Transcript: Testimony by Charles Carbone on California’s solitary confinement reforms before the Committee on Public Safety on Feb. 25, 2013

Partial transcript of testimony by Charles Carbone, a prisoner rights attorney, on California’s solitary confinement reforms before the State Assembly Committee on Public Safety on Feb. 25, 2013:

Good afternoon, Mr. Chairman and committee members. My name is Charles Carbone, and I’m a prisoner rights attorney from San Francisco.

I spent the last 15 or so years visiting super max prisons in the state. In fact, I think I’ve litigated more gang validation cases and visited more validated inmates than any other attorney in the state. I was also lead counsel in the Castillo case and now the Ruiz litigation that is presently in the U.S. District Court before the Chief Justice of the Court.

It’s from this particular experience that I’m thankful to offer views on the reforms as they’re proffered by the department on gang validation policies and the use of security housing units [SHU] in the state.

I will focus my comments particularly on what has changed and what has not changed pursuant to these reforms.

Before I move to my public comments, however, I would like to just clarify two points that came up – salient points that came up in the line of questioning.

Number one, it’s unmistakable that the present regulations contemplate both the participation in a hunger strike as both a valued-source item for placement in a security housing unit and to be placed back in a lower step in the step down program. There’s no mistake of that according to the regulations.

Second point is pursuant to your question, Chairman, about the legal documents. The department would have you believe that the 7 points are only assessed at that high level because a jury of the convicted individual’s peers found him guilty of a gang-related crime. If you look at the proposed regulation in page 20 of the 7.0 version, it talks about court transcripts, probation officers’ reports, and “other legal documents evidencing security threat group conduct.” So I would say it is an utter misrepresentation of the rules to say that we would only be assessing 7 points when a jury found someone guilty essentially of gang enhancement. If you have a probation officer opining in a case that there were gang dimensions to the crime, clearly that could be used as a 7-point legal document.

Now, what has not changed? CDCR has every intent of maintaining a controversial debriefing program which requires inmates to undermine their personal safety and their family’s safety as basically a non-confidential informant. Everyone else in the SHU knows who has “snitched” and who has not at great peril to that person. That program remains.

And as the Chairman noted in his very astute comment, that debriefing element is actually now incorporated into the step-down program, adding another dimension to debriefing.

Secondly, inmates can still be validated and placed in the SHU – that is members – without ever committing a single unlawful act. In other words, mere membership or engaging in communications with gang associates regardless of the content of those communications is still sufficient evidence to validate the inmate and to place them in a security housing unit. Basically, the department has now availed itself both of normal association-based source items and conduct-based source items – not or as it relates to members.

And as others have questioned today, indeterminate sentences remain, which means that California prisoners can be legally held indeterminately, which is basically a fancy way of saying in perpetuity.

We know that in Pelican Bay alone we have 248 who’ve been there for 5 to 10 years; 218 who’ve been there for 10 to 20 years; and almost 100 prisoners in California who have been in isolation for more than 20 years.

The fourth thing that has not changed: CDCR maintains that it can still rely upon stale evidence. This is something they are not telling you. Under their current interpretation and proposed interpretation and, in fact, they recently affirmed this as of about 3 weeks ago in court, they believe that only one of the source items needs to be less than 6 years old. So they have 2 source items that are 20 years older and one that is within the last 6 years and that would somehow constitute not only a current gang validation but that would evidence a current danger based on evidence that is 20 years old.

And then lastly, the underlying conditions in the SHU have not changed, and these are the resoundingly condemned conditions that folks like Amnesty International and others have critiqued…the physical conditions. And if we believe that some expansion of what is known as “allowable personal property” like a handball – like a rubber ball – is a substantial change in those underlying conditions, then I think we need re-examine what constitutes cruel and unusual punishment.

As we looked at the changes, there are 2 bizarre claims within those changes.

