Representatives: Continued ignoring of Five Core Demands could prompt resumption of peaceful protest

From: SF Bay View

December 28, 2012

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. Smith

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:

  1. 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.
  2. 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.
  3. 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.

California prisoner hunger strike solidarity drawing by Rashid Johnson, Red Onion Prison, Va
Linked arms showing multi-racial solidarity around symbols of  hunger-striking California prisoners became the icon of the 2011 hunger strikes. At the end of this statement, the “main reps” announce their intention to call for a resumption if their almost two-year-old demands are not met. – Drawing: Rashid Johnson, then a prisoner at Red Onion State Prison in Virginia, now transferred to an Oregon prison

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!

Conclusion

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.

This has NOT HAPPENED, as summarized in the above examples. (See also our related opposition and rejection statements responding to CDCR’s March and June 2012 STG proposals.)
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.

Advertisements

Mulling over Martinez: Why a Recent Supreme Court Case might get you into Federal Court in Style

Published earlier in: Florida Postconviction Legal Perspectives (FPLP),  Vol. I, Issue 10, pages 11-14, Oct. 2012

By Gray R. Proctor

Greetings! I want to talk about an issue in federal habeas corpus review, specifically procedural default. A recent Supreme Court case might have an unexpected effect: allowing defendants to choose whether to bring their claims of ineffective assistance of counsel – and perhaps other claims that cannot be brought at trial or on direct appeal – directly in federal court, without going through Florida state court in a 3.850 motion or similar device. I’ll explain the case, what it can definitely do, what I think it might do, and how that might help you. Accordingly, this month I need to open with something you might expect from an attorney: a disclaimer. This column is not legal advice. I make no prediction about how any court will apply the law to your case. Rely on the opinions I express here at your own
risk.

On March 20, 2012, the Supreme Court decided Martinez v. Ryan.1
Changing the law for most federal habeas petitioners, Martinez established that if the petitioner had no attorney or had an ineffective attorney on state postconviction review, the petitioner’s failure to bring certain claims will no longer result in procedural default (explained below). Martinez applies only to those claims that could not have been brought at an earlier stage of criminal proceedings when the petitioner did have a right to counsel. I use the example of ineffective assistance of counsel in this column, but there will be others. I may consider which other claims could benefit from Martinez in a future piece. I also do not consider the role of Martinez for federal prisoners bringing their §2255 motions, but it seems to me that it could allow them to bring new claims on appeal from the denial of their § 2255 motions.

Prior to Martinez, federal habeas courts had held that because no right to counsel exists after direct appeal, these claims were defaulted if not brought in state court even if counsel made an egregious error. To recap the events leading to the Supreme Court decision: Proceeding pro se on federal habeas review of his Arizona state conviction, Luis Martinez brought an ineffective assistance of counsel claim that had not been presented in Arizona postconviction proceedings below. The state argued that Martinez’s claim was therefore procedurally defaulted on habeas review.1

Martinez countered by arguing that his claim fell within the “cause and prejudice” exception to
procedural default because it wasn’t his own fault that the claim hadn’t been raised. The cause here: Martinez’s postconviction attorney2 failed to raise the ineffective assistance claim in state courts.
The state’s reply, well supported by existing case law, was that ineffective assistance of counsel couldn’t serve as “cause” for claims not brought on collateral review.4

Existing law provided that where a right to counsel exists, the Sixth Amendment “requires that responsibility for the [procedural] default be imputed to the State” rather than the petitioner.5
Without such a right, a petitioner was bound by the acts of the attorney, who was deemed to be his agent just as in a civil case.

Martinez lost in the district court. On appeal, he argued that he was entitled to effective assistance of counsel on collateral review, at least with respect to his claim of ineffective assistance of trial or appellate counsel, because he could not have brought that claim at trial or on direct appeal.6

Thus, he had never had any right to counsel’s assistance in bringing this particular claim. To quote from the Ninth Circuit’s opinion:

Martinez asserts that he is entitled to the effective assistance of counsel in connection with his first state petition for post-conviction relief. He asserts that a right to the assistance of counsel attaches to the presentation of a claim of error at the first tier of review, relying upon Halbert v. Michigan, 545 U.S. 605, (2005) and Douglas v. California, 372 U.S. 353 (1963). Martinez recognizes the general rule that “there is no right to counsel in state collateral proceedings,” see Coleman, 501 U.S. at 755, 111 S.Ct. 2546, but asserts that there might be an exception where “state collateral review is the first place a prisoner can present a challenge to his conviction.” 501 U.S. at 755.

…. On the one hand, the Court’s decisions in Halbert and Douglas recognized a federal
constitutional right to counsel in connection with a criminal defendant’s direct appeal from his
conviction (or the equivalent of direct appeal). On the other hand, in Ross v. Moffitt, the Court
declined to recognize a right to counsel in connection with a criminal defendant’s pursuit of secondtier review. 417 U.S. 600 (1974).8

To briefly review the relevant law: Douglas established that the Equal Protection Clause guarantees effective
assistance of counsel on direct appeal, because “where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.”9

Halbert involved Michigan’s procedure granting its courts of appeal discretion to reject appeals of guilty
pleas. Although the Supreme Court had previously refused to extend the Sixth Amendment’s guarantee of effective counsel to appeals in state supreme court or the Supreme Court, 10 it held in Halbert that the right to counsel does extend to discretionary review which is “likely the only[] direct review the defendant’s conviction and sentence will receive.”11

