To Prisoner Class Supporters from Todd Ashker (w/proposed Open Letter to Gov. Brown)

To Whom It May Concern,
To Prisoner Class Supporters
Prisoner Hunger Strike Solidarity Coalition
California Families Against Solitary Confinement
and Public, etc.

From Todd Ashker
C58191 KVSP – ASU- 2/194
Box 5106
Delano, CA 93216

December 5, 2017

This is a follow-up to our October 2017, Prisoner Class Human Rights Movement, “Statement of Prisoner Representatives on Second Anniversary of Ashker v. Brown Settlement.”

In our collective October 2017 “Statement,” we stressed the importance that “…prisoners and our families will have to re-energize the human rights movement, to fight against the continuing violations of our rights.” … reminding all involved, “We must stand together, not only for ourselves, but for future generations of prisoners, so that they don’t have to go through the years of torture that we had to.”

With this in mind, I am sharing a copy of my proposed “Open Letter to Governor Brown, Legislators, and CDCR Secretary Kernan, RE: Attention to Ongoing Human Rights Violations and Related Lack of Reparative Action Necessary To Begin Making Amends for 3+ Decades of Systematically Intentional, State-Sanctioned Torture” …with the hope of helping to re-energize our movement, by gaining wide-spread support for the position/s presented in the “Open Letter.”

As many are aware, our current collective movement began in the bowels of Pelican Bay State Prison – SHU – Short Corridor, wherein prisoners of all races and various geographical areas, became openly conscious of what we had in common- rather than what was different (divisive); we recognized we’d all been subjected to the same adversary’s boots on our necks, all members of a prisoner class subjected to decades of solitary confinement torture.

We became aware of the fact that those of us serving “term-to-life” sentences, were all akin to the living dead, our existence being that of a mind numbing, spirit destroying, endless nightmare. I believe coming together in the “short corridor” wherein we witnessed the toll of our slow decay- together with the prisoncrats progressively punitive, oppressive provocations- was one cause of our awakening, leading to us coming together as the “PBSP – SHU, Short Corridor Collective.”

Our struggle was focused on ending long-term solitary confinement [and improvements to conditions therein]. We stood up together and collectively.  We educated our loved ones and general public about what had been in society’s shadow for far too long. We publicly “drew the line” and said, “No More!”

As a committed collective of fellow human beings (a large majority hailing from working class, poor communities) we lead our struggle — from behind the walls – putting our lives in the balance… at that point, our lives being all we had… We demanded an end to our torture, based on our inherent right – as human beings – to humane treatment, inclusive of dignity and respect for ourselves, our loved ones, and the unfortunate generations to follow.

Notably, our collective membership had been the subject of the states’ decades-long ‘war against the working-class poor, tough-on-crime’ (focused and applied mainly upon the poor), politicized, vilified, and branded as “The Worst of The Worst” in order to justify our subjection to endless torture (lasting more than 30 years)!

In this climate, we came together and utilized non-violent, peaceful protest action, mass hunger strikes and work stoppages, which, together with the support of our awakened loved ones, and countless other people of conscience outside the walls (while all along, suffering with us), exposed our plight to the world community.

In 2012, we introduced our collective “Agreement to End Race-Based Hostilities,” making clear our united intent to no longer be the source of our mutual adversary’s manipulation tactics – centered on keeping us divided and violent towards one another, (thereby used to justify our adversaries agenda – supermax, indefinite warehousing); and thereby demonstrating our humanity in the face of the provocations of our oppressive torturers. We pointed out the fact that, in the absence of race-based violence, our mutual adversary/s would be forced to end their policy of warehousing us in the small cells indefinitely, and open the prisons up for meaningful programming and privileges- beneficial to the prisoner class.

I mention the above points as important reminders of the fact that the main basis for the success we’ve achieved to date has been Our Collective Unity Inside and Outside the prison walls, making strategic use of combined litigation, and peaceful activism- action tools, which, together with our related collective belief in and commitment to Our Cause, is a great example of “The Power Of The People.”

It’s also true that with the progress comes responsibility; we must be vigilant with respect to maintaining, and crucially building on our achievements. The responsibility is ours for doing so. “The novelist Aldous Huxley once said: ‘Liberties are not given; they are taken.’ We are not given our liberties by the Bill of Rights, certainly not by the government which either violates or ignores those rights.  We take our rights, as thinking, acting citizens.” [quoting from Howard Zinn’s The Zinn Reader – Writings On Disobedience & Democracy (1997) at p. 418]

Our adversaries are constantly resisting any change beneficial to the prisoner class! History demonstrates the importance of our need to stand together collectively, and refuse to allow those in power (at the will of the People) to halt our progressive movements’ demands for human rights and real justice, because, historically, every class action, civil-suit ‘victory’ for the prisoner class in California has been manipulated by prisoncrats to the ultimate detriment of those that such ‘victory’ was intended to benefit. It’s a non-stop battle!

