Ashker v. Brown: Guest Post by Hali Ford

A long line of high school students filed into the courthouse at 2 o’clock.  One attorney told me she had never seen such a turn out for oral arguments.  Judge Wilken interrupted the attorneys’ appearances to welcome the high school students.  She highlighted the importance of their attendance at a case involving such serious issues.

A group of Pelican Bay inmates seeks class certification to bring two claims against Governor Brown and CDCR.  Under current CDCR protocol, tattoos, reading materials, associations with other prisoners, and other factors earn inmates “points” towards being “validated” as a gang member.  Validated inmates are placed in solitary confinement, or, “the SHU” (secure housing unit), indefinitely.  The inmates claim this “indefinite SHU time for constitutionally infirm reasons” violates due process.  The inmates also seek to certify a “subset” of the class: inmates who have been in the SHU for longer than 10 years.  This subset brings an 8th Amendment challenge, arguing that 10+ years in solitary confinement poses an “unacceptable risk to prisoners.”   

Judge Wilken took issue primarily with the inmates’ method for defining the 8th Amendment class.   A key question cannot be answered except through discovery: how many, if any, inmates have been in SHU for longer than 10 years for reasons other than gang validation?   The inmates’ counsel stated that he suspects, but must determine through discovery, that no inmates have been in the SHU beyond 10 years for any other reason.  Judge Wilken expressed concern about certifying the class without knowing the characteristics of its members with certainty.   To bring a class action, the inmate group must satisfy the conditions of commonality and typicality.  She also explained that the 8th Amendment test to determine whether punishment is cruel and unusual compares the severity of punishment against the gravity of the offense.  The 8th Amendment balancing calculus would differ for the inmate who has been in the SHU for longer than 10 years because he murdered another inmate, for example, and the inmate in the SHU 10+ years for gang validation, and gang validation only.

Judge Wilken preferred to visualize the due process and 8th Amendment groups as a Venn diagram instead of an umbrella group and subset: all of the members of the due process group challenging gang validation in one circle, in the other circle, all of the 8th Amendment group members challenging 10+ years in the SHU, and in the overlap, those who have been in the SHU for more than 10 years for gang validation only.  The inmates believe all of the 8th Amendment group members also fit within the due process class.  That fact will be determined in discovery.

Neither party objected to defining the potential due process class as “all inmates serving indeterminate sentences at Pelican Bay SHU pursuant to Title 15 as of x date, on the basis of gang validation only.”  For the 8th Amendment challenge, Judge Wilken suggested the parties amend the complaint once they have determined the number, if any, of inmates in SHU for 10+ years for reasons other than gang validation.

Discovery will involve interviewing more than 100 inmates.  The discovery deadline is set for late March, summary judgment June 19, and bench trial nov 3-21 bench trial.  Neither party expressed enthusiasm when Judge Wilken discussed settlement.

Litigating Solitary Confinement: Class Certification in Ashker v. Brown - Guest post by Brittany Stonesifer

Around a hundred people – family members, activists, lawyers, reporters, and even a group of high school history students – gathered yesterday outside the Oakland Courthouse to advocate an end to long-term solitary confinement in California.  The rally and press conference was organized by Prisoner Hunger Strike Solidarity, a coalition that provided support to California prisoners engaged in a recent 60 day long hunger strike.  With around 30,000 initial participants, the hunger strike centered around 5 core demands to end to the inhumane and unjust conditions of California’s Security Housing Unit (SHU) system.

The focal point of the prisoner hunger strike, Pelican Bay SHU, is also the subject of the lawsuit considered yesterday in Oakland.  In Ashker v. Brown, a group of prisoners is suing CDCR and Governor Brown to secure an injunction against indeterminate SHU sentencing based on gang validation.  The case, presided over by U.S. District Court Judge Claudia Wilken, is being litigated by Legal Services for Prisoners with Children (LSPC), the Center for Constitutional Rights (CCR), and other co-counsel from around the country. 

Yesterday, Judge Wilken heard oral arguments on a motion to certify a class of plaintiffs in Ashker who would assert due process violations based on gang validation, as well as cruel and unusual punishment of those prisoners who have been in isolation for more than ten years.  Granting the motion, under Federal Rule 23, would mean these claims would be brought on behalf of a large group of prisoners who have each suffered solitary confinement, rather than on behalf of individual plaintiffs.  Among other things, Rule 23 requires that there are grievances common to all class members and that the claims of the named plaintiffs are typical of others in the group.