To return to Martinez: the Ninth Circuit decided that “there is no federal constitutional right to the assistance of counsel in connection with state collateral relief proceedings, even where those proceedings constitute the first tier of review for an ineffective assistance of counsel claim.”12

To again quote that court:

This case is more like Ross than Halbert. In Ross, the petitioner had already received direct review of his convictions, and had already received the assistance of counsel in connection with that first appeal. Likewise, here, Martinez has already received direct review of his conviction and received the assistance of counsel in connection with that appeal. In Halbert, by contrast, the petitioner sought the functional equivalent of direct review, the first appeal of his conviction. Even if collateral review presents the first tier of review for Martinez’ ineffective assistance of counsel claim, we conclude that Martinez’ action is not analogous to a direct appeal — or the first opportunity for him to obtain review of his conviction — so as to entitle him to effective counsel.13

The Martinez court adhered to the existing law on the “cause” element of the cause and prejudice exception to procedural default: that an attorney’s actions cannot serve to excuse default unless her client had a right to
counsel at the time of the error. Thus, Martinez lost again.

Martinez won in the Supreme Court, but not on the right-to-counsel issue. The Supreme Court recognized that it was still an open question, but found that “[t]his is not the case . . . to resolve whether that exception exists as a constitutional matter.” Instead, the Supreme Court changed the doctrine of procedural default:

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Just as it did in Maples v. Thomas14 earlier this term, the Martinez Court decided that an attorney’s misconduct in postconviction proceedings excused a procedural default, regardless of whether a right to counsel exists.

Forget for a moment the question of whether there’s a constitutional right to counsel on collateral appeal. Your guess is as good as mine when that will be resolved or what the answer will be. Let’s talk about how Martinez can help you if you didn’t have appointed counsel on Florida postconviction review.

The obvious benefit goes to those of you who want to bring a new claim of ineffective assistance in federal court that you didn’t think of on Florida postconviction review. Most of you did not study the law until you were faced with filing your 3.850 or 3.800 motions, so you may have discovered new legal theories that didn’t occur to you during the first round of review. Or, new facts may have come to light that allow you to make claims that didn’t seem plausible before. These would have been procedurally defaulted before Martinez, but now you can probably bring them. If this describes you, you can skip the next two paragraphs and see how else this will help you obtain the benefits of fullscale de novo federal review of your claim – and possibly appointed counsel as well.

For those of you who have not yet filed a Florida postconviction motion, Martinez could also do something for you that you might not realize: if you’re not appointed an attorney on collateral review, Martinez may give you a meaningful choice between having your claims heard in state or federal court. I’ll explain why you might want to do that before, but first I want to warn you that deliberately failing to bring claims in state court is still a very risky strategy. Martinez is a new case, and federal courts haven’t decided what its limits are. Conceivably, federal courts could rule that if you “deliberately bypass” the state courts15 by failing to bring a claim that you know you could have brought, Martinez does not apply – and then your claim will never be heard at all.

That said, it seems clear to me that Martinez makes the federal court a viable forum when it applies. The reason is that if Martinez applies, there’s no lower court decision to contend with. Let me explain why that makes a big difference.

First of all, a Martinez-excused claim should be much more likely to receive an evidentiary hearing. 28 U.S.C. §2254 provides that petitioners who have “failed to develop the factual basis of a claim in State court” will not receive an evidentiary hearing unless the petitioner can show that no reasonable factfinder would have found the petitioner guilty if his constitutional rights had not been violated.16

“Failed” here doesn’t just mean that you didn’t do it; it means that it’s your own fault. A habeas petitioner “fails” to develop the factual basis of a claim when there exists “a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”17

Martinez holds that it’s not your fault you didn’t bring a claim if you didn’t have counsel – at least, with respect to procedural default. The reasoning seems equally applicable to evidentiary hearings. If so, evidentiary hearings on Martinez-excused claims will be governed by the more generous standard of Townsend v. Sain:

[A] federal court must grant an evidentiary hearing to a habeas applicant under the following
circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there isa substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.18

You ought to be able to meet that standard. Even better, you’ll be appointed an attorney under the rules of habeas procedure.19

It is not 100% certain that you’ll be entitled to constitutionally effective assistance from that attorney,
but I think it extremely likely, and in any event it’s not certain that you won’t enjoy the Sixth Amendment guarantee from your federal habeas attorney.20

I leave it to you to decide whether the average attorney appointed for a federal habeas case will be better than the average attorney appointed in Florida state postconviction proceedings.

The other benefit pertains to questions of law. If you bring a claim in state courts and the state court gets it wrong, you’re in trouble, because the federal court can’t just fix it. Federal habeas courts are likely to be bound by that state court decision – especially for Strickland claims. For any claim “adjudicated on the merits in State court,” the standard of relief requires federal courts to find “a decision that was contrary to, or involved an application of, clearly established Federal law, as determined by the Supreme Court of the United States.”21

So if the state court decision is wrong, but not unreasonably wrong, you still lose. Strickland already gives counsel a presumption of effectiveness, leading the Court to speak of “the doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.”22

Because there is no state court decision to defer to, Martinez-excused claims can prevail if the district judge thinks they should. Also, if you would definitely win under Eleventh Circuit (federal court of appeals) law but might not under Florida law, avoiding the “as determined by the Supreme Court” requirement is an attractive option. If you brought your claim in state court and lost, case law from the Eleventh Circuit law would not apply.

