BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
8
9
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SB 892 (Hancock)
As Amended: April 2, 2014
Hearing date: April 8, 2014
Government and Penal Codes
JRD:sl
STATE PRISONS:
SOLITARY CONFINEMENT
HISTORY
Source: Author
Prior Legislation: None Known
Support: California Public Defenders Association; California
Attorneys for Criminal Justice
Opposition: Taxpayers for Improving Public Safety
KEY ISSUES
SHOULD ADDITIONAL FEATURES AND REQUIREMENTS BE APPLIED TO THE
CALIFORNIA DEPARTMENT OF CORRECTIONS' POLICIES CONCERNING SOLITARY
CONFINEMENT, AS SPECIFIED?
PURPOSE
The purpose of this bill is to: (1) ensure prison inmates going
through the gang validation process are provided adequate due
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process; (2) create an infrastructure to provide oversight and
accountability in the use of the Security Housing Unit (SHU);
(3) provide humane conditions for prison inmates in the SHU; and
(4) provide evidence-based programming to prison inmates in the
SHU.
Current law creates in state government the California
Department of Corrections and Rehabilitation (CDCR), to be
headed by a secretary, who shall be appointed by the Governor,
subject to Senate confirmation, and shall serve at the pleasure
of the Governor. (Government Code � 12838.) CDCR shall consist
of Adult Operations, Adult Programs, Health Care Services,
Juvenile Justice, the Board of Parole Hearings, the State
Commission on Juvenile Justice, the Prison Industry Authority,
and the Prison Industry Board. (Id.) As explained in the
Legislative Analyst's Office Analysis of the 2014-15 Budget
Bill:
The CDCR is responsible for the incarceration of adult
felons, including the provision of training, education, and
health care services. As of January 15, 2014, CDCR housed
about 134,000 adult inmates in the state's prison system.
Most of these inmates are housed in the state's 34 prisons
and 42 conservation camps. Approximately 11,700 inmates are
housed in either in-state or out-of-state contracted
prisons. The department also supervises and treats about
47,000 adult parolees and is responsible for the
apprehension of those parolees who commit new offenses or
parole violations. In addition, about 700 juvenile
offenders are housed in facilities operated by CDCR's
Division of Juvenile Justice (DJJ), which includes three
facilities and one conservation camp.
The Governor's budget proposes total expenditures of $9.8
billion ($9.5 billion General Fund) for CDCR operations in
2014-15.
Current law allows the Director of Corrections to prescribe and
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amend rules and regulations for the administration of the
prisons and for the administration of the parole of persons
sentenced under Section 1170 except those persons who meet the
criteria set forth in Section 2962. The rules and regulations
shall be promulgated and filed pursuant to the Government Code.
All rules and regulations shall, to the extent practical, be
stated in language that is easily understood by the general
public. (Penal Code � 5058.)
Current regulations allow CDCR to place an inmate in the SHU if
the inmate has been deemed a threat to the safety of others or
the security of the institution. (15 CCR 3341.5.) Under
existing regulations, inmates can be assigned to the SHU for a
determinate or indeterminate term. (Id.) An inmate who has
been validated as a gang/STG member can be placed in the SHU for
an indeterminate term, based only on the validation. (Id.)<1>
Security Threat Group Validation Process
This bill would require CDCR to provide inmates due process
prior to validating an inmate as a security threat group
affiliate. These due process protections would include:
A timely, written, and effective notice that
validation is being considered and the facts upon which
that consideration is based;
Decision-making by a dedicated and specially
trained classification committee;
A hearing at which the inmate may be heard in
person and, absent an individualized determination of
good cause, has a reasonable opportunity to present
available witnesses and information;
An advocate to assist with the inmate's
investigation; and,
------------------------
<1> CDCR is currently in the process of amending these
regulations. For a full discussion of the new regulations, see
"Comments" below.
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An independent determination by the committee of
the reliability and credibility of confidential
informants. Information supplied by an informant shall
only be considered by the committee if there is a
finding that the informant has personal knowledge of the
information he or she has provided.
Current law creates the independent Office of the Inspector
General (OIG). (Penal Code � 6125.) The Inspector General is
responsible for contemporaneous oversight of internal affairs
investigations and the disciplinary process of the Department of
Corrections and Rehabilitation. (Penal Code � 6126.)
This bill would require, beginning July 1, 2015, the OIG to
review every security threat group validation, prior to the
placement of the inmate in the security housing unit, in which
confidential information was used, to determine whether the
minimum level of due process was provided. If the OIG
determines that a validation is not supported by evidence or
that the inmate was not provided due process, the inmate's gang
validation shall be deleted.
