(CN) — California is not violating a settlement agreement with suspected gang members formerly housed in solitary confinement by keeping them confined to their general population cells for up to 23 hours a day, the Ninth Circuit ruled Monday.
The 14-page opinion by U.S. District Judge James Gwin, a Bill Clinton appointee sitting with the panel by designation from the Northern District of Ohio, reverses a 2018 finding by U.S. District Judge Claudia Wilken that the California Department of Corrections and Rehabilitation violated prisoners’ rights by holding them in their cells for prolonged periods.
Wilken, another Clinton appointee, also found the state violated suspected gang members’ rights by placing them on “walk-alone status,” barring them from exercising with others or engaging in group leisure activities.
But the Ninth Circuit found Monday the historic 2015 settlement agreement — which put a stop to solitary confinement based on gang affiliation — only required the state to transfer inmates out of “security housing” to a different facility. The San Francisco-based appeals court heard oral arguments in May.
The settlement “did not limit California’s discretion regarding out-of-cell time for the inmates removed from security housing to general population,” Gwin wrote.
The unanimous three-judge panel also found the state did not violate the rights of restricted custody inmates who, for their own safety, could not be housed in the general population and were barred from exercising with others in the prison yard.
Those who are on walk-alone status can exercise in individual, 20-foot by 10-foot fenced-in yards and can interact with other inmates through the fences. They are indefinitely placed on walk-alone status if other restricted custody inmate groups refuse to accept them and “commit to avoid trouble with the new inmate.”
They also have more restricted access to leisure-time activities and social interaction, though they have access to phones, visitors and educational programming, according to the Ninth Circuit’s summary of the case.
Center for Constitutional Rights attorney Samuel Miller, representing inmate Todd Ashker and the class, said in a phone interview Monday that keeping hundreds of inmates in their cells for prolonged periods of time is “as bad as ever.”
But he said “it’s very difficult to say” if “lockdowns or modified programming” has anything to do with the pandemic.
“This case started long before Covid was ever known and many of these people will be in prison long after,” Miller said.
“Our argument is general population has meaning, it is in the settlement agreement. We are disappointed the panel has decided the term general population can be defined by the prison system however they please, contrary to the Department of Justice, American Correctional Association and international law which defines general population by the amount of time spent outside of the cell,” the attorney added.
Miller said he and his clients are evaluating their next steps, including whether to ask for reconsideration or an en banc hearing by the full Ninth Circuit, or whether to file a writ of certiorari with the U.S. Supreme Court.
“This is a case that has always been movement orientated. It was generated by prisoners and human rights advocates and we are consulting with them,” Miller said.
In the order, Gwin wrote the plain meaning of paragraph 25 of the settlement agreement only provides inmates be transferred to the general population.
“Having negotiated their solitary confinement release, the prisoners do not point to any settlement language requiring any specific out-of-cell time. California made no agreement regarding the out-of-cell conditions for inmates leaving security housing for general population under the settlement,” the judge wrote.
He pointed out the settlement “showed that they knew how to negotiate conditions” because the inmates staying in solitary confinement after the settlement agreement are required to be provided 20 hours of out-of-cell time per week.
“The parties failed to include any similar paragraph 25 out-of-cell requirement for inmates transferred from security housing to the general population,” Gwin wrote.
For those inmates kept in restricted custody and designated walk-alone status, paragraph 28 of the settlement “strikes an aspirational tone” regarding “increased opportunities for positive social interaction,” according to the ruling.
“This is not, as the prisoners contend, a strict requirement that there will be more social interaction, but instead a programming goal,” Gwin wrote, noting discretion in determining small groups is given to the Institutional Classification Committee.
The judge added, “Although those inmates on walk-alone status may have limited physical contact with other inmates while in group activities or in the yard, they are still able to interact. Given the institution’s safety concerns, these limitations are only minor deviations from paragraph 28’s requirements.”
Gwin was joined on the panel by Senior U.S. Circuit Judge J. Clifford Wallace, a Richard Nixon appointee, and U.S. Circuit Judge Ryan D. Nelson, appointed by President Donald Trump.
A spokesperson for the California Department of Corrections and Rehabilitation did not return a request for comment by press time.