It’s hard to say that watching The Box, Sarah Shourd’s new play, was a pleasurable pastime. But it was an important play, incisively written, beautifully acted, and impressively produced, that could not leave the audience indifferent.
The Box is a play about solitary confinement. In a cleverly constructed set of six cells, approximately the size of a real SHU cell, sit six prisoners. Some are there for a brief disciplinary interlude; some have been there for years. Shourd’s characters are fictional, but their biographies are reminders of real people in solitary, such as the Angola Three and Todd Ashker.
With the views, video projections, and convincing soundtrack of noises, we are transported to a world of cruelty and deprivation. We meet different people, who approach the reality of their situation in different ways. We see them in conflict; we see them in solidarity; we see them at their noblest and basest. Shourd, who has spent years fighting solitary confinement ever since her release from Iranian prison, based the play not only on authentic dialogue, but also on genuine proceedings in solitary (the play takes the trouble of taking us through the routine of getting people out for visitation, including the wait time of the visitor.)
The play is also a reminder of the importance of solidarity and interracial unification. It includes a brief and stylized version of the two Pelican Bay hunger strikes, complete with the court order to force feed the inmates that ended the second one. I highly recommend this unforgettable experience to anyone, especially those who have not yet become embroiled in the struggle to end solitary confinement in California.
The Box plays at Z Space until the end of the month. For tickets, click here.
Keramet Reiter of UC Irvine has recently done a Q&A with the Berkeley Human Rights Center on solitary confinement, her topic of expertise and focus of her forthcoming book.
Will the recent court settlement in California lead to any significant change in regard to solitary confinement practices? Two big challenges with isolation in particular are that it’s been a very secretive process and there has been significant discretion over what circumstances and for how long people are sent to isolation….Now, under the recent settlement, you have to do something wrong instead of just being labeled a gang member and isolation terms are capped at five years. So that’s an improvement. But you still don’t have a right to a lawyer at the administrative hearing in which people decide whether you’ve done something wrong or not. The prison staff have a lot of control over what counts as a rule violation and who they charge with violations. Five years is a long time, and you’re under really intense scrutiny when you’re in isolation, and it’s easy to break more rules because of that.
The settlement attracted national attention and is still being celebrated by prisoners, their families, and legal advocates. Perhaps it will be a model for other states to reduce or eliminate prison conditions the United Nations has conclusively defined as torture. One settlement agreement, however, cannot sweep away decades of abusive prison policies. First, it is a settlement, not a legal opinion. At best, the settlement is a non-binding model of what other jurisdictions might attempt. Second, even though prison officials withdrew many of their claims about the dangerousness of SHU prisoners by agreeing to the provisions of the Ashker settlement, these beliefs have hardly been renounced. The genuine fear prison guards experience in coping with hunger strikes, managing mental illness, or dealing with prisoners like Hugo Pinell must be acknowledged and addressed, so that they are motivated to strategize to support, rather than resist, reform. Third, the data collection and monitoring associated with the settlement is scheduled to conclude in two years—and may never be made public in the first place. The practice of solitary confinement has historically been defined by discretion and invisibility, and is therefore hard to investigate, control, and reform. So the practice of solitary confinement could easily retreat back into the shadows in two years, absent longer-term requirements to institutionalize transparency.
We plan to continue monitoring the post-Ashker developments.
