Part 1: Open letter to CDCR and PBSP officials
To: CDCR (California Department of Corrections and Rehabilitation) Undersecretary of Operations Terri McDonald, PBSP (Pelican Bay State Prison) Warden Greg Lewis, PBSP Associate Warden P.T. Lewis
From: Todd Ashker, Arturo Castellaños, Sitawa Nantambu Jamaa/Dewberry, Antonio Guillen
Subject: PBSP SHU Prisoners’ 2011 Five Core Demands
On behalf of myself and those similarly situated, I request your attention and responsive action with respect to the issues stated below relevant to our 2011 Five Core Demands.
Briefly summarized, it’s been nearly 14 months now since we suspended our non-violent, peaceful protest hunger strike actions of July and September-October 2011, wherein we presented CDCR with our Five Core Demands for reforms to be made regarding SHU and Ad Seg policies and practices – all of which your predecessor, Scott Kernan, admitted were reasonable. He made this admission during our negotiations as well as when he met with our Mediation Team and the public. Mr. Kernan promised that our demands would be meaningfully addressed, in substantive ways, in a timely fashion.
To date, the bulk of our Five Core Demands have not been met in meaningful, substantive ways, as per our understandings and agreements during July, August and October 2011 negotiations, some of which you were personally present at via phone conference.
This lack of good faith effort to meet our 2011 demands is a big problem and needs to be rectified in the not so distant future. In a nutshell, our first three core demands – No. 1: individual accountability; No. 2: policies on debriefing and denial of inactive status and related denial of release from SHU based on innocuous association and alleged intelligence without formal charges; No. 3: an end to long term indefinite SHU and Ad Seg and related reforms recommended in 2006 by the Commission on Safety and Abuse In America’s Prisons – have not been met.
The CDCR’s Oct. 11, 2012, STG Pilot Program Instructional Memo fails to meet our first three core demands for reasons best exemplified in the included document titled, “Responsive Opposition to CDCR’s Oct. 11, 2012, STG Pilot Program.”
With respect to our core demands No. 4, Food and Nutrition, and No. 5, Programming Privileges, the following are examples of problems that continue to be unresolved. It’s important to remember one of the main principles relevant to these demands is that many of us have been in SHU for administrative reasons for 10 to 40 years. All parties acknowledged during our negotiation process that many of the restrictions were redundant and unnecessary in the content of the promised change in policy and practice to a system of individual accountability and focus on humane treatment and conditions in SHU and Ad Seg units.
To date, the bulk of our Five Core Demands have not been met in meaningful, substantive ways, as per our understandings and agreements during July, August and October 2011 negotiations.
We would like to point out that although PBSP SHU Associate Warden P.T. Smith has attempted to work together with us in keeping with the above principles, based on his nearly 30 years of experience in CDCR and with SHU prisoners, his efforts are largely futile based on CDCR headquarters and/or SHU warden’s non-recognition of the above referenced principles and continual focus on maintaining SHU and Ad Seg policies and practices that are redundant in a system based on individual accountability.
Below are examples, and in the future we will provide a more detailed list:
Re Core Demand No. 4: Food and Nutrition Issues. This issue remains a major problem at Pelican Bay State Prison, with small portions of either poorly prepared and/or inedible, rotten food items.
Re Core Demand No. 5: Programming and Privilege Issues. We presented CDCR with a list of EXAMPLES of reform measures regarding SHU and Ad Seg program and privilege issues, as follows, with notations about continued lack of meaningful progress:
A) Expand visiting, regarding amount of time and adding one day per week. This hasn’t happened yet, in spite of Scott Kernan’s July-August presentation that extra time would be permitted when visiting slots were open. PBSP IGI (Institutional Gang Investigations) insists on having three separate visit slots for SHU in order to keep Short Corridor prisoners separated from Long Corridor and C Facility prisoners. This makes extra time impossible here.
There’s no need for three visit slots when visiting is closely monitored by ICI, and a system of individual accountability means prisoners involved in prohibited actions at visiting can be sanctioned individually.
Between 1989 and 2006, PBSP SHU had two visit slots and often allowed extra time when slots were open, especially for visitors coming a long distance.