In yesterday’s oral arguments (see the motion for class certification here), Judge Wilken’s questions focused first on how the commonality of the class is affected by CDCR’s new gang validation pilot program.  Specifically, since the commencement of the Ashker case, CDCR has created a Security Threat Group (STG) pilot program that it claims resolves the due process violations of the prior validation system.

Judge Wilken expressed concern that those prisoners sentenced to indeterminate SHU terms under the old validation system would constitute a different class from those validated under the STG pilot program.  However, as CCR Attorney Alexi Agathocleous – who argued today on behalf of the plaintiffs – pointed out, CDCR has yet to provide any evidence that the pilot program addresses any of the due process issues raised in the complaint, such as being able to use the possession of artwork to sentence prisoners to indefinite isolation.

In addition to the due process claim, the lawsuit asserts that the 8th Amendment of the U.S. Constitution is violated when gang-validated prisoners are kept in solitary for more than a decade.  Though the Ashker case defines these prisoners as part of a “subclass,” Judge Wilken questioned whether there were potentially prisoners who had been detained in the SHU for more than ten years who were serving determinate sentences. 

It is worth distinguishing here that those sentenced to SHU terms can either serve set, determinate sentences for behavioral violations under Title 15 or be assigned indeterminate sentences on the basis of suspected gang association.  Plaintiffs yesterday pointed out that it is unlikely that there is a separate class of prisoners who have been in SHU for more than ten years because, under Title 15, even the most severe rule violation – murder of a non-inmate – is punishable by a maximum of five years in SHU.  (As an aside, the UN has stated that solitary confinement in excess of 15 days amounts to torture.)

To follow the litigation of Ashker v. Brown – including Judge Wilken’s ruling on the motion to certify the class - and the Pelican Bay Human Rights Movement, visit LSPC, PHSS, or CCR.

Tonight, 7-8, KALW City Visions: Program on Reentry

This evening, 7-8, on KALW - please tune in!

California Realignment Resources

This post will be continuously updated and serve as a bibliography of published works and works in progress on the California Criminal Justice Realignment. If you are working on similar topics or know of a project not mentioned here, please email me with the details and possibly a link.

Jones, Nicole. 2012. Realignment: California's Criminal Justice Experiment. KALW four-part radio show.

Macallair, Dan, et al. 2012. Lessons Learned:The Santa Cruz County Story, Center for Juvenile and Criminal Justice.

Owen, Barbara, and Alan Mobley. 2012. “Realignment in California: Policy and Research Implications.” Western Criminology Review 13(2):46-52.

Schlanger, Margo. 2013. Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, Harvard Civil Rights-Civil Liberties Law Review (CR-CL), 48(1).

Spencer, Jessica, and Joan Petersilia. 2013. Voices from the Field: California Victims’ Rights in A Post-Realignment World. Federal Sentencing Reporter 25(4).

Researching the California Criminal Justice Realignment

I am in Seattle, WA, for the West Coast Law and Society Retreat, where we just finished a panel examining various perspectives on the criminal justice realignment. The panel featured several folks doing work on criminal justice reform from various perspectives: W. David Ball from Santa Clara University, Mona Lynch from UC Irvine, Jonathan Simon from UC Berkeley, and Katherine Beckett from University of Washington. We all talked about the research that is being done, the research that should be done, how the research community can be relevant and influential in making healthy decisions about corrections in California, and the impediments and challenges that lie ahead.

David Ball spoke about the importance of communicating with decisionmakers in the field. His fieldwork (with Bob Weisberg) involves prosecutorial decisionmaking after realignment. They interview prosecutors about the existence, or lack thereof, of consistent prosecutorial guidelines. In presenting prosecutors with a series of hypotheticals, which they ask prosecutors to rate on a seriousness scale, they expose the discretionary nature of realignment prosecution: The choice what to charge a person with could impact whether s/he will be regarded as a "non-non-non" and therefore housed in a jail. They have also uncovered the subtle interactions between prosecutors and the police, primarily areas of non-enforcement and non-prosecution.