Amidst the joyous news following the settlement in Ashker v. Brown comes a less encouraging development: AB 124, which would severely limit the use of solitary confinement in juvenile facilities (to four hours at a time, and not as a form of punishment), failed in the Assembly Appropriations Committee and won’t be proceeding forward. The East Bay Express reports:
Proponents of SB 124 — co-sponsored by state Senator Mark Leno, D-San Francisco, and the Ella Baker Center for Human Rights, an Oakland nonprofit — have argued that the bill could go a long way in protecting youth inmates in county and state facilities from the inhumane and unjustified practice of isolation. The documented psychological deterioration associated with solitary confinement — which was a key argument in the state class-action suit — can be especially damaging for vulnerable youth inmates who have often already experienced a wide range of trauma in their lives. With California now agreeing to dramatically curb the use of isolation for adults and with officials increasingly acknowledging the harms of solitary, the failure of SB 124 was particularly painful for advocates who have been pushing versions of the bill for several years. “We’re talking about the health and lives of young people who are endangered by this practice,” Jennifer Kim, Ella Baker Center’s director of programs, told me yesterday. Kim helped write the legislation and has repeatedly amended the bill in response to criticisms of correction officials, who have continued to argue that isolation of juveniles is an important tool to control “dangerous” kids. In reference to the state lawsuit and settlement, which will have no impact on juvenile facilities or inmates, Kim added, “Thousands of adults are going to be ordered out of solitary confinement … [because] the courts have had to intervene. … And yet the legislature has been largely not leading in the way they could be.” SB 124, which successfully passed the Senate in June, would ban the use of solitary confinement in juvenile facilities for longer than four hours at a time. The legislation would also prohibit correctional officers from using solitary as a form of punishment and would only allow isolation when youth pose an immediate, substantial risk to themselves or others. Facilities would also be barred from isolating inmates who pose a threat as a result of a mental disorder. Additionally, the legislation requires jails to document all instances of solitary through a statewide reporting system. Correction and probation officials across the state have consistently opposed the measure, arguing that facilities do not use the kind of inhumane solitary confinement tactics that advocates describe. The opponents have also contended that the restrictions of SB 124 would put staff and youth at risk by making it harder for officers to isolate violent youth.
What with SB 261 passing only recently, the California legislature’s approach to juveniles can only be seen as puzzling. Are we treating them as children? as adults? for what purposes? are we willing to resentence but not to limit solitary confinement? and, under the circumstances, what is worse–adult prison or state juvenile facilities?
Today, the Center for Constitutional Rights has announced that the parties to Ashker v. Brown, the case challenging indefinite solitary confinement in California, have reached a settlement. According to CCR’s press release, Today, the parties have agreed on a landmark settlement in the federal class action Ashker v. Governor of California that willeffectively end indeterminate, long-term solitary confinement in all California state prisons. Subject to court approval, the agreement will result in a dramatic reduction in the number of people in solitary across the state and a new program that could be a model for other states going forward. The class action was brought in 2012 on behalf of prisoners held in solitary confinement at the Pelican Bay prison, often without any violent conduct or serious rule infractions, often for more than a decade, and all without any meaningful process for transfer out of isolation and back to the general prison population. Ashker argued that California’s use of prolonged solitary confinement constitutes cruel and unusual punishment and denies prisoners the right to due process. . . . Today’s settlement transforms California’s use of solitary confinement from a status-based system to a behavior-based system; prisoners will no longer be sent to solitary based solely on gang affiliation, but rather based on infraction of specific serious rules violations. It also limits the amount of time a prisoner can spend in the Pelican Bay SHU and provides a two-year step-down program for transfer from SHU to general population. The agreement creates a new non-solitary but high-security unit for the minority of prisoners who have been held in any SHU for more than 10 years and who have a recent serious rule violation. They will be able to interact with other prisoners, have small-group recreation and educational and vocational programming, and contact visits.
The full details of the settlement are available here.
This is a major victory for those of us who have been fighting against indefinite solitary confinement for many years–especially the inmates, who have participated in two hunger strikes to protest against the physical and psychological harms associated with this practice. It is also remarkable that, in an era in which such struggles often take the shape of bipartisan financial improvements, this struggle was fought as an old-skool human rights pursuit, and ended in an impressive and important victory. The statement from the plaintiffs reads as follows:
This settlement represents a monumental victory for prisoners and an important step toward our goal of ending solitary confinement in California, and across the country. California’s agreement to abandon indeterminate SHU confinement based on gang affiliation demonstrates the power of unity and collective action. This victory was achieved by the efforts of people in prison, their families and loved ones, lawyers, and outside supporters. Our movement rests on a foundation of unity: our Agreement to End Hostilities. It is our hope that this groundbreaking agreement to end the violence between the various ethnic groups in California prisons will inspire not only state prisoners, but also jail detainees, county prisoners and our communities on the street, to oppose ethnic and racial violence. From this foundation, the prisoners’ human rights movement is awakening the conscience of the nation to recognize that we are fellow human beings. As the recent statements of President Obama and of Justice Kennedy illustrate, the nation is turning against solitary confinement. We celebrate this victory while, at the same time, we recognize that achieving our goal of fundamentally transforming the criminal justice system and stopping the practice of warehousing people in prison will be a protracted struggle. We are fully committed to that effort, and invite you to join us. Todd Ashker Sitawa Nantambu Jamaa Luis Esquivel George Franco Richard Johnson Paul Redd Gabriel Reyes George Ruiz Danny Troxell
The struggle against long-term solitary confinement in California continues! Months ago, we reported about the certification hearing for Ashker v. Brown, a lawsuit against solitary confinement.
