NLG Plays Pivotal Role in Solitary Confinement Victory

Activists, family members, and attorneys celebrate the settlement in downtown Oakland. Photo by Lucas Guilkey.

Keyvan Eliasieh
Carlos Villarreal

After years of struggle, people in California prisons dealt a significant blow to the practice of solitary confinement. On September 1, parties reached a settlement in Ashker v. Governor of California, limiting if not eliminating the use of indeterminate long-term solitary confinement. Led by those inside California prisons, who often put their lives on the line, several Guild attorneys and legal workers played a role in this historic victory.

Solitary Confinement in California Prisons

Solitary confinement has meant spending 23 hours of each day in a small, windowless cell. The inmates are denied contact visits and other forms of communication. The isolation they experienced, and still experience, causes great psychological harm and has been defined as torture by the UN Committee Against Torture, other bodies, and many other experts. In 2011, over 500 inmates had been in the SHU for 10 years or more, and 78 had been in 20 years or more.

Before the hunger strikes and now the settlement, a person could go to the SHU for an indeterminate amount of time because prison administrators determine that they were in a gang. The “evidence” for this could be completely unrelated to actual membership in a gang. It could be possession of political materials or books, or being associated with someone else who had been accused of being in a gang. Often the only way out was a process called “debriefing,” which was essentially providing information that would implicate others as gang members. Because of this requirement, some of those in the SHU had been falsely accused of being in a gang. Some would refuse to implicate others because it might be dangerous for them or their family.

The Settlement

The settlement means that over a thousand people should be getting out of the SHU and no one will go to the SHU in the future based solely on membership in a group (or gang) alone. Indefinite terms are mostly eliminated and definite terms cannot exceed 5 years. The process of leaving the SHU, even before a term is up, will be shortened as well.

In some ways the settlement achieved more than what the complaint sought for relief. For one, it will reach prisoners beyond merely Pelican Bay State Prison. “Additionally, the line that the complaint drew for Eight Amendment relief was ten years of solitary confinement,” explained NLG member and California Prison Focus legal director Taeva Shefler. “The settlement draws the line at five years, with some, and hopefully in practice, few, exceptions.”

Despite exceptions, class leaders and their attorneys see the settlement as a significant victory. And, as stated in the agreement itself:

Plaintiffs’ representatives and their counsel, with the assistance of Magistrate Judge [Nandor] Vadas, will have an active, ongoing role in overseeing implementation and enforcement of the Settlement Agreement, including the opportunity to raise before Magistrate Judge Vadas alleged violations of the Agreement or the Constitution.

Those Most Affected Lead

NLG legal workers and lawyers played an important part in all of this, but those inside led the way. As Guild member Caitlin Kelly Henry notes, “The Ashker case started pro se by strong jailhouse lawyers on the inside. It was only later that the organizing created a space for attorneys to step in.” Civil disobedience was critical, as tens of thousands of people in California prisons carried out three, historic hunger strikes over the past few years.

Carol Strickman, Guild member and staff attorney at Legal Services for Prisoners with Children, acknowledged the power of the inmates’ direct action, along with the organizing by family members and supporters, as changing the paradigm about the SHU from ‘the worst of the worst’ to ‘state torture’: “The prisoners themselves drew attention to their situation dramatically and effectively and we on the outside responded in kind.”

“California’s agreement to abandon indeterminate SHU confinement based on gang affiliation demonstrates the power of unity and collective action,” announced the statement from the plaintiffs. “This victory was achieved by the efforts of people in prison, their families and loved ones, lawyers, and outside supporters.”

Lawyers and Legal Workers Contribute

A fairly large network of lawyers and legal workers contributed directly and indirectly to this settlement. Strickman was an attorney of record in the case, along with chapter member Anne Weills, and Guild members from New York who did this work through the Center for Constitutional Rights. Guild members also played a role on the Hunger Strike Mediation Team, which would meet with officials from the California Department of Corrections and Rehabilitation (CDCR) to negotiate the hunger strikers’ demands. Many others visited and corresponded with people on the inside, contributing vital information to the legal team. This chapter, and many of its members, also played a role in raising awareness about the problems with solitary confinement.

