Solitary Confinement in California's Prisons

From Jennifer Allison:

Mother Jones is a publication to which I am proud to subscribe for its commitment to “smart, fearless journalism.”  Its November/December 2012 issue features an important investigative report by Shane Bauer, one of the American hikers who was arrested and imprisoned in Iran in 2009.  In the report, Bauer describes the California Department of Corrections and Rehabilitation (CDCR) program that assigns prisoners who are deemed to be threat to the general prison population to one of five Security Housing Units (SHU) in the state. 

SHUs in California, according to Bauer, “hold nearly 4,000 people in long-term isolation,”  many of whom are subject to an “indeterminate sentence.”  This can mean lengthy stays in solitary confinement, with little real hope of being released.  In the Pelican Bay prison’s SHU, for example, “[m]ore than half of the 1,126 prisoners…have been in isolation for at least five years.”

The length and indeterminate nature of these sentences are not the most appaling aspect of the system Bauer exposes in his report.  What is most shocking is how some of these prisoners wind up in solitary confinement in the first place.  If the state collects three pieces of evidence that can be used to “validate” a prisoner as a member of a gang, this is sufficient to send the prisoner to a SHU, where he can be placed in isolation indefinitely. 

Many of the types of evidence that officials can use to “validate” a prisoner as a gang member are flimsy at best.  These include, among other things, possession of “black literature,” drawings depicting Aztec symbols, or writings in the Nahuatl language of central Mexico.  Sometimes these materials are collected and used against prisoners to whom prison guards and officials have taken a dislike, merely as a way of removing those prisoners from the population.

According to the report, there are only two ways for a prisoner to be released from a SHU.  Either a prisoner can be “declared an ‘inactive’ gang member or associate,” or the prisoner can “debrief,” which means to tell authorities everything he knows about the gang with which he has been associated.  The first option is rarely successful, and the second carries the high risk of the prisoner getting himself killed once he returns to the general population.  The other alternative?  Wait it out in solitary confinement, which, as Bauer points out, can lead to extreme mental and physical illness and distress in those who are subjected to it for any length of time.

I have done my best to not let my personal feelings about Shane Bauer cloud my judgment of his report.  I had little sympathy for him and his two friends at the time of their arrest.  Frankly, they should have known better than to select, of all places, an area near the border of Iran, a country known for its hostility and volatile treatment toward the United States and Americans, as the location for their hiking trip.  My opinion on that matter has not changed that much over time, and I was not comfortable with his repeated references to himself as a “former hostage.”  Not that I doubt that his suffering was real and acute.  But it was his choice to place himself in a position where there was a real risk of being arrested and arbitrarily held by a regime that has been shown to hold international human rights standards in little regard. 

That said, I do believe that the time Bauer spent in solitary confinement in an Iranian prison more than qualifies him to research and write a scathing report on the damaging solitary confinement assignment program in the California prison system.  Frankly, this program sounds to me as if it raises serious constitutional concerns, especially regarding the First and Eighth Amendments.  I admit, however, that I am not familiar enough with the case law in this area to know for sure.  In any event, this is an important report, and those who believe in fair and just treatment for prisoners would be well-served to read it.

Children of the Incarcerated

The Sentencing Project has just released a new report entitled Video Visits for Children Whose Parents Are Incarcerated: In Whose Best Interest?  Written by research analyst Susan D. Phillips, the report looks at those situations in which video visits would be a positive addition to visitation procedures, especially in light of the fact that a majority of parent-prisoners are incarcerated more than 100 miles from their children.  However, she also looks at those instances when such visits would undermine personal relationships and concludes that "Children may benefit from video visitation if it increases opportunities for them to communicate with their parents [b]ut video visitation is not a substitute for in-person contact visits, particularly for infants and young children." Some of the technical and practical aspects of video visitation are also discussed.  Another, more technical report on video visitation from the Vermont Legislative Research Service was released in May 2011.  Prison Video Conferencing, prepared for Vermont Representative Peg Andrews, also discusses the use of this technology in a number of other states.

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Prisoner Healthcare, Guaranteed by Law: Are the Germans Getting it Right?

From Jennifer Allison:

I am very excited to have been accepted as a guest author for this excellent blog on prisoners’ rights law.  Like Margaret, I am also a law librarian who is deeply interested in prisoners’ rights.  My research specialization is in foreign and international law.  As I read German proficiently, my research focuses primarily on German-speaking countries.

Last summer I started a research project exploring the laws that define prisoner healthcare rights in Germany, with the eventual goal of comparing them to those rights of prisoners in the United States.  I undertook this project mainly to keep my German skills fresh; however, it quickly became an area of great interest to me.  As I was researching this topic, I found myself thinking about prisoner healthcare in a much deeper way, and asking myself a lot of questions.  How much healthcare do prisoners deserve?  Should they receive better care than law-abiding citizens on the outside?  Can prison be a place where people who are completely ignorant of basic healthy practices become educated about them?  Should it be?  What do the quantity and nature of healthcare services we provide to prisoners say about us as a society?

In Germany, healthcare rights for prisoners are guaranteed under the federal government’s Prison Code (Strafvollzugsgesetz – abbreviated in German as StVollzG).  Several German states (Länder) also have their own prison codes guaranteeing similar, if not additional, healthcare rights for prisoners.

