More Progressive Punitivism, the Manafort Edition: Conservatives, Maoists, and the SCUM Manifesto

 This morning on Twitter, Shaun King took on the schadenfreude festival that surrounded the reports that Paul Manafort--perhaps the shrewdest collaborator with the Russians in the context of the 2016 election and an unscrupulous white collar crime offender--is going to be in solitary at Rikers. King said:

I see people excited to see Paul Manafort sent to Rikers Island and put in solitary confinement.

1. Rikers Island should be closed down
2. Solitary confinement should be ended.

We must be so principled in our calls for reform that we want them even for our enemies.

— Shaun King (@shaunking) June 4, 2019

I couldn't agree more. This is one more example of the evils of progressive punitivism, which I discussed in this primer. No matter how many resistance-related hashtags are affixed to these expressions of joy, they are the opposite of revolution; rather than deeply upending the rationales of the punitive state, they consist merely of turning it around 180 degrees. Instead of torturing poor people of darker skin, we'll torture rich people of lighter skin. This is not reform; it's tribalism.

I've written two pieces on progressive punitivism so far. The first, based on my Not Your Typical Kavanaugh Opinion Piece, shows how some aspects of the #metoo movement feed into the most noxious aspects of progressive punitivism, namely the encouragemenet for people to marinate in victimization as a condition of being heard (forthcoming from JCRED). The second, based on this post, argues that the tendency to demonize everyone involved in failed criminal justice reform (particularly painting well-meaning people as racist) is ahistorical and harmful to the movement overall, and that it is much healthier for both academics and reformers to analyze people on their own terms (forthcoming from LSI). The third piece, which I'm working on now, is for the Punishment and Inequality conference at the University of Bologna. In this piece I try to unpack the intellectual roots of progressive punitivism and come to some surprising conclusions.

It turns out there is very little in the history of conflict and radical criminology that tackles the question, "whatever shall we do with the rich after the revolution?" Admittedly, much of the radical criminology paradigm consists of questioning the connection of crime with class; the oft-quoted maxim from Anatole France's The Red Lily talks about how ‘[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’ To criticize how the law applies to the poor is to implicitly question how it applies to the rich, because criminalization and severity get their meaning from relativity and context. Critical and radical criminologists have highlighted areas in which the rich commit crime with impunity--white collar crime, environmental crime, state crimes, etc.--but save for, say, the post-Enron outrage, there's been very little to foreshadow the explosion of punitive sentiments on the left that we see today. Perhaps the exception is carceral feminism, which was foreshadowed in Catharine MacKinnon's writing; she seems to support this aspect of the #metoo movement, opining here that the online outrage and excoriation campaigns we see are an outcome of the incompetence of formal criminal law in addressing sexual harassment. For an even more extreme example of the antecedents of carceral feminism, see this passage from Valerie Solanas' SCUM manifesto:

SCUM will kill all men who are not in the Men's Auxiliary of SCUM. Men in the Men's Auxiliary are those men who are working diligently to eliminate themselves, men who, regardless of their motives, do good, men who are playing pall with SCUM. A few examples of the men in the Men's Auxiliary are: men who kill men; biological scientists who are working on constructive programs, as opposed to biological warfare; journalists, writers, editors, publishers and producers who disseminate and promote ideas that will lead to the achievement of SCUM's goals; faggots who, by their shimmering, flaming example, encourage other men to de-man themselves and thereby make themselves relatively inoffensive; men who consistently give things away -- money, things, services; men who tell it like it is (so far not one ever has), who put women straight, who reveal the truth about themselves, who give the mindless male females correct sentences to parrot, who tell them a woman's primary goal in life should be to squash the male sex (to aid men in this endeavor SCUM will conduct Turd Sessions, at which every male present will give a speech beginning with the sentence: `I am a turd, a lowly abject turd', then proceed to list all the ways in which he is. His reward for doing so will be the opportunity to fraternize after the session for a whole, solid hour with the SCUM who will be present. Nice, clean-living male women will be invited to the sessions to help clarify any doubts and misunderstandings they may have about the male sex; makers and promoters of sex books and movies, etc., who are hastening the day when all that will be shown on the screen will be Suck and Fuck (males, like the rats following the Pied Piper, will be lured by Pussy to their doom, will be overcome and submerged by and will eventually drown in the passive flesh that they are); drug pushers and advocates, who are hastening the dropping out of men.

What does this radical program of punishment, excoriation, required groveling and ceremonial apologies resemble? Unsurprising answer: Communist China's criminal law. While criminalization, tribunals, and harsh punishment were part and parcel of the cultural revolution, China didn't actually have an official criminal code until 1979. The Maoist authorities had drafted one, but Mao believed it unwise to codify a criminal law that later might restrain the party. Still, these notions of criminal law as embedded in politics characterized the eventual legislation. As Donald Clarke and James Feinerman argue in Antagonistic Contradictions: Criminal Law and Human Rights in China, the question of what constitutes a crime was nebulous in the criminal code of Communist China, and highly dependent on the perpetrator's location on the class food chain. As they explain:

The Criminal Law (CL) does not so much define which acts are punishable as prescribe what the sanctions shall be when relatively severe punishments are deemed in order. The definition of crime is accomplished outside the Criminal Law by reference to political exigencies or generally accepted standards of morality. There is little perceived danger in allowing government officials to impose their own standards of morality, since Chinese state ideology does not accept the legitimacy of multiple standards of morality. 