You can direct PBSP to go back to the two slots and permit extra time when slots are open, or direct the D Facility visiting room to be re-activated and used on weekends and holidays.
B) Allow a weekly phone call – hasn’t happened yet!
C) Allow two annual packages a year – hasn’t happened! We had asked in the Five Core Demands for allowance for one 30-pound package of food and beverage items and one package of non-food items, such as sweats, thermals, cosmetics, earbuds etc. For those held in SHU and Ad Seg for more than one year, who are free of any serious disciplinary notices for 12 months, these prisoners should be allowed TWO 30-pound packages of food and beverage items and one package of non-food items per year.
D) Expand canteen and package items allowed. Some new items have been allowed; however, there are more that can be added.
One of the items that we need as soon as possible, that CDCR has not given the OK for, is lotion. We were able to get lotion for years, but this year it was taken from our canteen and packages, on the excuse that it was “not on property matrix.” We need it here and medical refuses to give it out.
Another need is sweat shorts, so that we have the dignity of not being paraded about in boxer shorts while escorted to medical line or yard.
We are also seeking to be able to buy two cases of Top Ramen and woodless colored pencils, which could be added to canteen.
E) More TV channels – denied by Warden Lewis. CDCR and PBSP keep falsely claiming that we have 27 cable channels. We actually have three cable channels and five network channels, which is less than all other SHU units across the state. We’re asking for two or three more channels.
F) Allow hobby craft items: art paper, colored pens, small pieces of colored pencils, watercolors, chalk etc. We have gotten paper, pens and chalk so far, but many can’t work with the chalk. We’ve found that Walkenhorst’s sells “woodless colored pencils.” See Walkenhorst’s 2012 Fall Catalogue, page 136, item E.
We have asked Pelican Bay staff to notify Walkenhorst’s that SHU prisoners are allowed to purchase these sets of 12 and 24 woodless colored pencils for our packages. Associate Warden P.T. Smith tells us that only Sacramento CDCR headquarters can notify Walkenhorst’s about allowing us to have items.
Thus, we are asking you to notify Walkenhorst’s that we are allowed to have the woodless colored pencils in our packages.
G) Install pull-up and dip bars on SHU yards – has not happened yet!
H) Additional issues: Warden denied our request to participate in “charity bake sales” stating “Get out of the SHU!” Unfair, and no kind of security risk. And the PIA mattresses being issued now equal NO mattress at all!
Again, the above are examples of problematic issues regarding our Five Core Demands. A more detailed list dealing with issues in demands Nos. 4 and 5 will be forthcoming.
Your time, attention and assistance with the above is much appreciated.
Todd Ashker, Arturo Castellaños, Sitawa Nantambu Jamaa/Dewberry, Antonio Guillen
Nov. 28, 2012
Part 2: Responsive Opposition to CDCR’s Oct. 11, 2012, STG Pilot Program
Submitted Dec. 3, 2012, by Todd Ashker, Arturo Castellaños, Sitawa Nantambu Jamaa/Dewberry, and Antonio Guillen
To whom it may concern:
The CDCR’s Oct. 11, 2012, Security Threat Group Pilot Program Instructional Memo IS NOT ACCEPTABLE! It fails to meet our 2011 Five Core Demands and is herby rejected for reasons briefly summarized in the examples below of the problems we have with the STG Pilot Program and what the CDCR needs to do to meet our demands and thereby keep their word.
See also our related oppositions to CDCR’s March and June 2012 STG proposals. [See Pelican Bay Human Rights Movement presents counter-proposal opposing CDCR ‘Security Threat Group Strategy’ regarding the March proposal and Open letter to Gov. Jerry Brown: Stop the torture now regarding the June proposal.]
We have repeatedly made clear that the heart of our first three core demands is the requirement for substantive changes to SHU and Ad Seg policies and practices, which must include:
- An individualized accountability, behavior-based system when it comes to grounds for placement or retention in CDCR’s SHU or Ad Seg solitary confinement cells. This means such cells are reserved for those prisoners who are charged with and found guilty of committing a serious, felonious type of rule violation that merits a “determinate” SHU term. Individual accountability also applies to privilege restrictions when such are abused by an individual. This equates to a demand for an end to “indeterminate” SHU confinement.