Mona Lynch mentioned that the two types of realignment research done most frequently are policy evaluation, which is the only thing that can be funded (and has been done by several organizations, notably CJCJ and the ACLU of Northern CA), and legal research that focuses on Eighth Amendment arguments. The challenges ahead lie in the "hydra risk" of bad conditions in many jails in lieu of a few prisons. She suggested two socio-legal avenues for research: returning to, and revisiting, the classic courtroom ethnographies in a way that would uncover the framing and understanding of offenders (think David Sudnow's Normal Crimes - first deciding what a person deserves based on a typology and then putting it together via the existing sentencing enhancements), and a study of the experience of jail incarceration (jails have been understudied; one great counterexample is Sharon Dolovich's study of the Los Angeles County Jail.) This research may entail access issues we should overcome.

Jonathan Simon reminded us that realignment cannot be framed as an improvement on the system, but rather as a cover-up for a human rights crime that we will some day grow to regret: "torture on the installment plan."He also encouraged us to challenge the assumption that rehabilitation and risk reduction programs need to be in place to combat the threat to public safety, problematizing the correlation CDCR draws between public safety and incarceration (with the drug war in the throes of death, are we reaffirming our commitment to locking up violent offenders for disproportionately long periods of time?).

Katherine Beckett provided a much-needed comparative context. She reminded us that other states are also punting their responsibilities to the county level. Also, many states have wobbler legislation, nonprosecutorial policies that yield county variation, and parole/probation reforms (as in Kansas), as well as drug law reform (New York State is an example). Her current project, reviewing prison admission data from 29 states, indicates that many states have seen a reduction in prison admission through these reforms, but these gains are offset by admissions for violence, public order, and property offenses, which are surprising given that arrest rates are falling. Beckett and other panelists highlighted the problem of entrenching the notion of "dangerous offenders", whose mass incarceration is being
kosherized via the decarceration of the presumably less-dangerous drug offenders.

We had a very lively discussion with audience members:

Are there opportunities for graduate students who want to do empirical qualitative analysis of the realignment? We should know what other people are studying, and maybe throw in some questions in questionnaires (the Federal Sentencing Reporter issue on realignment is a great example.)

What are the interactions with, and effect on, immigration law? Has realignment changed charging practices with offenses that may or may not trigger deportation?

How do institutional pressures - courtroom workgroups, profiteers, unions, the market - play a role? Nobody wants their organization to shrink, and therefore prosecutors have a vested interest in keeping mass incarceration at its current level.

What role does impact litigation and critical resistance play in the process of realignment? We should keep in mind that a third of the jails already have population cap orders.

With regard to policy evaluation studies, those are difficult to do, because realignment is not the only thing that has changed. Some panelists suggested longitudinal studies (following up on cohorts of offenders) and comparative between counties. But there is also a concern about how to frame the dependent variable: What would it mean for realignment to "work"? And from whose perspective? What do we want or expect from our criminal justice policy? And, how to measure recidivism?

One suggestion made on the panel was to look at home detention and GPS as a possible alternative for mass incarceration. While the prison is unique as an institution producing what we now know as a human rights disaster, replacing it by home detention would also have adverse and alienating effects.

We also discussed the problematic aspect of thinking that mass incarceration is "normal", and that we won't be able to really think outside the box given the stake so many institutions and organizations have in the existence of mass incarceration.

Finally, a workshop on realignment is being planned for October 2014, and we hope to be there and be able to say more about how realignment works.

***

I'd very much like to invite the panelists and audience to send over links to research on realignment, so we can have a repository of resources here at the CCC blog.

On Gov. Brown's Desk

Gov. Brown signing a bill. Photo
courtesy the Examiner.

The legislative session has ended, and many criminal justice bills are on Governor Brown's desk, awaiting his signature or veto. Here are some of the important decision already made, or about to be made, at the gubernatorial office.

There is a whole lot of gun control bills. This legislative session, no doubt influenced by the Sandy Hook tragedy, included many bills to prohibit certain types of ammunition, outlaw the sale of fixing kits to create assault rifles, ban open carry, and require certification and licensing. The NRA has issued a call to its members to oppose all of these bills.