The most recent news are from June 2: U.S. District Court Judge Claudia Wilken granted the lawsuit class action status. The L.A. Times reports:
“We pose a fundamental question: Is it constitutional to hold someone in solitary confinement for over a decade,” said Alexis Agathocleous, staff attorney for the Center for Constitutional Rights in New York.
The class action motion was filed by 10 Pelican Bay inmates in solitary confinement, but California has since moved five of them to other quarters. Wilken’s order allows the remaining five prisoners to represent the larger class of some 500 Pelican Bay prisoners who have spent more than a decade in isolation, and some 1,100 put into solitary because of alleged gang associations.
Many of the inmates named in the suit also were organizers of a lengthy statewide prison hunger strike last summer.
Wilken refused to allow the state prison guard union to intervene in the lawsuit. The California Correctional Peace Officers Assn. had argued that it had an interest in protecting the safety of its members by preventing prisoners from leaving solitary confinement.
We will keep following up on the lawsuit and reporting on its progress.
—– cross-posted with some changes at Prawfs Blawg.
Seven months after his release from prison in Iran, former hostage Shane Bauer visits Pelican Bay and is shocked by the conditions. His prison conditions in Iran were better than those he saw in California.
Todd Ashker. Photo courtesy CDCR, reproduced from New York Magazine
In the aftermath of the hunger strike against conditions in the SHU, we are witnessing legislative interest in improving conditions in solitary confinement. We recently reported on CDCR’s changes to gang restrictions, on the legislative hearings in Sacramento, and on Tom Ammiano’s proposition to limit gang-related SHU stays to 36 months. At this point, Benjamin Wallace-Wells’ article in New York Magazine, The Plot from Solitary, is particularly welcome. The article is so interesting, thorough, and multifaceted that I strongly recommend you read it in its entirety. Here are just a few highlights that interested me the most:
The article does a very good job juxtaposing the position of inmates and their supporters to that of CDCR staff.
From the beginning, even the most basic matters about the strike—what Ashker and the others were after, why so many people joined them, what the strike demonstrated—were opaque, and profoundly disputed. To the prisoners and their supporters, this was a protest against barbaric treatment, and the SHU was both an outrage in itself and a symbol of the arbitrariness and brutality of the prison system across the nation. The strike’s leaders had challenged the SHU’s constitutionality in court, arguing that the limits it placed on social interaction violated the Eighth Amendment’s prohibition on cruel and unusual punishment, and they had watched closely as a few other states, some pressured by prisoners and others mandated by judges, had de-emphasized solitary confinement. They believed they were part of a human-rights movement. But the prison officials saw something far simpler at work: a tactical maneuver by the gangs, acting in collusion, to end a system that had made it much more difficult for them to operate as they pleased.
We also get fairly in-depth backgrounds of the Short Corridor strike leaders, complete with their lives before incarceration and some information about their standing vis-a-vis their own gangs, which adds to the complexity of the organization. And, we also get a blow-by-blow description of how news of the strike were transmitted across SHU cells:
Jamaa thought his fellow inmates might need some concrete encouragement. His private fast the previous fall had lasted 33 days, and he believed he could have gone longer. Soon after last summer’s strike began, the four leaders were moved from the SHU to a unit called Administrative Segregation, and Jamaa, entering the unit, started to holler, “Forty days and 40 nights! Forty days and 40 nights!” If prisoners can be counted upon to know any literature, it is the literature of suffering that in the Bible precedes redemption. Jamaa had chosen his slogan with intent: They were Moses in the desert. At night, Jamaa would drop on his knees, put his mouth to the crack between the door and the floor, and yell: “Forty days and 40 nights!” Soon, new hunger strikers arriving in AdSeg were shouting the slogan as they were hustled in. It was then that Jamaa began to believe their movement had some possibility, some momentum.