Indeterminate Security Housing Unit Terms
This bill would define "Security Housing Unit" to mean housing
for an inmate who is a difficult management case, a security
threat group member, or a maximum security inmate. There are
four Security Housing Units in the state prison system located
in Pelican Bay State Prison, California State Prison, Corcoran,
California Institution for Women, and California Correctional
Institution.
This bill defines an "indeterminate security unit term" to mean
the inmate is assigned to the SHU for an indeterminate period.
These inmates include security threat group affiliates and
inmates in protective custody.
This bill would require, beginning January 1, 2015, CDCR to
place every inmate who is serving a SHU term, or being placed
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into the SHU, to be placed in the Step Down Program, a multistep
program designed to provide programming with the ultimate goal
of returning the inmate to general population.
This bill would require CDCR, within 30 days of an inmate being
placed in the SHU and by June 1, 2015, for all offenders who
began serving an indeterminate SHU term prior to January 1,
2015, to prepare an individualized plan for the inmate. The
plan would include needs assessment and an individualized
strategy to provide the inmate with programming to address those
needs. CDCR would be required to provide the inmate a copy of
the plan and to explain the plan to him or her.
This bill would require CDCR to provide inmates in the Step-Down
Program with promising or evidence-based programming designed to
eliminate participation in Security Threat Group activities.
This bill would require CDCR to track an inmate's progress in
meeting the requirements of the individualized plan, and to
provide the inmate with a progress report every 90 days. The
progress report would include the progress that the inmate has
made, the requirements that the inmate is not meeting and what
the inmate will be expected to do to progress to the next step
of the Step-Down Program.
This bill would allow inmates to advance to the next step of the
Step-Down Program after successful participation in the current
step for 180 days.
This bill would require CDCR to prepare a comprehensive reentry
plan for every inmate who will parole from the SHU to the
community.
This bill would require the OIG, on or before July 1, 2016,
review the central file of each inmate who is denied progress
within the Step Down Program to assess the department's
compliance with this section shall review the central file of
each inmate who is denied progress within the Step Down Program
to assess the department's compliance with this section
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Determinate Security Housing Unit Terms
This bill defines a "determinate security unit term" to mean the
inmate is placed in the SHU for a determinate period of time
because the inmate was found guilty of a serious offense, as
described in the CDCR's regulations.
This bill would require CDCR, within 30 days of an inmate being
placed in the SHU and by June 1, 2015, for all offenders who
began serving a determinate SHU term prior to January 1, 2015,
to prepare an individualized plan for the inmate. The plan
would include needs assessment and an individualized strategy to
provide the inmate with programming to address those needs.
CDCR would be required to provide the inmate a copy of the plan
and to explain the plan to him or her.
This bill would require CDCR to provide determinate inmates with
promising or evidence-based programming.
This bill would require CDCR to track an inmate's progress in
meeting the requirements of the individualized plan, and to
provide the inmate with a progress report every 90 days. The
progress report would include the progress that the inmate has
made, the requirements that the inmate is not meeting and what
the inmate will be expected to do to progress.
This bill would require CDCR to prepare a comprehensive reentry
plan for every inmate who will parole from the SHU to the
community.
This bill would allow inmates to earn credits towards early
release from the SHU.
This bill would require the OIG, commencing July 1, 2016, and
annually thereafter, to prepare an audit report to the Governor
and Legislature that assesses CDCR's compliance with the
provisions related to inmates serving a determinate term.
Conditions of Confinement in the Security Housing Unit
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Existing law provides that an inmate in the SHU is ineligible to
earn credits toward reducing his or her prison term. (Penal
Code � 2932.)
This bill would require that an inmate in the SHU, who remains
disciplinary free for six month, be eligible for credits
pursuant to Penal Code sections 2933 and 2933.5, as specified.
This bill would require CDCR to create a behavior-driven
progressive incentives program that includes the following, for
any 30-day period where an inmate in the SHU or PSU does not
receive a rules violation report:
One additional phone call in the following month.
One additional photograph in the following month, for a
maximum of ten.
Four additional hours of recreational yard time in the
following month.
This bill would require CDCR to provide every inmate in the SHU
or the Psychiatric Services Unit (PSU) with mental, physical and
social stimulation, including:
Access to educational programming;
Opportunities to exercise in the presence of other
inmates-inmates may be separated by security barriers, if
necessary;
Daily face-to-face interaction with both uniformed and
civilian staff or volunteers; and,
Access to a radio or television.
This bill would require that all inmates be provided mental
health screenings within 30 days before beginning a SHU term.