Henry, who visited people in the Corcoran and Pelican Bay SHUs, has also organized a number of “Support from Outside” trainings through the NLG’s Police & Prisons Committee. Shefler contributed to the CPF’s publications to raise awareness, with those inside California prisons, decision-makers in Sacramento, and the public in general.

From left to right: Jerry Elster, Pat Foley, Carol Strickman, Marilyn McMahon, and Penny Schoner campaign against solitary confinement in Oakland. Photo by meeshellen

As an attorney on the case, Strickman frequently visited plaintiffs and other class members, worked on legal documents, participated in depositions, worked with experts, and participated in weekly strategy meetings with the rest of the legal team. She believes the CDCR re-opened settlement discussions earlier this year, in part, because of two key legal milestones: “[The legal team’s] submission of ten powerful expert reports and the court’s favorable ruling on our motion to amend the pleadings to add a third class of former Pelican Bay SHU prisoners.”

The eventual settlement also built upon decades of activism and legal work that came before it. In the aftermath of an uprising at San Quentin in 1971, litigation challenged the conditions of prisoners – specifically six men who were accused of killing three prison guards. The “San Quentin Six,” as they were dubbed, challenged the conditions of their confinement. Sacramento NLG member Mark Merin, an attorney in the Spain v. Procunier case, noted that the Six were kept in solitary confinement, but were also subject to choker chains, tear-gassing in locked cells, beat downs, and other cruel conditions. Despite the highly-charged atmosphere around their case, they won some positive changes in the Spain case. Then as now, Guild members were on the front lines of challenging the sprawling, mostly unaccountable system of incarceration in California.

A Significant Step, But Much More To Do

Whether or not members approach the issue from the perspective of abolishing prisons altogether, there is unity that much more needs to be done.

“Individuals deserve a fair hearing prior to placement in solitary confinement conditions, including representation, the ability to call witnesses, and the right to confront those with evidence used against them,” said Shefler, who notes that under the terms of the settlement, confidential information can still be used as evidence for placement in solitary.

Unforeseen tactics by guards and other officials can also arise. For example, prison guards, who now must do regular welfare checks in the SHU units, have rebelled against this requirement with a new form of harassment. “This practice involves correctional officers making unnecessary noise and shining lights on individuals’ eyes every 30 minutes, 24 hours a day,” explains Shefler. “The way they are doing these welfare checks is such that prisoners are experiencing severe sleep deprivation and high levels of anxiety and agitation as a result.”

Beyond eliminating new forms of torture, there is the need for more and better programming, yard time that is actually outside in the sun, contact visits with loved ones, effective medical care, nutritious food that meets medical and religious dietary restrictions, and much more. And of course there is the broader need to greatly reduce or eliminate the use of incarceration altogether.

Just days before the settlement, one of the San Quentin Six, Hugo Pinell, was killed. He had been in the SHU for 45 years, but had just been released into the general population. Guards certainly had reason to have him killed, and CDCR was well aware that there were threats against his life from other inmates. His killing is largely viewed as a political assassination, and is but one example of the limits of reform.

As Strickman noted of the settlement: “This important victory is only one step towards the abolition/transformation of the prison system. We must continue to push for change.”

So the work continues. For our part, the chapter’s Police & Prisons Committee is launching a Prisoner Advocacy Network later this fall. Guild members are encouraged to participate in the Network or to take on individual cases as attorneys. There are also a number of other organizations, such as Legal Services for Prisoners with Children and California Prison Focus, that could use volunteers and pen pals for those on the inside.

“In my experience, there is great power in the observation effect,” explains Shefler. “If correctional officers and the administration know that a prisoner has outside support, and that people are paying attention to an issue, there is a much higher chance of response.”