Federal Court Rules Ongoing Constitutional Violations in California Prisons Warrant Continued Monitoring

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Contact: press@ccrjustice.org

Extending Oversight of Class-Action Settlement Upheld


April 9, 2021, Oakland, CA –
 Today, a federal court ruled that California’s ongoing violations of the rights of prisoners, including systemic fabrication of information supposedly provided by confidential sources, should be subject to extended judicial monitoring. 

The ruling against the California Department of Corrections and Rehabilitation (CDCR) came in connection with a settlement agreement meant to end the state’s unconstitutional practices. The settlement included a two-year period of monitoring by the court, but when the violations continued, the prisoners, represented by the Center for Constitutional Rights and co-counsel, asked for a one-year extension, which was initially granted by a magistrate judge. Today, Federal District Court Judge Claudia Wilken denied CDCR’s objections to that ruling, ordering that an additional year of monitoring must go forward. 

Filings in the case – some of which have been filed under seal, but which include public summaries of constitutional violations – detail CDCR’s abuse of confidential information to return men to solitary confinement. They report CDCR’s systemic fabrication of information supposedly provided by confidential sources – as well as fabrication of the sources themselves. At times, the filings document, this information has been fabricated to replace exculpatory information actually provided by an informant. Information has been altered to appear more damning than it is, and CDCR conclusions have been portrayed as statements of informants, according to the filings. Improper information – such as the constitutionally invalid “gang validations” that were at the heart of the underlying lawsuit – have been transmitted to the parole board, and the court found that such validations have, in fact, been a factor in denying parole. All of these, Judge Wilken said in today’s ruling, violate due process and demonstrate the need for the initial extension of the monitoring period.

“This ruling is a major victory for the class of prisoners like me who suffered in long-term indefinite solitary confinement,” said Paul Redd, a plaintiff in the case recently released from prison. “It’s so important that the court acknowledged the harms from abuse and misuse of confidential informants. In many cases, false information led to denial of parole and people being returned to security housing units. This ruling validates what prisoners have been claiming for decades. I myself have been directly affected by this abuse.” Mr. Redd is also a former hunger strike representative and a signer of the End of Hostilities, which was instrumental in bringing together 30,000 California prisoners supporting the hunger strike. He provided important testimony in support of the bill SB 1064, addressing the flagrant abuse and misuse of confidential information.

Plaintiffs had also sought additional monitoring based on a third systemic constitutional violation. Under the Ashker settlement agreement, people whose safety would be at risk in the general prison population were to be moved from solitary confinement to a “Restricted Custody General Population Unit” (RCGP).  Today Judge Wilken agreed that the men placed in the RCGP were denied due process protections.      

“This is a huge victory for the Prisoners Human Rights Movement, who have been organizing from behind bars for decades to bring attention to California’s inhumane treatment of people in prison,” said Center for Constitutional Rights Senior Staff Attorney Rachel Meeropol. “For years our clients explained that they were being sent to solitary confinement based on fabricated confidential evidence, but no one believed them. Just this year, Governor Gavin Newsom vetoed the bill SB 1064, which passed both houses of the California legislature and would have significantly curtailed CDCR’s ability to use confidential information in order to return people to solitary confinement. It is time for the governor and the legislature to act to end this abusive practice and to provide some relief to the men who spent years in isolation as a result.”

The settlement agreement explicitly provides for a 12-month extension of the judicial monitoring period if due process violations alleged in the initial complaint are shown to be continuing and systemic, or if such violations arise as a result of CDCR reforms required by the agreement. Today’s ruling that the first extension was warranted comes amidst a pending request for a second extension of the monitoring period, based on evidence that constitutional violations are still ongoing, as well as for remedies for the continued violations. The motion for a second extension of the monitoring period argues that, at this point – five years after the agreement was reached – those imprisoned are entitled not only to an extension of the monitoring period, but also remedies for the underlying, ongoing violations of their constitutional rights. 

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

Read today’s decision here.

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

The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at ccrjustice.org.

N.J. agrees to pay almost $21 million to settle sexual abuse claims at women’s prison

nj.com

Blake Nelson | NJ Advance Media for NJ.com
April 8, 2021


Protest against abuse at Edna Mahan Correctional Facility for Women
Protestors gathered outside the Edna Mahan Correctional Facility for Women in Clinton on March 27, 2021 after new allegations of abuse emerged.Keith A. Muccilli | For NJ Advance Media

New Jersey has agreed to pay almost $21 million to several women who said they were sexually abused while incarcerated at New Jersey’s only women’s prison and to other former inmates, officials announced Wednesday.