And, all inmates segregated in a Security Housing Unit as of
January 1, 2015, shall be assessed by a qualified mental health
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professional by March 31, 2015.
The bill would prohibit CDCR from placing inmates with serious
mental illness in the SHU.
This bill would require CDCR to monitor the mental health of all
inmates in the SHU, as follows:
The correctional staff shall maintain daily logs
documenting the inmate's behavior;
A qualified mental health professional shall, at least
weekly, observe the inmates in the Security Housing Unit
and the Psychiatric Services Unit, speak to the unit staff,
review the log and observe and speak to inmates who are
receiving mental health treatment;
A qualified mental health professional shall perform a
comprehensive mental health assessment on every inmate in
the Security Housing Unit and Psychiatric Services every 90
days, unless the metal health professional determines that
the assessment is not necessary based on previous
observations; and,
Every inmate in the SHU or PSU shall be given a
confidential comprehensive mental health assessment on at
least an annual basis.
This bill would require CDCR to provide training to all
correctional staff in the SHU and PSU on how to respond to an
individual experiencing a psychiatric crisis in ways that
reduce, rather than escalate, that crisis.
This bill would, beginning July 1, 2016, require the OIG to
prepare a biennial report to the Governor and legislature
assessing CDCR's compliance with these requirements.
Offender Resource Specialists and Secured Housing Specialists
This bill would require CDCR to hire two Offender Resource
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Specialists per SHU and PSU to:
Assist the inmate with concerns and questions about the
inmate's rights and responsibilities while serving a
Security Housing Unit term;
Respond to inquiries from the inmate's families; and,
Explain Security Housing Unit policy to the public.
This bill would require OIG to hire two secured housing
specialists for each SHU and PSU. The secured housing
specialists shall monitor the programming and conditions of
security housing units, in addition to assuming any related
duties determined by the Inspector General.
Data Collection
This bill would require CDCR to collect a variety of data
relating to the security threat group validation process and the
SHU, as specified.
This bill would require, beginning January 1, 2017, the OIG to
prepare a biennial report utilizing the information collected by
CDCR, as specified.
Creation of New CDCR Statutory Position
Existing law authorizes the Governor to appoint four officers,
subject to Senate approval, to the Division of Adult
Institutions within CDCR. (Government Code � 12838.1.)
This bill would authorize the Governor to appoint an additional
officer to oversee the security threat group validation and SHU
operations and conditions.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
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United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
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with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
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impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
The author states, in part:
The Department of Corrections and Rehabilitation
(CDCR) currently confines nearly 4,000 inmates in SHU
facilities. Of these, almost 2,500 inmates are
serving indeterminate terms; many of the 2,500 are
serving SHU terms of several years or even decades.
Psychological research has found that a lack of
social interaction can lead SHU inmates suffer from a
variety of psychological and psychiatric illnesses.
These can include chronic insomnia, panic attacks,
and symptoms of psychosis (including hallucinations).
SB 892 would create an infrastructure to ensure
humane conditions for SHU inmates, provide oversight
and accountability in the use of the SHU, provide for
evidence-based programming to inmates, and provide
greater due process.
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2. Solitary Confinement: The National Discussion
In recent years, solitary confinement practices in the United
States have come under increased scrutiny, which has resulted in
a movement to significantly limit its use.
On June 19, 2012, Senator Dick Durbin chaired the first
Congressional hearing on solitary confinement. (First
Congressional Hearing on Solitary Confinement to Be Held June
19, James Ridgeway and Jean Casella, June 8, 2012.
http://solitarywatch.com/2012/06/08/first-congressional-hearing-o
n-solitary-confinement-to-be-held-june-19/) The hearing
focused on the human rights, fiscal and public safety
consequences of solitary confinement in U.S. prisons, jails, and
detention centers. (Id.) The hearing also explored the
psychological and psychiatric impact on inmates during and after
their imprisonment, the higher costs of running solitary housing
units, the human rights issues surrounding the use of isolation,
and successful state reforms in this area. (Id.)
Professor Craig Haney testified at the June 19, 2012
hearing, stating:
I recall a prisoner in New Mexico who was floridly
psychotic and used a makeshift needle and thread from
his pillowcase to sew his mouth completely shut.