These are my thoughts on Martinez so far. In addition to letting you bring your claim in federal court, it helps you avoid the parts of AEDPA23 that have crippled federal courts. Whether your claim is better heard in state or federal court is not possible to predict in a general sense, but you might decide that the possibility is worth the risk. As always, I wish you luck.

Notes

Note 1. 132 S.Ct. 1309 (2012).

Note 2. See, e.g., Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998) (applying doctrine of procedural default to claims by federal prisoners under 28 U.S.C. § 2255 that were not raised at trial or on appeal); Snowden v.
Singletary, 135 F.3d 732, 735-76 (11th Cir. 1998) (explaining that claims not “exhausted” in state court are procedurally defaulted if they could no longer be raised at the time the federal court consider a 28 U.S.C. §2255 petition).

Note 3. Arizona is one of a few states that appoint counsel for every first postconviction proceeding. Ariz. Rule Crim. Proc. 32.4(c)(2). Rule 3.111(b)(2) of the Florida Rules of Criminal Procedure allows appointment of counsel on postconviction review, but does not offer any criteria for deciding when counsel should be ppointed. Rule 3.851(b) makes appointment of counsel mandatory for postconviction proceedings in capital cases.

Note 4. Coleman v. Thompson, 501 U.S. 722, 753–754, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Note 5. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions”).

Note 6. Murray v. Carrier, 477 U.S. 478, 488 (1986).

Note 7. Massaro v. United States, 538 U.S. 500 (2003) (explaining that “almost all jurisdictions prefer that ineffective assistance claims be presented on collateral attack”).

Note 8. Martinez v. Schriro, 623 F.3d 731, 736-37 (9th Cir. 2010). Following the quoted text is a useful review of the law
governing the right to counsel both at trial and on appeal.

Note 9. At 357.

Note 10. Ross v. Moffitt, 417 U.S. 600 (1974).

Note 11. Halbert v. Michigan, 545 U.S. 605, 609 (2005).

Note 12. 623 F.3d at 739-40.

Note 13. Id. at 740.

Note 14. Maples v. Thomas, ___ U.S. ___, 132 S.Ct. 912, 922-23, 181 L.Ed.2d 807 (2012) (finding cause and prejudice to excuse procedural default in capital case where the petitioner’s counsel destroyed the principal-agent relationship
by abandoning him without notice, but explaining that where no right to counsel exists, a petitioner is bound by the acts and omissions of his attorney under “well settled principles of agency law”) (quotation omitted).

Note 15. “Deliberate bypass” is an older standard for deciding whether a claim was procedurally defaulted. Fay v. Noia, 372 U.S. 391 (1963). This standard is no longer applied in habeas corpus. Wainwright v. Sykes, 433 U.S. 72 (1977). Nevertheless, it could be revived for petitioners who fail to bring a claim for the sole reason that they want to secure the benefits I discuss in this column.

Note 16. 28 U.S.C. § 2254(e)(2)(B) (emphasis added). In addition to this requirement, a petitioner must show that theclaim either relies on a new, retroactive rule of constitutional law or depends on facts that could not have been discovered earlier. 28 U.S.C. § 2254 (e)(2)(A).

Note 17. Williams v. Taylor, 529 U.S. 420, 432 (2000).

Note 18. 372 U.S. 293, 313 (1963)

Note 19. Rules Governing Section 2254 Cases in the United States District Court, Rule 8(c) (“§2254 Rules”) (“If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.” (governing appointment of counsel for indents)).

Note 20. McGriff v. Dep’t of Corr., 338 F.3d 1231, 1235 (“If the Supreme Court had intended a § 2254 petitioner to have a more substantial right to counsel than those provided by the Constitution, we would expect to see language to that effect in the text of the rule. We find no such language in Rule 8(c). We therefore turn to the Constitution not for authority, but instruction.”).

Note 21. 28 U.S.C. § 2254(d)(1).

Note 22. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

Note 23. The Anti-Terrorism and Effective Death Penalty Act, passed in 1996, significantly narrowed the scope of federal habeas review.

About the Author

Gray R. Proctor is currently on the Board of Directors for the Florida Postconviction Legal Aid Organization and practices law in Orlando, Florida, representing clients in criminal appeals and state and federal habeas corpus proceedings. Gray R. Proctor’s legal career really began during his second year at Vanderbilt University Law School.

Professor Nancy King (co-author of West’s Criminal Procedure treatise and Assistant Reporter for the Advisory Committee for the Federal Rules of Criminal Procedure) had just undertaken her groundbreaking empirical study of federal habeas litigation in district courts, and Gray was lucky enough to serve as a research assistant on that project. Over the course of the habeas project, Gray reviewed over 800 non-capital habeas cases and 100 capital habeas cases throughout the country, documenting which claims and defenses were raised and the eventual ruling. This study is cited by Justice Scalia in the Martinez dissent.

Professor King also served as faculty advisor for Gray’s published senior thesis, “Ngo Excuses: Proving, Rebutting, and Excusing Exhaustion in Prisoner Suits after Woodford v. Ngo and Jones v. Bock,” 31 Hamline L. Rev. 471. Professor King would later serve as Gray’s co-author in “Post-Padilla: Padilla’s Puzzles for Review in State and Federal Courts,” 23 Fed. Sent. R. 239, an article about how Padilla’s
ruling would have to be filtered through federal postconviction rules. His particular interest in Padilla is whether it will be applied retroactively; the Supreme Court heard oral arguments on this issue in Chaidez v. United States, and those who wish to place bets on how it will be decided should contact Gray directly.

