Summary of Ashker v. Governor of California

Summary of Ashker v. Governor of California

Settlement Terms

[from: CCR website]

When Ashker v. Governor was first filed as a class action in 2012, thousands of prisoners across the state of California languished in prolonged solitary confinement in Security Housing Units (SHU). At Pelican Bay State Prison alone, more than 500 prisoners had been held in the SHU for over 10 years, and 78 prisoners had been there for more than 20 years. They were warehoused in cramped, windowless concrete cells for almost 24 hours a day with no phone calls, infrequent visits through plexiglass preventing physical contact, meager rehabilitative opportunities, and no opportunity for normal social interaction with other prisoners. Their indefinite and prolonged confinement in this torturous isolation was based not on any actual misconduct but on vague and tenuous allegations of affiliation with a gang. Prisoners were routinely placed in prolonged solitary confinement for simply appearing on a list of gang members found in another prisoner’s cell, or possessing allegedly gangrelated artwork and tattoos.

In 2015, the plaintiffs agreed to a far-reaching settlement that fundamentally alters all aspects of this cruel and unconstitutional regime. The agreement will dramatically reduce the current solitary confinement population and should have a lasting impact on the population going forward; end the practice of isolating prisoners who have not violated prison rules; cap the length of time a prisoner can spend in solitary confinement at Pelican Bay; and provide a restrictive but not isolating alternative for the minority of prisoners who continue to violate prison rules on behalf of a gang.

1. The settlement transforms California’s use of solitary confinement from a status-based system to a behavior-based system.

Under California’s old regime, prisoners identified as gang affiliates were sent to SHU for an indefinite term based merely on their gang affiliation, regardless of whether they had ever violated a prison rule. The settlement transforms California’s use of solitary confinement from a status-based system to a behavior-based system: from now on, California will only send gang-validated prisoners to SHU if they are found guilty, at a hearing, of a serious “SHU-eligible” rule violation. These violations are now limited to the same violations that send non-gang-validated prisoners to the SHU: murder, violence against persons, threats to kill or assault, weapons possession, distribution of controlled substances, escape, disturbance, riot or strike, harassment, gang activity that leads to a serious rule violation, serious theft or destruction of property, extortion or bribery, certain sexual misconduct, and related attempts or conspiracy.

2. Validated gang affiliates who are found guilty of a SHU-eligible offense will enter a quicker two-year SHU step-down program for return to general population after serving their determinate SHU term.

Prisoners validated as gang affiliates in California used to face indefinite SHU confinement, with a review for possible release to general population only once every six years. Even when such reviews occurred, a single piece of evidence of alleged continued gang affiliation led to another six years of solitary confinement. That evidence was often as problematic as the original evidence used to send them to SHU – for example, a book, a poem, or a tattoo that was deemed to be gang-related. As a result, California held more people in solitary confinement, for longer periods of time, than any other state in the country.

Under the settlement, California will no longer impose indeterminate SHU sentences. Instead, after serving a determinate sentence for a SHU-eligible offense, validated gang affiliates whose offense was proven to be related to gang activities will be transferred to a two-year, four-step program. Prisoners will definitely be released to a general population prison setting after two years unless they commit another SHU-eligible offense while in the step-down program. While conditions at the steps remain harsh, prisoners will be allowed some telephone calls and rehabilitative programming at each step.

This new step-down program improves upon interim reforms unilaterally promulgated by the state after the Ashker complaint was filed. It cuts in half the time in the program from four to two years; provides increased phone calls, other privileges, and out-of-cell programming in the steps; and eliminates prisoners being kept in the SHU for either minor infractions or failure to engage in required behavioral programming.

Under this settlement, those prisoners who have refused to participate in step-down programming, or who have been found guilty of numerous acts of misconduct that don’t rise to the level of a SHU-eligible offense, will be transferred to a new unit established as an alternative to solitary: a Restricted Custody General Population Unit (RCGP). In this unit, described below, they will have the opportunity to complete the step-down program in a high-security but non-solitary unit, and earn release into general population.

3. California will review all current gang-validated SHU prisoners within one year to determine whether they should be released from solitary under the settlement terms. It is estimated by CDCR that the vast majority of such prisoners will be released to general population. In addition, virtually all of those prisoners who have spent more than 10 years in solitary will be immediately released to a general-population setting, even if they have committed recent serious misconduct.