There's also AB 105, proposed by Gov. Brown himself, and signed a few days ago, which will spend $315 million of your money and mine on contracting with private jails. This is part of Brown's campaign to circumvent the Supreme Court order to reduce population; as BeyondChron pointed out time and again,  Brown's stubbornness on prisons and general punitive old-school approach to incarceration is difficult to reconcile with his otherwise progressive positions.

Happily, not all news are bad. Brown has signed SB 260, which will give juveniles incarcerated for lengthy periods of time a right to appear before the Board of Parole Hearings to demonstrate their suitability for release after serving at least 15 years of their sentence. This bill may affect the fate of as many as 5,000 California inmates.

Still awaiting gubernatorial approval is SB 649, which would convert all simple drug possession offenses in California into wobblers, allowing for their prosecution as misdemeanors. Ironically, approving SB 649 may work well in conjunction with AB 105, in terms of the monetary savings and inmate diversion that will result from it.

Also sent to the governor's approval is AB 218, otherwise known as Ban the Box, which prohibits asking job applicants about their criminal records until it is established that they meet the minimum qualifications for the job.

Also notable, SB 569, if signed by the Governor, will require the police to videotape all police interrogations of juveniles accused of murder. Why only juveniles? Why only murder? Presumably, you have to start somewhere, and the risks of procuring false confessions are greater with juvenile suspects. Even this partial requirement has police officers bristling, though I can see benefits to the police in the sense that proper interrogations can no longer be grounds for lawsuits or public upheaval.

If any of the bills to be signed is close to your heart, and you'd like to tell the governor, please do so!

Mailing address:
Governor Jerry Brown
c/o State Capitol, Suite 1173
Sacramento, CA 95814

Phone: (916) 445-2841
Fax: (916) 558-3160

Email here.

Ashker v. Brown: Solitary Confinement Lawsuit Seeking Class Certification

The struggle against long-term solitary confinement continues even after the end of the hunger strike. A group of inmates is suing Gov. Brown and CDCR, hoping for an injunction to end gang validations, confinement based on flimsy evidence, and solitary confinement for long periods of time. They did not get a preliminary injunction, but the motion to dismiss was denied as well.

In the lawsuit, the inmates bring up two types of constitutional arguments:

Due Process arguments, addressing the process by which people are placed in solitary confinement indefinitely. One can end up in solitary confinement for a defined period of time, for a violation of prison rules; this lawsuit addresses a different category of cases, in which people are classified as gang members based on problematic and scant evidence and placed in solitary confinement with no end in sight. If the court accepts this claim, it will order an overhaul of CDCR regulations regarding gang validation.

Eighth Amendment arguments, addressing the physical and mental health risks involved in confining human beings in segregated conditions for more than ten years. There is a solid body of evidence regarding the horrific and irreversible impact of spending dozens of years in a small cell by oneself for 22.5 hours a day, with no human contact, on a person's body and psyche (see fact sheet). If the court accepts this claim, the best case scenario is a cap on using solitary confinement for periods exceeding ten years.

The first step in court is to have the lawsuit class certified under Federal Rule 23. What that means, in legal parlance, is that the lawsuit becomes a petition on behalf of a group of inmates, rather than the individual petitioners. With regard to the due process argument, the appropriate class consists of all inmates who are in solitary confinement for an indefinite period following a gang validation process. With regard to the Eighth Amendment argument, the appropriate class consists of anyone doing time in solitary for more than ten years. Here's the petition for class certification.

Under Rule 23, the inmates will have to prove that they are too numerous a group to litigate individually, and that the representative inmates bringing the suit are adequate representatives with claims that are typical to the entire group. This has been a problem in the past sometimes, when inmates brought up common law questions that would require individually-tailored legal responses. It does not seem that this is the case here. What the petitioners are seeking is a change in validation policy and a cap on confinement length, a remedy that would address the concerns of the entire class. So, the petition for class certification seems to have a fairly good chance. As to the merits of the suit, we'll continue following it.

Interested in attending the oral argument? 

When: Thursday, Sept. 26, 2013 at 2:00 p.m.
Where: Oakland Courthouse, Courtroom 2, 4th floor, 1301 Clay Street, Oakland, CA, 94612 before Chief District Judge Claudia Wilken.

