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Judge Refuses to Dismiss Pelican Bay Solitary Confinement Case

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April 10, 2013, Oakland – Last night, a federal judge rejected the State of California’s attempt to dismiss a class action lawsuit challenging prolonged solitary confinement in California’s notorious Pelican Bay prison.  The case was filed by the Center for Constitutional Rights (CCR) and partners on behalf of prisoners in the Pelican Bay Security Housing Unit (SHU) who have spent between 10 and 28 years in solitary confinement and who staged two widely publicized hunger strikes in 2011.  The California Department of Corrections and Rehabilitation (CDCR) had asked the court to dismiss the case, arguing that the prisoners had failed to adequately allege cruel and unusual punishment and due process violations.  CDCR also asked the court to find that the case was moot in light of a two-year pilot program that purports to reform the procedures CDCR uses before indefinitely placing a prisoner in solitary confinement.  The Judge disagreed, ruling that the pilot program did not moot claims that California’s use of solitary confinement denies the prisoners’ right to due process, and finding that the case raised grave Eighth Amendment claims. 

Said Center for Constitutional Rights President and lead attorney Jules Lobel, “Hundreds of prisoners have languished under inhumane, torturous and unconstitutional conditions at the Pelican Bay SHU for over a decade – and many for more than 20 years – without any meaningful way of securing their release. The court’s decision ensures that these prisoners will have their day in court, and will give them an opportunity to shed light on the devastating toll of prolonged solitary confinement.”
 
In March, the Center for Constitutional Rights argued that the reforms implemented as part of the pilot program contain the same constitutional problems challenged in the lawsuit and have not had any effect on the plaintiffs in the case.  SHU prisoners spend 22 ½ to 24 hours every day in a cramped, concrete, windowless cell.  They are denied telephone calls, any physical contact with visitors, and vocational, recreational and educational programming.  As of 2011, more than 500 Pelican Bay SHU prisoners had been isolated under these conditions for over 10 years; more than 200 had been there for over 15 years; and 78 had been isolated in the SHU for more than 20 years.  According to attorneys, solitary confinement for as little as 15 days is widely recognized to cause lasting psychological damage and is analyzed as torture under international law.  The pilot program implemented by the CDCR still allows for prisoners to be confined in extreme isolation for decades.
 
The judge’s ruling states that “this case presents unique circumstances, given the length and severity of the deprivations alleged….Five of the Plaintiffs here allege that they have lived in the SHU, with minimal human contact, for more than twenty consecutive years: even within the ‘context of the prison system,’ this represents a significant deprivation of liberty.”
 
Said Carol Strickman of Legal Services for Prisoners with Children, “We are gratified to receive the court's ruling today.  We are now gathering the evidence to prove our claims.  In May, we will be filing a motion to certify the case as a class action suit, which will expand the number of prisoners who will benefit from our ultimate victory.”
In addition to refusing to dismiss the case, the court denied California’s request to stay, for the duration of the pilot program, the case’s due process claim, which alleges that prisoners are denied meaningful review of their SHU placement, rendering their isolation effectively permanent.  Attorneys say that under the pilot program prisoners can still be placed and held in the SHU absent any gang activity, violent conduct, or serious rule infraction; they may still be labeled gang “affiliates” and confined in isolation for activities such as reading about Black history, creating or possessing cultural artwork, or writing in Swahili; and they still must wait years between each opportunity for review.  Moreover, they say, even since the pilot program was implemented, some of the plaintiffs have been denied release from the SHU explicitly under the old policy. The court wrote, “Although [Defendants] have submitted a hundred-page CDCR memorandum describing the new program, they have not shown that any of the program’s new procedures are permanent.” 
 
SHU assignments disproportionately affect Latino prisoners.  The percentage of Latinos in the Pelican Bay SHU was 85 percent in 2011, far higher than their representation in the general prison population, which was 41 percent. 
 
Legal Services for Prisoners with Children, California Prison Focus, Siegel & Yee, and the Law Offices of Charles Carbone are co-counsel on the case.
 
The case is Ashker v. Brown, and it amends an earlier pro se lawsuit filed by Pelican Bay SHU prisoners Todd Ashker and Danny Troxell.  The case is before Judge Claudia Wilken in the United States District Court for the Northern District of California. 
 
The law firm Weil Gotshal & Manges LLP is co-counsel in the case.
 
Read last night’s decision here.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.