BILL ANALYSIS Ó
SB 759
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Date of Hearing: June 21, 2016
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SB
759 (Anderson) - As Amended June 2, 2015
SUMMARY: Repeals the provision of law that makes inmates placed
in a Security Housing Unit (SHU), or other specified segregation
units ineligible to earn credits and instead requires the
California Department of Corrections and Rehabilitation (CDCR)
to establish regulations to allow those inmates to earn credits.
Specifically, this bill:
1)Requires CDCR, no later than July 1, 2017, to establish
regulations to allow specified inmates placed in a SHU,
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Psychiatric Services Unit (PSU), Behavioral Management Unit
(BMU), or an Administrative Segregation Unit (ASU) to earn
credits during the time he or she is in the SHU, PSU, BMU, or
ASU.
2)Allows for regulations to establish separate classifications
of serious disciplinary infractions to determine the rate of
restoration of credits, the time period required before
forfeited credits or a portion thereof may be restored, and
the percentage of forfeited credits that may be restored for
those time periods, not to exceed those percentages authorized
for general population inmates.
3)States that the regulations shall provide for credit earning
for inmates who successfully complete specific program
performance objectives.
EXISTING LAW:
1)States that a person who is placed in a SHU, PSU, BMU, or an
ASU for specified misconduct, or upon validation as a prison
gang member or associate, is ineligible to earn custody
credits during the time he or she is in the SHU, PSU, BMU, or
the ASU for that misconduct, as specified. (Pen. Code, §
2933.6, subd. (a).)
2)Specifies the offenses for which an inmate, if placed in a
SHU, PSU, BMU, or an ASU due to a violation of one of the
offenses, is not eligible to receive credits. (Pen. Code, §
2933.6, subd. (b).)
3)Provides that the loss of credits prescribed above does not
apply if the administrative finding of the misconduct is
overturned or if the person is criminally prosecuted for the
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misconduct and is found not guilty. (Pen. Code, § 2933.6,
subd. (c).)
FISCAL EFFECT: Unknown.
COMMENTS:
1)Author's Statement: According to the author, "California's
prison system has five Security Housing Units (SHUs) managed
by the California Department of Corrections and Rehabilitation
(CDCR). These "supermax" facilities are used for the
long-term isolation of prisoners because of rules violations
or because of their perceived status as gang members or
associates. Housing prisoners in long-term isolation has been
widely condemned by human rights advocates. A 2011 report by
the United Nations Special Rapporteur called on all countries
to ban the practice except in very limited circumstances and
only for very short durations.
"Prisoners are housed in cells averaging 2' x 10' for 23-24
hours per day, released only for showers and exercise in an
enclosed cage. Both the large number of prisoners confined in
these units and the length of time they spend there (the
average length of a SHU term has been six years), demonstrate
that our policies are much harsher than other states.
"In July 2011, prisoners housed in SHUs went on hunger strike
to protest their conditions of confinement. This strike lasted
30 days. In the fall of 2011, prisoners again went on hunger
strike for another 30 days. The CDCR subsequently initiated
broad policy changes concerning gang validations and
introduced a new Step Down Program to provide isolated
prisoners with specific steps to earn their way out of the
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SHU. At the same time, prisoners who had been held in SHU for
more than 10 years filed a class action lawsuit, supported by
the Center for Constitutional Rights, Legal Services for
Prisoners with Children and others, challenging practices
related to long term isolation.
"The case, Asker v. Brown, was settled in September 2015 and
is now in the process of being implemented. Under terms of the
agreement, prisoners will no longer serve SHU terms for
perceived gang affiliation. The settlement requires the CDCR
to conduct hearings on everyone assigned to SHU because of
gang affiliation to determine whether they should remain in
solitary. So far over 1,000 hearings have been held and 80% of
the prisoners housed in isolation have been cleared for
transfer to general population. It is important to add that
no significant incidents have resulted from these transfers."
2)History of CDCR's Security Housing Units: CDCR has SHUs in
five of its institutions - Pelican Bay State Prison,
California State Prison in Corcoran, California Correctional
Institution in Tehachapi, California State Prison in
Sacramento, and California Institution for Women.