The Center for Constitutional Rights wants people to attend the hearing. If you plan on showing up, do your best to arrive 30 minutes to one hour early, in order to go through security. Everyone will need a current form of identification in order to get inside the building.

For those of you who can't make it, the CCC blog will cover the oral argument.
___________________________
Thanks to my colleague Morris Ratner for our conversation about class certification.

BREAKING NEWS: Ban the Box Passes Senate Floor!

Thanks to your efforts, phone calls, and lobbying, Ban the Box has passed the Senate Floor, 21-16, and will now go to the Governor. Good things can happen when good people care.

Ban the Box Needs Your Help!

Cheauvon, and other honest and accountable formerly incarcerated people who are looking for work and want to take responsibility for their lives, need YOUR help!

AB 218, otherwise known as the Ban the Box initiative, would prohibit state or local agencies from asking an applicant to disclose information regarding a criminal conviction until the agency has determined the applicant meets the minimum qualifications for the position. From the reentry perspective, it is a laudable initiative that gives formerly incarcerated people a fair shot at being considered for a position on their merits and qualifications.

The bill failed on the Senate Floor yesterday by a vote of 20 to 16, but was granted reconsideration. Which means there is something you can do to make things right. It's the last day of the Senate session and this is an opportunity to pass this important bill.

Call one of these senators (highest priority are Senators Pavley and Roth):

Fran Pavley: Phone: (916) 651-4027 District 27 incorporates and maintains the eastern portion of Ventura County, which includes the cities of Simi Valley, Moorpark, Thousand Oaks, Agoura Hills, and Westlake Village. It also includes the coastal area extending from Leo Carrillo State Beach to Malibu and on to Topanga Canyon. Additionally, it captures the communities of Calabasas, West Hills and a portion of Santa Clarita in Los Angeles County. It maintains the coastal mountain range and watershed. This district reunites the cities in Eastern Ventura County above the Conejo Grade and combines them with communities in the greater Santa Monica Mountain area and the western San Fernando Valley along the Highway 101 and 118 corridors.

Richard Roth: Phone: (916) 651-4031; District 31: Riverside County including the Cities of Corona, Eastvale, Jurupa Valley, Moreno Valley, Norco, Perris and Riverside, Fax: (916) 651-4931

Hannah-Beth Jackson: Phone: (916) 651-4019; District 19 Santa Barbara County and a portion of Ventura County.Santa Maria, Buellton, Solvang, Goleta, Santa Barbara, San Buenaventura, the Santa Clara Valley (Santa Paula, Fillmore, Piru) and Oxnard, Port Hueneme and Camarillo on the southeastern border. Agricultural nexus between the Santa Clara Valley, Oxnard plains, and the Santa Maria area.

Jerry Hill: Phone: (916) 651-4013; District 13; Atherton, Belmont, Brisbane, Burlingame, East Palo Alto, Foster City, Half Moon Bay, Hillsborough, Los Altos, Los Altos Hills, Menlo Park, Millbrae, Mountain View, Pacifica, Palo Alto, Portola Valley, Redwood City, San Bruno, San Carlos, San Mateo, South San Francisco, Sunnyvale, Woodside and parts of unincorporated San Mateo County and unincorporated Santa Clara County.

Here's a suggested script for your call:

“I live in the Senator's district and I support AB 218. I want to urge the Senator to pass this bill. This bill is important to our community because ... ”

• “it will help reduce recidivism.”

• “it will increase public safety by making sure people with records have a chance at being employed.”

Use your own words and reasons.

If the idea is to make folks with criminal records contributors, rather than burdens, on the economy, the way to do it is to at least not make it impossible for them to find work. DO SOMETHING TODAY to help them.

New CJCJ Data: The Problem is in the Counties

Jerry, hold your horses; perhaps a comprehensive state plan is not what we need. New fact sheets produced by CJCJ based on data from CDCR and the Criminal Justice Statistics Center indicate that the problem with reducing prison population is located at the county level.

The first fact sheet shows the county disparities in incarceration. CDCR data are broken according to prison admission rates. As the fact sheet states, "the 17 counties with higher than average prison admission rates per felony arrest have imprisonment rates 60.7 percent higher than the 40 counties with lower than average rates." Those counties, ranked from the highest to the lowest imprisonment rates, are Kings, Riverside, Butte, Monterey, Yolo, Yuba, Shasta, San Joaquin, San Bernardino, Madera, Amador, Sacramento, Kern, Tehama, Santa Barbara, Merced, and Sutter. Los Angeles County was analyzed separately because of its population size.