Consider, for example, the provision for analogy (Article 79 of the CL): a "crime" not stipulated in the CL (or elsewhere) may be punished according to the most nearly applicable article. This shows that if rules defining crime are "law," then the very notion of "crime" is not a "legal" concept; the determination of whether a particular act constitutes a crime is something that must take place outside the CL. Thus, while the CL tells you what punishment to apply for a particular crime, it is often unhelpful in determining whether a crime has been committed. In this respect, the CL resembles the rules for punishment of Imperial China, which stipulated any number of punishable acts in great detail, but also contained provisions allowing for analogy and punishing "doing what ought not to be done." 

The Special Part lists various crimes and their punishments. Pride of place goes to counter-revolutionary crimes, which are defined as "all acts endangering the People's Republic of China committed with the goal of overthrowing the political power of the dictatorship of the proletariat and the socialist system" [but are very rare despite their textual prominence.] . . The other chapters in the Special Part cover crimes of endangering public security, undermining the socialist economic order, infringement of personal and democratic rights, property violation, disruption of the order of social administration, disruption of marriage and the family, and dereliction of duty and corruption. 

The Special Part is a relatively skimpy 103 articles. . . One reason for the relative simplicity of the Chinese CL is that the provision on analogy offers an escape hatch in case of imperfect or careless drafting. Another reason is that the CL is supplemented by numerous other pieces of special legislation either specifically criminalizing a certain act or prohibiting an act and providing vaguely that "where it constitutes a crime, criminal responsibility shall be affixed," without providing any guidance as to under what circumstances the performance of a prohibited act would constitute a crime. Finally, it must be remembered that the CL is as much a political text as a legal one; its drafters were concerned with providing a legal basis for state action, not with worries about due process, and it was designed to be used by judicial and public security cadres with a low educational level. Although the late 1980s and early 1990s have seen a movement among the Chinese legal community to revise the wording of the Criminal Law in an attempt to make it technically more elegant, no revision has yet taken place.

Essentially, what Clarke and Feinerman are describing is a punishment system that relies on the sentiments of the communist order toward the offender to even make the decision whether a crime has been committed. A poor person stole bread? Revolutionary impetus. A rich person stole bread? Class criminal.

One possible (and reasonable) counterargument could be that all criminal codes are, covertly, Maoist "little red books" by virtue of differential enforcement. After all, isn't a city ordinance that prohibits any person from sitting or lying on a city sidewalk, but yields fines only against poor, homeless people, exactly the same as a "political texts" that "impose [their] own standard of morality"? Well, of course they are. But the difference between these codes and the Maoist criminal code is the difference between covert and overt intent. The Maoist code explicitly declares its intent to focus on counterrevolutionaries.

So what's worse, a law that purports to criminalize in a neutral, universal way, but is enforced in a way that targets members of a particular class, or a law that explicitly says that it addresses only members of a particular class? There's something to be said for the latter: at least it's honest, which means that if we dislike its overt targeting, we can work to change it. Differential enforcement, on the other hand, can work covertly, and remain undetected. But this rationale does not neatly address what happens in the context of progressive punitivism, for two main reasons.

First, the days in which the mainstream public was in the dark about differential enforcement are long gone. The disparities that critical criminologists have been studying for decades--racialized police activity, ideological bias in charging decisions, sentencing disparities for members of different races and classes--are all there in the open. We studied this stuff before it was cool, but now progressive Millennials are born with the Michelle Alexander playbook in hand. They have come of age, politically, against the backdrop of Ferguson; they have been reading excellent journalistic coverage of the criminal justice system and listening to podcasts about miscarriages of justice for years. Honestly, there's not much difference now, in terms of the progressive consciousness, between laws that explicitly target the poor and laws that are facially egalitarian but differentially enforced. This is good news for criminologists--we've wanted everyone to know this forever, and finally, the combination of colleagues with a desire to address the mainstream and journalists who made it accessible has succeeded in injecting the realities of criminal justice administration into the mainstream conversation (this conversation could use a little, or actually a lot, of nuance, but we'll turn to that later.)

Second, even with an overt policy, there has to be a desire to change it. If lawmakers and constituents are overall pleased with policies that support a particular political order and target people on the basis of their class affiliation, it will be quite difficult to introduce change. Regardless of whether the class/race/gender bias of law is overt or covert, the ability to move it in one direction or the other depends largely upon whether its targets are people that "we" (for whatever value of "we") like or dislike.

Which leads me to conclude that, even though we can find Maoist, or radical feminist, antecedents to the appetite for punishing the rich/male/white that permeates progressive discourse, its most obvious intellectual and cultural legacy is... conservative discourse.

Conservatives and progressives don't live on different planets. The American public (as well as the American academic scene) has experienced decades of exposure to punitive ideologies and policies, and these, as well as their legacies, are bound to leave imprints on social movements of all stripes. Criminal justice and punishment scholarship in the United States is steeped in this punitive legacy--and this is characteristic, as Naomi Murakawa, Elizabeth Hinton, and others tell us not only of Nixon and Reagan, but also of Democrat politicians. After all, as Jonathan Simon explains, no politician, of any stripe, wants to be perceived as "soft on crime."

