Transcript: Testimony of Hope Metcalf on CDCR’s proposed new policies on solitary confinement – Feb. 11, 2014

Partial transcript of the testimony of Hope Metcalf, Associate Research Scholar in Law at Yale Law School, on CDCR’s proposed new policies on solitary confinement and prison gang or “security threat group” management. The joint informational hearing was held on Feb. 11, 2014:

Hope Metcalf, Associate Research Scholar in Law at Yale Law School:

Good morning. It’s my great pleasure to be here. I really appreciate that you, Senator Hancock, and Assemblyman Ammiano and the public safety committee have convened not just this hearing but a series of hearings and hard work that I know is ongoing regarding this important topic, which as you know is attracting national attention and interest across the country. And I think it’s important to say that given California’s national stature, the size of its system, as well as its history, it is especially good to see attention paid to this issue by this body. So, it’s both timely and important.

I teach at Yale Law School. I direct the Liman Public Interest Program there, and I co-teach the Lowenstein International Human Rights Clinic. My comments today do not necessarily represent those institutions but they are drawn from my experiences both as a lawyer as well as an academic.

Over the last four years – I do not have the decades of experience that Professor Haney does – I come to this issue with about four years of experience, first working with inmates through my law school clinic. And we’ve represented individuals in Connecticut who are at the super max there and have been lucky to engage in very productive discussions with that department of ongoing reforms.

And then in my capacity through the Liman program, I joined a team of students as well as my colleague, Judith Resnik, in producing the report that I believe you have in the materials, where we tried to take a first cut to analyze the written policies of 48 jurisdictions, which are the 47 states and the Federal Bureau of Prisons. And I’m happy to talk more about that report. I want to acknowledge that the findings there are necessarily limited because, of course, practice and policy do not always match up. We did try to come to some general findings, which I’m happy to discuss.

The other thing I’d like to say about the report right off the bat is that we did not study gang programs specifically. So I noted that in the prior testimony by Mr. [George] Giurbino. He did appear to do a particularized review of gang programs, and I think that that would be useful to do. And the report that I have, unfortunately, for you today does not do that.

Nonetheless, I do think that there are some general lessons that could be derived from understanding how administrative segregation is used more generally in the United States and how efforts in particular to decrease reliance on isolation might be captured in written policies.

And then finally, I serve as co-chair of the ABA’s subcommittee on solitary confinement.

My basic conclusion echoes much of what Professor Haney has already said, which is that the proposed changes, I think, are notable. They are moving in the right direction. But I don’t believe that they address the fundamental issues that has resulted in the situation that current exists at Pelican Bay, not to mention the use of isolation whether through disciplinary punishment or administrative segregation elsewhere in California’s system.

And that might be something that this committee wishes to take up in addition, which is that, of course, decades of isolation is noteworthy but there is good reason to think that even six months, a year, two years, in fact, could be detrimental and counter-productive to the corrections goals.

So, the bottom line for me and the way I’ve come to look at this based on my own work and through conversations with inmates as well as corrections professionals in the available social science literature is that long-term isolation essentially just postpones – it does not solve – safety issues.

So, everyone agrees that safety in prison is paramount. It’s the only way that the institutions can function, and everyone who works and lives in prisons has a right to feel safe. Period. Full stop.

However, the go-to response that was developed first at USP Marion and later at Pelican Bay and the super maxes across this country take a one size fits all solution that really does not end up addressing the problems that it seeks or purports to solve. And I think that that’s the challenge.

And to really do that, we need data. We need creative thinking. And we need long-term commitments by people in the correctional profession, by the many stakeholders, including inmates as well as their families, the legal community, and of course the medical and social sciences community.

So, this is a problem of our own making. It’s serious. It’s widespread. But it’s also something that many people, you know, we’re in a relatively good political moment in the country generally to attack these issues, and it’s exciting to see the energy and attention that’s being paid to this.

So, I’m both here to underscore the seriousness and also hopefully to provide some sort of optimism about things that can actually be done.

So, as a quick starting point, I just want to point you to some sources for principles that might be useful to this committee as you’re considering whether and how to measure any proposed reforms.

So, one start would be the American Bar Association revised its standards on the treatment of prisoners in 2010. Those standards, which were promulgated by sort of multi-disciplinary team that included current and former corrections officials as well as obviously lawyers and other professionals.

They set forth in some detail what they would consider to be best practices and might be a useful benchmark. And they center around a core ideal which is that segregated housing should be for the briefest term and under the least restrictive conditions practicable and consistent with the rationale for placement and with the progress achieved by the prisoner.

So, in yeoman’s terms, they should be as least isolating and they should also serve the purpose – they should actually be accomplishing something.

So in other words, we know that segregation costs far, far more than an average maximum security prison, for example. So to the extent this scarce resource is going to be used, we should know that it’s actually producing results that are beneficial to everyone – the inmate, staff, and the system overall.

And the standards that require individual placement – hearings, continuing review with neutral parties – they echo many of the values and concerns that I’ve heard voiced by this committee, and so I would point you there.

I would also point to principles that were recently promulgated on August 2013 by the Association of State Corrections Administrators regarding the use of segregation. These principles are less – and I should note the association or ASCA consists of the heads of corrections for each of the states as well as the Federal Bureau of Prisons. It’s the professional association. And they have a subcommittee that is looking into this issue, and as a first step, they created some principles that might also be useful.