What I greatly appreciate, and respect, about our Prisoner Class Human Rights Movement, is what I hope is our part in society’s evolutionary leap in collective human consciousness. Standout examples of this for me, go back to the Arab Spring (2010, I believe), followed by the August 2010 massive Georgia Prison, system-wide work strike, and the January 2011 Hunger Strike at Ohio State Prison.

Reflecting on the above, as well as our historic, collective group mass hunger strike protests across the California system, of 2011-2013, brings to mind an often quoted phrase (as a sort of benchmark of what’s wrong with society) that of Fyodor Dostoyevsky, reflecting on his own incarceration, famously said, “The degree of civilization in a society can be judged by entering its prisons.” Our collective coming together in the context of having been demonized – tortured over 3 decades – composed of working class poor, facing extreme adversity for a powerful, well-funded adversary… toppled (to an extent- losing their supermax jewel, PBSP SHU) by our peaceful protests, and related Global Condemnation (and litigation), epitomizes a great side of our society! I hope it’s an example of a growing social revolutionary process.

Related to the above, and to our common struggle in general, I want to share a few excerpts from The Zinn Reader, a bit of food-for-thought.

On the subject of “Law and Justice” (Zinn, 1990) “Obedience and Disobedience” from Declarations of Independence: Cross-Examining American Ideology, page 369:

” ‘Obey The Law.’ That is a powerful teaching, often powerful enough to overcome deep feelings of right and wrong, even to overcome the fundamental instinct for survival. We learn very early (it’s not in our genes) that we must obey ‘the Law of the Land.’

“The dominant ideology leaves no room for making intelligent and humane distinctions about the obligation to obey the law. It is the unbending rule of every government, whether Fascist, Communist or Liberal Capitalist. Gertrude Schultz-Klink, chief of the Women’s Bureau under Hitler, explained to an interviewer, after the war, the Jewish policy of the Nazis, ‘We always obeyed the Law. Isn’t that what you do in America? Even if you don’t’ agree with a Law, personally, you still obey it. Otherwise, life would be chaos.’

“‘Life would be chaos.’ If we allow disobedience to Law we will have anarchy. That idea is inculcated in the population of every country. The accepted phrase is ‘Law and Order.’ It is a phrase that sends police and military in to break up demonstrations everywhere, whether in Moscow or Chicago. It was behind the killing of our students at Kent State University in 1970 by National Guardsmen. It was the reason given by Chinese authorities in 1989 when they killed hundreds of demonstrating students in Beijing.

“It is a phrase that has appeal for most citizens, who, unless they themselves have a powerful grievance against authority, are afraid of disorder.

“Surely, peace, stability, and order are desirable. Chaos and violence are not. But stability and order are not the desirable conditions for social life. There is also justice, meaning the fair treatment of all human beings, the equal right of all people to freedom and prosperity. Absolute obedience to law may bring order temporarily, but it may not bring justice. And when it does not, those treated unjustly may protest, may rebel, may cause disorder, as the American revolutionaries did in the eighteenth century, as anti-slavery people did in the nineteenth century, as Chinese students did in the twentieth century, and as working people going on strike have done in every country across the centuries.”

I appreciate Zinn’s view on “absolute obedience to the law – may achieve order – for a time, while lacking justice.“ My point in sharing it is: just because it’s a “Law” (or a rule, or regulation) does not make it right or just; and when it’s not, especially when those in power recite such to justify violations of human rights, it’s the responsibility of all to protest, to rebel, to cause disorder- as necessary to force change.

From Zinn’s Reader “The Optimism of Uncertainty” (1993 book, Failure to Quit, page 642) “….the struggle for justice should never be abandoned because of the apparent over-whelming power of those who have the guns and money and who seem invincible in their determination to hold onto it. That apparent power, has, again and again, proven vulnerable to human qualities less measurable than bombs, dollars, moral fervor, determination, unity organization, sacrifice, wit, ingenuity, courage, patience – whether by Blacks in Alabama and South Africa, peasants in El Salvador, Nicaragua and Vietnam, or workers and intellectuals in Poland, Hungary and the Soviet Union itself. No cold calculation of balance of power need deter people who are persuaded that their cause is just.”