Decades of being steeped in a program of conservative punitiveness has taught both conservatives and progressives three important lessons. The first is that criminal justice is the only hammer in the toolbox, and therefore each and every problem must be a nail. If that's how we have been solving the problems of "inner city delinquency" for years, why would we not welcome any bad behavior on the part of the wealthy and privileged with choruses of "lock him up"?

The second lesson is that it is normal to think of criminal justice as a tool for separating communities across identities. I'm sure I tell you nothing new when I remind you that, while 1 in 100 Americans is behind bars, that figure is much higher for particular segments of the American population: 1 in 9 young Black men is incarcerated, and 1 in 3 is under some form of correctional supervision.  Racial and class inequalities are found at every turn; in policing,  in criminal courtrooms,  and in sentencing,  to name just a few. Many criminal justice critics, in academia and in the activist realm, treat this overrepresentation not as a coincidence, but rather as part of a systemic project of crystallizing and enhancing inequalities. Is it any wonder that, against a backdrop of "walk all over the poor", a non-imaginative response is, "walk all over the rich"?

The third lesson, which is perhaps the most painful, is that the quintessential way to get the talking stick in America is to be a victim. Just yesterday we learned that Tricia Meili, the Central Park jogger who was viciously assaulted and left for dead decades ago, is calling for a release of investigation materials in the cases of the Central Park Five, the five teenagers who were falsely accused of assaulting her. We know who did it: the responsible party is in prison, has confessed to the crime, and is tied to it via robust forensic evidence (the only person who is still confused about this is Trump). We have seen footage of the interrogations of the teenagers. Meili is owed compassion and support for her harrowing experiences, as well as admiration for her long recovery process. But why is she an authority on an event she has no memory of? That we award victims an attentive ear on such matters shows how victimization, or more accurately, a spectacle of suffering, is the qualification you need to be an authority on criminal justice in America. #BlackLivesMatter and #metoo have internalized these messages all too well: in the face of victim voices serving the conservative agenda, like the Tate family, Mark Klaas, and Dominick Dunne, is it any wonder that the progressive response is to put victimization and trauma at the forefront of its own struggle?

The problem with these non-imaginative responses, as Shaun King reminds us, is that progressive punitivism is, essentially, a little-changed version of the conservative punitivism playbook. Applauding the incarceration of a reviled man on solitary at Rikers has as much potential for enshrining the practices of solitary, and the conditions at Rikers, as was applauding the incarceration of the people that the progressive movement cares about in identical conditions. We can and should do better than this every day, but that takes imagination, and shaking off the paradigms shaped by decades of criminal injustice doesn't come easy. Still, we have to try.

Play Review: The Box by Sarah Shourd

It's hard to say that watching The Box, Sarah Shourd's new play, was a pleasurable pastime. But it was an important play, incisively written, beautifully acted, and impressively produced, that could not leave the audience indifferent.

The Box is a play about solitary confinement. In a cleverly constructed set of six cells, approximately the size of a real SHU cell, sit six prisoners. Some are there for a brief disciplinary interlude; some have been there for years. Shourd's characters are fictional, but their biographies are reminders of real people in solitary, such as the Angola Three and Todd Ashker.

With the views, video projections, and convincing soundtrack of noises, we are transported to a world of cruelty and deprivation. We meet different people, who approach the reality of their situation in different ways. We see them in conflict; we see them in solidarity; we see them at their noblest and basest. Shourd, who has spent years fighting solitary confinement ever since her release from Iranian prison, based the play not only on authentic dialogue, but also on genuine proceedings in solitary (the play takes the trouble of taking us through the routine of getting people out for visitation, including the wait time of the visitor.)

The play is also a reminder of the importance of solidarity and interracial unification. It includes a brief and stylized version of the two Pelican Bay hunger strikes, complete with the court order to force feed the inmates that ended the second one. I highly recommend this unforgettable experience to anyone, especially those who have not yet become embroiled in the struggle to end solitary confinement in California.

The Box plays at Z Space until the end of the month. For tickets, click here.

Reiter on Solitary Confinement

Keramet Reiter of UC Irvine has recently done a Q&A with the Berkeley Human Rights Center on solitary confinement, her topic of expertise and focus of her forthcoming book.

Will the recent court settlement in California lead to any significant change in regard to solitary confinement practices?
Two big challenges with isolation in particular are that it’s been a very secretive process and there has been significant discretion over what circumstances and for how long people are sent to isolation….Now, under the recent settlement, you have to do something wrong instead of just being labeled a gang member and isolation terms are capped at five years. So that’s an improvement. But you still don’t have a right to a lawyer at the administrative hearing in which people decide whether you’ve done something wrong or not. The prison staff have a lot of control over what counts as a rule violation and who they charge with violations. Five years is a long time, and you’re under really intense scrutiny when you’re in isolation, and it’s easy to break more rules because of that.

Read the whole thing here.

What Does the Settlement in the Solitary Confinement Lawsuit Mean?

Almost a month ago we reported of a historic settlement ending Ashker v. Brown, the class action suit regarding conditions in solitary confinement. What remains is to figure out exactly what the settlement means. And who better to illuminate the matter than UC Irvine's Keramet Reiter, an expert on solitary confinement and the editor of the recently published anthology Extreme Punishment?

