Friday, September 27, 2013

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.

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