From page 648, quoting Herbert Read: “What has been worthwhile in human history – the great achievements of physics and astronomy, of geographical discovery and of human healing, of philosophy and of art- has been the work of extremists- of those who believed in the absurd, dared the impossible.”

I greatly appreciate your time, attention, courage and dedicated, supportive commitment to our collective struggle. Our strength and power come from our unity! And I am certain we can and will continue to make positive impacts upon the system, forcing real changes — beneficial to all.

I hope we all continue to move forward, confident our fight is a worthy and just cause, working together in imaginative, strategic ways. It would be great if people will share, promote and build on the subject. Examples are in my “Open Letter…” possibly adding a Supporting Petition, signed by as many as possible, even if such is presented after publicly presenting the “Open Letter” to the named parties.

There are more innovative, imaginative ideas that I’m working on, and will share for your consideration soon. In the meantime, stay strong and have a Happy Holiday Season and New Year.

In Solidarity and Respect,
Todd

---

OPEN LETTER TO: Governor Brown, Legislators, CDCR Secretary Kernan,
and to Prisoner Class Supporters, the Public, etc.

December 2017

From Todd Ashker, C5819
KVSP – ASU – 2/194
Box 5106
Delano, CA 93216

OPEN LETTER To: Governor Brown, State Legislators, and CDCR Secretary Kernan

RE: Attention to Ongoing Human Right Violations, and Related Lack of Reparative Action Necessary to Begin Making Amends for 3+ Decades of Systematic, Intentional, State-Sanctioned Torture.

I respectfully present the above-named parties with this “open letter” requesting attention to ongoing human rights violations, and related lack of reparative action necessary to begin making amends for 3+ Decades of systematic, intentional, state-sanctioned torture (and related harm therefrom, to the prisoner class, as well as the general public, marked by the stain such policies cause subsequent to global condemnation – e.g., 2011-2013 mass peaceful prisoner hunger strike protests against decades of subjection to torturous solitary confinement.)

I present this ‘open letter’ as a proudly involved principle representative of the growing Prisoner Class Human Rights Movement, as a peaceful action-activist, prison conditions litigator (inclusive of lead named plaintiff in Ashker v Brown), and 30 year survivor of CDCR’s State-Sanctioned Torture.

Policies and Practices:

I bring to your attention five (5) examples of CDCR policies and practices equating to egregious, on-going human rights violations, resulting in numerous deaths and terrible, permanent harm to tens of thousands of prisoners, to our outside loved ones of the prisoner class, and the general public — with the hope for meaningful, tangible action to ensure such never occurs again, as well as timely, reparative action necessary to begin making amends for harm caused.

I. Examples of CDCR policies and practices equating to egregious, on-going human rights violations, harming tens of thousands.

A.) Status-based (CDCR classification as validated, gang affiliate), Indefinite Placement in Solitary Confinement (SHU) “until you parole, die or debrief.” Many prisoner class members were subjected to this endless, torturous nightmare for 3+ decades.  Secretary Kernan called this a “Failed Experiment” during an October 2017 TV interview on a 60 Minutes segment.

B.) Building 23+ prisons, equating to thousands of cells, basically designed as massive human warehouses, with little thought about work, education, vocation, rehabilitative opportunities — thus severe shortages of such, including few support structures (class rooms, shops, etc), resulting in the majority of prisoners languishing in small cells for years on end. This is in spite of the fact that providing prisoners with such opportunities of substantive meaningfulness is proven to reduce recidivism.

C.) Building several large prisons in the southern Central Valley desert areas of the State, known to be covered with deadly valley fever spores (going at least as far back as WWII, whereupon, the same areas were sites for German P.O.W.s and Japanese internment camps, where hundreds died of valley fever).

Notable is the fact that, in an approximate 4 to 6 year time period, 60 to 70 CDCR prisoners died of valley fever, with countless others, including staff, becoming deathly ill- many permanently damaged. Around 2014 – 2015, the Federal Court Medical Overseer (of Class Action Plata case) ordered the immediate transfer of approximately 300 at-risk prisoners to prisons outside the known valley fever zone. This order was initially resisted. The media quoted Governor Brown stating, “It’s not been proven valley fever is the cause of deaths and illnesses. Thus, we will challenge the order, pending a study,” …until a New Yorker magazine article published data regarding WWII deaths at the same sites.

D.) Decades of constitutionally deficient medical and mental health care, which the state fought tooth and nail to preserve – resulting in countless preventable deaths (medical and suicidal) –  and demonstrated a total lack of respect for the Federal Court Orders.

