Governor’s veto of bill to stop unreliable informant testimony is a missed opportunity for CA

Photo: Tudor Stanley / AFSC

by American Friends Service Committee, Oct 2, 2020 https://www.afsc.org/story/governors-veto-bill-to-stop-unreliable-informant-testimony-missed-opportunity-ca

Gov. Brown might not have been paying attention when the people at Pelican Bay went on hunger strike twice in 2011 and once in 2013 for 60 days! The key driver to their indefinite placement in California’s Security Housing Units was the use of confidential information that “validated” them as gang members. Not until the settlement in the Ashker v. Brown case were most of them released to general population. Little did they realize that this so-called information would continue to dictate their fate– in classification, rule violations hearings, risk assessments, and parole decisions.

Every one of us is entitled to our right to due process. But right now, people incarcerated in California prisons are being held in long-term solitary confinement based on fabricated or inaccurately disclosed confidential information.  

This year, Sen. Nancy Skinner introduced legislation, SB 1064, to require independent corroboration of any such “information,” more transparency in disclosing when and where incidents occurred, and some due process in challenging the material. The American Friends Service Committee (AFSC) and UnCommon Law were the co-sponsors of the bill. Unfortunately, Gov. Newsom vetoed this legislation, again subjecting people inside to the misuse of unreliable informant testimony. In a time when Americans are waking up to the lack of accountability among law enforcement and the need to provide greater transparency, California cannot afford to continue business as usual within these closed systems.

One former security housing unit person, Paul Redd, described his own experience with confidential “information”:

“My 35 plus years spent in the various Security housing units was based on erroneous confidential information:  In one case the informant did not exist; in another the staff never documented it nor investigated the information; in 2005 I learned through a court proceeding that that I had been accused of killing an inmate at San Quentin, although I was never charged with that offense. It took six more years, and a new investigation, before they admitted I hadn’t killed anyone and the material was removed from my file. However, that so-called information had cost me years more in solitary confinement. Once I was released to general population, other confidential information kept determining my risk assessment and denying me for parole.” The court released Mr. Redd in late May and he came to work for the AFSC.

“This injustice cannot be corrected by asking the Department of Corrections and Rehabilitation to review its practices, as suggested in the Governor’s veto message,” said Laura Magnani, Program Director of AFSC’s California Healing Justice Program. “It will take new requirements and legislative oversight, as SB 1064 had attempted to provide.

“Over 25 groups supported this legislation and we will not give up.”

COURT FINDS SYSTEMIC CONSTITUTIONAL VIOLATIONS BY CALIFORNIA DEPT OF CORRECTIONS

Extends Settlement to End Indefinite Solitary Confinement in California

January 28, 2019, Eureka – Late Friday, a federal judge found that the California Department of Corrections and Rehabilitation (CDCR) is systemically violating the due process rights of prisoners. The judge ruled that CDCR is violating the Constitution by repeatedly relying on unreliable and even fabricated confidential information to send California prisoners to solitary confinement. The court also found CDCR is using constitutionally flawed gang validations to deny people in prison a fair opportunity for parole.

Read Court’s Decision here (Jan 25, 2019): https://prisonerhungerstrikesolidarity.files.wordpress.com/2019/01/order-granting-extension-motion.pdf

As a result of evidence submitted by the prisoners’ legal team, the judge extended by one year the terms of an historic settlement agreement to end indefinite solitary confinement in California prisons, including a provision allowing monitoring by plaintiffs’ counsel.

“The purpose of the settlement was to eradicate constitutional violations related to CDCR’s use of solitary confinement. Unfortunately, California is still violating our clients’ fundamental rights to due process. This ruling is an opportunity to remedy those continuing violations,” said Senior Staff Attorney at the Center for Constitutional Rights Rachel Meeropol. “It also sends a clear message to CDCR and California’s new governor: until the constitutional violations end, the courts will be watching.”

Under a 2015 landmark agreement, nearly 1600 prisoners were released from isolated Security Housing Units (SHU) and CDCR agreed to substantially reform the process by which prisoners were placed and held in the SHU. Prisoners are no longer sent to SHU based solely on gang affiliation—often established on the basis of extremely insubstantial evidence—but only due to specific and serious rules violations.

