Transcript: Testimony by CDCR officials on the proposed solitary confinement reforms before the Assembly Committee on Public Safety on Feb. 25, 2013

Partial transcript of testimonies by officials from the California Department of Corrections and Rehabilitation [CDCR] on the status of proposed reforms to the state’s solitary confinement policies, including revised gang validation criteria and a pilot step-down program for Secure Housing Unit [SHU] inmate, before the Assembly Committee on Public Safety on Feb. 25, 2013. The CDCR officials who testified are: Michael Stainer, Deputy Director of the Division of Adult Institutions; Kelly Harrington, Associate Director of High Security Transitional Programming; and Michael Ruff, Special Agent in Charge for the Office of Correctional Safety.

…My name is Michael Stainer. I’m the Deputy Director of the Department of Corrections Division of Adult Institutions.

With me today, accompanying me, is Michael Ruff. He’s a senior Special Agent in Charge for the Office of Correctional Safety. Mike has over 27 years of experience with the Department of Corrections. He provides critical oversight to over 30 special agents and senior special agents responsible for monitoring gang activities and intelligence. Mike is a subject matter expert when it comes to gang intelligence, validation process, as well as due process.

On my right is Kelly Harrington. Kelly is the Associate Director for High Security Mission. Kelly has over 25 years of experience in the Department of Corrections. Prior to being appointed as Associate Director, he was appointed warden at Kern Valley State Prison in Delano. Kelly’s role as Associate Director – he provides oversight to 9 high-security state prisons, including 4 prisons with SHU programs.

Again, I’m Mike Stainer. A little background on me. I have over 26 years experience in the department. I do have some supervisory as well as some management experience in segregated housing units, including administrative segregation and the secure housing units. Prior to being appointed the Deputy Director, I was [muffled audio]…at the California Correctional Institution in Tehachapi…

Four Secure Housing Units in California right now are housing approximately 3,800 of California’s most dangerous offenders. This number represents only 3% of all offenders incarcerated within the male prisons.

Inmates selected for placement within the SHU have demonstrated their inability to be safely integrated with other offenders by way of violent acts against staff or other inmates.

Some of the offenders, as Ms. Hanson stated, approximately 2,400 of them – 2,400 – are actually validated as affiliates of some of the most dangerous, predatory, sophisticated criminal organizations in the nation.

Placement in the SHU of these affiliates is necessary to protect the 97% of other members who wish to safely program with the general populations, with the staff, as well as with the communities in California.

For the past 15 months, as a result of the commitments made at the conclusion of the July 2011 hunger strike, CDCR made several steps to enhance delivery services to all SHU offenders.

Some of these enhancements include – we’ve implemented educational opportunities for all inmates in the SHU. This last week, we had over 1,100 inmates that are housed in the SHU enrolled in either college courses, general education, GEDs, or various levels of adult basic education.

Other enhancements include – we standardized as well as added additional items in the allowable personal property as well as items available for purchase in the SHU canteens. For inmates who remain disciplinary free, additional privileges consisting of being able to take an annual photograph and mail them to their family members as well as participate in art programs and purchase art supplies…

By May of this year, we anticipate that exercise equipment would be installed in all of the small management yards as well as phones will be available for annual phone calls for inmates housed in SHU facilities.

On October 18 of last year, the Security Threat Group Pilot Program was authorized and approved by the Office of Administrative Law for implementation.

This pilot program contains a number of revisions in the manner which CDCR manages its gangs. One of the most significant is the behavior-based program with very heavy emphasis on individual accountability rather than accountability based upon identification alone.

For example, affiliates that are identified as associates will no longer be considered for direct placement into the Secure Housing Unit unless there is a nexus to confirm this learned behavior and found guilty and there include a nexus to Security Threat Group activities.

Pilot program has also resulted in a 5-step step-down program which replace our 6-year inactive process. The step-down program will provide graduated housing with corresponding enhancements, privileges, personal property allowances, programs, and personal interaction with the ultimate goal of re-integrating participants back into the general population.

Pilot program also now incorporates a weight-based points guiding system for validations.

