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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.

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