The judge’s decision underscored the serious problems in California’s old gang validation system and the way it continues to impact prisoners:

“Plaintiffs have provided the court with ample evidentiary examples that demonstrate that the CDCR’s old process for gang validation was constitutionally infirm (for example, because CDCR’s interpretation of the word ‘activity’ also included something described as, ‘non-action piece[s] of evidence’). As a result, prisoners’ validations were sometimes based on as little as . . . having received correspondence (regardless of the content) or artwork, a birthday card, or other possessions from a validated gang member . . .  or for the artwork they possessed (such as art containing Aztec or Mayan images). . .  Plaintiffs also provide evidence from a number of class members’ parole transcripts in support of the contention that gang validation is a highly significant, if not often a dispositive factor in parole consideration, and that when prisoners dispute their validation at their parole hearings, Commissioners consider the challenge itself to constitute evidence of dishonesty and a manifestation of a lack of remorse or credibility.”

“Now that a judge has determined that California’s gang validation system is deeply flawed, the Parole Board must immediately stop relying on these old validations and give our clients a fair chance to earn release,” said Carol Strickman of Legal Services for Prisoners with Children.

The judge’s decision also focused on how California distorts confidential information, describing one disciplinary case where “the potentially exculpatory part of the [confidential informant’s] account was never disclosed, and instead it appears to have been replaced by an inculpating statement that the [confidential informant] never uttered;” another case where a “prisoner was told that the evidence against him included two confidential sources . . .  however, according to the underlying confidential memorandum, there were not two sources, there was only one, and that person stated that he did not witness the event in question;” and many more, leading the judge to conclude that “time and again, the shield of confidentiality for informants and their confidential accounts is used to effectively deny class members any meaningful opportunity to participate in their disciplinary hearings.”

Lead counsel at the Center for Constitutional Rights, Jules Lobel, explained, “CDCR relies extensively on confidential in-custody informants, even though the California legislature and experts around the country recognize they are often unreliable. We hope this decision will provide momentum for California and other state prison systems to take steps to ensure that this type of unreliable evidence is not used to send people in prison to solitary confinement.

Ashker v. Governor of California was originally filed by prisoners who had been isolated in the SHU for more than a decade based on alleged gang affiliation. The lawsuit followed coordinated hunger strikes in 2011 and 2013 by over 30,000 prisoners statewide. On the third anniversary of the settlement agreement, former SHU prisoners published a statement marking their progress and highlighting work that remains in order to fully remedy their unconstitutional conditions.

The Ashker plaintiffs are represented by the Center for Constitutional Rights, Legal Services for Prisoners with Children, California Prison Focus, Siegel & Yee, Weil Gotshal & Manges LLP, Bremer Law Group^PLLC, Ellenberg & Hull, and the Law Offices of Charles Carbone.

Read the magistrate judge’s decision here.

Original post: https://ccrjustice.org/home/press-center/press-releases/court-finds-systemic-constitutional-violations-california

For more information, visit the Center for Constitutional Rights’ case page.

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The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, The Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at ccrjustice.org.

From Solitary Confinement at Pelican Bay, Jesse Perez Sues Guards for Retaliation, Wins $25,000

On Nov. 25, 2015, a federal jury awarded $25,000 in damages to Jesse Perez, who had sued guards for trashing his cell in retaliation for his lawsuit against the prison and for his stand against solitary confinement.

By filing the lawsuit, Perez wrote that he sought the “opportunity to shine a public light at trial and rein in what prisoner activists often endure in exercising their constitutional rights: the retaliatory abuse of the department’s disciplinary process by prison guards.”

Jesse Perez, 35, is from Colton in San Bernardino County and has been imprisoned since age 15. He was sent to the Security Housing Unit at Pelican Bay in December 2003 and was held there for 10 years. He took part in all three hunger strikes in 2011 and 2013, protesting prolonged isolation.