The settlement requires speedy review of all prisoners currently held in a California SHU based on gang affiliation. With very limited exceptions, described below, those who have not been found guilty of a SHUeligible offense within the last two years will be immediately released to a general-population unit. Those with a recent SHU-eligible offense will be placed at the appropriate step of the step-down program, based on the date of the rule violation. It is currently estimated that only a small minority of those currently held in a SHU based on gang affiliation have a recent SHU-eligible offense, so that the overwhelming majority of prisoners should be released into general population under this settlement.

In addition, California has implicitly recognized the harm to prisoners from very prolonged solitary confinement by agreeing that those prisoners who have already spent 10 or more continuous years in the SHU will generally be immediately released from the SHU and placed in the RCGP to complete the step-down program – even if they have been found guilty of, or are still serving a sentence for, a recent gang-related SHU offense. Nor will anyone be involuntarily held in the Pelican Bay SHU for longer than five years for any reason. Even those prisoners who have been incarcerated in the SHU for more than 10 years and are currently serving a determinate SHU sentence for serious misconduct will be released to the RCGP to complete their SHU sentence and the step-down program unless California can show by a preponderance of the evidence that to do so would pose an unreasonable security risk.

4. California will create a new Restricted Custody General Population Unit (RCGP) as a secure alternative to solitary confinement.

The RCGP is a general-population unit designed to facilitate positive and meaningful social interactions for prisoners about whom California has serious security concerns, such that they would otherwise be placed in solitary confinement. As such, it may serve as a model for jurisdictions seeking to do away with solitary confinement altogether, while still ensuring prison security.

As part of a general-population unit, RCGP prisoners will be allowed to move around the unit without restraints, will be afforded as much out-of-cell time as other general-population prisoners, and will be able to receive contact visits. As a very high-security, restrictive-custody unit, its group activities will generally be in small groups, instead of large yards. For example, RCGP prisoners will have access to educational courses, a small-group recreation yard, small-group leisure activities and programming, some job opportunities and phone calls. Programming will be designed to provide increased opportunities for positive social interaction with both other prisoners and staff.

Three categories of prisoners will be sent to the RCGP: first, those who repeatedly violate prison rules while in the step-down program or refuse to take part in step-down programming; second, those who have spent over 10 continuous years in some form of solitary confinement and have recently committed a SHU-eligible offense; and third, prisoners against whom there is a substantial threat to their personal safety that limits their ability to be released into other general-population units.

5. Very prolonged solitary confinement will be severely limited and those confined provided significantly more out-of-cell time.

Because this settlement ends the prior practice of indeterminate SHU sentences for validated prisoners, generally prisoners will not be kept in the SHU for more than 10 continuous years, with a limited exception, called Administrative SHU. The settlement limits and ameliorates such prolonged solitary confinement by (a) setting up strict criteria for its use, (b) requiring increased out-of-cell time, and (c) providing for strong judicial review of its use. For example, where the Departmental Review Board has overwhelming evidence that a prisoner who has already served a SHU term presents an immediate threat such that he cannot be placed in general population, he can be kept in the SHU. Even in such instances, CDCR shall provide enhanced out-of-cell recreation and programming of a combined total of 20 hours per week, double the out-of-cell time of other SHU prisoners. During the agreement, CDCR’s decision is subject to review by Magistrate Judge Vadas, who is monitoring implementation of the settlement with plaintiffs’ counsel. The agreement states that CDCR’s expectation is that only a small number of prisoners will be retained in Administrative SHU. The Administrative SHU prisoners will have 180-day reviews in which staff will be required to identify efforts to move the prisoner to a less restrictive environment with the assumption being that these prisoners would be candidates to be moved to the RCGP. In addition, no prisoner may be held involuntarily at Pelican Bay SHU for more than 5 years.

6. Prisoner representatives will work with plaintiffs’ counsel and the magistrate judge to monitor implementation of the settlement.

