs that have been found to reduce the prison population overall. Would it be more effective—and result in less stubborn resistance—to allow these changes to occur through the political process?

The culture of prisons seems slow to change, particularly in California. Those who work within the prisons have little incentive to modify the system, and, while many people support prison reform, they grow more edgy when they realize that ex-cons are being funneled back into their community. The Pelican Bay hunger strikers tried to take action in the only politically meaningful way they could, bringing widespread attention to their cause, but no change occurred. Cases like Ashker seem like the sort for which constitutional protections were designed, a reminder that individuals are equal, even if they are incarcerated.


*UPDATE — June 23, 2014: We originally wrote that SHU stands for Segregated Housing Units. It stands for Security Housing Units.

Jessica Pishko
Jessica Pishko graduated with a J.D. from Harvard Law School and received an M.F.A. from Columbia University. She practiced corporate law, specializing in securities fraud, and represented death penalty clients and victims of domestic abuse pro bono. Follow her on Twitter @JessPish.

More From Jessica Pishko

A weekly roundup of the best of Pacific Standard and PSmag.com, delivered straight to your inbox.

Recent Posts

August 29 • 4:00 PM

The Hidden Costs of Tobacco Debt

Even when taxpayers aren’t explicitly on the hook, tobacco bonds can cost states and local governments money. Here’s how.


August 29 • 2:00 PM

Why Don’t Men and Women Wear the Same Gender-Neutral Bathing Suits?

They used to in the 1920s.


August 29 • 11:48 AM

Your Brain Decides Whether to Trust Someone in Milliseconds

We can determine trustworthiness even when we’re only subliminally aware of the other person.


August 29 • 10:00 AM

True Darwinism Is All About Chance

Though the rich sometimes forget, Darwin knew that nature frequently rolls the dice.


August 29 • 8:00 AM

Why Our Molecular Make-Up Can’t Explain Who We Are

Our genes only tell a portion of the story.


August 29 • 6:00 AM

Strange Situations: Attachment Theory and Sexual Assault on College Campuses

When college women leave home, does attachment behavior make them more vulnerable to campus rape?


August 29 • 4:00 AM

Forgive Your Philandering Partner—and Pay the Price

New research finds people who forgive an unfaithful romantic partner are considered weaker and less competent than those who ended the relationship.


August 28 • 4:00 PM

Some Natural-Looking Zoo Exhibits May Be Even Worse Than the Old Concrete Ones

They’re often designed for you, the paying visitor, and not the animals who have to inhabit them.


August 28 • 2:00 PM

What I Learned From Debating Science With Trolls

“Don’t feed the trolls” is sound advice, but occasionally ignoring it can lead to rewards.


August 28 • 12:00 PM

The Ice Bucket Challenge’s Meme Money

The ALS Association has raised nearly $100 million over the past month, 50 times what it raised in the same period last year. How will that money be spent, and how can non-profit executives make a windfall last?


August 28 • 11:56 AM

Outlawing Water Conflict: California Legislators Confront Risky Groundwater Loophole

California, where ambitious agriculture sucks up 80 percent of the state’s developed water, is no stranger to water wrangles. Now one of the worst droughts in state history is pushing legislators to reckon with its unwieldy water laws, especially one major oversight: California has been the only Western state without groundwater regulation—but now that looks set to change.


August 28 • 11:38 AM

Young, Undocumented, and Invisible

While young migrant workers struggle under poor working conditions, U.S. policy has done little to help.


August 28 • 10:00 AM

The Five Words You Never Want to Hear From Your Doctor

“Sometimes people just get pains.”


August 28 • 8:00 AM

Why I’m Not Sharing My Coke

Andy Warhol, algorithms, and a bunch of popular names printed on soda cans.


August 28 • 6:00 AM

Can Outdoor Art Revitalize Outdoor Advertising?

That art you’ve been seeing at bus stations and billboards—it’s serving a purpose beyond just promoting local museums.


August 28 • 4:00 AM

Linguistic Analysis Reveals Research Fraud

An examination of papers by the discredited Diederik Stapel finds linguistic differences between his legitimate and fraudulent studies.


August 28 • 2:00 AM

Poverty and Geography: The Myth of Racial Segregation

Migration, regardless of race, ethnicity, gender, or sexuality (not to mention class), can be a poverty-buster.


August 27 • 4:00 PM

The ‘Non-Lethal’ Flash-Bang Grenades Used in Ferguson Can Actually Be Quite Lethal

A journalist says he was singed by a flash-bang fired by St. Louis County police trying to disperse a crowd, raising questions about how to use these military-style devices safely and appropriately.


August 27 • 2:00 PM

Do Better Looking People Have Better Personalities Too?

An experiment on users of the dating site OKCupid found that members judge both looks and personality by looks alone.


August 27 • 12:00 PM

Love Can Make You Stronger

A new study links oxytocin, the hormone most commonly associated with social bonding, and the one that your body produces during an orgasm, with muscle regeneration.


August 27 • 11:05 AM

Education, Interrupted

When it comes to educational access, young Syrian refugees are becoming a “lost generation.”


August 27 • 9:47 AM

No, Smartphone-Loss Anxiety Disorder Isn’t Real

But people are anxious about losing their phones, even if they don’t do much to protect them.


August 27 • 8:00 AM

A Skeptic Meets a Psychic: When You Can See Into the Future, How Do You Handle Uncertainty?

For all the crystal balls and beaded doorways, some psychics provide a useful, non-paranormal service. The best ones—they give good advice.


August 27 • 6:00 AM

Speaking Eyebrow: Your Face Is Saying More Than You Think

Our involuntary gestures take on different “accents” depending on our cultural background.


August 27 • 4:00 AM

The Politics of Anti-NIMBYism and Addressing Housing Affordability

Respected expert economists like Paul Krugman and Edward Glaeser are confusing readers with their poor grasp of demography.


Follow us


Subscribe Now

Your Brain Decides Whether to Trust Someone in Milliseconds

We can determine trustworthiness even when we’re only subliminally aware of the other person.

Young, Undocumented, and Invisible

While young migrant workers struggle under poor working conditions, U.S. policy has done little to help.

Education, Interrupted

When it comes to educational access, young Syrian refugees are becoming a “lost generation.”

No, Smartphone-Loss Anxiety Disorder Isn’t Real

But people are anxious about losing their phones, even if they don’t do much to protect them.

Being a Couch Potato: Not So Bad After All?

For those who feel guilty about watching TV, a new study provides redemption.

The Big One

One in two full-time American fast-food workers' families are enrolled in public assistance programs, at a cost of $7 billion per year. July/August 2014 fast-food-big-one

Copyright © 2014 by Pacific Standard and The Miller-McCune Center for Research, Media, and Public Policy. All Rights Reserved.