Perez’s lawyer, Randall Lee, said the verdict sends “a resounding message that the rights guaranteed under the First Amendment are sacrosanct for all of us — even a prisoner in solitary confinement at Pelican Bay.”

Jesse Perez, 2nd from the left, with his legal team in his successful civil rights case about guards’ retaliation – Randall Lee, lead attorney, Jesse, Katie Moran, Matthew Benedetto

The case is based on Jesse Perez challenging the legitimacy of a CDCr gang validation pro se in 2005. He was assigned counsel after a state dismissal motion was defeated. After his attorneys’ filed a Reply Brief, the CDCr reached out to him to settle the case, which he ultimately did in 2013. Perez received a monetary award as well as the right to have his gang affiliation reevaluated.

This is similar to the CDCr settling the Ashker case as the state of CA wants to avoid having to be held publicly accountable and to be subjected to scrutiny and interrogation in court.

In the current civil suit, his attorneys argued that guards retaliated against Perez for exercising his right to file a lawsuit and in response to successfully litigating human rights challenges – in this case the gang validation.

Perez argued that guards retaliated against him for exercising his right to file a lawsuit and in response to his successful litigating for his human rights and to overturn
his baseless gang validation.

During settlement negotiations in his initial lawsuit, which CDCr could anticipate would be successful for Perez and require a re-review of his ‘gang validation’, four officers forced Perez to strip, removed all of his legal paperwork, and trashed his cell.  In the process, one officer stated, “you might have been able to win some money from us, but we will make sure that you stay [in solitary] where you belong.” Perez did not get all of his property back.  He was later charged with a serious rules violation for “willfully obstructing the officers” during that search, for which he was ultimately found Not Guilty.

Jesse Perez states “As prisoner activists seeking to make positive contributions to the interest and human dignity of prisoners, we understand that the trappings of power enjoyed by guards represent the biggest obstacle to significant and lasting progress.”

Pelican Bay Hunger Strike: Four Years and Still Fighting

by Claude Marks – Isaac Ontiveros  July 9, 2015
Originally published in Counterpunch

Four years ago prisoners in California – led by those in the control units of Pelican Bay – organized a hunger strike to demand an end to the torturous conditions of solitary confinement. Two more strikes would follow, with over 30,000 prisoners taking united action in the summer of 2013—both in isolation and in general population in nearly every California prison. The strikes reflected significant shifts in political consciousness among prisoners and their loved ones. The violence of imprisonment was further exposed by demands and heightened organization from within the cages. Prisoner-led collective actions as well as growing public support dramatically have changed the political landscape.

The organization of hunger strikes in 2011 surprised many, especially the CDCr – the California Department of Corrections and Rehabilitation (the lower case ‘r’ by most prison writers derides the Orwellian use of the word rehabilitation), the media, and much of the public.

Current prison organizing continues a historic legacy of struggle. Among prisoners, the strikes of 2011-2013 were compared to the Attica Rebellion of 1971. Shortly before that rebellion, prisoners at Attica refused to speak or eat in the facility’s chow hall, paying tribute to Black Panther Party member and California prison movement leader George Jackson, who had been assassinated at San Quentin prison August 21st. Jackson was a skilled and effective leader who connected the human rights demands of prisoners to revolutionary ideas both globally and in the streets. He argued with powerful clarity that racist and exploitive power relations could and should be changed through political and military struggle, and that Black liberation was achievable as part of an international struggle to destroy imperialism. Within the prisons, he built unity across racial lines – thinking that a unified prison movement could succeed in winning basic human rights both within the cages and in oppressed communities. While the state obviously found Jackson’s ideas and example extremely dangerous, many prisoners and community members found them a clarion call for action.

On September 9^th 1971, Attica erupted. Led by prisoners affiliated with the Nation of Islam, the Black Panther Party, the Young Lords, and the Five Percenters, the rebellion seized control of several large areas of the prison and issued a manifesto demanding, among other things, better health conditions, an end to political persecution of prisoners, and a right to organize or join labor unions (these demands were very similar to the Folsom Prison manifesto written in California in 1970). After four days of negotiations, New York Governor Nelson Rockefeller ordered that the prison be retaken – in the ensuing brutal military assault 39 people were killed by state police and prison guards.