The struggle to reform California’s use of solitary confinement has always been a prisoner-led movement. Indeed, the settlement was negotiated with the active participation of the prisoner representatives, who met as a group several times with counsel via conference phone calls, and who ultimately decided as a group to ratify the agreement. Under this settlement, prisoner representatives will retain their hard-won seat at the table to regularly meet with California prison officials to review the progress of the settlement, discuss programming and step-down program improvements, and monitor prison conditions. Plaintiffs’ counsel will receive regular documentation of all administrative-SHU and step-down placements, progress, and SHU-eligible rule violations. Along with Magistrate Judge Vadas, plaintiffs’ counsel will monitor all aspects of the settlement implementation. Magistrate Judge Vadas will be empowered to review and remedy any individual or systemic violations of the agreement. In addition, the settlement continues the ability of the prisoner representatives from around the state to confer as a group in a conference call with counsel to discuss the implementation and monitoring of the agreement.

The settlement also requires re-training of California correctional staff, and prohibits any retaliation for prisoners’ past and future involvement in the litigation or settlement monitoring.

The monitoring process under the settlement will be in effect for 24 months, with the opportunity to seek additional 12-month extensions upon a showing of continuing constitutional violations.

Message from Pelican Bay prisoner representatives to UN Special Rapporteur on Torture Juan Méndez

Published in: SF Bay View, Oct. 21st, 2013

by Todd Ashker, Arturo Castellanos, Antonio Guillen and Sitawa Nantambu Jamaa

Oct. 18, 2013 – We, the four principal representatives of the prisoners confined in the Security Housing Unit (SHU) at Pelican Bay State Prison, hereby welcome Juan Méndez to California. We have followed your work and advocacy against torture throughout the world and congratulate you on your commitment and success in bringing your findings to the public’s attention.

We recently suspended our hunger strike against torture in the form of prolonged solitary confinement in California’s prisons after 60 days. Over 30,000 prisoners joined us in the largest protest ever against prison conditions in the United States and possibly the world.

We decided to suspend our hunger strike for several reasons:

1) We succeeded in making the issue of torture in California’s prisons into an issue of worldwide public and media attention. The New York Times, Washington Post, Los Angeles Times, CNN, Al Jazeera and the BBC are just a few of the media outlets that covered our cause, with many running editorials in our support. Thousands of people joined demonstrations, signed petitions and letters, and spoke out in our favor.

2) State Sen. Loni Hancock and Assemblyman Tom Ammiano promised to hold legislative hearings to address solitary confinement, the conditions of imprisonment, and sentencing policy in California and to introduce legislation for reform. They have already held one hearing on Oct. 9 – in a room filled with our supporters – and heard from experts, former prisoners and family members who spoke of the torture we endure and demanded change.

3) CDCR officials promised to meet with us to discuss our concerns, and we have already spent hours in talks with them.

But nothing has changed. Over 3,500 prisoners remain isolated in California’s SHUs with almost no human interaction and little opportunity to exercise or even see the sun, and are still forbidden contact visits or telephone calls with their families. They join thousands of others who are held in different forms of solitary confinement throughout the system.

We decided to suspend our hunger strike for several reasons: We made California prison torture an issue worldwide with major press coverage; the Legislature promised hearings and has held the first one already; and CDCR is negotiating with us. But nothing has changed.

Prisoners are revalidated for indefinite terms on the basis of unconfirmed rumors, anonymous misinformation from debriefers and informants, and possession of criminalized books, articles and art work. The only sure way out is to debrief and expose yourself to shame, further exploitation by prison officials, condemnation and violence.

Mr. Méndez, we ask that you join in our struggle. We would like you to testify at one of the upcoming legislative hearings. We would like you to consider becoming an expert witness in our lawsuit.

As a former prisoner yourself, we would like you to do your best to bring both our conditions and our human rights movement to the attention of the international community, with intention to take resolute action against the torture we, along with many other prisoners in California and elsewhere, have endured for far too long. We look forward to meeting you.

With respect and in solidarity,

Todd Ashker
Arturo Castellanos
Antonio Guillen
Sitawa Nantambu Jamaa

Send our brothers some love and light: Todd Ashker, C-58191, PBSP SHU D4-121, P.O. Box 7500, Crescent City CA 95532; Arturo Castellanos, C-17275, PBSP SHU D1-121, P.O. Box 7500, Crescent City CA 95532; Antonio Guillen, P-81948, PBSP SHU D2-106, P.O. Box 7500, Crescent City CA 95532; Sitawa Nantambu Jamaa (s/n R. Dewberry), C-35671, PBSP SHU D1-117, P.O. Box 7500, Crescent City CA 95532.

