Still in Solitary

Nearly five years ago, a group of men incarcerated at Pelican Bay State Prison reached a landmark legal settlement with California to end the state’s practice of long-term, indefinite solitary confinement. 

But on May 12, their attorneys told a federal appeals court that many are still held in de facto solitary confinement. Some are even more isolated now than when the lawsuit was filed, they said. 

“When the class settled this case for a promise that they would be released from solitary confinement, they did not agree to being placed in solitary confinement by another name,” Rachel Meeropol, an attorney with the Center for Constitutional Rights and a member of the legal team representing the incarcerated men, told reporters on a May 11 press call.

The California Department of Corrections and Rehabilitation is appealing a 2018 district court ruling, which found that it violated the terms of the settlement by continuing to strictly limit out-of-cell time and social interaction.

Though the DOC has transferred most of the men out of the Secure Housing Unit cells, it has continued to keep many of the men isolated in other units locked in their cells for more than 22 hours per day, according to attorneys. The department categorizes the units as “general population” and argues it has thus fulfilled its obligation to transfer the men out of the SHU.

“Over a one-month period, many of the men received an average of less than one hour out of their cells a day,” Meeropol said on the press call. She added that one man had been out of his cell only 10 hours that month, leaving his cell just 12 times. 

Lawyers for the men in Pelican Bay also contend that the prison has violated the terms of the settlement by placing 30 men formerly housed in the SHU on so-called “Walk Alone” status, and completely prohibiting group activities and in-person social interaction for them. Although the settlement agreement specifically required group-based social activities and programming, the men on Walk-Alone status, whom the DOC claims would be threatened if housed with others, are deprived of all in-person social interaction and let outside only in individual cages. 

“That’s not general population; that’s solitary confinement,” she said. “It is worse than what they got in the Pelican Bay SHU.” 

During the hearing, one visiting judge, referencing the spread of COVID-19, asked whether the plaintiffs “really want to be in crowds of other inmates at this time.” Ohio District Court Judge James Gwin said: “Do they want to have five of them in one outdoor yard within close proximity to each other?” Gwin, in an unrelated lawsuit, ordered the release in April of hundreds of medically vulnerable individuals from a federal prison in Lisbon, Ohio, following the spread of COVID-19 in that facility.

“Our clients want to be safe,” said Samuel Miller, a member of the Center for Constitutional Rights legal team who argued the case. “They want to do whatever social distancing and other measures will keep everybody safe.” Miller also referred to a report, written by Stanford University’s Human Rights in Trauma Mental Health Lab, documenting the severe, long-term mental health impact that their isolation has inflicted.

A day after the hearing, a coalition of United Nations health and human rights agencies released a statement on mitigating the spread of the virus in jails and prisons, and specifically demanded that “any intervention should comply with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).” Those human rights standards, adopted by the United Nations, expressly prohibit “indefinite solitary confinement” and solitary confinement lasting longer than 15 days.

The lawsuit began in 2009, when Todd Ashker and Danny Troxell, who were both held in the SHU in Pelican Bay, filed a handwritten legal complaint. According to that complaint, Ashker had been in solitary since 1992, and Troxell since 1985, before the SHU was even built. 

The men were locked in their cell for 23 hours each day, according to the complaint, allowed out only to exercise in a concrete room known colloquially as the “dog run.”

Those inside the SHU were sent there either in response to a specific prison rule violation, and for a limited period of time, or, like Ashker, because they were believed to be gang members, in which case there was no defined end date to their SHU stay. 

Allegations of gang participation have historically been thin and often racist. According to a 2012 investigation by journalist Shane Bauer, possession of poetry, newspaper articles, and books with even an implicit political message could be considered evidence of gang participation. So could receiving a letter from another suspected gang member, or even just using the words “tio,” “señor,” or “hermano.”

Prison officials also use information provided by people in solitary to send others to solitary, according to Bauer’s investigation. As easy as it was to get sent to the SHU, he wrote, just about the only way to get out was to “debrief,” or provide information linking another incarcerated person to a gang. This created a wealth of incriminating and often inaccurate evidence produced by men desperate to escape long-term solitary confinement. 

After filing the pro se complaint in 2009, Ashker, Troxell, and a number of their peers in long-term solitary confinement organized a series of hunger strikes protesting their treatment. The strikes culminated in a statewide hunger strike by 30,000 incarcerated people in solidarity with those in the Pelican Bay SHU. 

In 2015, Ashker and his co-plaintiffs, represented by the Center for Constitutional Rights, reached a settlement with the DOC to overhaul the state’s use of solitary confinement. Among other concessions, the state agreed to stop sending people to solitary confinement based on gang affiliation, and to end its practice of indefinite solitary confinement altogether. 

The settlement was widely hailed as a major victory in the movement to abolish solitary confinement.

Advocates do not expect a decision from the court for several months. If either side appeals that decision, the case could make it to the Supreme Court.

In the meantime, advocates are hoping the California state legislature will pass a bill that could further limit the use of solitary confinement across the state. As introduced, Senate Bill 1064 would prohibit prison staff from citing confidential, unverified information as evidence of a rules violation, which could land the prisoner in solitary confinement. The legislation would also ensure that incarcerated individuals alleged to have violated prison rules receive a summary of the evidence being weighed against them. 

For now, the men in Pelican Bay await the court’s decision.