The agreement still needs approval from a state Superior Court. If that happens, money will also be set aside for former prisoners who have not yet come forward with claims of abuse, said Oliver Barry, an attorney representing women who filed civil lawsuits.

The settlement would provide more than 20 women who said they were sexually abused in recent years with about $9.8 million, according to Barry.

The agreement will also improve conditions at the Edna Mahan Correctional Facility in Hunterdon County by enforcing officers’ use of body cameras while allowing women “to turn the page on this difficult chapter,” according to a statement by several lawyers involved in the case.

The head of the state prison system said the settlement represents New Jersey’s commitment to running “humane facilities.”

“My administration is ushering in a new era in corrections, with safety and rehabilitation at its core,” Corrections Commissioner Marcus Hicks said in a statement.

The settlement is unrelated to allegations that staff severely beat several women in January, an incident that has led to charges against eight officers, an outside investigation and calls for the commissioner to step down or face impeachment.

Wednesday’s announcement came a day before Hicks is scheduled to appear before lawmakers to face questions about the January incident.

State Senate Majority Leader Loretta Weinberg told NJ Advance Media the agreement “is just further evidence of an institution in crisis where a culture of abuse has been allowed to fester for years.”

Weinberg said she’s asking state officials to provide more information about officers accused of misconduct and civil lawsuits facing the prison system.

Documents detailing the $20,835,600 agreement were not immediately available.

In addition to the $9.8 million for sexual abuse claims, inmates who suffered verbal harassment could apply for up to $4,500, and other women who have yet to come forward with at least some evidence of sexual abuse would be able to receive up to $250,000, according to Barry.

New cases would eventually be considered by a mediator known as a “special master” who has not yet been appointed, Barry said.

Furthermore, anyone imprisoned in Edna Mahan from 2014 through the present could be eligible for more than $1,000, regardless of whether they were personally attacked, he said. The settlement would also cover attorneys’ fees.

The facility began equipping officers with body cameras this month, and state officials continue to negotiate reforms with the federal government since the U.S. Department of Justice found evidence last year of rampant sexual abuse behind bars.

A prison spokeswoman did not immediately respond to questions about the agreement.

Blake Nelson may be reached at bnelson@njadvancemedia.com. Follow him on Twitter at @BCunninghamN.

Action Alert: Take Action to Free Incarcerated Survivors: Join us every 2 weeks.

This spring join us every two weeks to take action to free incarcerated survivors by submitting public comment to Governor Gavin Newsom! 

During Sexual Assault Awareness Month, please join us on Thurs, April 8thfor a Day of Action to Bring Kanoa “Rae” Harris-Pendang home and #FreeAllSurvivors. We are urging Governor Newsom to grant immediate release for Kanoa through a commutation.

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Kanoa “Rae” Harris-Pandang is a transgender survivor who has been incarcerated in California for over 20 years. In an example of the extreme and disproportionate sentencing of trans people of color, Kanoa was sentenced to two life without parole sentences and two 25-to-life sentences in 1998 for “conspiring to commit” two murders that he did not commit. Kanoa is a beloved friend and long-time member of Survived and Punished. He deserves healing in community, not more punishment. 
In Kanoa’s own words: “To be sentenced to death by incarceration wiped my hope with the sound of the gavel. Fortunately my spirit to survive surpassed the lost hope that was trying to be embedded in my heart by a hammer and robe. Now that there is hope amongst the community of people serving life without parole (LWOP), I feel like it took that gavel for me to rebel against its hopeless intention to ultimately prepare me for freedom. I humbly ask for your support with my freedom and continue hoping for a living chance for all people serving death by incarceration.”

We invite you to join us in calling for Kanoa’s release. Please take action on Thurs, April 8:

1. Submit a public comment – instructions here: bit.ly/FreeAllSurvivors

2. Post on social media – sample posts here: bit.ly/FreeAllSurvivors

3. Tap three of your friends to join us as we continue to call to FreeAllSurvivors, and forward this action to your networks, please!

