Transcript: Dr. Terry Kupers on the harmful effects of solitary confinement practices in California prisons
Transcript of the testimony delivered by Terry Kupers, M.D., M.S.P., psychiatrist and professor at The Wright Institute, at the California Assembly’s Public Safety Committee hearing on Aug. 23, 2011:
“Hello, I’m Dr. Terry Kupers. I’m a psychiatrist. I’m a professor at the Wright Institute. I have served as an expert witness in dozens of litigations about conditions of confinement, about mental health care behind bars. I’m currently the federal court appointed monitor in this large class action lawsuit.
“I really appreciate you holding this hearing. It’s time for legislative oversight; it’s very much needed. In fact, I think in a democracy, I think, it’s the duty of the legislature to oversee prison functioning, and it’s much needed in California. Things have gotten out of control, as witness the recent Supreme Court decision, which was sort of a last gap. We have to reduce the prison population because it’s being run so badly and people are being abused. So I much appreciate you intervening and working on setting up that oversight, which I think will take quite a bit of work.
“First thing to notice is that prisoners’ demands are very reasonable. They’re actually common sense. They’re not asking for anything that was not spelled out in the 2006 U.S. Commission on Safety and Abuse in America’s Prisons, which was a bipartisan panel that looked in the incarceration in the United States. The prisoners’ demands come right out of that report. The Department of Corrections says they are in compliance with that report. They are absolutely not, as witness this section on isolation or segregation confinement, which I recommend reading and looking at the actual practices in California. They are far out of compliance.
“One of the reasons why I’m so delighted you’re looking into this is because the problem of secrecy. For abuses, for human damage to go on, for prisoners’ needs to be just blatantly ignored, the process has to be secret. And otherwise, citizens would get very upset. By having the hunger strike, the prisoners have directed attention – public media – on the plight of prisoners in isolation. That’s a very important development and offers us an opportunity to intervene.
“One thing the legislature could do is reverse the media ban. That is one of the ways to keep secret the abuses that go on in prison is to have it illegal for prisoners to talk to journalists, which is what we have in California. That needs to be reversed as part of the legislation that flows from this intervention.
“The Department of Corrections is going to address you in this meeting, and they’re going to say they are doing many of things that this panel is recommending that they do. They’ve decided to do it and it’s already in the works.
“I just want to point out that in 2007, there was a very high-level work group who made a report advising the very changes the prisoners are asking in their demands. That was 2007. None of that has been implemented. So while the department of corrections will say that they are implementing changes very much like what we’re talking about here today, they actually haven’t done a thing since 2007. Legislative oversight is very much needed urgently.
“The question of security comes up. There is a delicate balance between constitutional safeguards and security issues. Every time in a litigation we get to the point of saying such and such is a violation of the Eighth Amendment, cruel and unusual punishment or torture, the Department of Corrections will say, “But we need it for security.” The Constitution was written with security in mind. The actual Constitution takes security into consideration, and a requirement that we have tighter security is not a reason to violate the U.S. Constitution.
“The Department of Corrections will also say that they need the supermax isolation in order to control gangs. That actually is in contradiction to what we’ve found in social science research. The advent of the supermax, which is essentially since the late 1980s, as Dr. Haney explained, has witnessed an increase in violence within the prisons. I recently published an article, which I supplied this committee and I’d be happy to supply hard copies, from Mississippi where the supermax was downsized drastically, from 1,000 to 200 cells. The result was a decrease in violence throughout the entire Mississippi Department of Corrections and a decrease in disciplinary infractions. So it’s not the case that the supermax is necessary to support safety within the prisons. After all, when people get out of supermax, they’re still in a maximum security prison; they’re not going home from supermax. So this is a prison issue.
“There are a number of issues that I think the legislature can and should address. One is due process.
“There was another case before the Supreme Court several years ago, Wilkinson vs. Austin, out of Ohio. In that case, the Supreme Court did not hold the existence of supermax in itself unconstitutional. However, they did say that it constitutes “atypical and significant hardship.” On that account, the prisoners who are being sent there have standing and are entitled to due process. And they spelled out in great detail what due process entails. In fact, the Ohio policy was in violation of that ruling by the Supreme Court, and Ohio was forced to rewrite their policy, which they did. And again, as in Mississippi, once that was done, violence rate went down in the Ohio prisons. So there needs to be something spelled out very clearly and I’d be happy to work with the committee and the Assembly to work on that about due process, it has to be more than what the Department of Corrections now allows because a lot of violations of their own policy are in practice every single day.