Gov. Brown commits crimes against prisoners’ humanity for guards’ campaign contributions

Published in: SF Bay View, Oct. 1st, 2013

by Sitawa Nantambu Jamaa

Gov. Jerry Brown is the good ol’ boy of the 21st century prison industrial slave complex (PISC). I write this in the interest of my humanity and all humanity. My self-worth is not measured by the arbitrary placement of gang titles by my captors, over which I have no control. Yet I adamantly reject all labels placed on me to the day I die.

The governor is empowered by the people. Their voice is the voice he is supposed to adhere to in the state of California. He chooses to disregard the power of the people. The governor is so arrogant that he took the position along with his crony, Corrections Secretary Jeffrey Beard, to defy the highest court in this country.

This is the mentality of a good ol’ boy who attempts to rule with little regard for the interests of the common people of California. They exert their power to oppress and suppress the people, maintaining control over all aspects of our lives, whether we’re in or out of prison.

It amazes me how political officials who are empowered by the people have little or no respect for the people or the rule of law. They take the position that “this is how I run MY government.”

News flash: It’s not your government, governor. The government belongs to we the people. You are working to serve the peoples’ interest; we are not here to serve your interests.

You govern all the people of California, including prisoners, despite what you may think. If you are unable to do your job to the satisfaction of California taxpayers and voters, then it is time that you look for a new occupation this coming election. And you can take Secretary Beard along with you because the people will have spoken.

We say that our lives are more valuable than your re-election and we insist that you put politics aside and END LONG TERM SOLITARY CONFINEMENT NOW. Solitary confinement is torture.

Your silence does not excuse you for your crimes against our humanity. You are an overseer of CDCr prisons and we have evidence that clearly shows prisoners have been murdered, beaten and tortured throughout these solitary confinement units by CDCr officials who are subordinate to you.

We understand that you’re not willing to risk losing the $2 million in campaign money that the CCPOA – the prison guards’ union – contributes to your campaign for governor. We understand clearly that you are seeking re-election and do not want to jeopardize those donations.

But we say that our lives are more valuable than your re-election and we insist that you put politics aside and END LONG TERM SOLITARY CONFINEMENT NOW. Solitary confinement is torture. Amnesty International has condemned the pattern of practice in which prisoners are tortured. The United Nations has condemned the pattern of practice in which prisoners are tortured.

The United States Commission on Safety and Abuse in Prisons has been calling for an end to long term solitary confinement over the last seven years and has condemned this pattern of practice in which prisoners are tortured.

We the people of California have condemned this pattern of practice in which prisoners are tortured.

Amnesty International has condemned the pattern of practice in which prisoners are tortured.

Governor, it is time for you and Secretary Beard to quit manipulating Californians with your Willie Horton racist rhetoric toward scaring the American people with the big Black boogie man syndrome.

The United Nations has condemned the pattern of practice in which prisoners are tortured.

Stop it, governor! You and Beard should be ashamed of such divisive rhetoric that you use to pit Californians against each other by race, class and caste.

The United States Commission on Safety and Abuse in Prisons has been calling for an end to long term solitary confinement over the last seven years and has condemned this pattern of practice in which prisoners are tortured.

We ask all supporters and non-supporters to vote politicians into positions of power who will hear the voice of the people. Reject those who abuse the power afforded to them due to some narcissistic, over-possessive control freak syndrome which many of them suffer from.

We the people of California have condemned this pattern of practice in which prisoners are tortured.

We prisoners insist that the people of California get the facts. Follow your money. See whose pocket it’s going into.

Investigate the solitary confinement units. You’ll see that CDCr has been lying to you. When you find that out, will you then hold them accountable? Or will it be business as usual?

Where is the accountability to the taxpayers? Any public official who tortures prisoners does so in your name – not his or hers.

