Transcript: CDCR Undersecretary of Operations Scott Kernan solitary confinement in California prisons

WTF SHU testimony Scott Kernan CDCR hp

Transcript of the testimony delivered by Scott Kernan, Undersecretary of Operations for the California Department of Corrections and Rehabilitation, at the California Assembly’s Public Safety Committee hearing on Aug. 23, 2011:

“Thank you, Mr. Chair and members, for having us. I want to just make a very few comments and try to attempt to answer some questions, but I think some facts need to be illustrated today that maybe weren’t necessarily brought out during the course of the previous panelists.

“The SHU [Secure Housing Units] was created in response to serious security threat of gangs in our system. We had to protect inmates, the staff, and the public the tangible threats that gangs present today in our prisons. Murder, extortions, rape, drugs are examples of the criminal activity that require the department to do something.

“In fact, there’s about 3,000 inmates in SHU in a total population of about 165,000 inmates in our system – a very small number. If you have been hearing about the 8,000 assaults and stabbing that the department has each year, gangs would likely be a primary cause. If you have been hearing about the millions and millions of taxpayer dollars wasted because of violence each year, gangs would be identified as a primary problem in our system.

“I respect the passion of your panelists and the members of the public displayed today, but the voices of people impacted by gangs won’t show up at a hearing because they’re fearful of the gangs and retaliation.

“I heard there was comments related to the media. In fact, during the course of the hunger strike that we just encountered, we did prevent the media from coming into Pelican Bay during the course of it. But right after the hunger strike was dismissed, we invited members of the media to come in into our SHU. The policy related to media is that we simply don’t allow the media to talk to individual inmates for fear of them sensationalizing their crimes. To do so will have folks like Charles Manson or Scott Peterson having media inquiries all day. We’re not the press coordinator.

“The segregation of gang members and associates is critical to protect inmates who want to program and rehabilitate that I’ve heard so much out here today. Again, 3,000 out of 165,000.

“The SHU has been heavily litigated, and the courts have upheld the validation process and the condition within the SHU. The federal court just ended more than a-decade-long case, the Madrid case, of which the special master and the courts were regularly at the facility to include the SHUs.

“Admittedly, there’s harsh condition in the SHU, but not unconstitutional, not torture, and not human rights violations. What might be a human right violation is the violence the that the gangs perpetuate. Members of rival gang onsite must stab another inmate or be in fear retaliation for the other inmates. The department and, I believe, the legislature have a duty to protect all the rest of the inmates that are in our system.

“Having said that, the department agrees that we can and should make some changes to our SHU policy. In fact, as a result of the hunger strike, we’ve been involved in many discussions with both the advocates and the inmates themselves. I believe we can make some policy changes that will be positive for all concerned and still allow us to protect our charges.

“The department contracted, in 2007, for national experts to review the policies and make recommendations on national best practices. Many of that recommendations and that policy were related to the validation and debriefing process that you heard about. A lot of it involves stepping down programs where offenders that are in the SHU can, by virtue of their behavior, be placed in another program with other inmates and show by their behavior that they can program without violence. Many of that, as Mr. Kupers mentioned, overcrowding has been a significant problem for the department. We just had not had the space. As you know, the three judge panel that has been mentioned, the reductions, the governor’s realignment proposal, will provide for the first time in many decades some additional space for the Department to maybe make some of those positive changes.

“The governor’s realignment proposal and the three judge panel have given the impetus for us to make some quality decisions on our program and our policies in the SHU and still maintain the safety and security of the prison system. We anticipate changes that will permit us to implement behavior-based system with due process that incorporates national best practices and maintain safety. I’m not talking about having another study. I’m talking about some substantive changes that can occur in the short-term.

“But let me make no bones about it. We must be careful how we make these changes. What’s in the balance is the safety and security of the inmates and our staff in the system. There was about 8,000 inmate-on-inmate assaults last year and a very similar amount of inmate-on-staff assaults in the same one-year period. We cannot permit our policy changes to perpetuate any violence. People’s lives are at stake.

“We will work with all of the involved parties and many of the panelists here today, as a result of the hunger strike, we’ve worked with to try to address these issues. We anticipate that the department will evaluate our policies and in a matter of months, not years, come up with a policy that we think meets the target. When we do that, we will involve all of the stakeholders, including the law enforcement, labor unions, CCPOA, the legislature itself, national experts. To do so, I would encourage you, and I heard you Mr. Chair, that you would like to have continued hearings on this matter. I think those are some of the individuals that need to be present in panels so that you can get a full bearing of the extent of the problem.

“What we are doing right now is that we’ve gathered the SHU policy or the lock up policy for all of the other states – about 28 state policies. We’ve developed a warden’s advisory group to evaluate and develop the policy. Once the secretary approves that, I anticipate the stakeholder review that I just mentioned. And then we must go through the regulatory process.

“We do believe that an incentive-based process that permits inmates some additional incentives for disciplinary-free behavior is appropriate. We believe that the current process, which targets six prison gangs, needs to be modified, and what we really need to do is identify security threat groups. I do admit that our policies target just the prison gangs today, and we’re not capturing the inmates that perhaps should be segregated from our population – hence the number of incidents that I mentioned about. The process would permit the inmates to earn their way out of the system by their behavior and would require the department to document when we believe that that is not the case. It will be a weighted system that will not be a process that will permit us to just identify an inmate as having been associated with a member and therefore he must remain in SHU. It will require us to document that behavior and stand the test of due process.

“I think the step-down process that I referred to is a critical part. We have to show inmates that while they’re in the SHU that they have to get into, that they have to be involved in programs with other races, with other gangs, and they need to not participate in violent behavior and that they could earn their way out.

“Let me just say this in ending is that the department’s gang policy, again with 3,000 out of 165,000 inmates, is intended to protect safety of the inmates we’re charged with, our staff, and the public. It’s a policy that’s been litigated, court-tested, and been upheld. While I say that the department is committed to making those changes, please rest assured that we’re going to do that with that in mind. We are going to protect the inmates that we’re charged with.”

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