“Second point is conduct-based SHU assignment. Currently, people are consigned to SHU, and it’s for a lifetime. It’s indeterminate sentence, and they don’t get out. So many people are there since the late 1980s when the place was designed. There needs to be conduct-based consignment to segregation. That is if you get into a fight, then you get a penalty, a punishment, of 30 days, a month, six months to segregation and then you get out. In California, what we have is it’s not conduct that gets you in there, it’s the assumption that you’re gang-affiliated, often on very poor grounds. Then you’re in there for life because it’s very hard to reverse that assumption, unless you debrief, which means that you give up information about the other gang members, which is likely to get you killed.
“In many other states, Indiana and New Mexico are two which I have been involved in with litigation, the SHU is used for very different purposes. The SHU is used to change behavior within the prisons. Again, the prisoner is in maximum security prison; they’re not going out to the community. And if they misbehave in prison, they’re put in the SHU for a limited amount of time, usually six months. They’re given a program with some assignments that they have to accomplish. If they accomplish them and stay out of trouble, they get out. This changes their behavior. That is far from how these units are being used in California and would go a long way.
“So one thing that should happen… Many states have gangs – most states have gangs – and they validate gang membership, but then they don’t put people in segregation because they’re gang-validated; they leave them in the general population unless they do some behavior and it’s proven with due process. I think legislation could cover that development.
“Next is phase program. We have a stunning statistic. Like Dr. Haney, I have done a lot of research. It’s not my job to present that today. When I testify in court, I have to present research. So I talk to thousands of prisoners, thousands of corrections staff. One of the most stunning statistics in criminology today is that of…Suicide is a very big problem in jail and prison. It’s over twice of what it is in the population at large. In any state prison system – and in California this is true in spades – over half of the actual successful suicides that occur in the entire prison system involve the two to six percent of the prison population that happens to be in segregation at any given time. That is a stunning statistic and supports the idea, which I’ve been arguing, that the despair bred of these kind of segregation situations breeds suicides among other things, also acting out and various other problems.
“So one of the things that needs to be reversed is the “dead time” in segregation. That is you’re given an indeterminate sentence and you’re not going to get out of segregation until you die or you inform on someone else. What that does is it breeds despair and then the despair leads to suicide. That can be reversed by legislative means and that is phases within the segregation situation can be offered to the prisoners so that they behave right. That’s what we want is for them to learn to behave right – and when they get out to conduct themselves as law-abiding citizens – when they get out from segregation. That can be included in the legislation.
“There need to be alternatives to debriefing. Violence in California prisons has been skyrocketing while these supermax units have been in existence and one has to wonder why that is. One of the reasons is one of the most violent yard in California – Pelican Bay is half Secure Housing Unit and half general population. The general population is maximum. If you get out of the SHU, you’ll typically be placed on the yard in Pelican Bay, and you’ll be killed. The reason you’ll be killed is it’s assumed – nobody talks about this so it’s assumed – you snitched on somebody and that’s how you got out of the SHU. There’s a lot of violence on the yard in Pelican Bay and in the other prison yards. So actually, in that way to the extent that’s the case, and I don’t have specific numbers on that, but that would be an example of the existence of the supermax increasing but rather decreasing the violence.
“So alternative debriefing – let me just quickly – alternative to this debriefing include phases where people can work their way out of a gang by behaving appropriately within the phases. Connecticut’s system has a program like that at Northern Correctional Facility.
“And my last point is about maxing out of the SHU. People leave the SHU in California and go immediately into the community. They have a very bad record of recidivism, drug use and more crime because they’ve been in isolation in a cell by themselves for years. Most states who have this kind of a unit have a six-month policy: You have to spend six months in congregate, re-socializing programming before you’re released. We made a huge mistake in California and, I think, nationwide in the 1980s. We had unprecedented prison violence and a lot of that was because of the massive crowding being caused by the war on drugs and other things. What happened is, instead of reversing the crowding and reducing the prison population, as the Supreme Court has now ordered California to do, we in fact villanized a sub-section of the prisoner population and said the violence is due to these people being super-predators or worst of the worst, and we locked them up. It’s been downhill since. What we should have done in the 1980s was to reverse the crowding and reinstate rehabilitation, which helps people learn some skills besides fighting to get along in the world. I think this is an opportunity for the legislature to step in and do what it can to make that happen now.”
- California Assembly Public Safety Committee: California Department of Corrections & Rehabilitation Secure Housing Unit hearing from 8/23/11 (1 of 2)
- California Assembly Public Safety Committee: California Department of Corrections & Rehabilitation Secure Housing Unit hearing from 8/23/11 (2 of 2)
- Southern California Public Radio: At hearing, prison officials say Pelican Bay isolation policies will change
- California Department of Corrections & Rehabilitation’s website
- California Department of Corrections & Rehabilitation: Pelican Bay State Prison
- The Wright Institute: Dr. Terry Kupers biography
- WhatTheFolly.com: California presents long-overdue plan to reduce prison overcrowding