Until recently, inmates were assigned to the SHU for two
reasons. First, an inmate could be sent to the SHU for a
determinate time period as punishment for violating the rules
or regulations of the prison. Second, an inmate could be
placed in the SHU for an indeterminate period of time if the
inmate is validated as a member or associate of one of the
designated prison gangs.
Historically, an inmate who was placed in the SHU as a
validated gang member or associate would serve the remainder
of his or her sentence in the SHU, unless the Institutional
Gang Investigator determined that the inmate has had no gang
activity for six years, or the inmate agrees to debrief.
Debriefing requires the inmate to provide gang investigators
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with detailed information on alleged gang members and
associates. Most SHU inmates would choose not to debrief for
fear of their personal safety or fear of retribution against
their families. The six-year inactive standard was also very
difficult to meet because any innocuous art work or
communication could be interpreted as gang activity.
On July 1, 2011, approximately 5,300 inmates in nine CDCR
institutions began refusing meals; the number of inmates
peaked to more than 6,500 two days later. The number of
inmates gradually decreased until the hunger strike ended on
July 20, 2011. The hunger strike led by inmates housed in the
Pelican Bay State Prison's SHU to protest the conditions of
the SHU. The inmates had five core demands: (1) Individual
accountability, rather than group punishment, indefinite SHU
status, and restricted privileges; (2) Abolish debriefing
policy and modify active/inactive gang status criteria; (3)
Comply with U.S. Commission 2006 Recommendations regarding an
end to long-term solitary confinement; (4) Provide adequate
food; and, (5) Expand and provide constructive programming and
privileges for indefinite SHU status inmates.
At the end of the hunger strike, CDCR officials agreed to do
the following: authorize watchcaps for purchase and state
issue; authorize wall calendars for purchase in canteen;
authorization of exercise equipment in SHU yards; authorize
annual photographs for disciplinary free inmates; approve
proctors for college examinations; use CDCR ombudsman to
monitor and audit food services; authorize sweatpants for
purchase/annual package; authorize hobby items; and, allow one
photo to family per year. CDCR also agreed to conduct
comprehensive reviews of the SHU policies that include
behavior-based components, increased privileges based on
disciplinary-free behavior, a step-down process for SHU
inmates, and a system that better defines and weighs necessary
points in the validation process. (Office of the Inspector
General, Immediate and Expedited Review and Assessment of
CDCR's Response to the Issues Raised by the Hunger Strike
(Oct. 17, 2011) pp. 1-2.)
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Following the first hunger strike, CDCR implemented a 24-month
pilot program entitled "Security Threat Group (STG)
Identification, Prevention, and Management Instructional
Memorandum" in October 2012. Under the STG Plan, gang members
and affiliates were placed in a step-down program that
provides for graduated housing, privileges, and personal
interaction with the goal of integrating participants back
into the general population of the prisons. There are five
steps in the Step Down Program. An inmate must remain in
Steps One and Two for a minimum of six months each. An inmate
must remain in Steps Three and Four for minimum of one year
each. Steps One through Four are completed in the SHU. Step
Five is in the general population, but the inmate is monitored
for gang activity. While there are recommended time frames
for each step, there is no limitation on how long an inmate
may remain in each step. Debriefing is still available for
inmates who do not wish to participate or complete the
step-down program.
The STG plan also changed how an inmate can be placed in the
SHU. Under the previous rules, a validated gang member or
associate can be placed in the SHU upon validation. Under the
STG Plan, a validated associate must also have a rules
violation in order to be placed in the SHU. However, a
validated gang member may still be placed in the SHU upon
validation. Additionally, the STG plan includes both prison
gangs and street gangs, potentially allowing a more expansive
group of inmates to be placed in the SHU.
