Transcript: Attorney Charles Carbone’s remarks on solitary confinement in California at UC Hastings on March 19, 2013

Partial transcript of remarks by Charles Carbone, a prison rights attorney, on solitary confinement in California. The panel discussion was held at UC Hastings College of the Law on March 19, 2013.

…I think one of the reasons why the department wants to adopt the new pilot program as soon as possible is to stop Ruiz litigation.

So one of the things that I’d first mention is that the scope of the Madrid v. Gomez case is limited to short-term solitary confinement. It’s one of the things that Judge Henderson explicitly said in his ruling was that he was not reaching into effects or the constitutional questions of whether or not long-term solitary confinement constitute cruel and unusual punishment and that was just simply a function of when the case was brought.

So because we actually litigated a case earlier than the Ruiz case, which was the Castillo v. Alameida case, which basically tried to improve the gang validation criteria. As one example, the Department of Correction’s heavy reliance on confidential informants…An entire gang validation itself can rely exclusively on confidential information, and much of that confidential information can be heresy, much of that confidential information can be simply an identification of the inmate insofar as their gang involvement without specifying or detailing any real criminal, unlawful or illegal activity.

So the Castillo case, which was litigated in the mid-2000’s, tried to address some of those issues. I think ultimately – I was one of the lead counsels on it so I can critique it – it basically sanitized the gang validation process. I think we probably gave the department fodder for doing what a lot of the speakers have said – the torture in California is legal. That’s really the worst part about it. It’s being done by fanciful lawyers and correctional administrators. So a lot of what happened in the Castillo case was legitimizing their policies and a small amount of due process into the process.

Since then, because of the hunger strikes, really we took our cues from the prisoners and some of the press that was generated. Because of that, some lawyers in the state that have been working on these issues for many years and out-of-state attorneys – the Center of Constitutional Rights is a preeminent human rights organization; they litigated a lot of the Guantanamo cases so they have a lot of experience in this. Through the cooperation, we decided to address long-term solitary confinement.

And there were a whole bunch of issues that we were first exploring as possibilities in terms of litigating the case. And you know, a lot of jailhouse lawyers and lesser experienced attorneys often take a kitchen sink approach to litigation, and we have found that that actually has not [been] helpful, that the more narrowly drawn the issues are, the better. So we tried to be very specific.

One is to exact long-term solitary confinement, as Terry pointed out, 10 plus years, and then the other is the due process requirements because…you actually have more due process for a shorter stint in the SHU versus an indefinite stint in the SHU. And so we also are attacking some of the due process and supposed procedural protections that are not at play…These are basically meaningless gestures – the periodic reviews the prisoners are given.

And I think it’s going to be pretty damn hard to justify all of this once we get all the litigation in motion before the Honorable Claudia Wilken…She is now the Chief Justice of the Northern District Court and she has ruled previously on prisoner cases and has shown some sensitivity to those issues.

And we don’t think it’s really a hard sell. You know, the United Nations Special Rapporteur on Torture remarked that anything beyond 15 days in solitary confinement constituted torture. We have people over 30 years in California.

So this should – I’m really looking forward to it. I think the real – going to trial if that’s the direction of the case, I think the only question that will come is a question of remedy.

The Department of Corrections is not going to close the security housing units. There’s too many money interests involved here and too much blood, if you will, that’s been spilled over them. The department is very committed to these institutions. So really, the question is going to be of remedy if we prove that long-term solitary confinement is a violation of the Eighth Amendment, then the judge and all the rest of us are going to have a very thorny problem of figuring out what to do about all of that.

The department tried to dismiss the case. That went to a hearing this past week. An official ruling has not been issued but the judge pretty much indicated that the case is going to be going forward. The lawyers in the room will understand that we’re moving for class certification to certify the class, and once that happens, I think we’ll have a pretty big hammer that we’ll start – forgive the expression – beating the department with.

And the department wants to have the case go to trial in 2 years. We want that case to go to trial basically in May of next year. And I think some of the reason is they’re trying to fend off the litigation by arguing that it’s been mooted out by way of some of the pilot programs. But as been pointed out, we think the pilot program is actually an expansion of the ability to rely upon on these SHU units rather than any real reform.

Response to question from the audience about the prison industrial complex:

There are a whole number of money interests. The most notable is the CCPOA – the prison guard’s union…There are various lobbying forces in Sacramento. There’s the insurance industry. There’s the timber industry. The wine industry and so forth…But there is none other than CCPOA. They’ve lost a little bit of power, I’ll actually say, in the last few years but they were probably for many years one of the largest and most powerful unions – civil service unions – in the state…And they are not the only ones.

There’s an entire construction industry around this as well, and then there’s a number of service industries that service the prisons as well. And now there’s the private prison industry, which even just as an aside – if you look at the current debate on immigration, there’s some pretty powerful lobbying that’s going on by the private prison companies that have very lucrative contracts with Immigration Customs and Enforcement. In fact, they house more ICE detainees than anybody else. So there’s a lot of money at the table.

We spend – I think it’s over $8 billion a year in California corrections. The average prisoner cost is anywhere from $44,000 to the mid-$50,000…There’s a tremendous amount of money being spent here.

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