The department’s preamble to the report says that they have – despite their “recent successes” in both quelling gang violence and properly validating inmates – that’s the preamble. Well, we learned that they actually had, as it relates to associates, they actually had 50% – over 50% failure rate on those associates warranting the SHU confinement. They told you they reviewed 144 cases; more than half of those cases were sent back to a main line. And they’ve also incredulously told you that it’s going to take another 2 years to possibly release those 50% associates, who according to their own flawed standards don’t belong there.

And secondly, they’ve made the very peculiar claim that all of these rules – these “reforms” which are actually regressive in nature – were being done pursuant to realignment – that they really weren’t being done in response to considerable outcry, protest, and legislative scrutiny. I don’t know how these proposed changes relate to any matter to realignment but that’s what they’ve said.

So let’s look at the changes.

Number one. The changes actually vastly expands – not restrict – who can be validated. We used to have – it was prison gang members or associates. They’ve actually now created four categories: security threat group associates, members, suspects, and persons monitored. And we don’t just have prison gangs because the department, without any real data, said prison gang members or associates are inherently more dangerous than street gangs – the security threat group 2 – and so therefore they warrant this indeterminate long-term confinement. Without any data whatsoever, they have changed that position and so now we want to essentially expand the pool of potential validated inmates to include security threat group 2. Well, who is in security threat group 2? It’s literally thousands of prisoners who claim or are being charged of being a part of that group – the Crips…the Bloods, “white supremacists”…

Assemblyman Tom Ammiano:
I’m sorry – the Crips – but that’s not a prison gang…

Charles Carbone:
That’s now known as a security threat group category II, which is also eligible for SHU confinement.

Only is the department of corrections capable of calling something a reform when actually it’s an expansion of its power in this capacity.

So one has to ask why does CDCR opening the floodgates to SHU confinement under the guise of reform? I think it’s two things.

Number one, it realizes that the policy of over-valuing the danger of prison gangs was wrong.

And two, that that policy essentially allowed real criminal enterprises – non-prison gang criminal enterprises – to thrive on prison main lines because of this flawed policy and they now want to correct that.

Two, there’s been some cosmetic changes to the use and valuation of the source items but the basic parameters governing source items are entirely intact. The only real changes – and I ran it through every calculous I could find on the source items doing different configurations of these items – the only real changes are CDCR can now not validate inmate solely based on 3 confidential informants or 3 debriefing reports. I won’t bore you with the details but that is basically already prohibited because of something called the single-source rule…

Let me then focus my comments on the step-down program, if I could and then I’ll move on to my colleagues, and just identify the flaws of that particular program.

Number one, success for that program includes things like maintaining proper hygiene and as incredulous as it sounds – I’m not making this up – whether the prisoner has made their bed or not. That doesn’t like the kind of reliable criteria we want.

And secondly, something they’re not telling you – they mentioned this notion of a nexus to whether an administrative council lesser rule violations or serious rules violation can be relied upon that bears a nexus to gang activity. That’s true for placement in the SHU but it’s not true for the step-down program. So any rules violation, regardless of its connective tissue, will warrant the prisoner going back into the step-down program.

And lastly, the step-down program essentially concentrates the worst prison gang members in Pelican Bay. There’s supposed to be all be in step 1 or step 2.

Something that hasn’t been brought up from the standpoint of safety and security, it may be unwise – and it’s the reason they integrated them in the past – it may be unwise to create a powder keg at Pelican Bay by concentrating influential gang leaders capable of greater communication in that environment…Pelican Bay is the prison that’s undoubtedly the harshest.

And lastly, and this will be the last point, the state has said, “Well, our step-down program in later steps will offer education.” This is something unheard of. They are now codifying the denial of educational “privileges” to gang members. It’s not being done because of the lack of resources. By operational law, the department will now say gang members and leaders are being denied education.

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12 Comments on “Transcript: Testimony by Charles Carbone on California’s solitary confinement reforms before the Committee on Public Safety on Feb. 25, 2013

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