Transcript: Charles Carbone’s testimony on the harmful impacts of solitary confinement practices at California’s Secure Housing Units (SHU) prison facilities

Transcript of the testimony delivered by Charles Carbone, an attorney specializing in prisoner rights, at the California Assembly’s Public Safety Committee hearing on Aug. 23, 2011:

“My name is Charles Carbone. I’m an attorney from San Francisco. I have arguably litigated more gang validation cases, counseled more inmates in the Secure Housing Units, and visited more SHU units than any other attorney or advocate in the United States.

“Based on that unique perspective, I would like to offer the Assembly Committee my thesis which is a reasonable conclusion that SHU policies in state serve neither the public safety nor prison safety. In fact, they undoubtedly undermine prison safety by essentially creating a disparate system of segregation and punishment for prisoners based on protocols and procedures, which unjustly based, unjustly placed on men and women in Security Housing Units without a sufficient legal or factual assurance that they are deserving of such treatment.

“In support of that central thesis, I’d like to focus my comments in three particular areas. I will not – as opposed to some of the other speakers – address the conditions of confinement. I think those will be adequately discussed, and I would simply refer to what the Honorable Thelton Henderson said after a very thorough review of the conditions in these Secure Housing Units. He called them “senseless suffering and wretched misery,” which I think sufficiently capsulated the conditions inside the Security Housing Units.

“Instead, I will focus on three issues. One is a brief history of SHU policies and the legal parameters that have led us to this particular point. Secondly, the present state of the law, which I think requires and demands actions from the Legislature. Unfortunately, I’ll get into this in a moment, the judiciary is not equipped nor does it have the jurisdictional grant of authority to fix many of these issues, which as I said places a greater emphasis and obligation on the Legislature. And then I will talk briefly about the poverty of lawful application of the gang validation policies.

“There are two elements of the brief history of the Secure Housing Units that I want to focus on. One is that we’ve done this already. We’ve had legislative hearings between 2002 and 2004 at the leadership of then-Sen. Gonzales and Sen. Romero. I respectfully refer this committee to the public record that was created at the time. Unfortunately, many of those issues that were raised are the exact same issues that we are discussing here today. And unfortunately, many if not all of those issues are wholly unresolved. We need to recognize that.

“Secondly, I want to touch briefly upon the Castillo case. This is a case that I personally litigated, and it was litigated for over eight years in the Northern District in San Francisco before the Honorable Martin J. Jenkins. There were three lessons that we learned from that case that I think are important. One is that prior to 2004, despite the law being very clear, that CDCR had an obligation to tell prisoners what was the evidence that was being used against them and give those very same prisoners an opportunity to rebut that evidence. Besides the willful loss specific to that point, CDCR did not do that for years and years up until about 2004.

“Second was that one of the directives out the Castillo case was an effort to move away from mere association for any purpose to an association for the purposes of participating in criminal, illegal, or unlawful gang activity. This was supposed to be done, as later embodied in Title 15. This was supposed to be done by what we called at the time “an articulable basis,” meaning something that resembles logic had to fly out of the mouths of the institutional gang investigators as to why the association between one inmate and another was about something more than just the weather or the ordinary instance of prison life that it pertain to specific criminal, illegal activity. That’s something that the department committed to in 2004 pursuant to the Castille case and has not done so at all to date.

“And then third was the use of confidential resources of information. There are hundreds of prisoners right now in the Security Housing Unit based on evidence that is completely and utterly confidential. There is a scant bit of detail that embody a document known as CDSC 10-30 that is given to the prisoner. That is a minimal amount of information.

“It seems strange that I believe it was the first of this month that the Governor signed a bill – Sen. Leno’s bill – disallowing the exclusive use of confidential informants in criminal cases. And yet we have that very same practice in for the Security Housing Units, where men and women are serving a minimum – absolutely minimum – in some instances entirety of their prison sentences based exclusively on confidential sources. If the core concern is those informants inherently suspect or unreliable that there aren’t a set of perverse incentives, then the same principle should apply on Secure Housing Units. That case ultimately settled. The changes that were suggested were embodied in Title 15 3378, which is the gang protocols and procedures, and in 3341 also of Title 15.

“For sake of gravity, I’m going to skip to how those policies are not being applied today. I’ll just offer 15 very quick points.

“Number one: I’ve seen for the last decade a great deal of variants between institutions within the department as to how the gang validation protocols are applied. I believe that’s due to an enormous lack of training. In fact, when we deposed some of the higher-ups in the department, we had a wildly different interpretation based upon who we were talking to relative to the exact same set of rules. Most of these policies are decided by personality and not by policy.

“Number two: The IGIs – the gang investigators – they are the primary decision-makers, which raises a whole set of red flags in terms of the competency of these correctional officers to be making – quite literally – the final decision as to whether a person stays in solitary confinement for – as I said – a minimum of six years.

“One question I would ask the department: The supposed check and balance of all this is the Office of Correctional Safety, which I would argue is very good at taking square pegs and stuffing them in round holes. Because their record of overturning those gang validation packets that have been sent to the department is next to nil. There is no meaningful check and balance within the department vis-a-vis OCS.

“The issue of association for any purpose still lingers. This is especially prevalent in addresses or correspondence that contains no gang communication whatsoever, and those pieces of evidence – if you want to call them that – are still considered as source items. There’s a lingering question about whether one or all the items of evidence have to be six years or older. The department takes the very crude position only one item.

“This department still relies upon what is known as “laundry list” identifications, the mere naming of names without particular criminal activity being identified. There are violations of what is known as “the single source” rule, using the same incident and counting that same incident multiple times.

“There is a very serious concern regarding what is called [indescipherable]. There are newspaper articles, books, periodicals that mention historical facts in the state that are being used to support these gang validations. Any references to George Jackson. A case yesterday I found they were using “The Art of War” – the book “The Art of War” to base a validation on. This is a bit strange considering we have Penal Code 2601, the prisoners’ bill of rights, which allows prisoners to have periodicals.

“Gang validations are being used as a form of retaliation. The debriefing policy is to allow the debriefer to require the debrief to occur within one year. That’s being violated. There are substantial questions over the six-year inactive-active requirement.

“I’ll cut to the chase and sum up with this point. One of the other question that I would ask the department: In response to so much of the media, the CDCR spokesman Mr. Hidalgo mention that the SHU prisoners earn their way into the SHU based on numerous staff assaults or inmate-to-inmate assaults. If that were true, where are the 115s? Where are the serious rules violations? Because the overwhelming majority of prisoners that are doing time in SHU based on a gang validation have not committed serious rules violation of any kind, much less one related to gang activity.

“In summation, I would respectfully submit that substantial changes are needed in this area, and that it is the proper purview of the legislature to offer those changes. Thank you.”



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