Prison authorities dutifully unstitched him, treated
the wounds to his mouth, and then not only immediately
returned him to the same isolation unit that had
caused him such anguish but gave him a disciplinary
infraction for destroying state property (i.e., the
pillowcase), thus ensuring that his stay in the unit
would be prolonged. A prisoner at the federal supermax
prison-ADX-who had no pre-existing mental disorder
before being placed in isolation, has suffered from
severe mental illness for years now. While in
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solitary confinement he has amputated one of his
pinkie fingers and chewed off the other, removed one
of his testicles and scrotum, sliced off his ear
lobes, and severed his Achilles tendon with a sharp
piece of metal. He remains in a standard solitary
confinement unit rather than a psychiatric facility.
Another prisoner, housed long-term in a solitary
confinement unit in Massachusetts, has several times
disassembled the television set in his cell and eaten
the contents. Each time, his stomach is pumped and,
after a brief stay in a psychiatric unit, he is
returned to the same punitive isolation where this
desperate and bizarre behavior occurred.
Beyond these extreme cases, solitary confinement
places all of the prisoners exposed to it at grave
risk of harm. In fact, the scientific literature on
the effects of solitary confinement has been
accumulated over many decades, by researchers from a
number of different countries who have varying
academic backgrounds. Despite the methodological
limitations that come from studying human behavior in
such a complex environment, most of the research has
reached remarkably similar conclusions about the
adverse psychological consequences of solitary
confinement. Thus, we know that prisoners in solitary
confinement suffer from a number of psychological and
psychiatric maladies, including: significantly
increased negative attitudes and affect, irritability,
anger, aggression and even rage; many experience
chronic insomnia, free floating anxiety, fear of
impending emotional breakdowns, a loss of control, and
panic other people, engage in self-imposed forms of
social withdrawal, and suffer from extreme paranoia;
many report hypersensitivity to external stimuli (such
as noise, light, smells), as well as various kinds of
cognitive dysfunction, such as an inability to
concentrate or remember, and ruminations in which they
fixate on trivial things intensely and over long
periods of time; a sense of hopelessness and deep
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depression are widespread; and many prisoners report
signs and symptoms of psychosis, including visual and
auditory hallucinations. Many of these symptoms occur
in and are reported by a large number of isolated
prisoners. For example, in a systematic study I did
of a representative sample of solitary confinement
prisoners in California, prevalence rates for most of
the above mentioned symptoms exceeded three-quarters
of those interviewed.
(Testimony of Professor Craig Haney, Senate Judiciary
Subcommittee on the Constitution, Civil Rights, and Human Rights
Hearing on Solitary Confinement, June 19, 2012.
http://www.antoniocasella.eu/archica/HANEY_2012.pdf)
In February of this year, these psychological effects were
experienced firsthand by the Executive Director of Colorado's
Department of Corrections, Rick Raemisch. Raemisch recounts:
I was delivered to a Colorado state penitentiary,
where I was issued an inmate uniform and a mesh bag
with my toiletries and bedding. My arms were
handcuffed behind my back, my legs were shackled and I
was deposited in Administrative Segregation - solitary
confinement.
I hadn't committed a crime. Instead, as the new head
of the state's corrections department, I wanted to
learn more about what we call Ad Seg.
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Most states now agree that solitary confinement is
overused, and many - like New York, which just agreed
to a powerful set of reforms this week - are beginning
to act. When I was appointed, Gov. John Hickenlooper
charged me with three goals: limiting or eliminating
the use of solitary confinement for mentally ill
inmates; addressing the needs of those who have been
in solitary for long periods; and reducing the number
of offenders released directly from solitary back into
their communities. If I was going to accomplish
these, I needed a better sense of what solitary
confinement was like, and what it did to the prisoners
who were housed there, sometimes for years.
My cell, No. 22, was on the second floor, at the end
of what seemed like a very long walk. At the cell,
the officers removed my shackles. The door closed and
the feed tray door opened. I was told to put my hands
through it so the cuffs could be removed. And then I
was alone - classified as an R.F.P., or "Removed From
Population."
In regular Ad Seg, inmates can have books or TVs. But
in R.F.P. Ad Seg, no personal property is allowed. The
room is about 7 by 13 feet. What little there is
inside - bed, toilet, sink - is steel and screwed to
the floor.
First thing you notice is that it's anything but
quiet. You're immersed in a drone of garbled noise -
other inmates' blaring TVs, distant conversations,
shouted arguments. I couldn't make sense of any of
it, and was left feeling twitchy and paranoid. I kept
waiting for the lights to turn off, to signal the end
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of the day. But the lights did not shut off. I began
to count the small holes carved in the walls. Tiny
grooves made by inmates who'd chipped away at the cell
as the cell chipped away at them.
For a sound mind, those are daunting circumstances.
But every prison in America has become a dumping
ground for the mentally ill, and often the "worst of
the worst" - some of society's most unsound minds -
are dumped in Ad Seg.
