California’s prison agency told the Ninth Circuit Court of Appeals on Wednesday that denying inmates parole based on alleged gang affiliation is legal under a landmark settlement meant to abolish the practice, glossing over two years of internal records revealing the agency has falsely accused inmates of infractions to keep them incarcerated.
Things like having a birthday card from a validated gang member, or political writings or photographs, could get an inmate validated.
The argument is part of a push by the California Department of Corrections and Rehabilitation to overturn a lower court order that found the agency violated constitutional due process under the 2015 Ashker v. Newsom class action settlement with 1,600 inmates who had been in prolonged isolation at Pelican Bay State Prison for at least a decade.
U.S. Magistrate Judge Robert Illman of the Northern District of California issued the order in January 2019 upon reviewing confidential records that the Corrections Department turned over during the settlement’s monitoring and enforcement period between 2015 and 2018.
Illman found that the agency fabricated or failed to corroborate evidence of prison rule violations against inmates during that time period that were serious enough to land them back in solitary confinement and disqualify them from parole. He extended the monitoring period by twelve months to force the prison agency into compliance.
Wikimedia Commons
Pelican Bay State Prison
Before the settlement, inmates housed in Pelican Bay's Security Housing Units were isolated in windowless cells for twenty-three hours a day based on alleged gang affiliation, which was determined through a process of “validating” inmates as affiliates. Things like having a birthday card from a validated gang member, or political writings or photographs, could get an inmate validated.
Illman deemed the validations unreliable, and even the Corrections Department conceded it “over-validated” inmates.
Now, inmates are only placed in solitary confinement based on serious infractions, such as violence, and only after a disciplinary hearing where inmates can defend themselves against the allegations.
The settlement also requires that inmates be given all evidence from confidential informants used against them, so they can mount an effective defense. Because this information can be unreliable, prison staff must also be trained to authenticate it. But records show staff didn’t do that. Instead, they fabricated or distorted confidential evidence of infractions in more than one third of the 150 information files reviewed.
Records show the agency also continued using the old gang validations in parole proceedings, exposing class members to the same de facto bar on parole that the settlement was meant to dismantle.
“All they’ve done is switch how they deny parole,” Center for Constitutional Rights attorney Jules Lobel, who argued on behalf of the class, told the Ninth Circuit during live-streamed arguments on May 13. “It’s all the same thing.”
California Deputy Attorney General Jeffrey Fisher, who represented the Corrections Department at the May 13 hearing, did not dispute that solitary confinement functioned as a de facto bar on parole. Instead, he argued that the agency isn’t required to stop using old gang validations under the settlement because the class hadn’t negotiated changes in parole policies or alleged the policies violated due process.
The fact that they alleged the existence of an unwritten policy denying parole to inmates in isolation didn’t justify revising parole policy on its own, Fisher said.
In February, the United Nations Special Rapporteur on torture slammed the “excessive use” of solitary confinement in U.S. prisons, including the “repressive” use of prolonged confinement.
At least one member of the court’s three-judge panel appeared to agree. “It seems to go a bit beyond what the original complaint was,” said U.S. District Judge James Gwin, sitting by designation from the Northern District of Ohio. “Now you seem to be saying the procedures used in parole . . . violate constitutional rights.”
Gwin, a Clinton appointee, pointed out that class counsel hadn’t sought to expunge the old gang validations. Echoing Fisher, he suggested that they were attempting to use the twelve-month extension to correct their purported mistake.
“We didn’t think the validations would be sent to the parole board and be used,” Lobel replied. The requirement that prison staff be trained to ensure the accuracy of confidential evidence was meant to dispense with the validations, but “they didn’t do that,” he added.
The agency does not deny the fabrication of evidence against inmates, though it insists it wasn't systematic. And it contends fabrication doesn’t violate due process rights to a fair disciplinary hearing, so long as the hearing officer has access to the underlying evidence. But the agency’s records also revealed hearing officers often do not read the underlying evidence, and instead rubber stamp inaccuracies submitted by investigators.
Rachel Meeropol, a senior staff attorney at the Center for Constitutional Rights also representing the class, tells The Progressive that prison officials informed her that they had “taken some steps to improve their use of confidential information” under the extension. “But we are continuing to monitor their use of confidential information to send Ashker class members back to solitary confinement and are seeing continuing serious due process violations,” she says.
Meeropol says she does not know whether the Corrections Department had disciplined or fired staff found to have fabricated evidence. Asked whether it had taken any such action, Corrections Department spokesperson Terry Thornton said the agency “takes these issues and allegations seriously” but could not comment on pending litigation.
A ruling for the agency would end court supervision of the settlement and terminate the case. On May 13, Fisher focused on convincing the Ninth Circuit the appeal belongs in that court, where the odds of prevailing are in the agency’s favor.
Class counsel, however, insist the appeal belongs before Senior U.S. District Judge Claudia Wilken, the Oakland federal judge presiding over the case. (Illman oversees the settlement.) The class would presumably fare better before Wilken, who last year held that the Corrections Department had little chance of succeeding on the merits of the case.
Senior Circuit Judge J. Clifford Wallace and Circuit Judge Ryan Nelson also sat on the panel. Neither indicated how they would rule on the merits should they decide to keep the appeal in the Ninth Circuit. But Wallace, a Nixon appointee, suggested he might vote to keep it. Nelson, whom President Donald Trump appointed in late 2018, seemed to side with the class on jurisdiction, after initially signaling agreement with Fisher.
The panel did not say when it will rule.
In February, the United Nations Special Rapporteur on torture slammed the “excessive use” of solitary confinement in U.S. prisons, including the “repressive” use of prolonged confinement. Under the U.N.’s Nelson Mandela Rules, solitary confinement for more than fifteen consecutive days is considered torture. Amnesty International considers prolonged solitary confinement a violation of the U.N. Convention Against Torture.
International law, meanwhile, prohibits placing inmates with mental or physical disabilities in solitary confinement. But according to an amicus brief filed by nine former U.S. prison officials on behalf of the Ashker class, almost every study has found that solitary confinement causes mental health symptoms and worsens existing illness, including depression. Rates of suicide and self-harm increase, and symptoms do not subside upon release.
“In other words,” the brief states, “solitary confinement can inflict lasting mental health trauma.”