California prisons consider gender-identity housing requests – Los Angeles Times

latimes.com
Leila Miller
April 5, 2021

Jasmine Jones, a legal assistant at the Transgender Gender-Variant & Intersex Justice Project in San Francisco, has been in touch with people held in women’s prisons who have concerns about a new law that allows inmates to be housed based on their gender identity.
Paul Kuroda / For The Times

Kelly Blackwell longs to escape her life as a transgender woman in a California men’s prison, where she struggles every day to avoid being seen in her bra and panties and says she once faced discipline after fighting back when an inmate in her cell asked for oral sex.

After more than 30 years, and two decades since Blackwell began hormone therapy, her chance to leave arrived last fall when groundbreaking legislation gave transgender, intersex and nonbinary inmates the right, regardless of anatomy, to choose whether to be housed in a male or female prison.

The demand has been high, with 261 requests for transfers since SB 132 took effect Jan. 1, according to the California Department of Corrections and Rehabilitation. It’s the start of a hugely sensitive operation playing out in one of the largest prison systems in the country.

“I won’t be around predatory men and I won’t be around staff that frown upon trans women,” Blackwell, 53, said in a phone call from Mule Creek State Prison, east of Sacramento.

But more than two hours away, at the Central California Women’s Facility in Chowchilla, there’s fear. Inmates say guards have warned them that “men are coming” and to expect sexual violence.

“That if we think it’s bad now, be prepared for the worst. That it’s going to be off the hook, it’s going to be jumping,” Tomiekia Johnson, 41, said staffers have told her. “They say we’re going to need a facility that’s going to be like a maternity ward. They say we’re going to have an inmate program where inmates become nannies.”

Just over 1% of California’s prison population — or 1,129 inmates — have identified as nonbinary, intersex or transgender, according to the corrections department, populations that experience excessive violence in prison. A 2007 UC Irvine study that included interviews with 39 transgender inmates found that the rate of sexual assault is 13 times higher for transgender people, with 59% reporting experiencing such encounters.

So far, the prison system has transferred four inmates to the Chowchilla women’s prison, approved 21 gender-based housing requests and denied none. Of the 261 requests, all but six asked to be housed at a women’s facility.

Prisons spokeswoman Terry Thornton said in a statement that COVID-19 precautions have slowed the transfers and that officials could not estimate how long a transfer might take under normal circumstances, citing bed availability as a factor.

The Times spoke to more than a dozen inmates in women’s and men’s prisons to understand how the new law is playing out. Although advocates and inmates say the transfers have been received well, several claim that misinformation spread by prison staffers is stirring up transphobia and that more must be done to educate inmates.

Some prisoners are also concerned that inmates are making false claims about their gender identity in order to transfer to women’s prisons and say staffers have told them that this has slowed the process.

Thornton told The Times that the prison system had facilitated a town hall discussion with the Inmate Advisory Council at Chowchilla and with trans women at San Quentin State Prison. The meeting and ongoing discussions “have helped to dispel any fears,” she said, adding that allegations of staff misconduct are taken seriously and investigated.

When asked whether inmates in the men’s prisons trying to manipulate the transfer system has been a significant issue, Thornton said that “a person’s gender identity is self-reported and CDCR will evaluate any request submitted by an incarcerated person for gender-based housing.” She said that the prison system has requested several million dollars from the state to help implement the law.

In recent years, Connecticut and Massachusetts have passed similar legislation as the California law, which also gives inmates the right to be searched and addressed based on their gender identity. The laws help put states in line with the federal Prison Rape Elimination Act, or PREA, which prohibits housing decisions based solely on an inmate’s genitalia and requires agencies to consider on a case-by-case basis whether a placement would ensure an inmate’s health and safety. Despite PREA, advocates say that it’s rare for transgender inmates to be relocated.

The new California law follows other changes in the state’s treatment of transgender prisoners. In 2018, a law took effect removing obstacles for prisoners to change their gender and name. And in 2015, California became the first state to create policy for transgender inmates to apply for state-funded gender-affirming surgery. According to the prisons agency, from January 2015 through February 2021, 65 out of 205 requests for surgery were approved and nine were completed.