Pilot program will result in the implementation of the new Security Threat Group unit classification. This will provide an enhanced due process review when reviewing the initial validations…The unit classification committee for the Security Threat Groups will also provide reviews of members that have been debriefed and then found guilty of subsequent behaviors that do have nexus to gang activities.

On Oct. 25, 2012, based upon the pilot project, we began case-by-case reviews of associates in the SHU programs. To date, we have 144 reviews. These reviews have resulted in 75 offenders being identified for release to the general population or step 5 of our step-down program. 52 of these offenders have been designated and identified for participation within one steps 1 through 4, which are conducted within the SHU program itself. 17 offenders have been retained in the SHU either because of self-proclaimed safety concerns, validated safety concerns, or because they have chosen themselves to debrief.

It is our intent to continue the implementation of this Security Threat Group pilot program and prior to the expiration of the two-year term of the pilot we will define the regulations for permanent adoption.

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Q&A:

Assemblyman Tom Ammiano:
On the classification committee, who’s going to sit on that?

Michael Stainer:
That will be chaired by a facility captain and then also a CC-2 – correctional counselor 2 supervisor – a CC-1 and the institutional gang investigator.

Assemblyman Tom Ammiano:
So they’re all internal?

Michael Stainer:
Correct.

Assemblyman Tom Ammiano:
So how can then – if they’re internal, how can you assure that any real review [muffled audio]…?

Michael Stainer:
Generally, the CC-2 and the facility captain are not involved in the actual validation process or the investigative process of anyone being validated. So again this does provide a new set of eyes, different perspective in ensuring that all due process – kind of more or less a review of the validation process.

Michael Stainer:
The step-down program is a voluntary program. Inmate has to – this provides them another avenue, provides them with the opportunity to demonstrate to both the staff as well as to themselves and other inmates that they can successfully complete the program with other inmates and be released ultimately to the general population rather than debriefing or the inactive process.

Assemblyman Tom Ammiano:
So then under the new rules are there any real limitations to how long someone can remain in the step-down program?

Michael Stainer:
There aren’t. If an inmate refuses to participate in a step-down program or if they exhibit behaviors that have a tie or nexus to gang activities, they will not be permitted to progress.

Assemblyman Tom Ammiano:
In terms of the validation process, previously an inmate needed three source items to be validated. The new validation process, as I understand it, consists of a weighted point system requiring 10 points for validating an inmate. The point value seems high so that you can meet the 10 points with 2 items. For instance, legal documents – if the inmate has legal documents – that counts for 7 points. A book could count for 4 points. Would that inmate still need a third source item or is it the quantitative part?

Michael Stainer:
Still needs three items to come up with at least 10 points.

Assemblyman Tom Ammiano:
But if they reach the 10 points with two items, they’d still need three?

Michael Stainer:
They’d still be required to have three independent sources.

Assemblyman Tom Ammiano:
So why are the points weighted so high? Is that a decision that was researched…?

Michael Ruff:
Well, when we went through the process of determining the points system, we had a group of wardens and a group of experts in that area. We looked at each one of the points to determine the inmate’s involvement.

You mentioned the legal document. The legal document is used if the individual has been convicted of 18622 where a jury or juror of his peers – have actually been convicted of a crime that had a gang nexus to it. We hold a lot more value to something along those line where they’ve had additional due process.

If an inmate has a tattoo, which we give a high number of points to, an inmate that places a tattoo on his body in a gang is very serious and when individual places that tattoo on his body did not have authorize to have them place himself in danger. So those are things we look at when making determination on what value.

Assemblyman Tom Ammiano:
The high points may be seen as this might be a little more unfair than the old policy. However, that’s to be determined…

…Specifically being in possession of legal documents that you mentioned that that would be evidence of the kind of behavior that’s not desired. Just rhetorically, shouldn’t inmates be allowed to be in possession of their own legal documents or even in possession of another inmate’s legal documents to help file an appeal or a brief?

Michael Ruff:
Well, if they obtained permission. But I think just for clarification, when we’re talking about self possession of a legal document, it would be if that individual has legal documentation that indicated he was convicted of a crime that had a gang nexus. So if an individual from a particular gang was convicted by the state or county…and he was given a trial by a jury of his peers or he was found guilty and that information would be in his file. That information could be used against him as a point of validation – not necessarily having legal documentation in his cell.