On July 8, 2013, approximately 30,000 inmates joined in on a
second hunger strike led by Pelican Bay State Prison SHU
inmates. The inmates wanted more substantive changes to
CDCR's policy for validating inmates as gang leaders or
accomplices. Under the STG Plan, gang members were still
being placed in the SHU without requiring any rules violations
and there was still no time limitation to how long a person
may remain in the SHU based on gang affiliation. The hunger
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strike ended on September 5, 2013, with the promise of
legislative hearings on the use and conditions of solitary
confinement in California's prisons.
(< http://articles.latimes.com/2013/sep/05/local/la-me-ff-prison
-strike-20130906 > (as of June 16, 2016.)
On October 9, 2013, the Legislature held a joint Assembly and
Senate hearing on CDCR's STG pilot program. At the hearing,
CDCR officials stated that there were about 4,000 inmates are
held in the SHUs and over half were there for alleged gang
connections. There CDCR officials also discussed the
implementation of the STG pilot program which involved
conducting reviews of inmates in the SHU to determine whether
their continued placement in the SHU was appropriate. CDCR
expected that many inmates would be released to general
population after those reviews took place. However, advocates
noted that the STG program still did not provide a limit on
the length of time a person could be placed in the SHU and
still did not provide a meaningful review of the person's
placement in the SHU by an entity outside of CDCR.
On June 2, 2014, a federal judge authorized hundreds of SHU
inmates to join litigation filed on behalf of 10 inmates who
had been in the SHU for more than 10 years challenging the
state's use of solitary confinement on a prolonged basis as a
violation of the Eighth Amendment's prohibition against cruel
and unusual punishment. On September 1, 2015, CDCR settled the
lawsuit. The terms of the settlement include moving to an
offense-based system rather than prisoners being sent to
solitary based solely on gang affiliation; there will be
limits on how long an inmate can be placed in the SHU
(although some inmates may still be placed in restricted
housing which is not subject to the same limits); and prisoner
representatives will be able to monitor the implementation of
the settlement terms and meet with CDCR officials when to
ensure compliance with the settlement terms. (See Settlement
Terms, No. C 09-05796 CW, Ashker v. Governor of the State of
California, et al. (9-1-15).)
3)Argument in Support: According to the American Friends
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Service Committee, the sponsor of this bill, "SB 759 is needed
because prisoners in isolation have had no opportunity to earn
credits towards release since these credits were removed in
budget language in 2010 - without any legislative hearings or
opportunities to question whether the policy made sense. One
thing we do know is that it took away hope from many people
whose sentences should have been shortened because they were
not receiving disciplinary write-ups. It also costs the
taxpayers a great deal of money for every extra year a person
spends behind bars.
"As you know, California is under court order to reduce its
prison population and to put in place permanent solutions to
the overcrowding problem. In other words, a one time
reduction will not satisfy the court. Earned credits are a
way to provide incentives to people inside to program and
prepare for release, while also providing structural ways to
keep the population down.
"When the Department began to hold case by case reviews of
everyone in SHU for other-than-disciplinary reasons, over 70%
of the people receiving hearings have been approved for
transfer to the general population. Since the court
settlement in the Ashker case, in September 2015, such
hearings have accelerated and 80% of people reviewed are being
transferred to general population. There have been no
significant incidents as a result of these transfers. . . ."
4)Prior Legislation:
a) AB 1652 (Ammiano), of the 2013-2014 Legislative Session,
would have deleted the provision of law making a person who
is placed in a SHU upon validation as a gang member or
associate ineligible to earn custody credits. AB 1652
failed passage on the Assembly Floor.
b) SB 892 (Hancock), of the 2013-2014 Legislative Session,
would have placed additional due process procedures for
determining if an inmate is a member of or an associate of
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a gang, and subject to placement in a SHU. SB 892 died on
Assembly Floor.
REGISTERED SUPPORT / OPPOSITION:
Support
American Friends Service Committee (Sponsor)
Friends Committee on Legislation of California (Co-sponsor)
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Catholic Conference
Californians United for a Responsible Budget
Drug Policy Alliance
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Ella Baker Center for Human Rights
Legal Services for Prisoners with Children
Prison Law Office
One private individual
Opposition
None
Analysis Prepared by:Stella Choe / PUB. S. / (916)
319-3744
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