In a recent blog post at Social Justice, Reiter argues that the settlement is a good first step, but there is plenty more to do:

The settlement attracted national attention and is still being celebrated by prisoners, their families, and legal advocates. Perhaps it will be a model for other states to reduce or eliminate prison conditions the United Nations has conclusively defined as torture. One settlement agreement, however, cannot sweep away decades of abusive prison policies. First, it is a settlement, not a legal opinion. At best, the settlement is a non-binding model of what other jurisdictions might attempt. Second, even though prison officials withdrew many of their claims about the dangerousness of SHU prisoners by agreeing to the provisions of the Ashker settlement, these beliefs have hardly been renounced. The genuine fear prison guards experience in coping with hunger strikes, managing mental illness, or dealing with prisoners like Hugo Pinell must be acknowledged and addressed, so that they are motivated to strategize to support, rather than resist, reform. Third, the data collection and monitoring associated with the settlement is scheduled to conclude in two years—and may never be made public in the first place. The practice of solitary confinement has historically been defined by discretion and invisibility, and is therefore hard to investigate, control, and reform. So the practice of solitary confinement could easily retreat back into the shadows in two years, absent longer-term requirements to institutionalize transparency. 

We plan to continue monitoring the post-Ashker developments.

Juvenile Solitary Bill Fails

Amidst the joyous news following the settlement in Ashker v. Brown comes a less encouraging development: AB 124, which would severely limit the use of solitary confinement in juvenile facilities (to four hours at a time, and not as a form of punishment), failed in the Assembly Appropriations Committee and won't be proceeding forward. The East Bay Express reports:

Proponents of SB 124 — co-sponsored by state Senator Mark Leno, D-San Francisco, and the Ella Baker Center for Human Rights, an Oakland nonprofit — have argued that the bill could go a long way in protecting youth inmates in county and state facilities from the inhumane and unjustified practice of isolation. The documented psychological deterioration associated with solitary confinement — which was a key argument in the state class-action suit — can be especially damaging for vulnerable youth inmates who have often already experienced a wide range of trauma in their lives. With California now agreeing to dramatically curb the use of isolation for adults and with officials increasingly acknowledging the harms of solitary, the failure of SB 124 was particularly painful for advocates who have been pushing versions of the bill for several years. 

"We're talking about the health and lives of young people who are endangered by this practice," Jennifer Kim, Ella Baker Center's director of programs, told me yesterday. Kim helped write the legislation and has repeatedly amended the bill in response to criticisms of correction officials, who have continued to argue that isolation of juveniles is an important tool to control "dangerous" kids. In reference to the state lawsuit and settlement, which will have no impact on juvenile facilities or inmates, Kim added, "Thousands of adults are going to be ordered out of solitary confinement ... [because] the courts have had to intervene. ... And yet the legislature has been largely not leading in the way they could be." 

SB 124, which successfully passed the Senate in June, would ban the use of solitary confinement in juvenile facilities for longer than four hours at a time. The legislation would also prohibit correctional officers from using solitary as a form of punishment and would only allow isolation when youth pose an immediate, substantial risk to themselves or others. Facilities would also be barred from isolating inmates who pose a threat as a result of a mental disorder. Additionally, the legislation requires jails to document all instances of solitary through a statewide reporting system. Correction and probation officials across the state have consistently opposed the measure, arguing that facilities do not use the kind of inhumane solitary confinement tactics that advocates describe. The opponents have also contended that the restrictions of SB 124 would put staff and youth at risk by making it harder for officers to isolate violent youth. 

What with SB 261 passing only recently, the California legislature's approach to juveniles can only be seen as puzzling. Are we treating them as children? as adults? for what purposes? are we willing to resentence but not to limit solitary confinement? and, under the circumstances, what is worse--adult prison or state juvenile facilities?

Join us on 9/17 to discuss these issues with juvenile justice advocates.

BREAKING NEWS: Settlement in Ashker v. Brown: The End of Indefinite Solitary Confinement in CA

Today, the Center for Constitutional Rights has announced that the parties to Ashker v. Brown, the case challenging indefinite solitary confinement in California, have reached a settlement. According to CCR's press release,

Today, the parties have agreed on a landmark settlement in the federal class action Ashker v. Governor of California that willeffectively end indeterminate, long-term solitary confinement in all California state prisons. Subject to court approval, the agreement will result in a dramatic reduction in the number of people in solitary across the state and a new program that could be a model for other states going forward. The class action was brought in 2012 on behalf of prisoners held in solitary confinement at the Pelican Bay prison, often without any violent conduct or serious rule infractions, often for more than a decade, and all without any meaningful process for transfer out of isolation and back to the general prison population. Ashker argued that California’s use of prolonged solitary confinement constitutes cruel and unusual punishment and denies prisoners the right to due process. 

. . . 

Today’s settlement transforms California’s use of solitary confinement from a status-based system to a behavior-based system; prisoners will no longer be sent to solitary based solely on gang affiliation, but rather based on infraction of specific serious rules violations. It also limits the amount of time a prisoner can spend in the Pelican Bay SHU and provides a two-year step-down program for transfer from SHU to general population.

The agreement creates a new non-solitary but high-security unit for the minority of prisoners who have been held in any SHU for more than 10 years and who have a recent serious rule violation. They will be able to interact with other prisoners, have small-group recreation and educational and vocational programming, and contact visits.

The full details of the settlement are available here.