The Strafvollzugsgesetz includes general health care provisions that apply to all prisoners, as well as additional provisions that apply expressly to female inmates.  German correctional facilities must to provide physical and emotional healthcare services to prisoners, who are legally obligated to act in accordance with their best health-related interests. (StVollzG § 56)  Periodic medical exams and cancer screenings are required by law, as is medical treatment for illnesses.  (StVollzG § 57)  Medical treatment is defined as the provision of services which are necessary to diagnose and treat illness, prevent an illness’s progression, and relieve suffering.  (StVollzG § 59)  If the prison’s medical facilities cannot provide sufficient treatment for an inmate’s medical needs, then the inmate has the legal right to be treated at a facility outside the prison.  (StVollzG § 65)

Pregnant inmates also have the right to certain medical services under the Strafvollzugsgesetz: pregnancy testing, prenatal care, medication, and care from a doctor and/or a midwife during labor and delivery.  (StVollzG §§ 76-77)  Absent any special circumstances, a female inmate must be transported outside of the prison facility to give birth.  (StVollzG § 76)

This information represents just the start of my research on this topic.  However, I am already impressed by the thorough description of prisoner healthcare access rights in Germany’s federal statutory law.  As my research progresses, I will seek to compare the legal guarantees for prisoner healthcare in Germany to those in the United States.  I have to admit that, based on my initial research, I am not confident that American prisoners enjoy nearly the same rights and access to the healthcare services that are mandated by law for German prisoners.  This is especially true for female inmates, on whom I intend to focus my future research in this area. 

Charges for Prison Phone Calls

News from Peter Wagner, Executive Director, Prison Policy Initiative:

The New York Times cited Prison Policy Initiative's new report, "The Price To Call Home: State-Sanctioned Monopolization in the Prison Phone Industry," in a September 23d editorial, noting that many telephone companies "charge inmates spectacularly high rates that can force their families to choose between keeping in touch with a relative behind bars and, in some cases, putting food on the table." It called on the FCC to regulate the prison telephone industry. The report was also cited in a letter from Energy and Commerce Committee Ranking Member Henry A. Waxman and Rep. Bobby L. Rush to the FCC requesting action on the high costs of phone calls between incarcerated individuals and their families.

A corporate accountability public interest group, Sum Of Us, has also created a page for submitting comments to the FCC, which is currently accepting comments on new regulations that would limit what phone companies could charge inmates' families for calls.

Solitary Confinement: New York's Hidden Problem

Professor Michael B. Mushlin's latest thought-provoking article from The New York Law Journal is available at: http://www.newyorklawjournal.com/PubArticleFriendlyNY.jsp?id=1202570044326#[9/4/2012_2:05:28_PM] 

Georgia State University Prison Initiative

An interesting project has been posted on Kickstarter (a funding platform for independent projects): One Nation, Behind Bars: Ed Solutions for Mass Incarceration. A Georgia State film student is looking to raise another $1200 by midnight tomorrow to fund his senior thesis project, described as a

quality student produced, directed, and edited 45-minute to 1-hour documentary film [that] will investigate and discuss the societal advantages and ever-growing need for education programs in the U.S. Prison System ... by focusing on The Georgia State University Prison Initiative, a service-learning project that brings together 15 GSU students ... and 15 volunteer inmates at Philips State Prison just outside of Atlanta in order to study literature, discuss contemporary societal issues, and increase inmate and student literary and social competency.

Just like PBS, there are rewards for contributing so, if you're interested and have a few bucks to share .... 

A Case for Labor Day: McGarry v. Pallito

In an August 10 opinion, the Second Circuit allowed a case based on the 13th Amendment right to be free from involuntary servitude to proceed.  Finbar McGarry, a Vermont resident, was arrested and detained pending trial in the Chittenden Regional Correctional Facility from December 2008 until June 2009. While there, he was housed in House 1 where all inmates, including pretrial detainees, are required to work. Despite his objections, McGarry was assigned to work in the prison laundry. He was told that refusal to work would result in administrative segregation. Defendants justified the requirement on the ground that it furthered a legitimate penealogical interest in “educating offenders about real world responsibilities.” McGarry subsequently filed several unsuccessful grievances complaining about the long hours he had to work and the intolerable conditions, including handling soiled clothing without gloves or the ability to clean his hands. He also alleged that working in the laundry resulted in a painful staph infection.

The appellate court reversed the district court judgment dismissing McGarry's pro se complaint. It found that his complaint had, in fact, presented a plausible 13th Amendment claim. It pointed out that "[t]he Amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery." Furthermore, the exception for those “duly convicted” did not apply and, although individuals may be detained before they have been convicted and the "liberties and privileges" of pretrial detainees may curtailed, "such conditions may not violate the Constitution." In United States v. Kozminski, 487 U.S. 931 (1988), the Supreme Court stated that involuntary servitude was “a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process.” Indeed, in federal facilities “[a] pretrial inmate may not be required to work in any assignment or area other than housekeeping tasks in the inmates’ own cell and in the community living area, unless the pretrial inmate has signed a waiver of his or her right not to work.” 28 C.F.R. § 545.23(b). The defendants principle argument, that allowing McGarry's claim to proceed “would demean and trivialize the deep significance of the Thirteenth Amendment in the history of this country,” was rejected by the Second Circuit. Rather, it found that McGarry's allegations were supported by "well-pleaded facts" and, therefore, his claim of "'threat of physical restraint or physical injury' within the meaning of Kozminski" was plausible and should be allowed to move forward.