Assemblyman Tom Ammiano:
But you look at each prisoner differently?

Michael Ruff:
Yes…

Well, not so much. Like I said, it’s not them having the document in their possession. Inmates have legal documentations in their possession. In regards to your other question about whether or not they’re allowed to correspond or if they’ve received permission from the warden to – we’ve had inmates in the past who’ve helped represent other inmates and they received permission to do that. But for the purpose of the validation, what we’re looking at is actual legal documentation that indicates that the inmate was charged with a gang crime.

Kelly Harrington:
It’s actually the documentation within the documents not the documents themselves.

Assemblyman Tom Ammiano:
Yeah, you can see why it’s vague there. Under the new rules, aren’t you using the same exact kind of evidence or information to make a finding about being a gang member or not. You know, the books, the tattoos, etc.?

Kelly Harrington:
These are the types of evidence that become throughout the history of the process these are the indicative items. These are the different types of identifications that have been utilized by us as well as other agencies to identify affiliates of Security Threat Groups. What we’ve done is we’ve then based upon the significance of the items we’ve applied the points scale or point value.

Assemblyman Tom Ammiano:
Believe me, I appreciate the move that you’re making but being the devil’s advocate here…you are basically saying that this is good, this is an improvement, this is different. And then from the outside, some of it seems the same to me and that is not to demean, you know, your perspectives…I’m asking these questions because I’m trying to figure out where a common ground is on the part of the advocates and you as part of the officials…

Are there any rules violations added under the revised violations that were not considered rule violations in the past?

CDCR officials [overlapping audio]:
Not sure…Not that I’m aware of…

Assemblyman Tom Ammiano:
Okay, because that would make it a lot harder for the prisoners to get out of the SHU.

Kelly Harrington:
If I could, I think the important part of it is that even though the validation is in points made out of 2 items, an individual that is validated as an associate is not automatically going to go into the SHU. So he still has to have some type of…

Assemblyman Tom Ammiano:
That’s the difference, then?

Kelly Harrington:
Right.

Assemblyman Tom Ammiano:
And then if the inmates wanted to appeal their validation, will there be an outside entity or one within CDCR for the appeal?

CDCR official:
They actually have the same appeal process that any inmate has. So it goes through an independent appeal process through our Office of Appeal and the inmate, if they don’t agree with that, can also take that further [incomprehensible audio].

Assemblyman Tom Ammiano:
And if there was legal documents [incomprehensible audio]…would that be a problem?

CDCR official:
No, inmates are allowed to have legal documentations in their cell all the time…

Assemblyman Tom Ammiano:
Except if…

CDCR official:
…They can possess it. Even if the inmate didn’t possess the legal documents within his cell, we would still – those documents would be contained within the central file, and it’s what they say as Agent Ruff stated that inmate had been convicted of a gang offense with a nexus to the gang. It might be, for example, let’s use LA County as an example. Say the guy was an 18th Street gang member and they tied his offense to gang activity committed by an 18th Street gang members, that would be contained in the legal documentation of the conviction so therefore that would be one source item against the inmate and the point value…

Assemblyman Tom Ammiano:
Based on a conviction or on a speculation?

CDCR official:
On a conviction.
[Overlapping audio]
…and again, at that stage he’s had a very high level of due process, consultation with an attorney.

Assemblyman Tom Ammiano:
…Based on the current review, a high percentage of the SHU inmates are being recommended for release into the general population, and that would appear to say that this evidence with the old policy was flawed. Is the new policy enough to make the people who do not belong in the SHU not end up in the SHU again aside from, you know, personal behavior?

Michael Stainer:
Well, again, I’ll take your question in two parts. Number one is does that mean based upon the fact we release 75 of the offenders we reviewed – over 50% – to the general population – step 5 of the step-down program – does that mean that our prior policy was flawed, and I want to say unequivocally no…We are applying the criteria of our pilot program to review of these offenders and if they don’t have any serious criminal activity that would result in a serious rule violation that would result in their placement in the SHU program based upon the act itself, then they would be qualified within the last 4 years to be approved for release to the general population where they’re monitored.