This is a major victory for those of us who have been fighting against indefinite solitary confinement for many years--especially the inmates, who have participated in two hunger strikes to protest against the physical and psychological harms associated with this practice. It is also remarkable that, in an era in which such struggles often take the shape of bipartisan financial improvements, this struggle was fought as an old-skool human rights pursuit, and ended in an impressive and important victory. The statement from the plaintiffs reads as follows:

This settlement represents a monumental victory for prisoners and an important step toward our goal of ending solitary confinement in California, and across the country.  California’s agreement to abandon indeterminate SHU confinement based on gang affiliation demonstrates the power of unity and collective action.  This victory was achieved by the efforts of people in prison, their families and loved ones, lawyers, and outside supporters.  Our movement rests on a foundation of unity: our Agreement to End Hostilities.  It is our hope that this groundbreaking agreement to end the violence between the various ethnic groups in California prisons will inspire not only state prisoners, but also jail detainees, county prisoners and our communities on the street, to oppose ethnic and racial violence.  From this foundation, the prisoners’ human rights movement is awakening the conscience of the nation to recognize that we are fellow human beings.  As the recent statements of President Obama and of Justice Kennedy illustrate, the nation is turning against solitary confinement. We celebrate this victory while, at the same time, we recognize that achieving our goal of fundamentally transforming the criminal justice system and stopping the practice of warehousing people in prison will be a protracted struggle.  We are fully committed to that effort, and invite you to join us.

Todd Ashker

Sitawa Nantambu Jamaa

Luis Esquivel

George Franco

Richard Johnson

Paul Redd

Gabriel Reyes

George Ruiz

Danny Troxell

What Happens If the Court Disallowed Your Attorney from Attending a Batson Hearing?

The Sixth Amendment requires that defendants be tried by a jury of their peers; this raises serious questions when partisan interests bring racial considerations into the choice. Batson v. Kentucky, decided by the Supreme Court in 1986, limited the ability to use peremptory challenges (which allow each party to disqualify jurors without providing an explanation) when the pattern of challenges indicates racial (or, as later decided, gender) bias. The procedure under Batson requires three steps: the other party (typically the defense) points to a systematic pattern of racial exclusion; the excluding party (typically the prosecution) provides race-neutral explanations for the exclusion; and the court decides, based on totality of the circumstances, whether the challenges can stand.

Shortly after Batson, in 1989, Hector Ayala was convicted of a triple murder in the context of a robbery in San Diego. At the voir dire stage of his capital punishment trial, his attorney objected three times to repeated use of peremptory challenges by the prosecution against black and latino prospective jurors. Each time, the prosecution asked that the defense leave the room, arguing that they didn't want to expose trial tactics to the defense. Their actual race-neutral explanations for the peremptory challenges were concerns about criminal record, concerns about unwillingness to apply the death penalty, and personal history in following and being involved in controversial trials. The judge agreed to let the peremptory challenges stand. Ayala was convicted and sentenced to death.

Today, the Supreme Court decided Davis v. Ayala, siding 5:4 against Ayala.

The Court was willing to accept, as a basic premise, that Ayala's constitutional rights were violated; but that is not enough to merit a reversal. Under the law governing post-conviction remedies, Ayala had to also overcome the "harmless error" doctrine.

Here's how harmless error works: On appeal or on habeas, when someone successfully establishes that their constitutional rights were violated, the court also cares about whether, had everything gone well, the result of the proceeding would have been different. The first distinction the court makes is between "structural errors" and "trial errors". The former lead to immediate relief; with the latter, we're concerned about how the error might've affected the outcome. It's easier to prove that it did on appeal (where you only have to create reasonable doubt that it might have) than on habeas (where the burden of proof is higher.) Here's a basic illustration (click on the graphic to enlarge):

If this was not complicated enough, let's throw in an extra issue: in federal courts, where collateral review (habeas) happens, the procedure is also governed by AEDPA, which says, among other things, that the federal courts will not intervene in state court decisions unless they were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." This standard is said to incorporate the heightened test for collateral reviews set in the diagram above.

The Court then examined whether the county court in the original trial was right in deciding that the challenges to the jurors were neutral. Here, it goes into the questioning of the jurors, finding that, even if there were white jurors who answered similarly to the voir dire questions, there were still differences in terms of how willing they were to apply the death penalty. Or, more accurately, these similarities are not enough to meet the burden of proof that the challenges were racial and resulted in a different verdict than if they hadn't been allowed.

It is important to flag an important issue here: Under Witherspoon v. Illinois, it is perfectly okay to dismiss for cause jurors that are absolutely, 100% opposed to the death penalty, though it is not okay to dismiss for cause jurors that are merely reluctant to impose it. But, tactics-wise, if you have a juror that seems reluctant, albeit not reluctant enough to allow for a Witherspoon strike, you can certainly use your peremptory challenge on him. It's not good enough for a for-cause challenge, but it is a race-neutral, and thus legitimate, excuse for a peremptory challenge.

But what about the defense attorney's absence when the prosecutor articulated these race-neutral reasons for exclusion? The Court argues that, during the interrogation of the witnesses, the defense had ample opportunity to impact the record in a way that would indicate that the peremptory challenges were based on race. Before the prosecutor offered the explanation, the defense had an exchange with the court in which they sought to prove that the prospective jurors' reactions did not differ from those of their fellow prospective jurors.

So, Ayala loses. But what is interesting here is that Justice Kennedy files a concurrent opinion, in which he talks about the "side issue" of Ayala having been in solitary confinement ("administrative segreagation") on death row for more than twenty-five years. He says:

[I]f his solitary confinement follows the usual pattern, it is likely respondent has been held for all or
most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. . .  It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in solitary confinement, many regardless of their conduct in prison.