In struggle,

Sitawa

The Pelikkkan Bay Factor – An Indictable Offense

The Pelikkkan Bay Factor – An Indictable Offense

November 18, 2012

Prior to 1987, the CDCR had a policy of segregating alleged members of rival prison groups while assigned to the Security Housing Unit (SHU) exercise yard. This policy was designed to minimize prison violence, and based on available statistics, this was an effective policy, but 1987 marked a change in this policy when New Folsom State Prison partially integrated their SHU exercise yards. This partial integration resulted in a visible increase in prison violence, but what most people in society were not aware of is that the internal dynamics which were conducive towards the facilitation of that abrupted increase in violence, and that internal dynamics were the new Folsom state prison administration and staff micro-managing and orchestrating the conditions, designed to perpetuate both racial and rival group violence. For example:

Let’s say, a conflict breaks out between a New Afrikan and white prisoner. Instead of trying to contain the conflict, the pigs would move these same two individuals to another unit within the SHU, and now the conflict has spread to another unit. Now more people are involved, escalating the violence and racial conflict. The pigs would then move these same individuals to another unit, further escalating the violence; and being that prisoners are so caught up in the struggle for survival, we tend to be come oblivious to the administrative manipulation of the conditions.

I became aware of staff manipulation when they attempted to insert me into the conflict, being that they knew that I had zero tolerance against New Afrikan prisoners being attacked. So they took me out of Bed Rock (i.e., Behavioral Control Unit), moved me in the cell with Brotha Fela, then they moved me in the cell with Brotha Abasi Banda. They they moved everybody that was in the initial conflict into the section I was in. It became very intense. I, along with Brotha Abasi, became mediators for the conflicting parties.

Though we initiated a ceasefire in that particular unit, the pigs were doing everything in their power to undermine our efforts. Their anticipation of me mobilizing an attack proved to be an inaccurate assessment of my character. At this point, the pigs moved more prisoners into our section who had been involved in the initial conflict. Truthfully, the yard was on the verge of exploding. Prisoners were allegedly being intercepted for trying to, allegedly, bring knives to the exercise yard. The pigs’ manipulation reached its desperation point one day when Administration pulled me out to the front office and point-blank told me they would have the gun-man leave his post and allow me and the Brothas to attack the whites.

The pigs were mad at the whites for allegedly stabbing a guard, and they wanted me to go after this one individual because he was scheduled for release. I stood up and cursed them all, and told them to take me back to my cell. When I got back to the unit, I told everybody what had occurred. They didn’t like that.

About two days later, the gang unit raided our cells; my cell and the cells of the Brothas who associated with myself and Brotha Abasi. They also took us to the prison hospital for x-rays, to determine if we had weapons in our rectum cavity, while all the other Brothas were kept in holding cells indoors while out cells were being searched. I was kept in an outdoor holding cell, approximately 4 hours. They took us back to our cells between 11:30 and midnight. Them pigs had tore up our cells. Everything was on the floor, personal pictures as well as letters from family.

A little after midnight the gang unit came to our cell and told me I was being moved back to Bed Rock, for a conspiracy. Everybody knew that this was a blatant lie. There were Brothas that night allegedly in possession of knives and hacksaw blades, but I was the only one sent to Bed Rock, and they found nothing in me and Brotha Abasi’s cell. But this was punishment because I had refused to spread this racial conflict and be their little  pawn.

People, the above story is very relevant. It exemplifies the orchestrated conditions manufactured by the CDCr, designed to ignite and perpetuate conflict between prisoners. Being that the CDCr did not get the desired effect from this partial integration, toward the end of 1988, they fully integrated the SHU exercise yard, and for those of us who had the capacity to resolve this conflict, the pigs placed us in Bed Rock under false allegations, and as a result, all hell broke out, the prelude to Corcoran state prison. The conflict was being transported to the SHU yard at Corcoran SP, which resulted in the rapid increase in prison violence. Corcoran SP, at the peak of this CDCr-sanctioned conflict, was averaging two to four assaults a day.

At that time, most prisoners did not understand what was happening, but those of us who have been very active in the movement, knew that something wasn’t right. We asked ourselves: Why would the CDC change their policy at this juncture, especially when the policy was proven to be effective? The answer appeared to be a simple one: to intentionally increase prison violence between alleged members of rival prison groups. We soon discovered that it wasn’t that simple. We realized that the CDC was using us as a means to develop the statistics (i.e., propaganda) to justify the building of Pelican Bay state prison and its over 200 million dollar price tag.