- Related demands for an end to progressively punitive SHU and Ad Seg policies and practices for the purpose of coercing prisoners into agreeing to become state informants: This demand includes our call for an end to the “debriefing” policy.
- A demand for humane treatment and conditions in the SHU and Ad Seg units, with a focus upon meaningful program opportunities and ability to gain privileges, based on criteria that are realistic and reasonable – the purpose being to assist the prisoners with being able to return to the general prison population in the shortest amount of time possible; e.g., the voluntary participation in SHU programs equates to meaningful, additional privileges and the ability to earn good time off one’s sentence in order to shorten the determinate SHU term.
The CDCR’s Oct. 11, 2012, Pilot Program is not responsive to our above summarized demands, as exemplified below:
For more than 25 years the CDCR has used an alleged “gang management” policy and practice consisting of placing validated prison gang members and associates in SHU and Ad Seg solitary confinement cells – indefinitely – wherein prisoners are subjected to progressively more punitive conditions, for the purpose of coercing them into “debriefing” – becoming a state informant to gain release from solitary by providing gang unit staff (IGI, or Institutional Gang Investigations) with verifiable information that harms other gang affiliates.
Between 1986 and 1999, the only way to get out of solitary was to parole, die, go insane or debrief. In 1999, in response to a court ruling, the CDCR came up with another alleged avenue for SHU release, wherein a prisoner able to go six years with zero documented gang activity can achieve “inactive” gang status and thereby might be released to general population. The “inactive” avenue for SHU release has proven to be a sham!
Notably, most of the prisoners in SHU for the past one to 40 years based on a “current active” validation have never been found guilty of committing an illegal, gang-related act. We’re talking about decades of indefinite, punitive solitary confinement, based on alleged current active gang involvement, consisting of innocent association or political type activity and/or the unsubstantiated allegations of involvement in illegal gang activity by debriefer, confidential informants, deemed “reliable” by IGI – but no charges were filed! IGI’s validations are rubber-stamped by the Office of Correctional Safety (OCS) and/or Special Services Unit (SSU), UCC (Unit Classification Committee) and all levels of the 602 appeals process, as per admissions by former PBSP Warden McGrath during his testimony in the 2009 Lira trial.
The Oct. 11, 2012, STG Pilot Program claims to “change” the present SHU policy and practice in the following ways: To “provide individual accountability of offenders” (Pilot Program Memo, page 1, Purpose) based on “a new behavior-based system, which will serve to enhance the existing intelligence-based validation system. The implementation of this process will include an STG behavior-based disciplinary matrix, which will provide for additional procedural due process safeguards and a system of individual accountability” (page 2, Key Revisions).
However, the truth is that the Pilot Program fails to change the present policies and practices at issue in any substantive meaningful ways, and it will actually result in a significant expansion of the numbers of prisoners kept indefinitely in SHU and Ad Seg solitary confinement torture cells. The numbers will expand to tens of thousands, because the CDCR STG Pilot Program targets not only prison gang affiliates, but OCS will now target any and all groups of three or more prisoners who are deemed to pose a “potential” threat (Pilot Program Memo, pages 1 and 9). This failure to change the present system is also demonstrated by:
A) The prisoners validated as STG-1 members (i.e., prison gang members) will continue to be subject to automatic, indefinite SHU confinement, solely based on the validation. There is no requirement that a formal charge of gang related misconduct be filed, nor any related requirement for a formal hearing to take place to determine guilt or innocence as per the preponderance of credible evidence standard, as required by CDCR’s formal rule violation hearing process. One’s only avenue for release from the SHU is to parole, die, go insane, debrief or successfully complete the four-year minimum Step Down Program (Pilot Program Memo, Sections 200.2; 500; 600.3; 700; 1200).