If an inmate acts up, we slam a steel door on him. Ad
Seg allows a prison to run more efficiently for a
period of time, but by placing a difficult offender in
isolation you have not solved the problem - only
delayed or more likely exacerbated it, not only for
the prison, but ultimately for the public. Our job in
corrections is to protect the community, not to
release people who are worse than they were when they
came in.
(My Night in Solitary, Rick Raemisch, New York Times, February
20, 2014.
http://www.nytimes.com/2014/02/21/opinion/my-night-in-solitary.ht
ml)
David Brooks, New York Times Op-Ed columnist, recently echoed
the notion that the use of solitary confinement should be
reduced. He wrote, in part:
We don't flog people in our prison system, or put them
in thumbscrews or stretch them on the rack. We do,
however, lock prisoners away in social isolation for
23 hours a day, often for months, years or decades at
a time.
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We prohibit the former and permit the latter because
we make a distinction between physical and social
pain. But, at the level of the brain where pain really
resides, this is a distinction without a difference.
Matthew Lieberman of the University of California, Los
Angeles, compared the brain activities of people
suffering physical pain with people suffering from
social pain. As he writes in his book, "Social,"
"Looking at the screens side by side ... you wouldn't
have been able to tell the difference."
The brain processes both kinds of pain in similar
ways. Moreover, at the level of human experience,
social pain is, if anything, more traumatic, more
destabilizing and inflicts more cruel and long-lasting
effects than physical pain. What we're doing to
prisoners in extreme isolation, in other words, is
arguably more inhumane than flogging.
Yet inflicting extreme social pain is more or less
standard procedure in America's prisons. Something
like 80,000 prisoners are put in solitary confinement
every year. Prisoners isolated in supermaximum
facilities are often locked away in a 6-by-9-foot or
8-by-10-foot barren room. They may be completely
isolated in that room for two days a week. For the
remaining five, they may be locked away for 23 hours a
day and permitted an hour of solitary exercise in a
fenced-in area.
(The Archipelago of Pain, David Brooks, New York Times, March 6,
2014.
http://www.nytimes.com/2014/03/07/opinion/brooks-the-archipelago-
of-pain.html?_r=0)
3. California Legislature's Joint Informational Hearings on
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Solitary Confinement
On October 9, 2013, the Assembly and Senate Public Safety
Committees held an informational hearing on California's prison
segregation policies. The committees heard from representatives
from CDCR and the OIG, experts, advocates and even individuals
who had been housed in the SHU. Among the experts was Margaret
Winter, the head of the ACLU prison project, she:
[T]old lawmakers the tide is turning nationally when
it comes to use of isolation in prisons.
"Every reputable study has found negative effects,"
Winter said, noting that when she helped the
Mississippi Department of Corrections reduce its use
of isolation, prison violence actually went down.
Asked for alternative methods for dealing with inmates
who pose a danger to other inmates or staff, Winter
said segregation can be an effective short-term tool,
if paired with incentives to change behavior. Most
prison systems simply let inmates languish in
isolation without even determining if they're still a
threat, Winter said.
(Legislators Hear Testimony on California Prison Conditions in
Isolation, Rina Palta, Southern California Public Radio, October
9, 2013.
http://www.scpr.org/news/2013/10/09/39735/ca-legislature-to-hold-
hearing-on-conditions-in-pr/.)
On February 11, 2014, another joint informational hearing was
held to discuss CDCR's new Security Threat Group Policy
(discussed below) and the impact that the policy has had on the
SHU population. Committee members heard from CDCR
representatives, experts and attorneys who represent SHU
inmates. Hope Metcalf, Associate Research Scholar in Law,
Director of Arthur Liman Program, and Lecturer in Law, Yale Law
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School, stated in the hearing:
[T]he basic bottom line is that staff and inmates must
feel safe and prisons do need tools to shape behavior.
I don't think that there's much dispute about that.
And in fact, some forms of short-term segregation may
be necessary and there may indeed be some portions of
the population for whom placement in the general
population is not appropriate. However, that does not
translate in any sense to the fact that long-term
isolation of the ilk that we see at Pelican Bay is in
fact serving sound, public policy.
So given the overreliance on isolation, many prisons
are at best delaying problems, and, in fact, may be
aggravating them. So I do not wish to say that most
people released from long-term isolation are
dangerous. I have many, many clients who have left
isolation and they have gone on to do well. However, I
do think that if we're talking about public safety,
thinking about outcomes, including recidivism is
important. Equally important of course in terms of
outcomes is not just whether or not someone is
violent, but whether they are able to flourish and
become independent once they leave. So the fear is-one
fear I've had-is even where outcomes don't show for
example violence, is that person able to hold a job or
are they now so debilitated that they are reduced to
relying on state support once they leave prison?