Under prison policy, transgender and intersex people — the latter being a term used to describe conditions in which a person is born with reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of “female” or “male” — are placed, to the extent possible, in certain prisons to ensure they can receive certain medical and mental health treatment. With the new law, all inmates will be asked upon admission about their gender identity, their pronouns, whether they prefer the female or male search policy, and if they want to be housed in an institution that aligns with their gender identity, according to the corrections department.

Inmates can request transfers to their correctional counselor, which are then considered by a committee that includes the warden, custody, medical and mental health staffers, and a PREA compliance manager. Staffers review the inmate’s criminal record, health needs, custody level, sentence and safety concerns.

Michelle Calvin said inmates welcomed her with care packages when she transferred in February from Mule Creek to the Chowchilla prison. But there was also tension. Inmates in two rooms refused to have her as a roommate.

“There’s a lot of women here that accept me; there’s some that do not,” said Calvin, 50. “There’s going to be adversity everywhere and I understand that.”

Tyeasha Moore, housed a few doors down from Calvin, quickly warmed up to the newcomer. Calvin was “more than willing” to answer her many questions, including why she chose to come to the prison, and if other inmates would follow.

But Moore, 43, said that she has also heard staffers question inmates housed with Calvin, asking whether she has exposed herself, explained her sexual behavior to them or said things that made them uncomfortable. She said the questioning has fomented anxiety and false rumors that Calvin is in a relationship.

The prison system said that it has provided training to staffers statewide on working with transgender, intersex and nonbinary inmates, including information on safe housing, search procedures and pronoun usage. But advocates say it hasn’t been effective enough.

Mychal Concepcion, a transgender man in the Chowchilla women’s prison, said widespread panic about the transfers stems largely from staffers who ask inmates, “What are you going to do when the men get here?”

“The complaints from the cis [gender] women here are that these are men coming here and they’ve been traumatized by men and so they shouldn’t have to live with them,” said Concepcion, 51. “I have repeatedly said that they’re women, but their anger gets directed towards me.”

Johnson, the inmate who said staffers had told her to expect violence with the transfers, said that she has survived domestic violence from a man and that it would be triggering to live with transgender people who haven’t had gender-affirming surgery.

“I do think they should be safe, but it infringes on my right to be safe as well,” she said.

Tiffany Tooks, a transgender woman in the Chowchilla prison, has also been trying to address concerns. She transferred from Mule Creek in 2019 after having gender-affirming surgery.

“For me, it was everything,” she said, explaining how the inmates received her well after she opened up about her experiences from more than 20 years in prison — which included being raped and hearing inmates make sexually degrading comments when seeing her in the shower. “I feel it’s my duty to help the women that are coming here so they are not misunderstood.”

Tooks said that in early March, she participated in a meeting with the warden, prison staffers and other transgender inmates to address inmates in the men’s prison trying to transfer under false pretenses.

“The idea was how do we determine who really are transgender inmates coming into the prison system here and the fear of the women here who were afraid and still they are afraid that male inmates will infiltrate this prison system and cause problems,” she said.

Several transgender inmates at men’s prisons hold that the issue is prevalent.

A transgender woman at a men’s prison, who asked not to be identified for fear of retaliation, said that she knows at least five inmates who have applied to transfer under false pretenses and that staffers have asked her to help identify such inmates.

“They wanted me in a confidential setting to tell them who is transgender and who is not, so they can block some of these guys from going to the women’s prison,” she said. “I told him I don’t have a problem with it…. We feel they’re climbing our backs.”

Jasmine Jones, a legal assistant at the Transgender Gender-Variant & Intersex Justice Project, which provides supportive services to inmates, has been in touch with several dozen inmates in the women’s facilities with concerns about the transfers, explaining to them that she was raped several times in prison and attempted suicide four times.

She said that her story has resonated with many but that she’s still concerned about inmates posturing as nonbinary or transgender. Jones said the law should have first focused on those who have transitioned or are in the process of transitioning before allowing for others to transfer.

But Jen Orthwein, an attorney who represents transgender inmates and worked on the bill, said that not all inmates want or have access to hormone therapy or gender-affirming surgery, and that “any expression of femininity in a men’s prison places people in danger.”

At Mule Creek, Blackwell said that when she was approved to transfer she felt relief but also worry about entering a new environment.

She said it hurts to know that some are anxious about her coming over and asserted that transgender women have no plans to be predatory.

“They don’t want to do things like that because that’s been our life,” she said. “All we’re really hoping for is connection and compassion.”