In the mental health class action Coleman case, between 1990 and 2006, CDCR violated 70+ Court Orders issued by Judge Karlton. This resulted in the creation of the 3 Judge Panel (combining the Coleman and Plata cases) wherein, they determined that “overcrowding” in the CDCR system was the primary cause of decades of failure to provide the minimum of medical and mental health care mandated by the U.S. Constitution. The Panel of Judges ordered a reduction of prisoners, which the State appealed to the U.S. Supreme Court, and lost — based on the well-established, on-the-record, shocking abuse. (To this day, thousands are denied adequate treatment to cure their Hepatitis C.)

E.) CDCR policy and practice that subjects countless women prisoners seeking contraception, and other types of care, to permanent sterilization! Without their knowledge or consent!

F.) CDCR policy and practice, arguably resulting in at least 39 deaths and 100’s of severe, permanent injuries, and amounting to criminal homicide, and assault with great bodily injury over a 9 year period, from January 1987 to December 1995: the “No Warning Shot” and “Integrated SHU-Concrete Yard” policies.

Wherein, “policy” mandated staff respond to any/all physical altercations with deadly force (high power assault rifles, using specialized ammunition designed to cause maximum damage, e.g., 9mm, ‘glazier’ rounds and mini-14, 223s); at the same time, CDCR “Integrated” the small concrete yards at New Folsom and Corcoran, placing segregated SHU prisoners – segregated based on historic rivalries – on yards together.

In a Federal Court Civil trial (Eastern District, Sac. 1994) a top CDCR administrator, Diggs, testified that they “knew the above policies would initially result in chaos, but viewed such as ‘collateral’ because they believed, over time, prisoners in SHU who wanted their only out-of-cell yard time, would learn to get along.” (another “Failed Experiment”)

To reiterate, the above are presented as ‘examples’ of on-going human rights violations in the CDCR system. They are each notable to have gone on- unchecked for long periods of time- known to be morally and ethically (in addition to legally) wrong beforehand.

Each of the above continued for long periods of time, until finally being publicly exposed, and condemned, thereby forcing some changes (often after protracted legal battles, as well).

Unfortunately, several areas referenced above continue to be unresolved, meaning decades of egregious, harmful violations continue to this day! I hope you will take such seriously, and thereby take reparative action. Some suggested courses of action follow:

II. Suggested Reparative Action/s Necessary to Begin Making Amends for 3+ Decades of Systematic, Intentional, State-Sanctioned Torture.

Please Note: the following are suggested examples of reparative-type actions, to begin an amends process for the tens of thousands of warehoused prisoners, in general, as well as towards the damage done to those members of the prisoner class subjected to the “failed experiment,” having been subject to more than 30 years of solitary confinement torture- the damage of which persists to this day.  See, for example, the 2017 Stanford Report.

The following suggestions are briefly summarized, and more detailed support will be presented soon.

A.) Term-To-Life Sentences and Parole Suitability:

Many prisoners used as ‘guinea pigs’ in CDCR’s decades long solitary confinement (a “failed experiment” per Secretary Kernan) are serving term-to-life sentences: 7 years to life, 15 years to life, 25 years to life – incarcerated since early 1970s, 80s and 90s. They are above and beyond their base-term, and their minimum eligible parole dates, many having served double, triple, and more beyond said dates. I know several men who are still serving “7 years-to-life” sentences, given between 1970 to 1978.

We spent 20 to 30+ years in solitary confinement, based on ‘status,’ rather than ‘behavior,’ were denied work, vocational training, education, and rehabilitation opportunities for most, if not all, of this time. When we go to our parole hearings, we are issued multi-year deferrals until our next hearings, again based on ‘status’ alone, for the most part, rather than individual evidence of current, serious danger to public if released. We hear rote recitations of gang validation, lack of programming, lengthy SHU, refusal to debrief, participation in hunger strikes, and relatively minor prison rule violations like ‘possessing a cell phone’ which nets a 5+ year deferral by itself.

Much of the above is related to our being included in the “failed experiment.” We are now in our 50s, 60s, 70s — begging the question: How do you repair the decades of damage done to our ability, under current standards, to receive a parole date?

Arguably, these points are applicable to a majority of Lifers, ‘warehoused’ and denied opportunity/s to achieve parole, due to the extreme shortage of programming opportunities at most institutions. They too are at, and above, their ‘minimums.’