While Attica is one of the most remembered uprisings, between the late 1960s and the early 1980s, there were over three hundred prison rebellions across the US, including those at the Oklahoma State Penitentiary in 1973, the Idaho State Penitentiary in 1972-3, the August Rebellion in 1974 at Bedford Hills Correctional Facility for Women in New York State, a 1975 demonstration at the North Carolina Correctional Center for Women, and the Penitentiary of New Mexico in 1980.

In response to these militant uprisings, prisons developed unprecedented strategies of repression, isolation and for a time resistance took less dramatic forms. Yet prisoners were still inspired to resist. In one example, in 1995 women in CA state prisons initiated a class action law suit against genocidal health care conditions and successfully organized family members and allies across the state to support them.

Prisoners in California in 2011-2013 organized against the very policies, strategies, and technology that had been put into place to neutralize the rebellions of previous decades (both inside and outside prison)—including solitary confinement, gang validation (which includes the criminalization of George Jackson’s writings), and the gutting of educational programming. In turn, prisoners used similar historic strategies – collective direct action, multiracial unity, and building strong support and solidarity networks on the outside.

Great NEW VIDEO: “Breaking Down the Box” (40 min.)

TORTURE IS A MORAL ISSUE

As the grievous loss of Kalief Browder reveals, we must act with urgency to end the devastation of solitary confinement. To that end, the National Religious Campaign Against Torture announces the release of a new NRCAT film, Breaking Down the Box, a 40-minute documentary for communities of faith, to expose the torture of solitary confinement in the context of mass incarceration in the United States.

Breaking Down the Box from NRCAT on Vimeo.

Produced by filmmaker Matthew Gossage, the film examines the mental health, racial justice and human rights implications of the systemic use of solitary confinement in U.S. prisons. It is a call to action for communities of faith to engage in the growing nationwide movement for restorative alternatives to isolated confinement that prioritize rehabilitation, therapeutic interventions, and recovery.  Watch the film online and then download or order a DVD for use in your congregation or community, at no cost. More resources and DVD order form at www.nrcat.org/breakingdownthebox

Please spread the word:

  New documentary from @NRCATtweets exposes torture of #solitaryconfinement in context of mass incarceration www.nrcat.org/breakingdownthebox

  Watch a new documentary exposing the torture of solitary confinement in the context of mass incarceration in the U.S.  Film and resources for faith communities at www.nrcat.org/breakingdownthebox

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We encourage you to share this new resource in your community during June Torture Awareness Month and throughout the year. Additional promotional and discussion materials are available at www.nrcat.org/breakingdownthebox.

Thank you for your commitment to building a #TortureFreeWorld together.

In community,

Rev. Laura Markle Downton
Director of U.S. Prisons Policy and Program

Important Alert: Fight the return of the new prison censorship rules

We called for your help in June,  and we’re calling for it again.  Last month, California Department of Corrections & Rehabilitations (CDCR) issued revisions to its proposed “obscene materials,” i.e. censorship regulations published earlier this year.This was in response to hundreds of public comments submitted to CDCR by CURB members and members of the public. CDCR promised to go back to the drawing board, saying the public had misunderstood its intent.This shows our collective people power! Yet, the revisions recently made by the Department are superficial and fail to address the serious concerns so many of us raised in our public comments. If the proposed regulations are approved, CDCR will be able to permanently ban any publications it considers contraband, including political publications and correspondence that should be protected by First Amendment constitutional rights.

The proposed regulations are designed to:

1. Censor writings that educate the public about what is actually occurring inside the prisons,
2. Stifle the intellectual, personal and political education and development of those incarcerated,
3. Stifle efforts by prisoners to nonviolently organize, and
4. Expand the CDCR’s ability to arbitrarily cut off its wards from direly needed contact and support coming from outside, thus further isolating them.

Please weigh in and speak out against these regulations. The public comment period is open until 5pm on November 10. Resources to help craft a letter are provided at the action page.