Immediately after law school, Gray served as law clerk for the Hon. Brian Owsley in the U.S. District Court for the Southern District of Texas. Gray then moved to Richmond, Virginia, serving for two years as a pro se law clerk (drafting opinions in uncounseled prisoner filings) at the U.S. District Court for the Eastern District of Virginia, which is affectionately known as “the Rocket Docket” for its unusual
speed and efficiency.

Afterward, Gray served as a Staff Attorney for the United States Court of Appeals for the Fourth Circuit, drafting memoranda and opinions for appeals of criminal cases, postconviction proceedings, prisoner civil rights suits, and the occasional miscellaneous federal suit.

Gray left the Fourth Circuit to serve as deputy director of the American Bar Association’s National Inventory of the Collateral Consequences of Conviction, a free, internet-based catalog of laws and regulations in every United States jurisdiction that impose a civil consequence due solely to a criminal conviction (think felon disenfranchisement). Gray continues to serve in that capacity under Director and former U.S. Pardon Attorney Margaret C. Love, balancing his commitment to that project with his appellate, postconviction, and civil rights law practice in Orlando, FL.

Gray R. Proctor, Esq.
1199 N. Orange Ave.
Orlando, FL 32804
phone: 321-445-1951
fax: 321-445-5484
gray@appealsandhabeas.com

Scott names insider as Florida prison secretary

From: Miami Herald
Dec. 17th 2012

BY BILL KACZOR
ASSOCIATED PRESS

TALLAHASSEE, Fla. — Florida’s new prison chief on Monday inherited a deficit of about $60 million and a legal dispute over privatizing inmate health care that he says could put his agency much deeper in debt.

Michael D. Crews spoke about the challenges he’s facing as secretary of corrections a couple hours after Gov. Rick Scott announced his appointment to succeed Ken Tucker, who retired. Crews had been deputy secretary since last year.

“I have total confidence in the people that I have the opportunity to work with here that we are ultimately going to get to where we want to be as an agency,” Crews told reporters.

He began his 26-year career in corrections and law enforcement as a probation and parole officer. Later, he worked as a correctional officer and then had various jobs in the Florida Department of Law Enforcement including director of the agency’s professionalism program and chief of its bureau of standards.

Scott, a former hospital chain CEO who was new to politics when elected in 2010, again has turned to an insider after initially appointing people without Florida government experience to many key posts when he took office nearly two years ago.

His initial appointee as corrections secretary, former Indiana prisons chief Edwin Buss, lasted just six months. Scott forced him out in August 2011 after initial health care privatization bids would have benefited a consultant whom Buss had hired. Scott’s office also overrode a decision by Buss to give MSNBC access to Florida’s prisons for its “Lockup” program.

Read more here: http://www.miamiherald.com/2012/12/17/3145896/scott-names-insider-as-florida.html#storylink=cpy

Reflections on our accomplishments so far – no more suffering in silence

From: SF Bay View
Dec. 23rd 2012

by Sitawa Nantambu Jamaa

We as an oppressed prison class being illegally held in solitary confinement must reflect on our struggle and how we are to continue forward in that struggle. The first thing that I would insist is that we all reflect on our accomplishments.

Prior to our two hunger strikes, we were all suffering in silence, while understanding that each and every one of us was and is being subjected to a daily dose of both physical and psychological torture. Unfortunately, many have succumbed to the CDCR’s blunt force of torture over the past 30 years. Those of us who continue to remain under such torture today have chosen to resist peacefully against our treatment.

Though we have yet to obtain our Five Core Demands, no one can deny how much we have achieved since our initial July 1, 2011, hunger strike. For the most part our movement for human rights has made much progress, but patience is required, for we are engaged in a protracted struggle that demands our resilience.

Our keepers are going to employ stall tactics with the hope that we lose faith in our pursuit for justice. We cannot afford to give up now. Success is not far away. Don’t lose sight of what we as a class have already accomplished:

1. July 1 to July 20, 2011: hunger strike with over 6,000 participants.

2. July 1 hunger strike made national and international news.

3. American people rejected torture outright in its institutions and in every sector of our society. Celebrities, religious groups, educational institutions and countless activist organizations spread the word and went to work for us.

4. The Public Safety Committee in the California Assembly held a hearing on Aug. 23, 2011, on solitary confinement and torture, lasting a whole day, as a direct result of our July 1, 2011, nonviolent, peaceful hunger strike against CDCR’s deliberate indifference toward our human suffering.

5. The Center for Human Rights and Constitutional Law and lead attorney Peter Schey filed a petition before the United Nations on March 12, 2011, on behalf of California’s segregated SHU prisoners.

6. State Sen. Darrell Steinberg ordered the Office of the Inspector General to hold an investigation of the former CDCR Undersecretary Scott Kernan for not keeping the promises he made to implement our Five Core Demands.

7. Sept. 26, 2011, to Oct. 14, 2011, more than 12,000 prisoners participated in our nonviolent, peaceful second hunger strike for human rights equality.

8. October 2011, CDCR created a Warden’s Advisory Group (WAG) to meet and work with the SHU and Ad-Seg prisoners about local prison concerns.