Following David Ball's awesome recent paper, which suggests that violence rates are a good way to allocate money to counties because they are good proxy for actual incarceration needs, I would love to see violent crime statistics on these counties, to see whether these incarceration rates are justified.

My concern is that this is actually not about an increase in violent crime. The second fact sheet from CJCJ indicates a disturbing trend of increase in new prison admissions for property and drug crimes (see graph).

Maybe we can save ourselves $350 million of your money and mine by finding a way to incentivize high-incarceration counties to incarcerate less?

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Governor's Prison Plan Announced

Gov. Brown's website unveils the main features of his prison plan, AB 105, which:

• Authorizes up to $315 million in immediate in-state and out-of-state capacity.
• Lays the foundation for longer-term changes to the criminal justice system, in collaboration with the Legislature and stakeholders.
• Strengthens existing local efforts (SB 678) to manage offenders by increasing the amount of funding that county probation departments receive if they can serve felony probationers locally and keep them from coming to prison.
• Requires that if the court modifies the order in a way that reduces the cost of compliance, the first $75 million in savings will go to reducing recidivism.

The full text of the bill is here. Hear the Governor explain the plan here. More commentary on the plan in a later post.

Assembly to Consider Bill Allowing Parole for Juveniles Sentenced as Adults

SB 260, proposed by Senator Loni Hancock, offers the possibility of judicial review of sentences of juveniles who were tried as adults. From the bill [cleaned-up text]:

This bill would require the Board of Parole Hearings to conduct a youth offender parole hearing to consider release of offenders who committed specified crimes prior to being 18 years of age and who were sentenced to state prison and. The bill would require parole consideration to be given during the 15th year of incarceration if the person meeting these criteria received a determinate sentence, during the 20th year if the person received a sentence that was less than 25 years to life, and during the 25th year of incarceration if the person received a sentence that was 25 years to life. The bill would require the board, in reviewing a prisoner’s suitability for parole, to give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law. The bill would require that, in assessing growth and maturity, psychological evaluations and risk assessment instruments, if used by the board, be administered by licensed psychologists employed by the board and take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual. The bill would permit family members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the young person prior to the crime or his or her growth and maturity since the commission of the crime to submit statements for review by the board and would permit the individual to designate one person to attend the youth offender parole hearing and read a brief statement. 

This bill is, in a way, an extension of SB 9, which created a similar process for juveniles sentenced to life without parole. It would extend the courtesy of judicial review to juveniles serving long sentences. The release is not automatic or mandated, and as the text says, the offenders will have already served lengthy sentences - 20 or 25 years, depending on the original sentence. The bill will not apply to third strikers or to folks whose resentencing is covered by SB 9.

The bill hits the Assembly floor tomorrow.

BREAKING NEWS: Inmates End Hunger Strike

The hunger strike in protest of long-term solitary confinement has ended. KTVU reports:

The strike ended after two Democratic state legislators promised to hold hearings this fall on inmates' complaints that gang leaders are often held for decades in isolation units.

A federal judge also recently gave authorities permission to force-feed inmates if necessary to save their lives. However, even the hard-core strikers had been accepting vitamins and electrolyte drinks during their fast.

"We are pleased this dangerous strike has been called off before any inmates became seriously ill," Beard said in a statement. He said the department will continue to carry out changes in its policies over sending inmates to Security Housing Units that were started two years ago.

The changes include more limits on which inmates are sent to the housing units at Pelican Bay, where the strike began, and at other prisons. The policies also make it easier for inmates also can work their way out of the isolation units.

It's been a very, very difficult two months for inmates and their supporters. In the course of the last two months we've seen some successes, one death, accusations that the strike was a "gang power play" and their rebuttal, an order to force-feed that implied that some inmates were coerced into striking, and finally, a promise to hold hearings on long-term confinement.