Assemblyman Tom Ammiano:
I guess my concern is that there are a good number of prisoners who’ve been in the SHU for so many, many years, and then only is it now that we’re saying perhaps that was a mistake or that there could be some redemption.

Assemblywoman Holly Mitchell:
…In your pilot as you have fashioned is there a way to limit the time or you have the pilot address the length of stay in the SHU at all?

Michael Stainer:
At this point, the individual can get out of the SHU in a 4-year period by progressing…they were placed in step 1 and if they participate and they – again, this is voluntary. Individuals have every opportunity prior to this step-down program…[incomprehensible audio] to demonstrate a continued active role in their gang or they can debrief and renounce the gang and debrief and disassociate themselves. With today’s program – the pilot program – the individual if they choose to do so, they have the opportunity now to get out of the SHU in 4 years. That can also be accelerated based upon their behavior and positive demonstration…The first two steps are really an observation period where they’re going to be participating in journaling. They will have enhanced privileges, and as they move from step 1 to step 2, and when they get to steps 3 and 4, we’re going to start a lot of programs for these individuals.

This is a big culture change not just for the staff but for the inmates as well. This is what we had for the last 25 years – 26, 27 years is this policy. And we’re making – you know, we’re not changing because we were wrong.

But when we’ve done a national research internal – what are our best practices, we haven’t found any best practices. What we’ve found is that each state, each agency based upon their dynamics and their population has their own policy and works for them. So we picked a hybrid of all of those both with national gang experts and experts and secretaries from other agencies throughout the United States. We petitioned all 49 states for their policies so we could review them, find out what works for them or what could work for us.

But we truly believe that we are making the steps in the right direction. We’re providing the opportunity – the individual doesn’t have to participate but we’re providing them with the opportunity – to provide another avenue for them to demonstrate their positive behavior and their ability to program safely and be re-integrated into the general population.

Assemblywoman Holly Mitchell:
…In order to participate in the step-down program, you have to sign a contract. Do I have that part straight?

Michael Stainer:
Yes.

Kelly Harrington:
Well, real quick clarification. Everyone will be placed in step 1. So they don’t have to sign the contract if they don’t want to. In the future steps, they would have to sign on.

Assemblywoman Holly Mitchell:
…Many prisoners have refused to sign the contract. Is that true? Or is that because you’re not far enough along in the pilot to even have enough people at the phase that would require the contract?

Kelly Harrington:
I think what’s occurred and what Mr. Stainer said also is that this is a culture change for the inmates also. And so we’re educating them on the step-down program along with our staff. So there have been some individuals that have chosen not to sign the contract.

Assemblywoman Holly Mitchell:
Have they said why?

Michael Ruff:
I’m participating in the case-by-case review, and an example is we were at Pelican Bay, I think, the day before Mr. Ammiano visited…We had an inmate who was told he was going into step 5 and he refused to sign the contract, not participating in the step-down. When he was given a little bit more information – that he was going to be in general population, then he was in agreement. He still wasn’t going to sign the contract but he was in agreement. I think it’s a cultural thing that’s the thing that Kelly has pointed out before – whether they’re not be trusting or just don’t want to participate in something. But I think that may change over time.

Michael Stainer:
We’re addressing the concerns at this point of this step-down program. You know, two years from now, this is regulation as we move forward. If an inmate refuses to sign the contract, we’ll go back to committee and be placed in step 1 program for refusal to participate or for not volunteering to participate. But today because we do understand this is something new and we are actually taking great lengths to provide and have that communication. Mr. Harrington and myself have a discussion with several inmates in Corcoran identified to participate in various steps of the step-down program. And I’ll be honest with the panel here – the committee here – there’s also intelligence that these inmates are being instructed not to participate in this program

Assemblywoman Holly Mitchell:
By?

Michael Stainer:
By leaders.

Assemblywoman Holly Mitchell:
From the inside.

Michael Stainer:
Absolutely.

Assemblywoman Holly Mitchell:
And what would be the motivation – tell me?

