Relief for Gang Member Sparks Strident Rebuke

     SAN FRANCISCO (CN) - Releasing a lifer from a gang housing unit ignored evidence that he remained "the No. 1 man" in a prison's Aryan Brotherhood, the 9th Circuit ruled Tuesday.
     California prison officials validated Robert Lee Griffin as a leader of the white supremacist prison gang in 1979, nine years after he was originally imprisoned for robbery and burglary. Because of the Aryan Brotherhood's "blood in, blood out" mantra, Griffin has spent years in a security housing unit, or SHU, to protect other inmates from him and his underlings.
     Griffin first sought release from the SHU at Pelican Bay State Prison in 1992 on grounds that the conditions - 22 hours per day in a windowless cell, little to no interaction with other inmates, and closely supervised library time and visitation - constituted cruel and unusual punishment. He joined an unsuccessful federal class action of inmates claiming the same thing in 1995's Madrid v. Gomez.
     Despite a ruling in Madrid that SHUs did not general violate the Eighth Amendment, U.S. District Judge James Ware found in 2006 that Griffin's confinement at Pelican Bay was cruel and unusual.
     The judge said prison officials failed to present evidence that Griffin remained active in the Aryan Brotherhood and never afforded him the opportunity show that he had "retired."
     Ware ordered Griffin's immediate release from the Pelican Bay SHU. By then, however, Griffin had been convicted of violating federal anti-racketeering law related to his Aryan Brotherhood leadership.
     Griffin returned to Pelican Bay in 2007 after spending five years in prison to serve out the life sentence on the RICO charges. He was placed in an administrative segregation unit while officials investigated his gang affiliation.
     The next year, Griffin filed to enforce Ware's 2006 order releasing him from the SHU. Ware held in 2009 that Griffin's confinement in administrative segregation unit was more restrictive than an SHU and ordered him released into the general prison population.
     But before that order came down, prison officials moved Griffin to Corcoran State Prison near Fresno. Meanwhile, the state petitioned Ware for relief from his order based on evidence that Griffin remained active in the gang - including a "kill order" he issued while in federal custody and testimony from a confidential informant that Corcoran inmates were already calling him "the No. 1 man" in the Aryan Brotherhood there.
     Prison officials also told Ware that he belonged at the more restrictive Pelican Bay SHU, since the Corcoran unit allowed frequent contact with other inmates. They argued that Griffin's imprisonment at Corcoran or release into the general population would let him continue issuing kill orders for other inmates and their family members.
     Rather than addressing the new evidence or the fears of the Corrections Department, Ware declined to review his 2006 order. He held in 2011 that, while the Corcoran SHU was less restrictive than Pelican Bay, Griffin merited an immediate transfer to the general population or other accommodations that were less confining.
     After the 9th Circuit stayed that order pending appeal, a divided three-judge panel vacated it Tuesday.
     The 27-page majority opinion opens with Judge Andrew Kleinfeld calling the case a procedural mess and slamming Ware for ignoring Griffin's RICO conviction - which included murders and kill orders.
     "Griffin's conviction proves beyond a reasonable doubt that he was involved in gang activities while in the Pelican Bay SHU," Kleinfeld wrote. "The conviction undermines the 2006 order's rationale for finding an Eighth Amendment violation, that Griffin must have ended his Aryan Brotherhood activities long before, because 'the duration of his confinement vitiates active gang participation' and the state had not provided evidence otherwise. His Aryan Brotherhood activities were proved beyond a reasonable doubt through 1997 in his federal RICO trial, and the state provided evidence of subsequent Aryan Brotherhood management activities in this case."
     Kleinfeld rejected Griffin's argument that the 2006 order meant he could never be returned to an SHU.
     "Such a reading would mean that Griffin could announce that he was again leading the Aryan Brotherhood, publicly order more murders which were carried out, yet still claim an entitlement to free circulation and communication in the general prison population," Kleinfeld wrote. "He is already confined for life terms on federal and state convictions, so he could run his gang and order hits on prisoners and on their relatives outside the prisons with impunity. If the law required that result (which it does not), the law would indeed be 'a ass - a idiot.'" (Parentheses in original.)
     A footnote cites the Charles Dickens classic "Oliver Twist" for that grammatically anomalous quotation.
     The panel also noted that prison officials essentially complied with the 2006 order since Griffin had left Pelican Bay SHU for federal custody. And even Ware refused to construe the order as a forever thing, Kleinfeld said.
     "It did not say that Griffin could never be put in the SHU at another prison, or that he could never be put in the Pelican Bay SHU again no matter what," the ruling states. "His subsequent RICO conviction established that he had been lying about his 'retirement' from gang activities, and the evidence developed after his return to the California penal system established that he still was active in the Aryan Brotherhood. His lengthy federal confinement had interrupted the long duration of his Pelican Bay SHU confinement. The uninterrupted duration was the basis for the district court's view that Griffin must have ceased his Aryan Brotherhood activities. Whatever the 'spirit' of the 2006 order, it did not say that Griffin could not subsequently earn his way back to the Pelican Bay SHU."
     Additionally, Ware's 2009 and 2011 orders improperly impeded the authority of the Department of Corrections to manage its own prisons with minimal federal interference, the majority found.
     "California's prison officials have a duty to Griffin to imprison him in a manner that does not violate the Eighth Amendment," Kleinfeld wrote. "But he is not California's only prisoner. California has an Eighth Amendment duty to its other prisoners as well. Throughout this litigation, prison officials explained their exercise of discretion as necessary for the safety of other prisoners, because Griffin's federal conviction established that their concern is well founded. They fear that if he is placed in less restrictive housing, he will have more opportunity to order beatings and murders on behalf of the Aryan Brotherhood. California's other prisoners may be murderers, rapists, drug dealers, and child molesters, but California is responsible for protecting even those sorts of people from murder by other prisoners. Indeed, the Eighth Amendment requires that prison officials 'must take reasonable measures to guarantee the safety of the inmates.'"
     In a lengthy dissent, Judge Marsha Berzon said the only thing that matters in this case is that the state violated the 2006 order.
     "Three times - in 2006, 2009, and 2010 - the district court ordered state officials to release Robert Griffin from segregated housing conditions," Berzon wrote. "Three times, state officials defied that command. California could have appealed the district court's substantive rulings to us at least twice: after the 2006 order requiring Griffin's release, and after the district court in 2010 declined to grant a 60(b) motion for relief from that order. But it did not."
     She continued: "The majority does not so frame the case. Instead, understandably troubled by Griffin's history as a gang leader, it rewrites history, sanctioning California's defiance of judicial orders, excusing its litigation mistakes, and undertaking review of issues beyond our jurisdiction."