Five Years After Landmark Settlement, Violations Continue

September 26, 2020, Palo Alto – Men who spent decades in solitary confinement in California prisons are charging that the California Department of Corrections and Rehabilitation (CDCR) is violating a landmark settlement agreement and continuing to violate their constitutional rights. They are asking a federal court to extend the judicial monitoring period of the settlement for the second time. The motion filed last night argues that, at this point—five years after the agreement was reached—the prisoners are entitled not only to an extension of the monitoring period, but also to remedies for continued violations of their constitutional rights.

In the motion, the men’s attorneys propose steps the court should order to ensure an end to ongoing violations, including audio-recording all confidential interviews with prisoners implicating other prisoners in rule violations, imposing an independent monitor, prohibiting the transmission to the parole board of unreliable information about alleged gang affiliation, and implementing additional layers of review and opportunities to appeal certain decisions that result in continued isolation. 

Rachel Meeropol, a Senior Staff Attorney at the Center for Constitutional Rights and counsel on the Ashker case explained, “The prisoners’ human rights movement has demanded an end to the use of  fabricated and inaccurate confidential information. Until California stops sending people to solitary confinement based on unreliable confidential informants, this case must continue.”   

The settlement agreement was reached in 2015 in a lawsuit initially filed by two men representing themselves who had been held for decades in solitary at Pelican Bay State Prison. The lawsuit was later expanded to a class action case. The settlement was intended to end indefinite solitary confinement and the use of specious findings of gang affiliation as a justification for isolating prisoners, through specific reforms and a two-year monitoring period. But at the end of the initial monitoring, the judge found that the CDCR was systemically violating the due process rights of class members and “effectively frustrating the purpose of the Settlement Agreement,” and ordered an extension. Now, nearing the end of that additional extension period, prisoners and their attorneys say the rights violations continue.

Specifically, yesterday’s filing—most of which is filed under seal, but which includes a summary of the violations that is public—details CDCR’s use of fabricated, exaggerated, or inaccurately disclosed confidential information to return men to solitary confinement. It says imprisoned men are pressured to “debrief” and provide information in exchange for favors and better treatment, that obviously false information is treated as reliable, and that no steps are taken to ensure lying informants will not be empowered to peddle more lies in the future. Attorneys say steps to ensure the reliability of the information—independent review by a hearing officer, meaningful corroboration, and the opportunity to ask relevant questions during hearings—are not being taken. And new information shows that men are often isolated for alleged safety concerns even after an investigation has ended and even when the investigation does not conclude that the men have violated prison rules. All of this violates the right to due process, the motion argues.

The filing also describes specific rights violations by CDCR, in addition to its improper use of inaccurate information to return men to solitary confinement. CDCR continues to impose a de facto bar on parole for prisoners allegedly affiliated with a gang, the motion says, providing parole boards with findings of gang affiliation—findings that are themselves obtained through the unconstitutional use of inaccurate information described above. Finally, the motion filed yesterday argues that the CDCR’s procedures for designating certain men for housing in a restricted form of general population purportedly for the men’s own safety violate the men’s due process rights.

At the same time the court will be considering the plaintiffs’ second motion to extend the settlement agreement, SB1064, a bill that would limit use of unreliable confidential information to deny parole to people in California is on the governor’s desk. The bill was championed by the family members of prisoners, advocates, and civil rights organizations. The Center for Constitutional Rights’ letter in support of SB1064 can be read here.  

Ashker v. Governor of California amended an earlier lawsuit filed by then-Pelican Bay SHU prisoners Todd Ashker and Danny Troxell representing themselves. Co-counsel in the case 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 PLLC, 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.