Notably, California has approximately 30,000+ Lifers above their ‘minimums.’ Most are elderly, thus costing more annually than today’s average California prisoner does, at $72,000 + annual cost. It’s also a matter of proportionality, coupled with ‘current danger’ factors. Statistics nationwide, over the course of decades, demonstrate that prisoners sentenced to life, who have served 10+ years; who are paroled above age 40, have a less than 2% recidivism rate.

I suggest the following changes regarding Lifer parole:

(i) Re-introduce, and pass, a streamlined version of Senator Hancock’s, February 21, 2014, SB1363, seeking amendment to Cal. Penal Code §3041, which, in a nutshell, proposed: “absent substantial evidence, with respect to entire record demonstrating a current, serious danger to public safety, the Board shall set a parole release date for those who have served beyond their base term” – reasonable, considering that current law states “parole shall normally be granted at the minimum eligibility date.”

(ii) Dissolve the Board of Parole Hearing’s (BPH) Psych Unit, known as FAD (Forensic Assessment Division).  This unit is composed of psychologists the Board hires, trains, pays, and retains firing power over. Their purpose is to conduct “current danger” evaluations of lifers up for parole eligibility hearings.

The BPH’s FAD operates under an obvious conflict of interest and should be eliminated. (Studies show its predictions regarding future dangerousness are 95% wrong!)

It’s more sensible, accurate, and cost effective to simply use CDCR’s “California Static Risk Assessment” (CSRA) as the tool applicable to BPH Lifer Parole decisions. I believe such is the tool used in Washington for lifers’ paroles.

B.) Regarding CDCR Policies and Practices

(i) Enact legislation designed to prevent the on-going human rights violations, exemplified by references herein. For example, expand on the rights accorded the prisoner class in Cal. Penal Code §§2600, 2601, et. seq., to include, but not solely limit to: Rights to be free of solitary confinement (SHU, ASU, defined as spending 22 ½ hours per day in a cell, etc) for periods longer than permissible under International Treaty Law; Right to Contact Visits, 3 to 4 days a week; Right to Same Protections Against CDCR’s Use/Abuse of Confidential Source Information, as Accorded to Defendants in Criminal Prosecution (e.g., Cal Penal Code §§1111 and 1111.5, et. seq.).

(ii) Provide the funding, with an immediate mandate for CDCR to construct the support facilities necessary (sufficient numbers of classrooms and vocation/rehabilitation work shop areas) at each facility to provide programming and rehabilitation for the majority, rather than current minority, of prisoners.

(iii) Open up the Level IV General Population Prisons, allowing much more out-of-cell time (e.g., yard, day room, etc.). Such Level IVs are presently operated like modified SHU units, with thousands warehoused in cells, spending more time in small cells, than SHU/ ASU units.

(iv) Expand Contact Visits, adding 1 to 2 days of visiting to the current weekends-only allowance. This can be accomplished without additional costs, simply by closing down a few of the nearly empty ASU -Stand Alone Units, and re-routing costs and staffing from such units to visiting day expansions.

(v) Remove ‘Close Custody’ Classification [applied per Revised Regulation – Feb. 20, 2017- CCR, Title 15, §3377.2 (b) (1) (A), to most members of Ashker v. Brown Class Action, released from decades of failed ‘experimental’ solitary confinement Torture, to general populations, based on October 2015 Settlement]. ‘Close Custody’ prohibits 72 hour ‘Family Visits,’ as well as further restricting various programming and privilege opportunities.

If we had not been “experimented” on for 10, 20, 30+ years we would have been free from ‘Close Custody’ in the 1980s and 90s. (All of our CSRA scores are LOW.)

(iv) End Close Custody Privilege Group Classification, Program Failure determination- based on “a significant disciplinary history which may be evidenced by 2 Serious, or 2 Administrative and 1 Serious Rule Violations in a 180 day time period…” (per CCR, Title 15, §3000, Program Failure definition).

This places severe punishments on the prisoner, in addition to those imposed for each rule violation. It is imposed regardless of the prisoner’s positive programming in every other way- work, school, rehabilitation, yard, day room, etc., and actually strips away one’s job, etc.

‘Program Failure’ Close Custody status was created in 1985-1986, to punish those prisoners “refusing a job or education assignment.” That’s all it should apply to.

As stated above, the suggestions are a few ‘examples’ of changes to the system t hat would be viewed as a positive amends making, a beginning. It would be very helpful for you to meet with us, the principle prisoner representatives and our outside mediation team, for additional dialogue – asap.

Thank You for your Time, Attention and Consideration.

Respectfully,
Todd Ashker, a Prisoner Class Representative