Existing law provides the Department of Corrections and Rehabilitation with jurisdiction over the state prison, as specified. Existing law states that it is unlawful to use any cruel, corporal, or unusual punishment or to inflict any treatment or allow any lack of care which would injure or impair the health of a prisoner, inmate, or person confined.

Existing law provides the Department of Corrections and Rehabilitation with jurisdiction over the state prison, as specified. Existing law states that it is unlawful to use any cruel, corporal, or unusual punishment or to inflict any treatment or allow any lack of care which would injure or impair the health of a prisoner, inmate, or person confined.

This bill would require the department to develop standards for placement and conditions in solitary confinement consistent with the settlement agreement in Ashker v. Governor of the State of California (N.D.Cal., No. 4:09-CV-05796). The bill would require the standards developed by the department to include, among other things, the creation of a step-down program to encourage and incentivize incarcerated persons to take steps to be released from solitary confinement. The bill would require the department to track specified data regarding the population within solitary confinement, including demographic information and a specific description of the types of restrictions for solitary confinement in the institution. The bill would require the department, on or before January 1, 2025, and annually thereafter, to report this data to the Legislature, as specified.

Date of Hearing: July 2, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

SBPCA Bill Id:SB 733

Author:(Glazer) – As Amended Ver:January 3, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires the California Department of Corrections and Rehabilitation (CDCR) to collect specified data on use of solitary confinement and restricted housing and report the data annually to the Legislature and the Governor.

FISCAL EFFECT:

Costs (General Fund) to CDCR to collect and report the data required by this bill. CDCR anticipates short-term costs to update its software systems to reflect the data required under this bill, and ongoing workload costs to enter the required data into the system. CDCR estimates minimum costs of $1.1 million, which includes one-time IT costs and ongoing costs for four new Correctional Counselor II, Specialist positions to obtain and enter data.

According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

COMMENTS:

1. Purpose. According to the author:

This proposal, amended from a previous iteration of the bill, requires the CDCR to track data related to their use of solitary confinement, which the department typically labels “restricted housing.” … This proposal brings visibility to the conditions and practices within correctional institutions. This transparency is vital for advocacy groups, policymakers, and the public to assess the solitary confinement’s impact on incarcerated individuals.

1. Background. Solitary confinement, also known as restricted housing or segregated confinement, is a form of custody where an incarcerated person is separated from the general population and placed in a separate environment. Generally, a person placed in solitary confinement has very limited opportunities to interact with other people, go outdoors, or leave their cell. Solitary confinement is regarded by experts as extremely detrimental to an incarcerated person’s mental health.

This bill requires CDCR to collect data about the use of solitary confinement in state prisons, and report the data annually to the Legislature and the Governor. The required data includes the name, race, and age of each incarcerated person placed in solitary confinement; information about the solitary confinement units within prisons, including their staffing levels; and information about the mental health diagnoses of people placed in solitary confinement, whether they required mental health after such confinement, and whether they experienced medical emergencies, psychiatric emergencies, or suicidal behavior during such confinement.

Although CDCR already reports some aggregate data about the department’s use of restricted housing on its website, this bill requires collection and reporting of additional data elements, which will result in costs to CDCR as described above. CDCR also notes privacy and legal concerns with providing individual-level data, including an affected incarcerated person’s name, medical diagnoses, and mental health crisis information, in the required annual report.

1. Related Legislation. AB 280 (Holden) limits the use of segregated confinement in all detention facilities in the state, specifies procedures for use of segregated confinement, and requires reporting by detention facilities that use segregated confinement. AB 280 is pending on the Assembly inactive file.

AB 2527 (Bauer-Kahan), among other provisions, prohibits placing an incarcerated pregnant person in solitary confinement or a restricted housing unit during their pregnancy or postpartum period. AB 2527 is pending in the Senate Appropriations Committee.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: June 4, 2024

Counsel: Andrew Ironside

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

SBPCA Bill Id:SB 733

Author:(Glazer) – As Amended Ver:January 3, 2024

SUMMARY: Requires the California Department of Corrections and Rehabilitation (CDCR) to collect and report to the Legislature specified data on solitary confinement. Specifically, this bill:

1. Requires CDCR to collect data to track CDCR’s progress toward improving solitary confinement, also known as restricted housing, standards.
   