9. February 2012, meetings with the associate warden of Ad-Seg and SHU began and have continued monthly ever since then, in an attempt to improve on local issues. This is supposed to be happening throughout all SHU and Ad-Seg units in the California penal system.

10. There are also intangibles that most prisoners are not aware of as a direct result of our sacrifices via both hunger strikes. For examples, we now have a media team and a legal team. Newsletters have formed: PHSS News, CFASC News, ROCK. You prisoners have made this possible through your individual and collective sacrifices.

11. We prisoners illegally held in CDCR’s Ad-Seg and SHU units have a class action lawsuit before the Northern District of California Federal Court to address our Five Core Demands, specifically numbers one, two, three and four, to free us from long time isolation – i.e., indeterminate SHU – based on alleged gang affiliations or affiliates.

12. Our professional and experienced legal team is comprised of
– 1) Carol Strickman, Legal Services for Prisoners with Children;
– 2) Marilyn McMahon, California Prison Focus;
– 3) Anne Butterfield Weills, Siegel & Lee law firm;
– 4) Charles Carbone and Evan Greenberg, Law Office of Charles Carbone;
– 5) Jules Lobel, Alexis Agathocleous and Rachel Meeropol at the Center for Constitutional Rights. And we just got six more attorneys to assist our legal team from one of the most prestigious law firms in the world. So it just might be a fair legal fight for a change.

13. Although Gov. Brown vetoed the AB1270 media bill that would have allowed the media to interview prisoners of their choice, this validates our claim that Gov. Brown is complicit in the torture of prisoners whom CDCR labels as alleged gang members or associates throughout the state of California. The state knows that transparency would expose these criminal acts against prisoners. Still, the media bill actually made it to the governor’s desk.

14. The model SHU, built by Prisoner Hunger Strike Solidarity coalition members, has been to demonstrations in Northern California and we are truly grateful to our loyal supporters.

15. California Families Against Solitary Confinement, CFASC, opened their chapter in Southern California to gather family members and ex-prisoners to support their rallies and projects like transporting families and loved ones by vans and buses to distant prisons, beginning with Pelican Bay. CFASC’s work with legislators in Southern California and in Sacramento has been highly valuable to new lobbyists from other parts of the state.

16. June 18, 2012, the U.S. Senate Judiciary Subcommittee on Civil Rights and Human Rights, chaired by Illinois Democrat Dick Durban, held the first ever Congressional hearing on solitary confinement in the United States federal and state prisons.

These are not small accomplishments. We must all be aware of what is before us and continue our struggle by being wise and patient – i.e., disciplined. We have four representatives for each racial group, who are very smart and between them they have over a 110 years of prison experience. We have another 12 alternate representatives to help achieve our objectives.

We said this is a protracted struggle. Therefore, our collective power is essential to changing our oppressive conditions throughout the whole CDCR. Be mindful that our success will depend on our collective resolve and determination to put an end to this system of human torture.

Amnesty International has recently published a report that 34 prisoners died each year from 2006 to 2010 within the CDCR. Fourteen of these deaths occurred in these torture chambers call SHU units. Whereas men commit suicide, this alone should raise the alarm that something is drastically wrong with this system.

We have the intellect to clearly understand the value of our unified efforts to address the ills of SHU and Ad-Seg, that CDCR must stop its sensory deprivation and intentional indeterminate housing based upon illegal, false allegations by the corrupt IGI personnel. All California prisoners, women and men, are in this protracted struggle, seeking U.S. constitutional rights, as well as California’s guaranteed constitutional rights.

All prisoners and citizens of California must protest against Gov. Edmund G. Brown and interim Secretary of Corrections Martin Hoshino with emails and letters to their offices forthwith! (Contact Gov. Brown at http://gov.ca.gov/m_contact.php and interim Secretary Hoshino at (916) 323-6001 or Martin.Hoshino@cdcr.ca.gov. Jeffrey Beard, the newly appointed secretary of CDCR, is awaiting Senate confirmation.)

Release all SHU and Ad-Seg prisoners who have been illegally held on non-violent, non-behavior charges over the past five, 10, on up to 20 years!

Send our brother some love and light: Sitawa Nantambu Jamaa (R.N. Dewberry), C-35671, PBSP SHU, D1-117L (Short Corridor), P.O. Box 7500, Crescent City CA 95532.

Prisoners reject CDCR proposal; threaten new hunger strike

From: Prisoner Hunger Strike Solidarity
Dec. 17th 2012

The Short Corridor Collective at Pelican Bay State Prison has asked us to publish a letter denouncing the reforms proposed by the California Department of Corrections and Rehabilitation (CDCR). The collective remains in steadfast opposition to the proposal, which they rejected in March of this year. This statement responds to the CDCR’s July proposal revision, saying: “We remain 100% opposed to CDCR’s revised proposal for the same reasons stated publicly [last March].” More pointedly, it also says: “We cannot accept the garbage proposal from CDCR!”

This latest rejection does not come softly, as it also threatens “return to non-violent, peaceful protest actions in the form of indefinite hunger strike and no work” if the CDCR doesn’t shift directions and revamp the reforms to appeal to the internationally recognized human rights framework.

Short Corridor Collective letter:

Greetings from the Pelican Bay Short Corridor Collective to all who stand with us in solidarity and support our struggle to force an end to this nation’s draconian practice of subjecting tens-of-thousands of prisoners to the torture of long term isolation cells… via an ongoing nonviolent peaceful effort, inside and out.