(California Department of Corrections and Rehabilitation's
Proposed New Policies on Inmate Segregation: The Promise and
Imperative of Real Reform, Hearing Transcript, Assembly and
Senate Public Safety Committees Joint Informational Hearing,
February 11, 2014.
http://spsf.senate.ca.gov/sites/spsf.senate.ca.gov/files/Jt.%20He
aring%20Transcript%202-11-14.pdf.)
These hearings highlighted the fact that, while short term
segregation is an important tool, long term segregation can have
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SB 892 (Hancock)
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a detrimental impact on not only the inmates but also on public
safety.
4. Hunger Strikes in California State Prisons and CDCR's new
Security Threat Group Policy
On July 1, 2011, inmates in the Pelican Bay State Prison's
Security Housing Unit initiated a hunger strike. (Background:
Hunger Strike in California Prisons, California Department of
Corrections and Rehabilitation, October 2013.
http://cdcr.ca.gov/stg/docs/Fact%20Sheet-hunger%20strikes%20in%20
CA%20prisons.pdf) Approximately 5,300 inmates began refusing
state-issued meals. The number of inmates peaked at more than
6,500 two days later and then gradually decreased until the
strike concluded on July 20, 2011. (Id.)
In September 2011, a second hunger strike began. After three
days, 4,252 inmates had missed nine consecutive meals.<2> By
October 13, 2011, the number of inmates participating had
dropped to 580. CDCR officials in Sacramento were contacted by
Pelican Bay State Prison inmates by letter and agreed to meet
with inmate representatives to discuss CDCR's ongoing review of
and revisions to its SHU policies. All inmates had resumed
eating by Sunday, October 16, 2011. (Id.)
A third hunger strike began on July 8, 2013, when more than
30,000 inmates refused to eat state-issued food until the SHU
polices were changed. By July 11, 2013, 12,421 inmates had
missed nine consecutive meals. By September 4, 2013, there were
100 inmates on a hunger strike; 40 of them had been on a hunger
strike continuously since July 8. All inmates resumed eating on
September 5, 2013. (Id.)
According to CDCR:
In May 2011, prior to two hunger strikes that year,
the California Department of Corrections and
Rehabilitation (CDCR) began revising its gang
----------------------
<2> CDCR considers an inmate to be on hunger strike if he or she
misses nine consecutive meals.
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SB 892 (Hancock)
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validation and Security Housing Unit (SHU) confinement
policies and procedures. This effort resulted in the
"Security Threat Group Prevention, Identification and
Management Strategy," approved and certified by the
Office of Administrative Law on October 18, 2012 and
filed with the Secretary of State.
(http://www.cdcr.ca.gov/stg/)
The Security Threat Group (STG) policy addresses the
concerns inmates raised during two hunger strikes in
2011. The STG program provides individual
accountability of offenders; is behavior-based;
incorporates additional elements of due process to the
validation system; and provides a Step-Down Program as
an alternative for inmates to demonstrate their
willingness to refrain from criminal gang behavior.
(CDCR's Response to Hunger Strike Demands, California Department
of Corrections and Rehabilitation, August 26, 2013.
http://cdcrtoday.blogspot.com/2013/08/cdcrs-responses-to-hunger-s
trikers.html)
CDCR is currently in the process of changing their regulations
to include the policies that were utilized in in the pilot
program. (http://www.cdcr.ca.gov/Regulations/Adult_Operations/
Pending_Rules_Page.html#STG.) These policies include, in part:
Security Threat Groups
The new policy replaces the word "gang" with
the more nationally accepted term "security threat
group." The Security Threat Group (STG) program
does not take a "one size fits all approach," but
better identifies, assesses and prioritizes
security threat groups (prison gangs, street
gangs, disruptive groups) based on behavior and on
the level of threat the group and its affiliates
present to the safety and security of prisons and
the public.
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CDCR categorizes criminal gangs into STGs
based on a threat assessment conducted by the
department's Office of Correctional Safety. STG
behavior is defined as documented behavior that
promotes, furthers or assists a security threat
group.
An STG-I designation is used for criminal
gangs that pose a greater threat. It includes
traditional prison gangs and disruptive groups
with a history of violence or influence over
subservient groups. These STG groups include, but
may not be limited to, traditional prison gangs
like the Aryan Brotherhood, the Black Guerilla
Family, the Mexican Mafia, the Nazi Low Riders,
the Northern Structure, and the Nuestra Familia.
