California Still Keeping Inmates in Solitary, Ninth Circuit Hears

From top left: U.S. Circuit Judge J. Clifford Wallace, U.S. District Judge James Gwin, U.S. Circuit Judge Ryan D. Nelson, attorney Jeffrey Fisher, and attorney Samuel Miller.

SAN FRANCISCO (CN) — The California Department of Corrections & Rehabilitation is still keeping inmates in isolation, violating a landmark settlement that ended indefinite solitary confinement in California, counsel for a class of 1,600 prisoners told a Ninth Circuit panel Tuesday.

Many prisoners are still confined to their cells for up to 23 hours a day, even while the settlement promised that eligible inmates would be transferred out of Security Housing Units (SHU) and into to the general population, class attorney Samuel Miller told the three-judge panel. 

“Half of them are being held in their cells longer than when they were in SHU,” he said.

Luis Esquivel, now an inmate at Calipatria State Prison, said in court documents that he was confined to his cell for 13 out of 23 days and only let out for meals, according to his own tracking in June and July 2017.

Esquivel said his average daily out of cell time is now less than what it was when he was held in a security housing unit at Pelican Bay State Prison. “The conditions in ‘general population’ at Calipatria are similar to SHU, and my experience is likewise similar. I have limited social interaction and intellectual stimulation. I rarely go outside,” he said, adding that the experience has given him insomnia and anxiety.

California’s prison system has a long history of warehousing suspected gang members in solitary confinement. “In 2011 California had more people in solitary confinement for longer periods of time than any other state in the country,” attorney Rachel Meeropol with the Center for Constitutional Rights said in a press call Monday. 

Two prisoners sued the state pro se in 2009, and U.S. District Judge Claudia Wilken granted them class status in 2012. A settlement in 2015 put a stop to solitary confinement on the basis of gang affiliation and required formerly segregated inmates to be housed with the general population. 

A magistrate judge was appointed to oversee the reforms for two years with the option of extending that oversight if the CDCR violates prisoners’ constitutional rights.

But prisoners claim the state has not held up its end of the deal, and still keeps them in their cells for 23-hour stretches.

“Being locked in a cell for 23 hours a day is solitary confinement no matter what name the CDCR calls it,” Meeropol said.

In 2018, Wilken found the CDCR violated the settlement both by holding prisoners in their cells for prolonged periods and placing a number of inmates on “walk-alone status” that bars them from exercising with others or engaging in group leisure activities. 

Arguing for the state of California during a videoconference on Tuesday, attorney Jeffrey Fisher said the ruling along with Wilken’s “associated remedial plans” should be reversed.

He said the CDCR never breached the settlement, as it only promised to transfer inmates from one type of housing unit to another. “It is undisputed that has happened,” he said.

U.S. Circuit Judge Ryan D. Nelson, a Trump appointee, asked if allowing formerly segregated inmates to mingle with the general population in the prison yard would put them at risk. 

Fisher responded that it would. He said for safety reasons, the prison system had decided to put some inmates in Restricted Custody General Population (RCGP), which keeps some inmates from recreating outside in groups.

“Because they had made so many enemies because of their association with prison gangs, there wasn’t a general population unit that they could safely be transferred to. There was a good chance that they would be assaulted or killed. So they created the RCGP for that purpose,” Fisher said. He added that this “walk-alone” status, as it has come to be called, is meant to be temporary and that some inmates have since been moved out of the restricted custody population.

Prisoners on “walk-alone status” are consigned to outdoor cages measuring 20 feet by 10 feet, where they can walk around and talk to other inmates but remain physically separated. The CDCR calls them “fenced individual exercise yards.”

When U.S. District Judge James Gwin, a Bill Clinton appointee sitting with the panel by designation from the Northern District of Ohio, asked about whether the settlement outlined any conditions for the prisoners, Fisher said the CDCR only agreed to transfer the inmates out of solitary confinement, and that it made no promises about how inmates would be treated in general population.

“Our agreement required the CDCR to transfer them, yes, but the conditions were what the conditions were at that time,” he said. “The parties never negotiated about what the general population conditions would be.”

But Miller said the CDCR refuses to abide by the heart of the settlement by continuing to house prisoners in a manner akin to solitary confinement.

Nelson said he saw no requirements in the agreement regarding out of cell time.

 “Where are the out-of-cell requirements coming into play?” he asked.

The term “general population” has to have some meaning, Miller responded. Under current regulations, general population inmates are entitled to spend 10 hours out of their cells each week.

“CDCR cannot simply call a unit ‘general population’ and then treat the prisoners in any way they please,” Miller said.

Nelson responded, “I don’t think they were treated any way that they please. I think you’re right that these prisoners were treated differently than other prisoners in their out-of-cell time, but it seems to be consistent with the overall regulations because of the uniqueness of the prisoners coming over.”

Nelson added that it might be impossible for the court to determine whether formerly segregated prisoners are being treated differently than general population. “Yes there’s 10 hours recommended, but if you were to go look at the non-SHU population, they probably have less than 10 hours as well, on average.”

Nelson also said he didn’t think the settlement precludes the CDCR from using its discretion in allocating out-of-cell time. 

“The prison authorities have discretion but that discretion has its limitations,” Miller responded. “If they’re going to treat somebody as if they’re going to be on restrictive housing it has to be on the basis of disciplinary infractions that would justify that kind of treatment.”

U.S. Circuit Judge Clifford Wallace, a Richard Nixon appointee, said he has heard many prisoner civil rights cases, and this one is so complex that the parties may want to consider the circuit’s mediation program. 

“I think it might be wise, while you both have it on your minds to see whether or not you want to try mediation. This case is complicated enough. I suspect that whatever our decision is you’ll both disagree with part of it,” he said. “We’re giving you a last opportunity to come up with something that is mutually agreeable.”

He asked that both parties notify the court within two days whether they are amenable to mediation.

On Wednesday, the same panel took up the separate issue of whether the settlement should be extended for another year.

In 2019, U.S. Magistrate Judge Richard Illman granted the prisoners’ motion to extend the settlement, partly because continued due process violations threatened their parole eligibility.

Arguing for the prisoners, Center for Constitutional Rights President Jules Lobel said that since the settlement required state prisons to stop putting inmates in security housing units based on insubstantial evidence of gang affiliation, parole boards should be prevented from continuing to use those same gang validations to automatically disqualify inmates from seeking parole.

“Did the [complaint] ever make some claim that it was unconstitutional for the parole board to use the earlier SHU placement to make decisions on parole?” Gwin asked.

“We claim they were being deprived of liberty without due process in part because they were being denied parole, so yes, denial of parole is part of our due process liberty claim,” Lobel said.  “And it is still part of our due process claim in the sense that they are still being denied liberty by being denied parole based on unreliable, unconstitutional gang validations.”

He added, “We don’t care if the CDCR continues to keep the gang validation. We didn’t ask for nullification or expungement of the gang validation. We just stated the gang validation could not be used to deny people liberty and denying parole is denying them liberty.”

The panel took the arguments under submission.

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