This is an update on the current status of our struggle here in California, wherein upwards of 14,000(+) prisoners are presently held in isolation cells, several hundred have been held indefinitely in isolation (SHU) cells for the past 10 to 30 years, solely based on “status”, rather than illegal behavior – specifically, on decades of SHU isolation is based on a CDCR gang classification label, i.e. “status of a label”, without ever being found guilty of committing a gang-related criminal act! Notably, our CDCR-OCS/IGI gang validations, and related decades of SHU torture, are based on what CDCR claims to be “intelligence-based evidence of criminal gang activity” consisting of: (a) innocent associational/political type activity; and/or (b) confidential prison informants “unsubstantiated allegations” of involvement in criminal activity!

We remain in the SHU and were not impressed after receiving and carefully reviewing CDCR’s June 29, 2012 revised proposal re: Security Threat Group Prevention, Identification and Management Strategy, which they plan to begin as a pilot program in October.

We remain 100% opposed to CDCR’s revised proposal for the same reasons stated publicly – in response to this March version, the proposal fails to meet our five core demands, and violates our October 2011 argument with CDCR undersecretary Kernan , wherein, among other things, we agreed to suspend our hunger strike activism in order to give CDCR additional time to change SHU policies and practices into a reasonable individual accountability/behavior-based system (e.g. SHU would be reserved for prisoners charged for, and found guilty of, committing a serious offense… a felony!).

Instead of this agreed-upon policy change, we patiently sit here for another year only to have CDCR come at me with more of the same garbage we rejected in March… Thereby making clear to us that obtaining real changes will require us to resume our non-violent, peaceful protest actions; in the form of a hunger strike and no work, protests to the death if necessary! Our decision to do so has not come lightly, and is supported by the following facts and circumstances.

Beginning in February 2010, we became united in our efforts to collectively expose and bring a peaceful end to the CDCR policies and practices reference above, based on our position that they constitute a form of torture, and a violation of basic human rights principles. This is when we created a “formal complaint” document, copies of which were sent to numerous lawmakers, organizations, groups and individuals, including former Governor Schwarzenegger and CDCR Secretary Cate. [To review our formal complaint, go to http://prisonerhungerstrikesolidarity.wordpress.com/formal-complaint/].

As of early 2011, the formal complain had resulted in no relief, and our conditions in SHU had become more oppressive! Therefore, we decided that our sole avenue for gaining the mainstream exposure and outside support for our case – to end our torture – was for us to put our lives on the line via peaceful protest hunger strike action. In May/June 2011, we served governor Brown, and Secretary Cate with another copy of a formal complaint and our final notice of the July 1st hunger strike (with the five core demands, available now at www.prisons.org; click on Prisoners’ 5 Core Demands in the left column).

True to our words, we began our hunger strike July 1, 2011, which lasted until July 20, 2011 (and included supportive participation by more than 6,600 prisoners across the state). Our hunger strike action was temporarily suspended on July 20th, in response to our face-to-face negotiation with CDCR Undersecretary Scott Kernan, et al, who admitted early on in the process that our five core demands “were all reasonable”, and CDCR “should have made changes twenty-years ago”… and who promised to make timely, substantively meaningful changes, responsive to all five demands.

All parties understood that CDCR needed to change policies so that SHU confinement would be reserved for prisoners who are charged with, and found guilty of, committing a serious rule violation, meriting a determinate SHU term! (i.e. a system based on individual behavior).

As of early September 2011, we believed CDCR was not acting in good faith resulting in our return to hunger strike on September 26, 2011. The response was for CDCR to take retaliating actions, including the subjection of fifteen of us to additional torture (Todd Asher, C58191; Arturo Castellanos, C17275; Charles Coleman, C60680; Mutope Duguma/James Crawford, D05996; Sitawa Nantamu Jamaa/Dewberry, C35671; J. Brian Elrod, H25268; George Franco, D46556; Antonio Guillen, P81948; Paul Jones, B26077; Louis Powel, B59864; Paul Redd, B72683; Alfred Sandoval, D61000; Danny Troxell, B76578; James Baridi Williamson, D34288; and Ronnie Yandell, V27927). We were placed into more isolative Ad-Seg strip cells, without adequate clothing or bedding, and with ice-cold air blasting out of the air vents! Then Warden Lewis informed us, “as soon as you eat, you can go back home to your SHU cell.”

This second hunger strike action was joined by more than 12,000 prisoners at its peak! It was again temporarily suspended on October 13, 2011, after CDCR made a presentation of their good faith efforts toward making the policy changes agreed to in July… which was satisfactory to our outside mediation team.

Between October 13, 2011 and now, the CDCR has failed to honor their end of our prior agreements to substantively change SHU policies and practices, no such policies and practices are in line with our five core demands; and they have made it clear that they have no intension of doing so… by moving forward with their June 29, 2012 revised proposal, in spite of our March 2012 written opposition to their related March proposal – and presentation of our counter-proposal (available here).

Our outside mediation team and the Prison Law Office also presented CDCR with related written opposition to the proposal (mediation team statement available here; PLO opposition available here). In typical fashion, the CDCR totally disregarded the above referenced oppositions and counterproposal!