Additionally, any and all prisoners validated as STG affiliates will continue to be placed and/or retained in SHU and Ad Seg solitary confinement cells indefinitely, based on alleged intelligence indicating “confirmed STG behavior or activity,” defined as “STG behavior which is discovered and confirmed to have occurred. Confirmation can be obtained through two processes: 1) a guilty finding in a STG rule violation report; and/ or 2) any document that clearly describes STG behavior/activities incorporated within the validation or continued STG behavior package, submitted to the OCS for Special Agent assessment and recommendation; and which is affirmed by an STG Unit Classification Committee” (Pilot Program, attachment A, STG definitions at “Confirmed STG Behavior.” See also definitions for Step Down Program, Steps 1 and 2, regarding use of intelligence and these steps housing prisoners based on influence.)
The above is also supported in the Pilot Program Memo at Section 600.3: Validated Affiliate with Confirmed STG Behavior Outside the Disciplinary Process:
“(a) A STG affiliate determined to have confirmed STG behavior or intelligence, … which occurred outside … formal disciplinary process shall be documented in a CDCR form 128-B, General Chrono (confidential chrono, if appropriate). The activity or behavior must have occurred within the last four years. Investigators shall establish reliability per CCR Section 3321 when confidential information is used and shall be recorded within the chrono. This confirmed STG behavior or activity shall consist of the following:
“Behavior, activity or intelligence items as indentified in Section 600.1: Validation Source Criteria totaling at least 10 additional points and identified subsequent to the validation process. This process shall only be utilized if the circumstances cannot be otherwise addressed through the disciplinary process.”
Everyone familiar with CDCR OCS, SSU and IGI’s SHU and Ad Seg policies and practices over the course of the past 10 to 40 years will recognize the above referenced Pilot Program. “Changes” to the present policy and practices equate to NO substantive changes at all.
The facts are CDCR staff have always been required to issue Rules Violation Reports to prisoners who are alleged to have violated a rule, when such is supported by credible evidence, per CCR, Title 15, Section 3312, et seq. In spite of this long standing regulation, most of the prisoners have not been charged with nor found guilty of an illegal gang related act! We’ve been subjected to decades of SHU isolation based on the criteria referenced above regarding “confirmed STG behavior outside the disciplinary process.”
With the above in mind, the only “change” to the current policy is a four-year review in the absence of being found guilty of an STG related Rules Violation Report, wherein documented and confirmed STG behavior or activity, totaling at least 10 additional points (over the course of four years) will be cause for continued indefinite SHU confinement, as compared to the present six-year review for consideration of inactive gang status, so long as there is no documented gang activity (over the course of six years).
The above process will be applied to those prisoners presently serving an indeterminate SHU term based on their validated status and they “shall be afforded a Departmental Review Board (DRB) hearing, to determine their appropriate placement and/or retention within the SHU/Step Down Program or potential release to general population … (T)he DRB will conduct an assessment of the preceding four years to determine the existence of on-going STG behavior” (Pilot Program Memo, page 3).
Based on all of the above referenced Pilot Program points, we can expect the DRB criteria used for their “assessment” of the preceding four years “to determine the existence of on-going STG behavior” will be the same criteria used for a six-year active/inactive review, with a focus on finding any alleged “documented items of current behavior or activity” occurring within the past four years totaling 10 or more points (i.e., a “continued STG behavior package” type of assessment) whereupon they will determine what step one is eligible for in the Step Down Program.
The DRB will utilize the sections of the Pilot Program referenced above because most of the validated affiliates – in SHU and Ad Seg for decades – have no STG related rule violation guilty findings. So they’ll have to utilize Pilot Program Section 600.3 (referenced above) because the CDCR and OCS have no intention of releasing certain STG affiliates to general prison population – e.g., those in PBSP Short Corridor who are there based on “influence,” which in turn is based on confidential informants’ or debriefers’ claims and/or IGI’s subjective opinion, which is impossible to disprove! See Pilot Program Memo, page 41, re SDP, Steps 1 and 2, reference to “influence.”
All of the above referenced Pilot Program points are NOT ACCEPTABLE!
What it basically boils down to is a CDCR OCS sentence enhancement of four years to life for alleged STG behavior or activity, without a requirement for any related formal charge(s) or guilt of committing any illegal, gang-related act! Remember, this sentence enhancement can be applied to STG affiliates for minor non-criminal associational activity (e.g., Pilot Program Memo, Section 600.2 (a), (b), (c) and 600.1, Disciplinary Matrix, bottom four boxes, re tattoos, roll call, group exercise, greeting cards and art work, acting in a leadership role, displaying behavior to organize and control other inmates etc.). Being deemed “guilty” of such innocuous and/or vague activity is cause for a minimum of four years of indefinite solitary confinement and inability to earn good time credits off one’s sentence, in addition to all the other punitive conditions such confinement entails.