And they have, I think, a slightly – understandably a slightly different perspective on the issue of segregation than the ABA or certainly the U.N. Special Rapporteur. So they do say that segregation is a necessary tool; however, they echoed the ABA’s standards in saying that it should be targeted and designed to change behavior, not merely just a warehouse for people you don’t know what to do with, which is the fear and what we see in sort of the more extreme examples, for example, at Pelican Bay. They called for independent and regular reviews, rehabilitative programming, and mental health treatment as well – and I think this is really important to emphasize – ongoing assessment of the effects and the outcomes.

And I think as Professor Haney was saying towards the end of his comments, I think this is going to be really an ongoing process, and those external reports, benchmarks, performance measures are going to be useful, and I’m happy to share with you some ideas that I’ve developed that of what those performance measures might look like.

I did want to echo everything that Professor Haney said in terms of the United States being an outlier. And coming from my background with international human rights, I feel it’s important to say that.

So while my focus today is on trying to give you a sense of the national landscape, I do recognize that it’s still a pretty constrictive landscape.

If I may just turn to some general observations in hopes that they might be helpful for your work. So as I mentioned basic bottom line is that staff and inmates must feel safe, and prisons do need tools to shape behavior. I don’t think that there’s much dispute about that. And in fact, some form of short-term segregation may be necessary, and there may indeed be some portions of the population for whom placement in the general population is not appropriate. However, that does not translate in any sense to the fact that long-term isolation of the ilk that we see at Pelican Bay is in fact serving sound public policy.

So, given the over-reliance on isolation, many prisons are at best delaying problems and, in fact, may be aggravating them.

So I do not wish to say that most people released from long-term isolation are dangerous. I have many, many clients who have left isolation and they have gone on to do well. However, I do think that if we’re talking about public safety, thinking about outcomes, including recidivism, is important. Equally important, of course, in terms of outcomes is not just whether or not someone is violent but whether they are able to flourish and become independent once they leave.

So the fear is – one fear I’ve had is even where outcomes don’t show, for example, violence, is that person able to hold a job or are they now so debilitated that they are reduced to relying on state support once they leave prison. Those are the sorts of indicators that I would hope that you would look at.

Assemblyman Tom Ammiano:

…They get the double whammy because the way the system is now for any prisoner, there’s no housing, there’s no health care, et cetera. And then the SHU experience, of course –

Hope Metcalf, Associate Research Scholar in Law at Yale Law School:
Right. Of course, I was thinking there of the federal Social Security disability, which at least I’ve had some clients able to enter. But of course, absolutely.

So I’m unaware of evidence that isolation succeeds in changing behavior for the better, and there is some reason to think that it might make it worse, and here I would point you to studies out of Washington state by a professor, a social scientist there – David Lovell. And this is fairly common sense given what we know that isolation does one’s own self of well-being, anger, et cetera.

Another interesting area of research that might be useful is something called procedural justice, which is an area of social science that has emerged over the last couple of decades. It’s led by a professor named Tom Tyler at Yale Law School.

And he and many other psychologists have studied why it is that people actually obey rules, and because the idea that punishment and deterrence is obviously one theory about why people are going to behave the way that we want them to. But what they’ve found is in fact people are far more likely to obey rules if they believe that the system is legitimate. And they have tested this theory in courts, in policing, and now they’re starting to do that in corrections.

There’s a number of studies that are out from the United Kingdoms that might be worth looking at. And what they find is that everything from the processes – like we were hearing about today – to interactions with corrections staff, where prisoners believe that they are being respected and they believe that the process and the system is not rigged against them, they are far more likely to obey the rules, and that has all kinds of good effects – for example, decreased violence.

So, I take this available social science research and I look at it and to me, it suggests a few things.

One is, as has already been mentioned, to the extent segregation is going to be used, the standard should be clear and fair. The process should be credible, and that means really that it should turn on objective observable actions, not suspicions.

And I will say that as is noted in the report that many state systems currently in their standards, this is an area I think that needs improvement kind of across-the-board. You see nationally very broad standards. There are some systems, like Virginia, that are starting to turn towards more objective standards.

I will also note that in Connecticut in the SRG – we call it the Secure Risk Group – SRG program, which is our equivalent of STG here in California, rather than relying on membership, it’s membership plus a specific set of actions that would include things like assault. So the committee may wish to look to examples like that when thinking about the proposed revisions.

And obviously, the sanction must be proportionate to the offense. To give you a quick example of this matters so much is that if the standards – it’s one thing to do case-by-case analysis and reviews like has just happened in California. That is terrific, and every state that has done – and I can give you a whole list – they’ve had similar results, where anywhere from about 58% upwards to 90% have found to no longer – either they never needed to be in seg or that they no longer needed to be in seg. That’s terrific news.

The downside of that is that there were 58% to 90% of people who were in seg who didn’t need to be there. And that suggests to me as a lawyer that whatever that standard is that should be performing that gate-keeping function, it’s not working. So that needs real thought and careful review. And I’m hoping that that will be an area that systems across the board will not rely simply on ad hoc reviews but undertake broader reforms.

And the other thing I’ll just point to that’s happening elsewhere – so the other thing I would just say about the process is that it needs to be independent. I’m deeply skeptical of any process that happens at the unit level. I don’t think that’s the place where these hearings should be happening. And if you look at states that have undertaken serious revisions to their processes, they are happening at the first instance at the central office, not at the unit level.

And then just lastly, I guess I would say there’s no reason I don’t think can’t and shouldn’t happen earlier. So fewer people should be in isolation to begin with. And isolation – we shouldn’t even be calling it that anymore. To the extent they’re separated from general population, it need not be so isolating. And I can point you to, for example, Washington state that has recently introduced programming far earlier into its process and has developed a classroom setting that’s available where inmates can receive programming that focuses on various sorts of behavior…


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