Spread the word on Facebook and ask your friends, family, neighbors, pastor, school class, place of worship, and organizations to write also. Then take action on Monday by joining fellow CURB organizations Flying Over Walls and The Transgender, Gender Variant & Intersex Justice Project (TGIJP) and PHSS make mass phone calls to CDC voicing our criticisms!

Thank you for everything you do and for your initial round of public comments in June.

Fact Sheet – CDCR Censorship Regulations – Nov 2014 PDF

Hunger Strike Rep. Todd Ashker to CDCr Administration, 9/1/14

Todd Ashker writes from Pelican Bay SHU Short Corridor:

“….I am requesting your attention and responsive dialogue-addressing these issues during the meeting with our outside mediation team- and with Arturo Castellanos, George Franco, James Williamson, and myself in the near future…
The following is from me.

We are presently at the one year point- post “suspension,” of our third peaceful protest hunger strike action against longterm-indefinite-solitary confinement [i.e. SHU/Ad-Seg confinement]… and related conditions therein and damage therefrom- to prisoners, our outside loved ones, and society in general….

.…The bottom line is, longterm-indefinite-SHU is not effective and harms all concerned. It’s ending nationwide and this will be the case in Calif. too- better to be sooner than later….”

PDF of transcribed Memo HERE.  Handwritten letter HERE

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Memorandum

Sept. 1, 2014

To: CDCR-Administration
Secretary Beard, UnderSec. Hoshino
Director Stainer, Assoc. Dir. Diaz,
PBSP Warden Ducart

From: Todd Ashker, C58191-
One of four PBSP-SHU Prisoner Reps
(via outside mediation team)

Subject: Five Core Demands, 40 Supplemental Demands,
and CDCR’s STG-SDP

This memorandum is directed to the above CDCR Administrators for the express purpose of respectfully reminding you about unresolved, and/or continued problematic, issues relevant to our 2011-2014 Five Core and 40 Supplemental demands… and CDCR’s Security Threat Group-Step Down Program [STG-SDP]…

Emergency! Take Action To OPPOSE Solitary Confinement Legislation SB 892

Please be sure to read the Five Urgent Action Requests below

On behalf of California Families Against Solitary Confinement (CFASC), the Center for Human Rights and Constitutional Law, and others who joined an emergency conf call this evening to address the imminent vote by the California Assembly and Senate on SB 892 (Senator Hancock) dealing with the critical issue of solitary confinement, we want to inform you of the following and urge you to widely distribute this message to your email lists.

Issue: Between now and Sunday night (Aug 31), the CA Assembly and Senate will vote on SB 892, drafted by Senator Hancock, who got involved as a result of the prisoners’ hunger strike in the summer of 2013 to denounce the conditions in solitary confinement and CA’s unique “gang validation” policy. California’s Department of Corrections (CDCR) has what is probably the WORST, MOST COSTLY, AND MOST INHUMANE solitary confinement policy of any state in the country. As a result of CDCR policies, California has the largest population of prisoners in long-term solitary confinement in the U.S. and more than any other country on earth! A prisoner in CDCR’s custody commits suicide every ten days. Instead of reforming this policy–including placing prisoners who have engaged in no rule violations in long-term solitary for mere alleged gang membership (“gang validation policy”)–SB 892 for the first time in history adopts this draconian policy into state law.

The Opposition: The four prisoner reps who initiated the 2011 and 2013 hunger strikes have jointly opposed SB 892. Hit this link to download their letter to the legislature.

About 130 organizations and community leaders have written to the Senate and Assembly leaders explaining why they oppose SB 892. Hit this link to download their letter. Link also below. Among many others, organizations opposing SB 892 include CFASC (family members of prisoners), Prisoner Hunger Strike Solidarity Coalition, League of United Latin American Citizens (LULAC), Mexican American Political Association (MAPA), Council on American-Islamic Relations – California (CAIR), Disability Rights Education & Defense Fund (DREDF), Homeboy Industries, Homies Unidos, California Prison Watch, Asian Law Caucus, National Lawyers Guild (SF and LA Chapters), the William C. Velasquez Institute (WCVI), Families to Amend California’s Three Strikes and Hermandad Mexicana Humanitarian Foundation. See attached.