At this point, we remain opposed to CDCR’s proposal based on their refusal to bring the policies and practices at issue into line with our five core demands, as demonstrated by the below, briefly summarized, examples:

Core demand #1 – “Eliminate group punishments…” CDCR’s revised proposal fails to honor this demand and makes it clear that prisoners validated as STG-I Members will automatically be subject to indefinite SHU confinement… until they successfully complete the four year minimum step-down program, or debrief (see CDCR’s June proposal at p#22). This is status-based group punishment!

Core Demand #2 – “Abolish the debriefing policy and modify active/inactive gang status criteria…”. The main points of this demand are:

(a) the debriefing policy is illegal! Especially in the context of subjecting SHU prisoners to indefinite, progressively more torturous conditions for the purpose of coercing them to become state informants (which in turn, places them and their families in serious danger!); and, it produces fabricated allegations from prisoners desperate to get out of SHU!!

(b) prisoners being denied inactive status, and release to General Population, based on CDCR, OCS-IGI’s version of “intelligence”-based documentation of involvement in gang activity (i.e. innocent associational/political type activity; and/or, confidential prisoner debriefer-informants “unsubstantiated allegations” of involvement in illegal activity), without any formal changes being filed!We’ve repeatedly made it clear that SHU confinement must be reserved solely for prisoners who are charged for and found guilty of serious rule violation – meriting a reasonable determinate SHU-term! This is non-negotiable!!

CDCR’s revised proposal fails to honor this demand by maintaining their illegal debriefing policy; and, making it clear that SHU-STG prisoners will remain indefinitely confined in SHU “… based upon intelligence and/or confirmed behaviors” (see proposal, pp# 7, 8, 9);

“…while in the program, if the STG-I Member (or Associate), exhibits STG behaviors, staff shall report the behavior using appropriate documentation. Once documented by the IGI the subject will be referred to the STG-Committee and ICC for a program, privilege or housing review. The behavior may lead to a loss of privileges, retention in the currest step, or regression to a previous step.” (Id. Proposal at P# 34)…

“Documentation may be in the form of disciplinary reports, compelling changes, confidential memorandum and/or other sources documenting behaviors and intelligence”. (Id. Proposal, p# 21).

Sound familiar? It should, because it’s the same policy and practice used and abused by CDCR, OCS-IGI for the past 13 years to deny us inactive status!! (See CCR Title 15, at pp# 2020-222 re: basis for denying inactive status!).

This constitutes a blatant violation of our October 2011 agreement and is 100% unacceptable!!

Core demand #3 – Comply with the recommendations of the US Commission on Safety and Abuse in Prisons (2006), calling for an end to long term solitary confinement…”CDCR’s revised proposal makes a mockery of this core demand! The authors of the proposal insult everyone’s intelligence by changing titles and words, while actually changing nothing re: policies and practices at issue that have been used and abused repeatedly… resulting in our subjection to decades of torture in these SHU/Ad-Seg solitary cells!!

Importantly, if the proposal is allowed to stand, it will result in many more prisoners being subject to the torture of long term isolation by way of the STG designation(s), and related criteria for indefinite placement in SHU!! All prisoners across the state need to make a collective stand and peacefully protest this proposal, because it will adversely impact all prisoners and our loved ones outside!!

We have made it clear that we shouldn’t have to jump through more hoops to be released from SHU! We’ve already been tormented and tortured in SHU for decades!! The Step-Down Program should be for prisoners serving determinate SHU terms to be able to shorten their SHU term; it should be no more than eighteen months from start to finish; needs to begin with meaningful incentives that include the ability to earn time off their sentence, opportunity for out-of-cell contact with other prisoners, regular phone calls and contact visits, and programs that prepare the prisoner for return to, first general population and ultimately civilian life!! We oppose CDCR’s proposed version of a Step Down Program… Four years is too long, and the incentives are a joke!!

The above points illustrate CDCR’s failure to act in good faith in response to our five core demands, and related agreements with CDCR Undersecretary Kernan, et al, during our July-October negotiations! Last year we made it clear to CDCR, and the world, that we were drawing the line and would no longer silently accept the torture upon ourselves and our loved ones outside!

We let it be known that our plan was to use non-violent, peaceful protest activity in the form of an indefinite hunger strike – to the death if necessary – in order to achieve our goal of forcing an end to CDCR’s illegal policies and practices at issue, via our own sacrifice, and related mainstream expense and solid outside support!

We’ve had some success regarding worldwide exposure, and we have solid outside support standing with us in solidarity… And – we have patiently pursued all available avenues to try and get CDCR to honor our reasonable demands; and presently, our final avenue is an open letter to governor Brown, asking him to order Secretary Cate to get right! If this is not successful, we will have no other option than to return to non-violent, peaceful protest actions in the form of indefinite hunger strike and no work!!

We cannot accept the garbage proposal from CDCR! We cannot allow the four prisoner deaths in support of our cause to be forgetting and many of us are fully committed to making the same sacrifice if need be to force meaningful changes to this corrupt system… and we will be serving CDCR with our notice of intent to resume our peaceful/non-violent protest actions in the near future, and if CDCR continues to refuse to act right on our five core demands, as spelled out above!!!

We want to extend our heartfelt appreciation to all of our outside supporters, including but not limited to the people with the following organizations: LSPC, CPE, Rock, SF Bayview, CFASC, JRA Advocate, Center for Human Rights and Constitutional Law (CHRCL), and Center for Constitutional Rights (CCR), Amnesty International. The latter two organizations have selflessly supported our cause via the March filing of our UN petition (CHRCL), and the May filing of our class action suit (CCR et al); these efforts are greatly appreciated, and are very beneficial to our cause (e.g. helping provide continued worldwide exposure, etc, etc, etc)!! However, the UN hasn’t acted on our petition, and the Federal Court process moves very slowly…

The bottom line is: We are ultimately the ones responsible for continuing to force reforms via our collective efforts in here!!! It’s time to move forward and make it happen!!!

