Men Continue to Be Held Alone in Cells 23 Hours a Day 

May 12, 2020, San Francisco – Today, attorneys with the Center for Constitutional Rights argued before the Ninth Circuit Court of Appeals, urging the court to uphold a ruling that California prisons have violated a landmark settlement agreement intended to end indefinite solitary confinement. The district court held that the California Department of Corrections and Rehabilitation (CDCR) violated the 2015 settlement by maintaining prisoners in levels of isolation that are equal to or even more severe than the isolation they experienced in the Special Housing Units (SHU). Samuel Miller, a cooperating attorney with the Center for Constitutional Rights, told the court that this is effectively “solitary by another name.” 

Luis Esquivel, one of the Ashker class representatives, wrote in a declaration provided to the court, “my average daily out-of-cell time at [Pelican Bay SHU] was greater than my average daily out of cell time at Calipatria. . . . I have limited social interaction and intellectual stimulation. I rarely go outside. It is difficult to find productive uses for my time. I have difficulty maintaining relationships with my family, especially since my ability to use the telephone is so infrequent and irregular. I suffer from insomnia. . . .  I am anxious because I do not know what will happen next.” 

Specifically, the district court held that two practices violated the settlement: holding prisoners alone in cells for 23 hours per day, and placing certain prisoners on so-called “walk-alone status.” According to the settlement, the vast majority of prisoners held in solitary confinement were to be transferred to the general prison population.  Instead, CDCR has placed many of the men in units called “general population,” but where prisoners remain locked in their cells for more than 23 hours a day—even more time than in the SHU. Separately, the settlement allows CDCR to keep a small subset of prisoners out of general population, due to threats to their safety, but they were to be provided with group recreation activity. Instead, half of the prisoners held in the “Restricted Custody General Population Unit,” or “RCGP,” due to threats to their safety in the general prison population, have been placed on so-called “walk-alone status,” in which they are denied all group activities. Attorneys say these are blatant violations of the settlement agreement; the district court agreed. 

“If it looks like solitary confinement and feels like solitary confinement, it violates the settlement agreement,” said Rachel Meeropol, Senior Staff Attorney and Associate Director of Legal Training and Education at the Center for Constitutional Rights. “Calling 23-hour-a-day lockdown ‘general population’ does not change the fact that it is solitary confinement. The district court saw through CDCR’s doublespeak, and the Ninth Circuit should, too.” 

Having found that these practices violate the settlement agreement, the district court ordered CDCR to meet with the plaintiffs’ counsel to fashion a remedy for ongoing constitutional violations, but CDCR refused. While the Ninth Circuit considers the case, the California Legislature will be considering related reforms in a bill sponsored by Senator Nancy Skinner.  The Ashker class has long focused on how unreliable and uncorroborated confidential information has been misused to send California prisoners to solitary confinement or justify their parole denial. SB 1064 would change the way CDCR uses confidential information, making sure information is reliable before it is used.  

Ashker v. Governor of California amended an earlier lawsuit filed by then-Pelican Bay SHU prisoners Todd Ashker and Danny Troxell representing themselves. Co-counsel in the case with the Center for Constitutional Rights are Legal Services for Prisoners with Children, Siegel & Yee, Weil Gotshal & Manges LLP, Bremer Law Group PLLC, the Law Offices of Charles Carbone, and the Law Office of Matthew Strugar. 

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