An STG-I
designation may also include a gang with a history
and propensity for violence and/or influence over
subservient STGs. CDCR will review STG-I
designations at least every two years.
An STG-II designation may be used for
traditional disruptive groups and street gangs.
These can include the Crips, the Bloods, the 2-5s,
the Northern Riders, MS 13, the Norte�os, the
Sure�os, Florencia 13 and white supremacist
groups.
Validation
The validation process is a strategy for
identifying and documenting criminal gang member,
associates and suspects.
STG associates - the majority of inmates
housed in SHUs - are no longer placed in a SHU
based solely upon their validation to an STG unless
there is a nexus to confirmed gang activity.
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SB 892 (Hancock)
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CDCR added an objective point-based component
in the offender validation process and enhanced
considerations of due process. Each source item is
now given a weighted point value between two and
seven points, and individual validation must
include three independent sources with a cumulative
total of 10 points or more.
Unsubstantiated confidential information from
a single source will not establish a foundation for
confirming the existence of STG-related behavior.
Step-Down Program
The Step-Down Program enables an inmate
serving an indeterminate SHU term to ultimately
earn his way back to a general population or
sensitive needs yard. The revised policy reduces
the six-year inactive review policy for release to
a general population to a four-year program.
Additionally, inmates demonstrating positive
behavior and participation may have their length of
participation further reduced to three years.
The Step-Down Program is an incentive-based,
multi-step process for STG offenders who choose to
discontinue criminal and/or gang activity.
Offenders can always choose to drop out of a gang;
however, in the Step-Down Program, inmates are not
required to drop out of their gang.
The five-step program supports, educates and
increases privileges for SHU inmates who refrain
from gang behavior and are disciplinary-free. Each
step is progressive and requires the willingness of
the inmate to participate. Each offender is
responsible for demonstrating he can be released to
a less restrictive environment while abstaining
from criminal behavior.
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In the fifth step, inmates are observed and
monitored in a general population facility.
(Security Threat Group Prevention, Identification and Management
Strategy, California Department of Corrections and
Rehabilitation, October 2013. http://www.cdcr.ca.gov/stg/
docs/Fact-Sheet-STG-reforms.pdf)
The Office of the Inspector General recently reviewed CDCR's
Step-Down Program:
The STG Plan requires an offender to participate in
inmate programming or journaling before progressing to
the next step. As part of the pilot, inmates placed
in Steps 1 and 2 were to have program assessments
initiated, such as TABE (Test of Adult Basic
Education) testing and COMPAS assessments. Inmates
placed in Step 3 can participate in self-directed
journals that are intended to develop a system of
values and strategies leading to responsible thinking
and behavior. Step 4 inmates may have programming
that includes education, violence prevention programs,
and gang diversion programs. If an inmate refuses to
participate in inmate programming or journaling, the
inmate will regress, as with the previous signature
requirement shown above.
The OIG's fieldwork reviewed whether 150 inmates
[footnote omitted] assigned to the SDP based on their
. . . case-by-case review were continuing with their
assigned step, progressed to the next step, or
regressed. As shown below, of the 150 sample inmates
we reviewed, 98 SDP inmates had an initial or 180-day
ICC review [footnote omitted] subsequent to their
case-by-case review and therefore their progress or
lack of progress could be assessed. Although each of
the 98 inmates had not been in their assigned step for
12 months prior to the ICC's review, the committee
reported whether the inmate was participating in the
SDP.
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The OIG found that 69 of the 98 inmates (70 percent)
had "no change" in their SDP status (continuing to
program at their current step down level), 7 inmates
successfully progressed to the next step, and 22
inmates regressed to a lower step. Of the 22 inmates
who regressed, OIG found that 17 (77 percent) had
regressed based on their refusal to participate in
inmate programming or journaling. The remaining 5
inmates regressed for STG related behavior or refusal
to sign their step down contract, as mentioned above,
the department has recently changed this signature
requirement. The 17 inmates who refused to
participate in programming were originally placed in
steps 2 (eight inmates), 3 (six inmates), and 4 (three
inmates) but after committee review all 17 inmates
regressed to step 1 based on their refusal to
participate in programming. If an inmate regresses to
step 1, he or she will not earn credit towards
completion of the 12 months required in step 1 (before
proceeding to step 2). To earn credits, the inmate
must notify the correctional counselor or case manager
of renewed intention to participate in the SDP.