And a very sophisticated explanation of the gang leadership controvresy from Craig Haney:
Haney returned to Pelican Bay last year, for a follow-up study, and found that these patterns of self-isolation had deepened. Many inmates had discouraged family members from visiting, and some seemed to consider all social interactions a nuisance. “They have systematically extinguished all of the social skills they need to survive,” Haney says. Those inmates who do comparatively well tend to replace the social networks outside the SHU with those within it—which, in a society composed of alleged gang members, often means gangs. “In isolation,” he says, “gang activity is the only contact that is possible; it is the only loyalty that is possible; it is the only connection that is possible.”
And this bit about the effects of Judge Henderson’s ruling allowing force-feeding of inmates:
Until this point, the prisoners had thought of the guards—and, more broadly, the state—as their captors. But the state is also their warden and their protector: A prison is designed to separate convicts from society and prevent them from doing more harm, but also to shelter them and keep them alive. The judge’s order returned repeatedly to the problem of coercion. The specter of gang influence was so strong, Henderson’s ruling suggested, that the state could not trust that a prisoner’s advance medical directive had been made freely—that he had made his own decision about the terms under which he was willing to die. The strike leaders had thought that by volunteering to risk their own deaths they could compel the state to see them as individuals, and that in at least this one instance they could reassert freedom of control over their lives. But they had been wrong.
Read the whole thing. It’s fascinating and very well written.
Lots of things moving in the right direction in the world of solitary confinement. For one thing, Assemblymember Tom Ammiano has just introduced AB 1652, the product of the legislative hearings, with the intent to limit usage of solitary confinement in California. Among other things, the bill text limits confinement to serious offenses, and creates a 3-year maximum confinement if the assignment to solitary is based on gang status alone.
Youth with disabilities generally are disproportionately represented in juvenile correctional facilities and by Contra Costa County’s own estimate, roughly 32% of the students at the Contra Costa County Juvenile Hall have disabilities that require some form of special education. Despite their disabilities, youth at Contra Costa County Juvenile Hall are locked for days and weeks at a time in cells that have barely enough room for a bed and a narrow window the width of a hand and length of an arm. Indeed young people are routinely held in conditions like those in a maximum security prison. The results of such conditions are devastating. For instance, named Plaintiff W.B. was placed in solitary confinement for more than 90 days, during which time he deteriorated mentally to the point where he was smearing feces on the wall and, ultimately, was held in a psychiatric hospital for three weeks. “The United States Department of Justice and Department of Education have singled out Contra Costa County Juvenile Hall for a reason,” said Mary-Lee Smith, Managing Attorney at Disability Rights Advocates. “Contra Costa County and Contra Costa County Office of Education’s refusal to accept their legal obligations cannot continue, too many young people with disabilities are suffering and that must end.” “United States Department of Justice and Department of Education involvement in this case should be a wake-up call to Contra Costa County and the County Office of Education,” said Laura Faer, Statewide Education Rights Director. “Every day more young people are harmed by their failure to take responsibility and follow federal and state law. These flagrant violations of children’s rights to education and rehabilitative services must stop.”
Note that the feds are dressing their objections to this practice as an educational issue: that is, the problem is not that segregation is cruel and unusual per se, but that it hampers these students educational opportunities. Even on such a narrow basis, it’s remarkable that the feds have found it politically sayable to oppose these practices and place themselves squarely on the side of the inmates.
The SHU hearings in Sacramento yesterday were a success from the inmates’ rights perspective. The Sac Bee reports:
Corrections officials have touted a new pilot program allowing inmates to ease their way out of solitary confinement, and regulations recently submitted to the Office of Administrative Law would allow the pilot to be applied throughout the prison system. But legislators seemed skeptical that the changes would substantially reduce the practice of walling off inmates in the “Security Housing Units,” or SHU, that exist in four state prisons.
But wait! There’s more!
Later in the day, Ammiano announced a bill that would cap “administrative” terms in the SHU – those not related to a specific incident, which would include stays stemming from gang affiliation – at 36 months. The legislation would also allow inmates to exit more quickly by accumulating good behavior credits.