by Grettel Zubiaur
A federal class action, Ashker v. Governor of California, was settled September 1, 2015 and the settlement will significantly change solitary confinement in that state. The changes that this settlement will impose shows the power of the legal system, and should influence other states to reform their own solitary confinement policies.
This settlement will have a much greater effect on solitary confinement than the attempts of many influential individuals, groups, and protests have over the last years. For instance, Justice Anthony Kennedy said in an appearance before Congress last March that solitary confinement “literally drives men mad.” President Obama, becoming the first president to speak against solitary confinement, stated that solitary confinement “is not going to make us safer. That’s not going to make us stronger. And if those individuals are ultimately released, how are they ever going to adapt?” Since 2011, tens of thousands of inmates in California have gone on hunger strikes asking for reform of solitary confinement, to no avail. Also, studies have shown time and time again that solitary confinement causes harsh psychological effects. A United Nations report released in 2011 explains that solitary confinement for over 15 days can amount to torture.
When Ashker was filed, over a thousand prisoners were being held in prolonged solitary confinement across California. A single facility, the Security Housing Unit (SHU) at California’s Pelican Bay State Prison, held more than 500 inmates in solitary confinement. The class action was brought on behalf of the prisoners, challenging the constitutionality of solitary confinement practices on Eighth Amendment grounds, arguing that solitary confinement resulted in cruel and unusual punishment.
A glimpse into the lives of the inmates held in solitary confinement explains why this case settled. The inmates in solitary confinement at SHU (before the lawsuit was settled) were held for 22 to 24 hours a day in tiny, windowless, concrete cells. While in isolation, the inmates were denied access to telephone calls, contact visits, and vocational, recreational or social programming. The inmates were only allowed to be outside of the tiny cells for 90 minutes a day, during which they could only shower or stand alone in a concrete yard.
For over ten years, this was daily life for more than 500 of these prisoners. For 78 of them, this was daily life for more than 20 years. Many of the inmates in solitary confinement were sent to SHU if there was evidence that they were affiliated with a gang in the prison, such evidence was sometimes a tattoo, a book, or even a poem that was deemed “gang related.” The prisoners were sent to solitary confinement, whether they had—or had not—broken the law or prison regulations. Moreover, prisoners had to wait six years, while in solitary confinement, to get a review in order to assess whether they could be released. During this wait time they could be given another six years in solitary confinement if any other affiliation to a gang was suspected.
The settlement of the lawsuit resulted in the implementation of drastic changes in solitary confinement practices in California. First, an inmate will only be placed in solitary confinement if the inmate is found guilty at a hearing of committing a serious offense, regardless of gang affiliation. Second, gang members who are found guilty of breaking a serious rule will be no longer be placed in solitary confinement indefinitely, but for two years in which they will complete a four step program. Third, the settlement requires speedy review of all inmates currently held in a California SHU based on gang affiliation and those found not guilty of an offense within the last two years will be immediately released to a general population unit. Fourth, California will create a new Restricted Custody General Population Unit (RCGP) as a secure alternative to solitary confinement. Fifth, prolonged solitary confinement will be severely limited and those confined will be provided significantly more out-of-cell time. Finally, Prisoner representatives will work with plaintiffs’ counsel and the magistrate judge to monitor implementation of the settlement.
The changes implemented in California’s solitary confinement policies, which were considered the harshest in the United States, demonstrate the power of the legal system and should pressure other states to reform their solitary confinement policies. Whether the reform resulting from this settlement is a reflection of society’s views on solitary confinement, or simply a reflection of the power of our legal system, one can only hope that other states will follow California’s steps in restricting solitary confinement.
Grettel Zubiaur is an Articles/Comments Editor at the FIU Law Review. Ms. Zubiaur can be reached at gzubi002@fiu.edu.