. . . 

[D]espite scholarly discussion and some commentary from other sources, the condition in which prisoners are  kept simply has not been a matter of sufficient public inquiry or interest. To be sure, cases on prison procedures and conditions do reach the courts. . . Sentencing judges, moreover, devote considerable time and thought to their task. There is no accepted mechanism, however, for them to take into account, when sentencing a defendant, whether the time in prison will or should be served in solitary. So in many cases, it is as if a judge had no choice but to say: “In imposing
this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.” Even if the law were to condone or permit this added punishment, so stark an outcome ought not to be the result of society’s simple unawareness or
indifference.

Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed lawyers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges assumed these matters were for the policymakers and correctional experts.

After citing numerous scholarly articles about the horrors of solitary confinement, Kennedy continues:

Of course, prison officials must have discretion to decide that in some instances temporary,
solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exa cts a terrible price . . . [including "anxiety, panic, withdrawal, hallucinations,self-mutilation, and suicidal thoughts and behaviors"]. In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.

Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” . . . There is truth to this in our own time.

This commentary, combined with his compassionate majority opinion in Brown v. Plata, in which he cited horrific neglect in California prisons and included photos, marks Kennedy as the guardian of dignity whenever prisons are concerned. In his recent book Mass Incarceration on Trial, Jonathan Simon predicts a "dignity cascade" that would hopefully lead to change in prison conditions. If that is true, Kennedy will be the herald of this cascade, and this segment indicates his intention to welcome such cases and provide real succor to those who need it most.

Today: Herman's House at the New Parkway

This evening, Uncommon Law is hosting a special screening and discussion of Herman's House.

 In 1972, New Orleans native Herman Joshua Wallace (b. 1941) was serving a 25-year sentence for bank robbery when he was accused of murdering an Angola Prison guard and thrown into solitary confinement. Many believed him wrongfully convicted. Appeals were made but Herman remained in jail and—to increasingly widespread outrage—in solitary. Years passed with one day much like the next. Then in 2001 Herman received a perspectiveshifting letter from a Jackie Sumell, a young art student, who posed the provocative question:

“WHAT KIND OF HOUSE DOES A MAN WHO HAS LIVED IN A SIX-FOOT-BY-NINE-FOOT CELL FOR OVER 30 YEARS DREAM OF?”

Thus began an inspired creative dialogue, unfolding over hundreds of letters and phone calls and yielding a multi-faceted collaborative project that includes the exhibition “The House That Herman Built.” The revelatory art installation—featuring a full-scale wooden model of Herman’s cell and detailed plans of his dream home—has brought thousands of gallery visitors around the world face-to-face with the harsh realities of the American prison system.

But as Herman’s House reveals, the exhibition is just the first step.

When: 6:45
Where: The New Parkway Theater, Oakland
Admission is $10. See you there!

Solitary Confinement Lawsuit Attains Class Action Status

The struggle against long-term solitary confinement in California continues! Months ago, we reported about the certification hearing for Ashker v. Brown, a lawsuit against solitary confinement.

The most recent news are from June 2: U.S. District Court Judge Claudia Wilken granted the lawsuit class action status. The L.A. Times reports:

"We pose a fundamental question: Is it constitutional to hold someone in solitary confinement for over a decade," said Alexis Agathocleous, staff attorney for the Center for Constitutional Rights in New York. 

The class action motion was filed by 10 Pelican Bay inmates in solitary confinement, but California has since moved five of them to other quarters. Wilken's order allows the remaining five prisoners to represent the larger class of some 500 Pelican Bay prisoners who have spent more than a decade in isolation, and some 1,100 put into solitary because of alleged gang associations.

Many of the inmates named in the suit also were organizers of a lengthy statewide prison hunger strike last summer. 

Wilken refused to allow the state prison guard union to intervene in the lawsuit. The California Correctional Peace Officers Assn. had argued that it had an interest in protecting the safety of its members by preventing prisoners from leaving solitary confinement.

We will keep following up on the lawsuit and reporting on its progress.

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cross-posted with some changes at Prawfs Blawg.

Worse than Iran: Solitary Confinement

Seven months after his release from prison in Iran, former hostage Shane Bauer visits Pelican Bay and is shocked by the conditions. His prison conditions in Iran were better than those he saw in California.

 

Behind the Hunger Strike

Todd Ashker. Photo courtesy CDCR,
reproduced from New York Magazine

In the aftermath of the hunger strike against conditions in the SHU, we are witnessing legislative interest in improving conditions in solitary confinement. We recently reported on CDCR's changes to gang restrictions, on the legislative hearings in Sacramento, and on Tom Ammiano's proposition to limit gang-related SHU stays to 36 months. At this point, Benjamin Wallace-Wells' article in New York Magazine, The Plot from Solitary, is particularly welcome. The article is so interesting, thorough, and multifaceted that I strongly recommend you read it in its entirety. Here are just a few highlights that interested me the most:

The article does a very good job juxtaposing the position of inmates and their supporters to that of CDCR staff.

From the beginning, even the most basic matters about the strike—what Ashker and the others were after, why so many people joined them, what the strike ­demonstrated—were opaque, and profoundly disputed. To the prisoners and their supporters, this was a protest against barbaric treatment, and the SHU was both an outrage in itself and a symbol of the arbitrariness and brutality of the prison system across the nation. The strike’s leaders had challenged the SHU’s constitutionality in court, arguing that the limits it placed on social interaction violated the Eighth ­Amendment’s prohibition on cruel and unusual punishment, and they had watched closely as a few other states, some pressured by prisoners and others mandated by judges, had de-emphasized solitary confinement. They believed they were part of a human-rights movement. But the prison officials saw something far simpler at work: a tactical maneuver by the gangs, acting in collusion, to end a system that had made it much more difficult for them to operate as they pleased.

We also get fairly in-depth backgrounds of the Short Corridor strike leaders, complete with their lives before incarceration and some information about their standing vis-a-vis their own gangs, which adds to the complexity of the organization. And, we also get a blow-by-blow description of how news of the strike were transmitted across SHU cells:

Jamaa thought his fellow inmates might need some concrete encouragement. His private fast the previous fall had lasted 33 days, and he believed he could have gone longer. Soon after last summer’s strike began, the four leaders were moved from the SHU to a unit called Administrative Segregation, and Jamaa, entering the unit, started to holler, “Forty days and 40 nights! Forty days and 40 nights!” If prisoners can be counted upon to know any literature, it is the literature of suffering that in the Bible precedes redemption. Jamaa had chosen his slogan with intent: They were Moses in the desert. At night, Jamaa would drop on his knees, put his mouth to the crack between the door and the floor, and yell: “Forty days and 40 nights!” Soon, new hunger strikers arriving in AdSeg were shouting the slogan as they were hustled in. It was then that Jamaa began to believe their movement had some possibility, some momentum. 

And a very sophisticated explanation of the gang leadership controvresy from Craig Haney:

Haney returned to Pelican Bay last year, for a ­follow-up study, and found that these ­patterns of self-isolation had deepened. Many inmates had discouraged family members from visiting, and some seemed to consider all social interactions a nuisance. “They have systematically extinguished all of the social skills they need to survive,” Haney says. Those inmates who do comparatively well tend to replace the social networks outside the SHU with those within it—which, in a society composed of alleged gang members, often means gangs. “In isolation,” he says, “gang activity is the only contact that is possible; it is the only loyalty that is possible; it is the only connection that is possible.”

And this bit about the effects of Judge Henderson's ruling allowing force-feeding of inmates:

Until this point, the prisoners had thought of the guards—and, more broadly, the state—as their captors. But the state is also their warden and their protector: A prison is designed to separate convicts from society and prevent them from doing more harm, but also to shelter them and keep them alive. The judge’s order returned repeatedly to the problem of coercion. The specter of gang influence was so strong, Henderson’s ruling suggested, that the state could not trust that a prisoner’s advance medical directive had been made freely—that he had made his own decision about the terms under which he was willing to die. The strike leaders had thought that by volunteering to risk their own deaths they could compel the state to see them as individuals, and that in at least this one instance they could reassert freedom of control over their lives. But they had been wrong.

Read the whole thing. It's fascinating and very well written.

Juveniles in Solitary: News

Lots of things moving in the right direction in the world of solitary confinement. For one thing, Assemblymember Tom Ammiano has just introduced AB 1652, the product of the legislative hearings, with the intent to limit usage of solitary confinement in California. Among other things, the bill text limits confinement to serious offenses, and creates a 3-year maximum confinement if the assignment to solitary is based on gang status alone.

But there are other news as well. As some readers know, there is an ongoing lawsuit against the Contra Costa Juvenile Hall for locking up youth with disabilities for 23 hours a day. Today, the feds have joined the battle - on the side of the inmates. Disability Rights Advocates reports:

Youth with disabilities generally are disproportionately represented in juvenile correctional facilities and by Contra Costa County’s own estimate, roughly 32% of the students at the Contra Costa County Juvenile Hall have disabilities that require some form of special education. Despite their disabilities, youth at Contra Costa County Juvenile Hall are locked for days and weeks at a time in cells that have barely enough room for a bed and a narrow window the width of a hand and length of an arm. Indeed young people are routinely held in conditions like those in a maximum security prison. The results of such conditions are devastating. For instance, named Plaintiff W.B. was placed in solitary confinement for more than 90 days, during which time he deteriorated mentally to the point where he was smearing feces on the wall and, ultimately, was held in a psychiatric hospital for three weeks.

“The United States Department of Justice and Department of Education have singled out Contra Costa County Juvenile Hall for a reason,” said Mary-Lee Smith, Managing Attorney at Disability Rights Advocates. “Contra Costa County and Contra Costa County Office of Education's refusal to accept their legal obligations cannot continue, too many young people with disabilities are suffering and that must end.”

“United States Department of Justice and Department of Education involvement in this case should be a wake-up call to Contra Costa County and the County Office of Education,” said Laura Faer, Statewide Education Rights Director. “Every day more young people are harmed by their failure to take responsibility and follow federal and state law. These flagrant violations of children’s rights to education and rehabilitative services must stop.”

Note that the feds are dressing their objections to this practice as an educational issue: that is, the problem is not that segregation is cruel and unusual per se, but that it hampers these students educational opportunities. Even on such a narrow basis, it's remarkable that the feds have found it politically sayable to oppose these practices and place themselves squarely on the side of the inmates.