In memory of: Johnny Owen Vick, Hozel Alonzo Blanchard, Christian Gomez, and Alex Machado, who made the ultimate sacrifice for our cause (PBHRM)… make no mistake, none of us wants to die, but, we are prepared to, if that’s what it takes to force a real reform!!!

Onward in struggle, with solidarity and respect

PBSP Short Corridor Main Representatives

Todd Ashker,
Arturo Castellanos,
Antonio Guillen,
Sitawa Mantambu Jamaa (Dewberry)

Lawyer claims Hawaii prisoners are harassed at Arizona prison

From: Hawaii News Now, Nov 24th 2012
By: Keoki Kerr

SUGUARO, Arizona (HawaiiNewsNow) —

A Honolulu lawyer who represents about 70 Hawaii inmates at an Arizona prison said officials there routinely harass and retaliate against some of those inmates for bringing complaints about their treatment behind bars.

Hawaii inmates at Saguaro Correctional Center in Arizona often use the phone to talk to their Hawaii-based attorneys, such as Myles Breiner.  
But he said officials at the prison routinely listen to the prisoners’ side of the conversations and take notes on their contents, a violation of attorney-client privilege.

“Inmates, as a result, are intimidated.  They are reluctant to discuss anything over the phone,” Breiner said. “Our clients are told, ‘Why do you need that lawyer?  You don’t need that lawyer. We can help you without that attorney.'”

Breiner said Saguaro inmates who file complaints about abuse by guards, improper medical attention and other problems with staff are retaliated against with unfair misconduct violations, which can make them ineligible to get parole.

“Inmates who are pursuing litigation have a disproportionate number of misconducts filed against them by the facility,” Breiner said.

A spokesman for Corrections Corporation of America, the private company that owns the prison where Hawaii houses more than 1,600 of its inmates, released a statement responding to some of Breiner’s allegations.
 “CCA takes the safety and dignity of the inmates entrusted to our care very seriously,” said Steven Owen, senior director of public affairs for the prison company. “We have a zero-tolerance policy for any form of retaliation and take any such allegations very seriously.”

Owen said the Saguaro Correctional Center has a “robust grievance process” that inmates can use to voice concerns or complaints, and he said the prison encourages them to do so.

But Breiner has other complaints.

“The warden has a habit of referring to me as ‘That Jew lawyer. That Jew lawyer Myles Breiner.” They hope to have me put in segregation,” Briener said.

In a letter he wrote to Hawaii’s Attorney General David Louie, Breiner said his clients tell him the prison warden and his assistant warden say they want to lock Breiner up if he visits the facility.

Read the rest and view the film here: http://www.hawaiinewsnow.com/story/20173244/lawyer-claims-hawaii-prisoners-are-harassed-at-arizona-prison

Voices from Solitary: “No Wonder There Are So Many Suicides”

From: SolitaryWatch
Dec 17th 2012

The following comes from a prisoner currently housed in maximum security housing at Utah State Prison, Draper. He has spent, by his estimate, seven years in either supermaximum or maximum security housing. He recently had a heart attack in maximum security and reportedly has received minimal health care treatment while incarcerated. He describes here the  Uinta 1 facility, where over 90 inmates are held in long-term isolation. –Sal Rodriguez

I spent the first two years of my incarceration in general population at a county jail. I had my first heart attack while at the county jail due to misdiagnosed Type 1 Diabetes. Despite my repeated attempts to get medical help, the officials repeatedly denied that there was anything wrong with me even though I exhibited all of the symptoms and signs of diabetes. Eventually, the misdiagnosed diabetes led to the heart attack.

I spent nine days in Intensive Care at the University Medical Center before being released back to prison where I was promptly placed in supermax–Uinta 1. I had not committed any violations to be placed in supermax other than having a heart attack.

I wasn’t considered a protective custody case, as I had just spent two years in general population. No reason was given for my being housed in supermax. I spent only a few months in supermax before being shipped out to another prison out of state. Once back in Utah I was once again placed in supermax without due process or reason, and I spent the next 20 months locked down. I have spent about seven years or more now housed in either supermax or max. I have never had any write-ups or violations to warrant me being housed in maximum security.

I can tell you that life in supermax (Uinta 1) is inhumane. There are inmates still being housed in that unit who have been there for eight years or more, who started off completely sane but now have lost all sanity. Suicide was common in the Uinta’s just a few years ago, forcing the prison to take preventative measures by installing new vent-housings that wouldn’t allow a rope to be tied to it for hanging. There is still many suicides that occur there, although its not like it used to be years ago.

The abuses still continue today with some of the torture techniques used in foreign interrogation. Cells are kept cold, lights are kept on 24/7, guards purposely make noise at all hours to prevent sleep.
Windows are covered by a small door that is only opened when the guard occasionally  looks in, as for count. Mental health care is a joke, as the mental health worker goes cell to cell not spending more than five seconds at each door and only asks “Are you ok?” It’s no wonder there are so many suicides. Mental health shows a lack of concern for those in supermax. It’s the general attitude there.