The CDCr justification for Pelican Bay is rooted in two primary criteria: 1) To isolate the so-called worst of the worst, who have proved too violent to be held at other prisons. 2) To presumably minimize prison violence.

The CDCr reported an increase in prison violence to the media/press on a number of occasions between 1987 and 1990. What the CDCr intentionally neglected to tell the public, is that it was their policy, both in practice and intent, that was responsible for the rapid increase in prison violence!  Also, there were two other factors that must be considered. In 1987, the CDCr implemented a “shoot to kill” policy, and in 1988, they changed weapons and ammunition. The new bullet was designed to blow up in our bodies – a guaranteed kill!

Based on the evidence, the policies implemented at both New Folsom and Corcoran state prisons were not only a prelude to Pelican Bay state prison, but were specifically designed to justify and add credence to the CDCR campaign to build Pelican Bay state prison. If there is any doubt in your mind about these allegations, ask yourself: why would the CDCr integrate the SHU exercise yard at a time when they knew violence between the different rival groups was guaranteed to break out? The CDCr was not being pressured by state politicians, or by a court order, or by the public, to integrate known rival gangs/group members. So what was the CDCR’s motivation? Also, consider this: The CDCr knew without a doubt that by integrating the SHU exercise yards, all hell was going to break out, so why would the CDCr adopt a “shoot to kill” policy at the same time the forced integration policy was being implemented? And then introduce a new weapon that was designed to facilitate the “shoot to kill” policy??

In a five year period the CDCr murdered 27 prisoners. At least seven were murdered on the integrated SHU exercise yard at Corcoran state prison, and approximately five men on the SHU exercise yard at New Folsom. Compare this to the rest of the country’s state and federal prison system, during the same five year period, where a total of only seven prisoners were murdered by prison guards in all other states combined!!

Are the crimes of murder, attempted murder, and assault with a deadly weapon (eg. an assault rifle) justified simply because the victims of these crimes are alleged criminals or gang members? You, as tax payers have also been this victim of a state-sponsored crime. The CDCr politically hijacked and extorted over 200 million dollars from your hard-earned tax dollars to build the high-tech torture chamber. This prison was not even necessary. Keep in mind that it was the CDCr that escalated the violence.

Pelican Bay state prison is rooted in deception, exploitation, extortion, violence and murder. It is a symbol of crimes against humanity!  250 million dollars could have been to enhance the quality of learning in the so-called inner cities, provided funding for crime prevention and criminal rehabilitation programs, drug rehab, day care, prenatal-care, job training and job placement, and INCREASE teachers wages. We can go on and on. These things alone could have a very positive and productive impact on crime and society at large!

As an attempt to End Hostilities and Abolish the Security Housing Units, as we know them, the Pelikkkan Bay Factor has re-emerged its malignancy with the intent to impede our progress towards Justice and Humanity. So it is imperative that we resist any temptation to capitulate our moral integrity and fortitude within our endeavors to obtain our 5 Core Demands, and end all racial and group hostilities.

The factors that served as a prelude to Pelikkkan Bay state prison, are the same factors being employed by the CDCr to justify its continued existence. Though I only provided a brief illustration of the CDCR manipulation and micro-managing of both racial and group hostilities, I believe it is enough to assist us in navigating through the tricks and traps of the CDCR. We must remain vigilant in pursuit of our righteous cause and ignore the rumors of war being cultivated and propagated by the pigs.

Their desperation is a clear sign of how close we are to victory!

Abdul Olugbala Shakur, s/n J. Harvey, D-1-119, C48884, PO Box 7500, Crescent City CA 95532 (now inbetween Pelican Bay State Prison and CSP-Corcoran 4B-1R unit)

Mutope Duguma, s/n J. Crawford, D-1-117, D05996, PO Box 7500, Crescent City CA 95532

Sitawa Nantambu Jamaa, s/n R. Dewberry, D-1-117, C35671, PO Box 7500, Crescent City CA 95532 (now in CCI)

Abasi Ganda, s/n C. Jackson, D-2-107, C33559, PO Box 7500, Crescent City CA 95532 (now in another facility)