Transcript: Testimony of prisoner rights attorney Charles Carbone on CDCR’s proposed new policies on solitary confinement – Feb. 11, 2014

Partial transcript of the testimony of Charles Carbone, prisoner rights attorney, 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:

Good morning, and thank you for the opportunity to present before this committee.

I believe that Dr. Haney talked about the necessity of the legislature to be “persistent, consistent, and long-standing”. And having personally participated in some of the other legislative hearings, I’m proud to say that the legislature at this juncture has done just that, and the consistency of these hearings is of vital importance to both look at the issues from a very specific and detailed stand point and also be very detailed similarly in the legislative relief that may be available here.

My name is Charles Carbone. I’m a prisoner rights attorney. I’ve been dealing with these issues for about 15 years now. I’ve interviewed probably about a thousand or so men and women living in isolation, and I have arguably represented in a legal capacity more people living in solitary than any attorney in the United States.

The focus of my testimony will be the meat of the criticisms and a critique of the programs that have been offered.

And I want to offer that in a non-acrimonious way, shall we say, because I am actually genuinely enjoying the spirit of the dialogue between all of the stakeholders here.

I had sort of a baker’s dozen in front of you in terms of the major criticisms, and I’ll try to be brief in walking through them.

The first one is that there are three major deprivations that remain under the proposed so-called reforms. I think everyone has said that they’re modest; they don’t go far enough. But let’s be specific what they don’t change.

The default term for validated inmates in California is indefinite. It’s an indeterminate SHU term. That has not changed.

Secondly, the underlying conditions in the security housing units and the deprivations – the inability to have direct sunlight, the lack of phone calls, et cetera, et cetera – that too has not changed.

And specific to Madam Chairwoman, your concern about the debriefing policy, that too has not changed. The coercive qualities of that debriefing policy has not changed, and the unreliability of that evidence has also not changed.

Secondly, behavior modification, if you will, is now the only way out of the SHU. The department did not tell you today that they’ve done away with what was a previous avenue out of solitary confinement or isolation, which was the six-year inactive review process. That process was important because, albeit we argued over the length of time, the prisoner didn’t have to do anything; they just had to prove a negative – “Hey, I haven’t participated in gang activity for six years.” That is gone.

In its place are really only two avenues other than paroling out of the SHU, which is a rarity.

One avenue is to participate in the step-down program, and there are certain coercive qualities to that – the journaling and et cetera.

And then the other is the debriefing program. That’s it.

And so, there are very serious questions about whether we want to limit the avenues out of the SHU to these behavior modification programs.

Third, the department said – and I was listening carefully to Mr. Giurbino’s testimony, he said that this one positive change of associates now not automatically being sent to the security housing unit, that that has never existed before. That’s actually wrong. It did exist until the 1990s, because there was for a very long time a two-step process similar to the one that they’re proposing now of first validating a prisoner and then deciding whether that validation warrants SHU confinement.

Ironically, that past policy that existed up until the 1990s applied to both associates and members.

So what is being offered supposedly for the very first time is actually harkening back to a worser version of what existed up until the mid-1990s.

Fourth point – we haven’t really talked about changing who could be capable of a validation from simply the seven prison gangs to now this model of anybody who qualifies as a security threat group member. I’m very sorry to report that under this security threat group measure, the people living in isolation in California will grow significantly.

There is no question – if our goal here is to limit people in solitary confinement or segregated housing both in terms of the numbers and duration – that these policies as promulgated and promoted will do just the opposite. More people will be eligible for confinement in solitary of SHU-like facilities.

Fifth – these reforms are largely based on what is being done in the Bureau of Prisons. We may remember that that entire set of policies was the subject of hearings in 2012 before the U.S. Congress and was the subject of great consternation. So I don’t exactly know why we are modeling California after the federal system, which is right now under a great deal of scrutiny and criticism.

And number six, which also goes to your issue, Madam Chairwoman about whether or not the same source items can still be used. The department here is really disingenuous and a bit tricky in this capacity, because when they say “Now, we don’t use mere associations, like talking in the law library or having a greeting card or having an address in an address book”, they’re actually wrong. What they’re doing now is they’re taking that same old association-based items and they’re now saying “Well, that’s possession of gang contraband. So not only are we going to validate you for that, but we’re also going to issue you a rules violation for possessing that item” which is really just evidence of association, not evidence of having done anything wrong.

I would submit that under these new rules then it’s actually worse for people because it maintains the pure association-based validation but also adds another layer of the prisoner being given a rules violation.

The professor from Yale talked about number seven a bit, which is at the time of the records that I had it, it was almost 70% of these audits that were being done – almost 70% of them resulted in the prisoners going back to the main line. Although that’s a good thing clearly, it does raise some very serious concerns about the trustworthiness, if you will, of the department when they are left to their own devices and not subject to independent review. Because for decades now 70% – by their own admission, 70% of the inmates should have been on a general population yard.

Eight – they talked about “Well, there has to be a nexus between the gang activity or association and the gang.” Well, the only nexus I’ve seen thus far that’s been implemented is if the correctional officer looks at the conduct at issue and sees the presence of one or more member of a gang – street gang, security threat group – then they automatically assume “Well, that activity is gang-related.” It’s not the standard in the legal community, and I would submit that that nexus standard as it’s currently articulated is very arbitrary and will be prone to great abuse.

Number nine – we learned at the last legislative hearing that inmates’ participation in the hunger strikes and ironically in efforts to end hostilities among prison gangs that both of those efforts are actually being used to validate inmates and for those inmates to have serious rules violations tendered as a consequence of them. That is extremely counter-productive to the peaceful efforts to resolve these issues.

Again, I have to comment on your comments, Madam Chairwoman, because there was another issue that you astutely raised, which was the incentives in the step-down program. This is the carrot that they’re offering inmates who’ve been in isolation for 10 or more years, and I would submit that those carrots are all too weak. Having a phone call per year, a photograph, or slightly greater access to the canteen is not a sufficient incentive for a prisoner to disavow their gang association nor to feel, as the professor from Yale said, that they were being treated fairly.

Number eleven – all of the information that’s being collected in the step-down program, much of which is incriminating information, none of that – there are no rules or procedural safeguards as the present regulation stands to decide how that information will be collected or used. And that is a particular concern to inmates who will later go before parole boards or different classification committees and et cetera.

And I should note – this is interesting. The department has contracted with a company called The Change Company to provide these workbooks. It’s astonishing to me when I look at these books, because there’s not a single workbook or single paragraph in the books that is devoted to gang diversion. So if the goal here is to step down these inmates away from the gangs, why does the rehabilitative programming in these workbooks fail to include a single specific mention to gangs?

Twelve – yes this is the last – in fact, I’ll just make this the last one. The last one is that the department has told the legislature and the courts for many years that the purpose of the security housing unit is not for punishment; the purpose is actually for segregation. The rules as they’re presently designed will dramatically change that because if you’re saying to prisoners in step one or step two by statute we’re going to deny you access to rehabilitative programming, then that immediately becomes for the purposes of punishment, not solely for the purposes of segregation.

And with that, I’ll end my comments and thank you very much for your time…


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