This amounts to a minimum of four years of subjection to conditions that are psychologically and physically torturous to prisoners and their loved ones on the outside for the purpose of coercing them into becoming state informants via debriefing – without being formally charged and/or for insignificant violation(s) of minor, associational-type activity!
The truth is that the Pilot Program fails to change the present policies and practices at issue in any substantive meaningful ways, and it will actually result in a significant expansion of the numbers of prisoners kept indefinitely in SHU and Ad Seg solitary confinement torture cells.
The above points exemplify the CDCR OCS’ intent to maintain the present status quo of confining thousands of prisoners in long term solitary cells, subject to progressively punitive conditions, for coercive purposes. What is worse is they insist on doing this in spite of the fact that such practices violate U.S. constitutional and international laws and treaties, as well as state law regarding enhancements and sanctions for gang-related activity. (The applicable California Penal Code is 186.22, as interpreted by the California Supreme Court. See for instance People v. Castenada, 23 Cal. 4th 743 (2000), the leading case. See also People v. Moreno, 68 C.A. 4th 1198 (1998), and People v. Gardeley, 14 Cal. 4th 605 (1996), and People v. Gomez, 235 Cal. Rptr. 2d 957, 971.)
Again, this is not acceptable, nor is it a sensible, responsible use of the taxpayers’ money to utilize costly SHU and Ad Seg cells for an indefinite time period of at least four years for such minor infractions of CDCR OCS’ made up rules. These sorts of small infractions can be addressed in the general prison population via progressive levels of restrictions on various programs and/or privileges. SHU and Ad Seg cells are approximately $20,000 costlier than general population cells per year!
B) The Pilot Program memo also claims the change in policy will provide “additional layers of procedural due process” regarding validation(s) and continued STG behavior and related SHU placement, retention and Step Down Program issues (Pilot Program Memo, page 1, Purpose, and Sections 100 and 400-800).
For the past 25-plus years, many SHU and Ad Seg prisoners have received CDCR’s version of “procedural due process” wherein IGI’s decisions and recommendations are automatically upheld by all levels of review by OCS, committees and prisoner grievance process 602 appeals. The Pilot Program changes nothing, because each level of review will still be conducted by CDCR employees who are trained and directed by OCS, SSU or IGI.
Therefore, this part of the Pilot Program is NOT ACCEPTABLE! Real due process requires substantive as well as procedural aspects and at least one level of meaningful review by a neutral third party, a qualified monitor who conducts a thorough, substantive, procedural review.
C) The Pilot Program memo claims the four year (minimum) Step Down Program (SDP) will provide STG affiliates with a way to earn release from indefinite solitary confinement without having to debrief (Pilot Program Memo Sections 700 et seq.).
CDCR’s SDP is NOT ACCEPTABLE! Four years is too long and the proposed programs and privileges for each step are not realistic, reasonable or meaningful.
CDCR presents the SDP as “an incentive based multi-step process for the management of STG affiliates. This program will assign, transition, and monitor inmates who by their behavior have demonstrated the need for CDCR’s utilization of special strategies for their management.
“The SDP shall normally be completed in five steps and provides a process for inmates engaged in STG behavior or activities to demonstrate their ability to refrain from this type of behavior, preparing them for return to non-segregated housing and eventual release to the community” (Pilot Program Memo Section 700).
Unfortunately, the CDCR Pilot Program for an SDP is structured in a way that is demonstrative of their true intent of maintaining and greatly expanding upon the current policy and practice of keeping thousands of prisoners in punitive solitary confinement cells indefinitely, until they die, go insane or debrief.
The first three and a half years of CDCR’s SDP entails a type of solitary confinement wherein the prisoners spend virtually 24 hours a day alone in a cell on the small-cell yard. The CDCR states this will be “a period of observation” during which the prisoner will be expected to keep his bed made and complete in-cell, self-directed journals and earn incentive-based privileges (Pilot Program Memo, Sections 700 through 700.5, pages 40-50).