(Third Report on the California Department of Corrections and
Rehabilitation's Progress Implementing its Future of California
Corrections Blueprint, Office of the Inspector General, March
2014.
http://www.oig.ca.gov/media/reports/BPMR/Third_Report_on_CDCRs_Pr
ogress_
Implementing_its_Future_of_California_Corrections_Blueprint.pdf)
These initial findings suggest that there is a likelihood that a
large number of inmates participating in the Step-Down program
will become stagnant or regress and, as a result, will be held
in the SHU well beyond the three to four year design of the
Step-Down program.
5. Effect of this Legislation
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According to the author, oversight and transparency is a key
feature of Senate Bill 892. Specifically, the legislation would
increase oversight and accountability by requiring CDCR to
collect a variety of data and the OIG to utilize that data to
prepare a biennial report to the legislature. In addition,
Senate Bill 892 would provide the OIG with a continuous
oversight role in the validation process, the process by which
an inmate can earn his or her way out of the security housing
unit, and the conditions of confinement in the security housing
unit.
Improving conditions of confinement is another key component of
this legislation. According to the author, inmates in the SHU
spend up to 23 hours per day locked in their cells. Most SHU
cells lack windows or direct access to natural right. Inmates
are given minimal outdoor time alone in small, separately
secured yards. Inmates eat meals in their cells alone. Inmates
have extremely limited access to visits with their families,
cannot make phone calls, and are even limited in their ability
to have family photos in their cells. SB 892 would require CDCR
to provide SHU inmates with physical and mental stimulation,
including opportunities for face-to-face interaction. It would
also require CDCR to create a behavior-driven progressive
incentives program that allows SHU inmates to earn phone calls,
photos, and credits. SB 892, additionally, would shorten the
minimum duration of each step of CDCR's step down program to 180
days, and require that inmates receive a progress report every
90 days that outlines their progress in the step down program.
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6. Argument in Support
The California Public Defenders Association states in part:
This proposed bill would provide administrative
overview and due process reforms to address the issues
of housing prison gang affiliated and mentally ill
inmates in security housing units (SHU). It would
create an officer under the head of adult institutions
to oversee security housing units. It would add Penal
code sections 2696 et seq which would provide inmates
facing placement in the SHU due process protections
and review by the Office of the Inspector General if
placement the placement was based on confidential
information. Offenders serving indeterminate SHU
terms will be placed in Step-Down Units with
programming with the goal of returning them to general
population. Inmates who will parole directly out of
the SHU or Psychiatric Services Units will receive
comprehensive re-entry plans. The Office of the
Inspector General will review CDCR compliance.
Evidence based practices will be utilized and
incentives provided for good behavior during SHU
terms.
These are smart, money saving reforms that will
protect public and prison safety and promote human
dignity. Recently, public attention has been focused
on this issue due to several high profile events. In
2013, California prisoners throughout the state went
on a prolonged hunger strike to demand changes in the
desperate conditions of inmates locked in the SHU, and
in particular, prison gang members without hope of
ever being released. For such status offenders the
only path to release is "debriefing." "Debriefing" is
the California Department of Corrections and
Rehabilitation's term whereby a prison gang member or
associate renounces their gang affiliation by naming
all of the other gang members and their practices.
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Since California's state prisons are rife with inmate
on inmate violence, "debriefing" has the potential to
make the former gang member a target. Such a policy
also puts members of the community at risk since
"debriefed" former gang members' families become
targets as well.
7. Argument in Opposition
The Taxpayers for Improving Public Safety states in part:
Although the author infers that the SHU is analogous
to Alexsandr Solzhenitsyn's Gulags, they are not. The
structure of the cells and the units in which they are
located are exactly the same as those in lower
security prisons. Each inmate is allows a television
set and the same property (books, toiletries, etc.) as
that allowed for similarly high risk classified
inmates. The inmates do communicate with each other
both legally by speaking to each other and illegally
by sending written communications to each other.
What is different for the SHU inmates is that they are
not allowed direct contact with any person other than
a prison employee. I realize that this seems harsh,
but it is important to realize that the individuals
are isolated so that they will not direct criminal
activity through third persons, both inside and
outside prison. Although there is not a single
spouse, sibling, parent or child of one of these
inmates that will accept the fact that their relative
is as dangerous as I have described, the fact is that
that they are. Because of cleric-penitent
communications by which I have received this
information, I cannot disclose specific instances.
However, of the approximate 4,500 California inmates
in SHU at any one time, I can confidently assert that
90% of them represent a clear and present danger not
only to other inmates within the prison system, but
also to the general public via their gang
SB 892 (Hancock)
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affiliations. Although it may be hard to accept, it
is a fact that the individuals in the SHU use personal
visits to communicate instructions for criminal
activity.
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