This article first appeared at The Nation on August 27, 2013.
As the hunger strike against solitary confinement in California prisons enters a critical sixth week, Governor Jerry Brown is preparing to force-feed scores of inmates rather than meet any of their demands for improved conditions. Since the governor declared “the California prison crisis is over” last January, the crisis has only deepened, with the hunger strikers nearing the door of death.
There is no sign that governor will relent. He has ignored a proposal floated last week in the Los Angeles Times to begin meeting elementary demands, from one phone call a week, to better food, to family visits in exchange for the hunger strike ending. His advisers assure him with “100 percent” certainty that medical intervention will prevent any organ failure or death.
“He’s not the Jerry Brown I used to know,” says one leading judicial officer who watches the current drama closely.
So what options do the hunger strikers have now? With the governor taking a fundamentalist line, only a fast-track restoration of checks and balances by the courts and legislature, propelled by public questioning, might yield a breakthrough.
- The first track to a solution is the legal one. A federal judge upheld a class action suit by ten hunger strikers, most of them in solitary confinement for two decades, that they have been subject to unconstitutional cruel and unusual punishment and denial of a meaningful process to challenge their indefinite confinement. But Governor Brown has adopted a defiant stance towards court monitoring, and the case will not be resolved before it is too late for the fasting inmates.
- The second track is a possible emergency hearing by state legislators worried about a massive state prison system on which they spend billions but which is beyond their control. The hearing could give voice to the inmates demands, send a message to Brown, and draw the crisis into the light of public debate. It might convince the isolated inmates to live to fight in another forum. It would take an immediate signal from the legislature, which has yet to make a decision.
- The third track is the mobilization of public questioning and protest. While the public has no love for prison gangs, there is increased questioning of the costs of the governor’s continual quarrels with the courts. The fact that the conservative US Supreme Court has repeatedly found Brown guilty of cruel and unusual punishment sets many Californians to wondering. Voters already have rejected prison bonds and supported a softening of California’s three-strikes law.
In addition to the courts, Brown is under fire from the United Nations Rapporteur on Torture, Juan Mendez, who condemned California on August 23 for its solitary confinement policies. Severe and prolonged solitary confinement “amounts to torture,” the Rapporteur noted. Mendez also criticized Brown for considering forced-feeding against the will of the hunger strikers.
That’s why the Brown administration has engineered a public relations drive against the hunger strike. Brown’s top prison official, Jeffrey Beard, takes the position that the strike is run by “terrorists” bent on controlling the statewide system and even the communities from which inmates come. Prison bureaucrats have erected a virtual iron curtain making it very difficult for mainstream reporters, civil liberties lawyers or prisoner families to gain access to information. At the moment, for example, they are dispersing dozens of strikers to unknown and segregated locations across the sprawling statewide system. Families have no idea where their sons are being held.
Given the state’s information stranglehold, it is useful to review and circulate the May 9 court ruling against Brown by federal judge Claudia Wilken, a must-read to understand how the governor could so systematically violate the Eighth and Fourteenth Amendments.
Wilken’s ruling was in response to a September 10, 2012, class action suit brought by ten hunger strikers, initiated by Todd Ashker and Danny Traxell. Five of the plaintiffs have been in solitary confinement for twenty or more years in Pelican Bay.
For what imaginable reason? Not because of the crimes for which they were convicted originally but for allegations that they are “identified” with gangs in prison. That identity, determined exclusively by prison officials, is based on such criteria as the word of informants, the possession of “gang-affiliated art,” suspicious tattoos, even written materials. The gang identification process—or, in prison terminology, “validation”—doesn’t require the evidence of actual criminal behavior. The designation leads to indefinite solitary confinement unless the inmate “debriefs”—that is, reveals everything he knows about gang members and their activity throughout the prison.
That leads to the Fourteenth Amendment complaint recognized by Judge Wilken. Inmates have virtually no due process mechanisms to defend themselves against “validation,” and being coerced to inform on other inmates results in contaminated “evidence” and puts inmates and their families at mortal risk.
At the time of the lawsuit, the only remedies available for Pelican Bay inmates were opportunities to debrief held every six months, and reviews of gang status every six years, conducted by the prison hierarchy itself.
Those mechanisms were rejected by Judge Wilken as insufficient to provide due process to the inmates.The judge used comparisons with an Ohio supermax penititentiary which she found provides far greater independent review.
Seeking to delay the judge’s ruling, the Brown administration scrambled last October to offer a two-year pilot program to deal with the gang validation issues, which seemed timed to block the inmates’s case. But according to Judge Wilkens the pilot program’s remedies were less than those existing in comparable institutions, in particular Ohio’s supermax prison which includes more layers of appeal. On So on May 9, Judge Wilken rejected Brown’s pilot program as too little, too late, a limited two-year proposal aimed at fixing a problem which she said has been permanent for decades.
The relief sought by the Pelican Bay inmates is “alleviation of their conditions of confinement,” meaningful mechanisms of redress from assignment to isolation, reviews for inmates serving six months in the “Segregated Housing Units” [SHUs], and release from solitary for any inmate having spent ten years there. Supplementing their core demands is an agenda of some forty proposals for family visits, phone calls, better food, access to educational programs and the like, all within the accepted court definitions of “basic needs” required for anyone incarcerated.
Brown’s public relations offensive seems designed to avoid public attention to the core constitutional issues at stake, and even imply that the federal courts are soft on criminals. Brown, far from meeting the tradition of California leadership on vital national issues, has become a voice from the nation’s receding obsession with one-sided law-and-order. Even US Attorney General Eric Holder now is declaring that too many have been locked up for too long in the nation’s gulag.
With the Roberts Court condemning cruel and unusual punishment and Eric Holder condemning mass incarceration, Governor Jerry Brown has become a voice from the past on constitutional issues. Only the rapid restoration of checks and balances in California can save the hunger strikers now.
Support the Pelican Bay hunger strikers.