Michael Stainer:
Again, we build the program, provided another avenue outside of the debriefing. It’s a legitimate program. It’s in its infancy stages right now. But this will provide – enact a process – you get 6 years you may go to the main line. This is actually going to have incremental programs of behavior – behavioral programs to help the individual make the adjustment…Why would they refuse that? To you and I, it’s – I don’t know…

These contracts ask – do not require the offender to renounce the gang. It doesn’t require any of that. There are step-down programs throughout the nation that they are called step-down programs but they require the offender not only to renounce but to disassociate or debrief. We’re not asking that…All the contract is asking is that they will not participate in Security Threat Group activities.

Michael Stainer:
As this program is in its infancy stages, we are tackling this on a day-to-day basis as we move forward…I do know that if offenders continue to display the type of behavior, they refuse to participate, they will plateau within the program – step 1 or step 2.

Michael Stainer:
…Pelican Bay, that’s just where most of the prison gang associates and members are housed at. So I think that’s why, you know, that’s the one that most people recognize.

Assemblyman Tom Ammiano:
There was a Supreme Court decision in 2012 that I understand changed the interpretation of what was sufficient evidence to sustain a conviction of criminal street gang activity. So as to the legal documentation…is it arbitrary? Is there a double standard? So given that Supreme Court decision, are you now reviewing the files to determine if there was something valid on a qualifying conviction? Because the interpretation of that has now been changed.

Michael Ruff:
I’m not familiar with the Supreme Court decision with regard to – but I can say that each case is being reviewed, case-by-case, each point is being reviewed to determine whether or not it meets the criteria to retain the inmate.

Assemblyman Tom Ammiano:
Is it made through the lense of the new interpretation?

Michael Ruff:
The case-by-case reviews, yes.

Assemblyman Tom Ammiano:
Would a non-violent hunger strike qualify for an STG violation?

Kelly Harrington:
Well, we would have to have the information to indicate that they were the leader or they were perpetuating that and you would have to have a gang nexus to it. But being involved in a hunger strike can be viewed as violating institutional security and those kinds of things.

Assemblyman Tom Ammiano:
…Does this new policy make any changes to the conditions of the SHU?

Michael Stainer:
It does provide additional privileges as we spoke to earlier in the opening. Again, each step will provide additional enhanced privileges…Education alone – almost one-third of our inmates confined within the SHU are now participating in some form, some level or another with an educational arrangement.

Assemblyman Tom Ammiano:
…Here it says in step I believe it’s 5 that you, being the inmate, would have responsibility to report STG or criminal activity when known or observed by you. So that is part of the contract. Step 5. Could that be one of the hang-ups…?

Michael Stainer:
Could be.

[Crowd laughter]

Assemblywoman Melissa Melendez:
…Would it be safe to say that there are certain members of the prison population that really do need to be in some sort of isolated environment in order to protect the public and the prison population itself and its staff? Would that be safe to say – that there are some people who are so dangerous, so violent, and so recidivious [sic]…that they really need to be isolated?

Michael Stainer:
Absolutely. That’s why we have segregated housing units…These individuals are removed from community because of what they did and what their threat to that community is…We’re designed to house those type of offenders…They need to be segregated from the general population. These offenders – put them on the phone for 5 minutes, we run the risk of them conducting their criminal enterprises, calling hits, murders, extortion. We have offenders in our SHU programs that are calling for assassinations at other prisons. So yes, to answer your question, these are all dangerous offenders – this 3% of our population.

Assemblywoman Holly Mitchell:
…Your comments suggested that it wouldn’t be counted against them if there were no correlation to gang activity but all I ever read in the materials provided to us, letters written, that the whole focus of the hunger strike is the condition – living conditions. I’ve never seen any correlation between gang activity and the hunger strike. So I want to just reaffirm and declare in response to the Chairman’s question about if participation in a civil act of disobedience – peaceful act of disobedience would count against your time in the step program?

Kelly Harrington:
I don’t believe at this point it would count against them inside the step program. The demands of the hunger strikers – one of the core demands was the individual accountability within the SHU and getting rid of the debrief process. Those are some of their core demands, and that was the issue that we have now – but it would be individual accountability in those cases…

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