Five urgent action requests:

• Please immediately forward this email to your constituents.
• We urge organizations and community, faith-based and labor leaders to telephone the following legislators on Thursday and Friday this week to express strong opposition to SB 892: (1) Assembly Member Jimmy Gomez, Majority Whip, or his Chief of Staff John Scribner (916) 319-2051; (2) Assembly Member V. Manuel Pérez, Majority Floor Leader or his Chief of Staff Greg Campbell (916) 319-2053; and (3) Senator Darrell Steinberg, President pro Tempore, or his Chief of Staff Kathry Dresslar (916) 651-4006 or Legal Counsel Margie Estrada (916) 651.4170
• Please consider joining a press conference tentatively planned for Friday (Aug. 29) at noon in Sacramento opposing passage of SB 892. We urgently need contact info for faith-based, black and Latino leaders in the Sacramento area who may be available to join the press conference and we also invite anyone else able to attend. If you’re able to attend or suggest someone to attend, please email pschey@centerforhumanrights.organd irene.huerta@ilwu13.org
• In the next two days we urge organizations to please fax letters similar to the letter linked below or downloaded hereto (1) Assembly Member Jimmy Gomez, fax (916) 319-2151; (2) Assembly Member V. Manuel Pérez, Majority Floor Leader fax (916) 319-2156; and (3) Senator Darrell Steinberg, President pro Tempore, fax (916) 651-4906

Thank you

Irene Huerta
California Families Against Solitary Confinement

Peter Schey
President
Center for Human Rights and Constitutional Law

Letter opposing SB 892 from the four prisoner reps who initiated the 2011 and 2013 hunger strikes: 8-12-14 Letter to CA Legislature re Hancock Bill

Letter opposing SB 892 from 130 organizations and community leaders: 8-26-14 Sign On Letter to CA Legislature re Hancock SB 892

Submit Comments About STG/SDP Regulations by April 3, 2014

Dear Human Rights Activists,

We need your help. Can you write a quick email or fax a note? The California prison system’s Security Threat Group/Step Down Program (STG/SDP) is getting close to being implemented. These regulations govern placement into and release from the SHU (Secure Housing Units), California’s long-term solitary confinement cells. The STG/SDP policies will perpetuate California’s over use of torturous isolation.

We are soliciting your help to weigh in and speak out against these regulations. Please submit a comment and ask your friends, family, neighbors, pastor, school class, place of worship, and organizations to write also.

For a comment to have impact it must address some aspect of the proposed regulations. To help, we’ve made a FACT SHEET and LIST OF PROBLEMS with the STG/SDP regulations. (The footnote below gives a link and a partial index to the officially proposed regulations we’re commenting on 1) Take an issue or two -or more- and express your feelings, it doesn’t have to be long or fancy, but it does have to talk about the STG/SDP regulations.

 

Anyone may submit public comments (mail, fax, or email) regarding the proposed regulations. Submit comments to the California Department of Corrections and Rehabilitation by mail at: CDCR, Regulation and Policy Management Branch, P.O. Box 942883, Sacramento, CA 94283-0001; or by fax at (916) 324-6075; or by email at m_STGRegulation@cdcr.ca.gov
If you send an email please cc: PeoplesARC@gmail.com.

The public comment period is open now; it closes April 3, 2014 at 5 PM.

In many respects the STG/SDP is worse than the current practice. The STG/ SDP program is based on the U.S. Bureau of Prisons model, subject of great criticism in 2012 by the U.S. Senate Committee on the Judiciary,  Subcommittee on the Constitution, Civil Rights & Human Rights. California uses solitary confinement far and away more than any other government entity on the planet – the most absolute numbers and the highest percentage of prisoners in solitary. On any given day California, conservatively, has 11,000 adult prisoners in some form of isolation. 2

Thank you for everything you do.

Prisoner Hunger Strike Solidarity Coalition

footnotes below: