3/15/13 Mediation Team Memorandum on Meetings with CDCr Officials

(Mediation Team Memo 3/15/2013 pdf Here)

Notes from March 15, 2013 meeting of Mediation Team with CDCR officials

Present: From CDCR – Mike Stainer (Deputy Director for all adult facilities), Kelly Harrington (Associate Director over High Security Prisons), Katherine Tebrock (Chief Deputy General Counsel). Mediation team – Laura Magnani (Amer. Friends Service Committee), Azadeh Zohrabi (Legal Services for Prisoners with Children), Marilyn McMahon (California Prison Focus), Ron Ahnen (CPF), Carol Strickman (LSPC)

We met for two hours in a conference room at CDCR’s office in Sacramento. Stainer did most of the talking for CDCR. Ms. Tebrock stated that she was present because she is managing the Ruiz v. Brown litigation. During the meeting, she intervened occasionally to steer us away from dis-cussions about living conditions/8th Amendment issues.

We started off with an overview of how we saw the meeting. After brief introductions and a description of how the MT sees its role, Stainer asked whether the MT saw as its role to report positive efforts on CDCR’s part to the prisoners. We said yes , if we see evidence of positive efforts. We later said, “We tell it like we see it.”

Stainer then said they wanted to clarify any questions we have. It took them a year to develop the pilot program. He said it is “not an easy read.” It represents a “huge change” in both policy and culture. He volunteered that they had all read the document regarding the 40 “bullet points”/ demands. He stated that he did not want to call them “demands.” Harrington noted that his staff was carefully reviewing each of the 40 points, noting that some were reasonable and they were going to see what they can do.

We asked what he thought the differences were with the old regulations and the pilot program. He emphasized that the current policy was 25 to 30 years old and that the only real change had been the addition of the 6-year review. He stated that “no behavior was associated with the old policy.” He emphasized that they fully intend to turn the pilot program into regulations. “We are not turning back.” He stated that some people think that CDCR rolled this out as a pilot program only with the intention of later making the program “go away” but that is not the case. He admitted that the program is “not all perfect” and that he anticipated “adjustments.” He is not sure when the pilot program would be ready to be put into regulations (supposedly after making further adjustments), but he said the two year time limit to do so is a limit and not a goal. He anticipated this happening much earlier than October 2014.

Stainer said that the pilot program has to be implemented incrementally. CDCR has done training sessions with IGI. He mentioned the weighted point system is an additional requirement–not just any three source items constitute a validation. They must add up to 10 points. He noted that now newly validated associates are not going to the SHU automatically. He also stated that they have not “rolled out” the disciplinary part yet. Trainings on that will start next month.

We brought up how people are being written up for simple communication. He stated that for it to be used as evidence to support validation or used against someone in the Step Down Program (SDP), the communication would have to have a “nexus to gang behavior” and be proven as a rules violation by a preponderance of the evidence. He emphasized that “we are trying to be real about what is truly gang association.”

We asked if they anticipated more or fewer gang validations in the future. They said they did not know. It could be more, or fewer. They thought there would be fewer SHU placements, due to the added elements.

Stainer described that this was a “cultural shift” for staff and prisoners. He seemed generally to be referring to the idea that a gang-validated affiliate can get out of the SHU without disowning the gang or debriefing, and that gang validation will not automatically mean SHU.

We discussed our objections to the “journals.” They asked us, “Aren’t the prisoners interested in rehabilitation?” We said yes, they would be interested in self-help groups, education, job skills, etc., but the workbooks are counter-productive in tone. They said the journals are now being used in steps 1-3, not just in step 3 as stated in the policies. They don’t have programs up and running for all of the steps yet.

We asked who would review or “grade” the workbooks. Stainer said it would not be IGI; instead, it would be the correctional counselor 2 on the ICC committee. Harrington said they may hire licensed clinical social workers for the SDP for this purpose.

Stainer said, the prisoners wanted individual accountability and that is what is required by the contract. He asked us why prisoners are unwilling to sign the contracts. We said: the expectation of having to report on others, and concern about the workbook reviews. We related that many prisoners worry the SDP requires them to essentially debrief (snitch). He said he’d scoured the pilot program text and the contracts to see where it required that, and could not find it. We handed him the STG pamphlet that says prisoners in the SDP must report gang activity that they become aware of. He said he had not seen it before. After reading the section we pointed out, called “Reporting STG Involvement,” he stated, “That is not our policy.”

To our inquiry about what exactly is required to progress to the next step in the SDP, he said “the details are still being worked out.”

We got into a discussion about whether CDCR could “stack” multiple items found at the same time. Stainer said that for purposes of 115s, they cannot – it is all one rules violation, but for gang validation purposes they can.

Regarding the 40 demands document, Stainer said they had read and understood them all. They are still reviewing them; they have done preliminary work to respond. He said there was “some reasonableness” to the demands. He thought that, as to a few, there might be some confusion or misunderstanding on the prisoners’ part. As an example, he stated that no lifer can get family or conjugal visits now, not even if they debrief. As to items purchased from PIA, Harrington stated “PIA is way out of our authority.” Their staff is researching whether typewriters were ever allowed in SHU. He stated that he expected individual wardens to authorize or support certain prisoner requests. He has asked the wardens to take a look at the mattresses issue. We asked if he was going to provide a response to the prisoners. He said yes, he would respond to the four reps about each of the 40 points, but didn’t know whether it would be written or face-to-face. He expected to respond within a month, and definitely “plenty before July 8th.”

Stainer brought up contraband watch (CSW). He said he had read the article about it in “The Rock,” which was somewhat inaccurate, in that PVC tube is no longer permitted. He claimed that CDCR does not permit CSW to be used arbitrarily or punitively. He said CSW is closely monitored by OIG and the state senate: it is the “most audited process we do”. It is the “nastiest job,” implying that they don’t want or like to do it. He thinks there are fewer being done since last May when new rules went into effect. Under the new rules, Stainer has to authorize every extension beyond 6 days. He stated that they cannot give the prisoner the option of an x-ray, because only the Receiver can authorize x-rays, and they only do it for medical reasons. If there is probable cause, CDCR can seek a search warrant for an x-ray or laxative after 3 days. To keep someone on CSW, they only need reasonable suspicion.

We stressed the unreliability and un-challengeability of information from confidential informants (CIs). Stainer said “we’re not revising” the policy on CIs. But he admitted that they can do a better job at filling out 1030 forms, in that currently they give prisoners very little information. He said that providing more details on the 1030 will not compromise safety, so they are working on better 1030s that will give more information about the intelligence from CIs. He said debriefers’ accusations are investigated for corroboration, though currently the results are not indicated on 1030s. Stainer said that they should be giving prisoners all the evidence they have at the outset (rather than saving it for later in order to keep someone in the SHU longer). If this isn’t happening, we should send instances to him for fixing.

We brought up the prisoner’s counterproposal/Max B. However, K. Tebrock intervened, saying that goes to living conditions, which they couldn’t discuss due to the lawsuit. We also mentioned the idea of simply putting tables in the pods, and allow those who have been in SHU for a long time to interact with each other outside their cells for a few hours a day. Again, Tebrock stopped any discussion of this, but Stainer replied that he doesn’t rule it out.

We pointed out that the old policy (current regulations) has been said by CDCR officials to be behavior-based, but they are not. So how can the prisoners believe that the new policy will truly be behavior-based?

Statistics re reviews To date, 144 have been reviewed: 45 at Pelican Bay, 37 at Corcoran, 31 at CCI (Tehachapi), and 25 at SAC. All 6 gang-validated women in SHU have been reviewed, and all were endorsed for transfer . There are currently no women in indeterminate SHU.

There is a moratorium on transferring AdSeg associates to SHU since Oct. 2012. Reviews of associates in AdSeg have started. Six-year (inactive) reviews are being done as prisoners come due for them, so even STG members can get reviewed in the pilot, if their 6-year date comes up.

Prisoners with a serious rules violations (e.g., weapon) will be taken out of the SDP.

Stainer said that he doesn’t look forward to a repeat hunger strike. He said, “let them hunger strike for real reasons, not because they don’t understand something or because they don’t believe us.” He said, “I can understand not trusting, I don’t trust them either. But we want a chance to implement this program and show what it really is and that we are sincere with the changes.”

We asked if the prisons were quieter because of the agreement to end hostilities. Stainer admitted that they were quieter, although there still were racial incidents, such as a serious one the day before. But they don’ t know why the prisons are quieter. It could be because crowding has been reduced, because of the agreement, or some other reason.

We asked for some specific followup: the STG UCC staff training materials; all 12 of the work-books; a better mechanism for access to the representatives, specifically phone calls with the four reps on a regular basis; more frequent statistics on the reviews and actual transfers out of SHU; and statistics on contraband watch, including how often contraband is found. He promised to get back to us about these requests.

Laura will send a thank you to Stainer for the meeting. We will feed them specific issues in the regs that concern us on a selected basis over the coming weeks. We don’t want to overwhelm them, but we do want to facilitate some concrete changes.

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Post-meeting update:

Laura did follow up with a “thank you” and specific questions about education and proctors. Stainer responded quickly saying there were a number of education programs already in place, although he didn’t know if these were ones prisoners paid for themselves. He said proctoring was happening, and we have heard some reports that confirm this.

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