Ruling extends landmark settlement agreement to end indefinite solitary confinement in California  

February 3, 2022, Oakland, CA ‒ A federal judge ruled yesterday that the California Department of Corrections and Rehabilitation (CDCR) is continuing to systematically violate the due process rights of imprisoned men despite a settlement agreement where the agency agreed to sweeping changes to its use of solitary confinement. Judge Claudia Wilken found that CDCR is relying on inaccurate and even fabricated confidential information to place individuals in solitary confinement, using dubious gang affiliations to deny them a fair opportunity for parole, and holding them in a restricted unit in the general population without adequate procedural safeguards. 

Citing these rights violations, Judge Wilken extended for a second additional one-year term a historic 2015 settlement agreement to end indefinite solitary confinement in California prisons. 

“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 facrbicated, secret evidence to send people to the torture of solitary confinement,” said Rachel Meeropol, a senior staff attorney at the Center for Constitutional Rights representing the men who brought the suit. “It cannot continue.”

The 2015 settlement agreement resulted from Ashker v. Governor of California, a case originally filed by Todd Ashker and Danny Troxell, who were in longterm indefinite solitary confinement in Pelican Bay State Prison, and who represented themselves. The class action lawsuit charges that prolonged solitary confinement violates the Eighth Amendment’s prohibition on cruel and unusual punishment, and that the absence of meaningful review for placement violates the prisoners’ rights to due process afforded by the 14th Amendment. 

Under the agreement, the CDCR released nearly 1600 prisoners from solitary confinement – Security Housing Units (SHU) – and stopped sending prisoners to the SHU solely on the basis of gang affiliation. The agreement also mandated a two-year monitoring period intended to abolish indefinite solitary confinement and allowed plaintiffs to obtain a one-year extension if they could demonstrate systemic ongoing violations. 

In a previous ruling in 2019, Judge Wilken ordered a first extension, finding that the CDCR was “effectively frustrating the purpose” of the settlement agreement by systemically violating due process rights. That decision is on appeal. Yesterday’s ruling reversed a magistrate judge's denial of a request for a second extension. In her 72-page decision, Judge Wilken details three categories of ongoing due process violations, noting that each alone was sufficient to warrant an extension.

First, she found that CDCR continues to use fabricated, exaggerated, or inaccurately disclosed confidential information to send men to solitary confinement. In addition, they falsely attribute statements to informants. Judge Wilken highlights a number of “material discrepancies” between the transcripts of interviews with informants and the memos purporting to summarize those interviews and used in disciplinary procedures. In one case, a memo says an informant named a man who had allegedly ordered an assault on a third man. But the transcript reveals that the informant did not, in fact, name him or otherwise implicate him in any way. 

Second, she found that CDCR provides parole boards with purported evidence of gang affiliation without acknowledging that their old system for validating gang affiliations was unreliable and violated due process. Judge Wilken wrote that “continued retention of the gang validations at issue in prisoners’ central files without any notation of the fact that they are flawed and unreliable gives rise to ongoing violations of class members’ constitutional right to a meaningful opportunity to be heard in the context of parole.”

Finally, Judge Wilken found that CDCR places and retains certain men in a restricted unit in the general population without adequate procedural protections. She found that the department violates plaintiffs’ due process rights by failing to provide them either with meaningful periodic reviews of their confinement in the Restricted Custody General Population (RCGP) units or with accurate notice of the reasons for their confinement there. “These failures,” she writes, “are likely to result in a significant risk of erroneous RCGP retentions.”

“We are pleased that Judge Wilken recognized the impact that CDCR’s limitations on visiting opportunities has on people in RCGP, and in particular that she criticized the department’s systemic practice of citing the same historical justification to keep men in that restrictive unit year after year without meaningfully considering new evidence or circumstances,” said Carmen Bremer, Partner at Bremer Law Group.

Co-counsel with the Center for Constitutional Rights are Legal Services for Prisoners with Children, California Prison Focus, Siegel & Yee, Weil Gotshal & Manges LLP, Bremer Law Group, Ellenberg & Hull, the Law Offices of Charles Carbone, and the Law Office of Matthew Strugar.  

For more information, visit the Center for Constitutional Rights’ case page.