This makes no sense! How can you “closely observe” someone for the purpose of assessing their behavior or activity, when they are in a type of solitary confinement 24/7? How does a minimum of three and a half years of doing self-directed journals for basically trivial and insignificant privileges prepare them for return to non-segregated housing and eventual release to the community?
A Step Down Program should be a maximum of 18 months in duration for the purpose of enabling prisoners to shorten their determinate SHU terms. In today’s SHU and Ad Seg units and Level 4 general population prisons, the prisoners are closely monitored 24/7. Any SDP needs to be based on realistic, reasonable adult programming criteria and meaningful incentives for each step.
For example, Step 1 can be a maximum of 90 days of basic in-cell type of programming. Step 2 can be a maximum of six months of more meaningful, interactive type of programming, such as small group activities in cages, small group yard etc., where observations of prisoners’ behavior and activities actually mean something towards assessing one’s potential for successful transition to general population. Step 3 can be for a maximum of nine months of small group programming, larger group yard, dining together. Step 4 can be for monitored status in a general population type of setting.
The incentives for each step need to be realistic and meaningful – for example, the ability to earn good time credits, regular phone calls, contact visits, additional packages, canteen, property etc., beginning at Step 2. Once in the SDP, sanctions for STG behavior or activities must be solely based on a formal charge and guilty finding for a serious rule violation linked to a STG.
Additionally, the CDCR’s mission priority is founded upon the principle of promoting and protecting public safety and the related operation of a reasonably safe and secure prison system. CDCR presently has the opportunity to back up these catch phrases with action by creating a sensible program for the purpose of transitioning the present long term SHU prisoners to a general population prison environment in a reasonably safe and secure manner. Their presence in general population will enhance the safety and security of the prison system as a whole, which will enable CDCR to provide prisoners with meaningful rehabilitation type programs and thereby help prisoners be better prepared for achieving success upon their parole to the community (see Aug. 12, 2012, Agreement to End Hostilities).
The CDCR can do this right now, at little to no cost, via the creation of the MCU [MAX-B] type program that we detailed in our March 2012 Counter-Proposal.
It’s a simple matter, for Pilot Program start-up purposes, to review all PBSP SHU prisoners’ files. Those on indefinite SHU status for validation, who have not been found guilty of a formally charged, gang-related offense – a serious RVR (Rules Violation Report) – in the last two years, who are three to five years or less from their parole date or parole eligibility hearing are immediately released to the MCU (Management Control Unit) on PBSP B Facility, where they can still be closely observed while actually interacting with each other and staff in a less restrictive yet still controlled environment. This is a model for success!
It has been more than 13 months since we agreed to suspend our non-violent, peaceful protest hunger strike actions in response to CDCR’s top administrators’ admissions that all of our Five Core Demands were reasonable and would be responded to via substantively meaningful changes to the policies and practices at issue.
To date, the CDCR’s top officials have acted in bad faith, including ignoring our prior opposition points and counter-proposal.
Therefore, at this point, we request a face-to-face meeting with the top CDCR officials, authorized and able to make decisions on the spot, for the purpose of changing the Oct. 11, 2012, STG Pilot Program Memo in ways responsive to our Five Core Demands, in line with the examples set forth in this document.
This meeting can be in person or via video conference in PBSP SHU.
Let this serve as notice that failure to change the Pilot Program in ways that are responsive to our Five Core Demands, as exemplified in this document, will be deemed to be just cause for our collective resumption of our non-violent, peaceful protest action(s).
Thank you for your time and attention.
Send our brothers some love and light: Todd Ashker, C-58191, PBSP SHU D4-121, P.O. Box 7500, Crescent City CA 95532, and Sitawa Nantambu Jamaa/Dewberry, C-35671, PBSP SHU D1-117L, P.O. Box 7500, Crescent City CA 95532. Mail to Arturo Castellaños and Antonio Guillen remains severely restricted. These four men are the “main reps” for the California prison movement best known for the 2011 hunger strikes that involved 12,000 prisoners at their peak. These letters were transcribed by Penny Schoner.