Solitary Confinement Hearings Aftermath

The SHU hearings in Sacramento yesterday were a success from the inmates' rights perspective. The Sac Bee reports:

Corrections officials have touted a new pilot program allowing inmates to ease their way out of solitary confinement, and regulations recently submitted to the Office of Administrative Law would allow the pilot to be applied throughout the prison system.

But legislators seemed skeptical that the changes would substantially reduce the practice of walling off inmates in the "Security Housing Units," or SHU, that exist in four state prisons.

But wait! There's more!

Later in the day, Ammiano announced a bill that would cap "administrative" terms in the SHU - those not related to a specific incident, which would include stays stemming from gang affiliation - at 36 months. The legislation would also allow inmates to exit more quickly by accumulating good behavior credits.

BREAKING NEWS: CDCR To Ease Gang Restrictions

Reported an hour ago by the Associated Press:

Prison officials revealed new rules Friday that they say will make California the first state to recognize that inmates can quit prison gangs and put that lifestyle behind them, allowing them to escape the tough restrictions that gang members are subject to.

However, gang associates would have to steer clear of gang activities for about a decade to qualify, while gang leaders would have to behave for a minimum of 14 years.

The draft regulations made public Friday are the latest changes to rules that keep some gang members locked in special isolation units for years and have led to widespread inmate hunger strikes. A spokesman for a coalition of reform groups that backed the hunger strikers called the changes "woefully inadequate."

The new regulations are an extension of a 15-month-old pilot program that has allowed gang members to get out of isolation units at Pelican Bay in far Northern California and other prisons without renouncing their gang membership.

Since the start of the pilot, the department has reviewed 632 gang members who were in isolation units. Of those, 408 have been cleared to be released into the general prison population and 185 were given more privileges but remain in isolation.

Those 2012 policies, which are being updated in Friday's filing with the Office of Administrative Law, let the gang members and associates gain more privileges and leave the isolation units in as little as three years if they stop engaging in gang activities, and participate in anger management and drug rehabilitation programs.

Officials said that change was based on programs in seven other states. California is now the first to go a step farther by removing the gang designation entirely if the inmate continues to behave, said Terry Thornton, a spokeswoman for the California Department of Corrections and Rehabilitation, or CDCR.

CDCR gives reasons for the new regulation:

Despite the successes the CDCR has had in removing violent and disruptive STG affiliates from the general population settings of the institutions, the Department has recognized a need to evaluate current strategies and implement new approaches to address evolving STG trends consistent with security, fiscal, and offender population management needs. Fortunately, the inmate population reductions associated with Public Safety Realignment is affording CDCR the opportunity to reconstruct aspects of its STG policy that are consistent with successful models used in other large correctional agencies. The Public Safety Realignment will result in easing overcrowding and providing CDCR with more housing options to support this effort.

And here are the actual regulations, which define the step-down processes that are to be taken. The multi-step process of being cleared of gang affiliation (referred to in the regulations as STG - security threat group) is lengthy and features various monitoring options.

Solitary Confinement: What Could the Legislature Do?

Two months have passed since the joint legislative hearing held by the California Senate and Assembly Public Safety committees. At the hearing, lawmakers heard testimony from CDCR personnel, academics, and families of  SHU inmates.

At the hearing, several of the lawmakers, especially Tom Ammiano, Loni Hancock, and Nancy Skinner spoke up about their discomfort with SHU conditions. If this is truly the zeitgeist in the legislature, what can they do to modify the conditions?

It is highly unrealistic that California will do away with solitary confinement altogether. Short of extreme creativity, it's hard to repurpose a maximum-security facility. Nor is it realistic to express political consensus that the institution is unnecessary. But there are various ways to mitigate our use of SHU units. Many of these are detailed in Confronting Confinement, a 2006 report by the U.S. Commission on Safety and Abuse in America's Prisons. In the California case, the legislature could decide to:

1. Limit long-term solitary confinement to, say, ten years.
2. Monitor the entrance to solitary confinement. One possibility would be to limit solitary to punishment for infractions, but if the legislature doesn't want to go that far, they could focus on demanding more evidence of danger before admitting someone to solitary confinement.
3. Monitor the exit from solitary confinement. The legislature could decide to abolish the debriefing process, or it could call for modifications, such as improving the criteria for establishing gang status.
4. Limit disciplinary measures. The legislature could flat-out forbid collective punishment, especially when race based.
5. Make a decision about double-bunking. I confess this one trumps me as well. Being locked up alone in a cell versus sharing it, in very close quarters, with a roommate not of one's choosing? This could be what Keramet Reiter once referred to as "differently horrible."
6. Add human contact, such as work with others or joint yard time.
7. Increase contact with the outside, including letters and visits.
8. Increase access to books and educational opportunities.
9. Set up parameters for safe and effective health care.
10. Seriously examine the quality of food and consider guidelines and improvements.
11. Take on the quality of staff training.

We will have to wait and see how things shape up.

Solitary Confinement Hearings at Senate, Oct. 9

Next week, the California Senate Committee on Public Safety will hold hearings on solitary confinement. The promise to hold hearings was one of the reasons for the end of the third Pelican Bay hunger strike.

  1 p.m. - John L. Burton Hearing Room (4203)
                               INFORMATIONAL HEARING 
SUBJECT: Segregation Policies in California Prisons:
 Current Conditions and Implications on Prison
 Management and Human Rights

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.
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Thanks to my colleague Morris Ratner for our conversation about class certification.