by Jacob Barrett

On February 24, 2022, the federal court for the Northern District of California granted another 12-month extension to a 2015 settlement. That agreement was made between the state Department of Corrections and Rehabilitation (CDCR) and a class of prisoners who were held in solitary confinement or denied parole after they were identified as gang members by “confidential informants” (CIs).

The settlement resolved claims in a 2007 suit filed by two prisoners, Todd Ashker and Danny Troxell. Both were allegedly held in long-term solitary confinement at Pelican Bay State Prison based on gang “validations” made by CIs. By the time the Court blessed the agreement in August 2015, their case had become a class-action. CDCR promised them and all other similarly situated state prisoners to cease indeterminate solitary confinement in Special Housing Units (SHUs) based upon alleged membership in a “security threat group” or gang. It also vowed to release long-term SHU prisoners back to their prison’s general population after a transition period. Additionally, a modified two-year Step-Down Program would allow SHU prisoners to earn privileges for good behavior. [See: PLN, Oct. 2015, p.28.]

However, the Court has repeatedly found insufficient progress toward the settlement’s goals. Why? As the Court noted, the prison system continues to systematically violate the due process rights of prisoners by relying on CIs to make gang “validations” of their fellow prisoners, who are then held in solitary confinement or denied parole as a result.

Worse, Judge Claudia Wilken found, the information CIs provide is often inaccurate, exaggerated, or even fabricated out of whole cloth. She pointed to “material discrepancies” between transcripts of interviews with CIs and CDCR memos purporting to summarize those interviews, which were used in confinement hearings.

In one case, a CDCR memo claimed that a CI had named a prisoner who allegedly ordered an assault on a fellow prisoner. In the transcript, however, the prisoner was not named or implicated in any such plot.

“The more we dig, the more clear it becomes that CDCR prison officials routinely lie about information from so-called ‘confidential sources’ and use that fabricated, secret evidence to send people to the torture of solitary confinement,” said Rachel Meeropol, a senior staff attorney at the Center for Constitutional Rights, one of those representing the prisoners in the suit.

When the settlement’s initial two-year term expired in 2017, the Court heard Plaintiffs’ motion to extend it another 12 months. Granting that in 2019, Judge Wilken found that CDCR was “effectively frustrating the purpose” of the settlement by using prisoners’ gang “validation” to deny them parole and keep them in segregation, systematically violating their due process rights. CDCR appealed, but the U.S. Court of Appeals for the Ninth Circuit refused to overturn that decision. [See: PLN, Feb. 2021, p.20.]

That 12-month extension, which later appeals stretched to two years, was followed by another in 2021. In her newest ruling, Judge Wilken extended the agreement yet another 12 months after finding CDCR has continued to abuse gang “validations” from CIs.

The Court also found that CDCR left those validations in prisoners’ files that were made before the 2015 settlement agreement. That means the information is still available to the state parole board, even though the entire system for obtaining the underlying evidence from CIs has been found unreliable and in violation of the Fourteenth Amendment’s due process guarantee.

CDCR’s “continued retention … of gang validations” in prisoner files “without any notation of the fact that they are flawed and unreliable” creates an “ongoing” violation “of class members’ constitutional right to a meaningful opportunity to be heard in the context of parole,” the Court concluded.

The Court also found that CDCR failed to provide meaningful procedural protections when placing prisoners on Restricted Custody General Population (RCGP) status. Under RCGP, a prisoner is nominally in his prison’s general population but kept locked down in his cell. Moreover, CDCR retained prisoners in that status without periodic reviews.

“These failures are likely to result in a significant risk of erroneous RCGP retention,” wrote Judge Wilken. She concluded that “Plaintiffs have shown ongoing and systemic due process violations as a result of Defendants’ policies and practices relating to … RCGP.”

Wilken also gave prisoners’ counsel leave to file a separate motion to “cure [the] continuing and systemic constitutional violations.” That counsel is provided to the class by attorneys Anne Marie Cappella and Bambo Obaro of Weil, Gotshal & Manges in Redwood Shores, as well as Anne B. Weills, Daniel M. Siegel and EmilyRose Naomi Johns of Siegel, Yee, Brunner & Mehta in Oakland. With them were Carmen E. Bremer of Bremer Law Group PLLC in Seattle, Charles Francis-Antonio Carbone of San Francisco, Jules Lobel of Pittsburgh, Marilyn S. McMahon of Berkeley, Matthew D. Strugar of Los Angeles, Rachel Anne Meeropol of the Center for Constitutional Rights in New York, and Samuel R. Miller, also from New York. See: Ashker v. Newsom, 2022 U.S. Dist. LEXIS 19199 (N.D. Cal.), as clarified at 2022 U.S. Dist. LEXIS 46113 (N.D. Cal.).

Defendants have again appealed to the Ninth Circuit. PLN will report developments as they are available. See: Ashker v. Newsom, USCA (9th Cir.), Case No. 22-15345. Defendants asked for a stay to Judge Wilken’s order while the appeal is pending, but the Ninth Circuit denied that on May 26, 2022. See: Ashker v. Newsom, 2022 U.S. App. LEXIS 14536 (9th Cir.).

A bill to sharply limit the use of solitary confinement by CDCR passed the state Assembly in August 2022. But AB 2632, also known as the California Mandela Act, was vetoed the following month by Gov. Gavin Newsom (D). Calling the measure “overly broad,” the governor faulted it for “exclusions that could risk the safety of both the staff and incarcerated population.” He is widely seen as a possible nominee for President in 2024. 

Additional source: Common Dreams

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