What will stay with me is the sense that I know what's right, and as I see it, I also see shades of gray. I have no doubt--in fact, I know--that hunger strike leaders were gang members. That CDCR Secretary Beard thought that telling us about the gang affiliations will convince us that the strike is illegitimate and that these folks deserve their conditions is an insult to my morality and my intelligence, and perhaps to yours, as well. Of course these are folks who committed serious crimes and joined gangs. That's why they're serving long prison sentences. But does confinement also imply all these other indignities and aggressions? Decades of isolation under abysmal conditions, and an "out" path that is marred with lies and misinformation?

Where I see more shades of gray is with regard to the coercion/pressure concern, which I'm sure Judge Henderson had in mind when giving the force-feeding order (so as to give pressured inmates a dignified exit from the strike). But social movements seldom boast members who all share a 100% conviction in their path, and why should this one be different? The decision to risk one's life, and to fight back with the only thing one has left--one's body--is a very drastic one to make. Not everyone will share that level of conviction, and that's okay. The extent to which pressure is put on people to comply is where the shades of gray come into the picture. My thoughts about this stem from the fact that I know Judge Henderson, through his decisions and public speaking, to be an upstanding, moral judge, who has been a friend and supporter to inmates for decades of his career. I want to believe that he would not have authorized such cruelty had he not known something about the internal dynamics of the strike that I wasn't privy to. And yet, I am troubled. Medical professionals must have been frustrated and upset at the prospect of being asked to solve what is, essentially, a social and political problem via medical means. What a miserable situation.

And so, I am left frustrated and confused, and living in a state where a nonviolent struggle to achieve a fairly modest goal--making sure that segregation for 23 hours a day lasts "only" ten years--has ended with little to show for it, amidst misleading publicity and some serious doubts about some of the events and the internal dynamics. But there is one thing I know is true. Holding a human being, no matter his or her gang affiliation or former crime, alone, for decades, in a small cell, with no window of hope and change and no human contact, and providing him or her with abysmal health care under conditions that would render anyone insane, is wrong. It is wrong no matter what we are being told. The strike has ended, but the struggle must continue.

BREAKING NEWS: Bill Allowing Charging Simple Possession as Misdemeanor Clears Assembly Floor

SB 649 (Leno) will allow prosecuting simple possession of certain controlled substances, including, among others, opiates, opium, opium derivatives, mescaline, peyote, tetrahydrocannabinols (marijuana), and cocaine base, as "wobblers", that is, either as felonies or as misdemeanors. SB 649 has just cleared the assembly floor, 41-30, and it's on the way to Gov. Brown via a Senate approval of the amendments.

This is very good news to those who would like to see the end of the war on drugs, and who think that nonviolent drug offenders are being punished too harshly.

UPDATE (Sep. 10, 2013): The bill has now passed the Senate floor as amended and is on its way to the Governor for signatures.

Same Sex Marriage and CA Prisons

The big news in the correctional world is that the CA assembly has approved Gov. Brown's recent proposal to use $315 million of my money and yours to build private prisons. This is not the end of the story, however, because--

[a]pproval by the full Assembly would set the stage for a showdown in the Senate, where Democrats oppose the measure. They want more money spent on rehabilitation services and drug and mental health treatment so offenders do not end up back in prison after their release.

Meanwhile, Day 58 of the hunger strike brought a statement of frustration from the mediation team, who was encouraged to hear about the potential public hearings, but concerned for the strikers' deteriorating health.

And, Assemblymember Tom Ammiano has submitted a query to CDCR regarding same-sex marriage for inmates. Here is the CDCR memo, verbatim, from scribd:

CDCR memo regarding same sex marriage between inmates by MelodyGutierrez

In other words, inmates are now allowed to wed non-inmates in CDCR institutions. There are two notable things about this: First, that inmates who are both currently incarcerated cannot get married. This is, presumably, a continuation of the previous policy, but since prisons are segregated by gender it becomes much more meaningful now that folks of the same sex can get married. And second, that chaplains may refuse to perform the ceremony on conscience grounds, but in that case CDCR will substitute the refusing chaplain with another officiant.

The no-marrying-already-incarcerated-inmates rules, which is presumably in line with previous policy, raises some interesting questions. What happens if two women, who are already married, both get prison sentences (say, for unrelated felonies)? Does CDCR have policies about whether they should be kept in the same facility or in different facilities? And, while inmates can't marry each other, surely they can have relationships with each other, and so, why the prohibition?