2. Requires CDCR to report to the Legislature, on or before January 1, 2026 and annually thereafter, all of the following data points on persons housed in solitary confinement:
   
   1. Name;
      
   2. Race;
      
   3. Sex;
      
   4. Age disaggregated by those placed in solitary confinement;
      
   5. Specific description of the types of offenses inmates are held in solitary confinement in the institution;
      
   6. The types of placement similar to solitary confinement, including, but not limited to, lockdown and quarantine;
      
   7. The types of rehabilitative programs made available to inmates in each solitary confinement unit;
      
   8. Staffing ratios for solitary confinement units;
      
   9. The number of times individuals were kept in solitary confinement for that year;
      
   10. The total time individuals placed in solitary confinement were kept in solitary for that year;
       
   11. The number of solitary confinement units in use of an institution within the previous calendar year;
       
   12. Existing mental health diagnoses of individuals placed in solitary confinement;
       
   13. Whether individuals developed mental health diagnoses or required mental health treatment during or soon after placements in solitary confinement;
       
   14. Whether individuals experienced medical or psychiatric emergencies while in solitary confinement;
       
   15. Whether individuals committed or attempted to commit suicide or engaged in serious self-harm during, or soon after, placement in solitary confinement;
       
   16. Whether there were appeals of the decision to place an individual in solitary confinement and the outcome of those appeals;
       
   17. Whether the term of solitary confinement was shorter than originally ordered and the reason for the shortened placement; and,
       
   18. The number of individuals who received reductions in their restrictive housing terms based on successful completion of rehabilitative programs.
       
3. Provides that any reference to “solitary confinement” shall also mean and include “restricted housing.”

EXISTING STATE LAW:

1. Prohibits the infliction of cruel and unusual punishment. (Cal. Const., art. I, § 17.)
   
2. Establishes rights for persons sentenced to imprisonment in a state prison, and provides that a person may, during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests. (Pen. Code, § 2600.)
3. Prohibits the use of any cruel, corporal or unusual punishment or to inflict any treatment or allow any lack of care whatever which would injure or impair the health of the prisoner, inmate, or person confined. (Pen. Code, § 2652.)
4. Authorizes CDCR to prescribe and amend rules and regulations for the administration of the prisons. (Pen. Code, § 5058.)
5. Requires the Secretary of CDCR to classify and assign prisoners to the institution of the appropriate security level and gender population nearest the prisoner’s home, unless other classification factors make such a placement unreasonable. (Pen. Code, § 5068.)
6. Requires the sheriff to receive all persons committed to jail by competent authority and the board of supervisors to provide the sheriff with necessary food, clothing, and bedding, for those prisoners, which shall be of a quality and quantity at least equal to the minimum standards and requirements prescribed by the BSCC for the feeding, clothing, and care of prisoners in all county, city, and other local jails and detention facilities. (Pen. Code, § 4015.)
7. Requires the BSCC to establish minimum standards for local correctional facilities. (Pen. Code, § 6030.)
8. Requires private local detention facilities to operate pursuant to a contract with the city, county or city and county. (Pen. Code, § 6031.6.)
9. Requires private local detention facilities to follow the minimum standards for local correctional facilitates established by the BSCC. (Pen. Code, § 6031.6, subd. (c).)
10. Limits the confinement of a minor in a locked room or cell with minimal or no contact with persons, as specified, and sets forth the guidelines for the use of room confinement of a minor in a juvenile facility. (Welf. & Inst. Code, § 208.3.)
11. Requires the California Attorney General to conduct reviews of county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings. (Gov. Code § 12532, subd. (a).)
    
12. Prohibits a city, county or public agency from contracting with a private facility for the purpose of civil immigration facilities, except as specified. (Civ. Code, § 1670.9.)
    
13. Prohibits private detention facilities in California, as specified. (Pen. Code, §§ 5003.1 & 9501.)

EXISTING FEDERAL LAW:

1. Prohibits the infliction of cruel and unusual punishment. (U.S. Const., 8th Amend.)
   
2. Makes the laws of the United States and the U.S. Constitution “the supreme Law of the Land.” (U.S. Const. art. VI, cl. 2.)
   
3. Vests the control and management of federal penal and correctional institutions in the U.S. Attorney General, who shall promulgate rules for the government thereof. (18 U.S.C. § 4001, subd. (a).)
   
4. Authorizes the U.S. Attorney General to classify inmates and provide for their proper government, discipline, treatment, care, rehabilitation and reformation. (18 U.S.C. § 4001, subd. (b).)
   
5. Provides that the Bureau of Prisons (BOP), under the direction of the U.S. Attorney General, shall have charge of the management and regulation of all federal penal and correctional institutions and shall provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States. (18 U.S.C. § 4042.)
   
6. Requires the BOP to designate the place of the prisoner’s imprisonment, and subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns. (18 U.S.C. § 3621.)
   
7. Requires the U.S. Attorney General to arrange for appropriate places of detention for immigrants pending removal decision or removal. (8 U.S.C. § 1231, subd. (g)(1).)
   
8. Requires the U.S. Attorney General to ensure that undocumented criminals incarcerated in federal facilities are held in facilities that provide a level of security appropriate to the crimes for which they were convicted. (8 U.S.C. § 1231, subd. (h)(4)(B).)
   
9. Prohibits the use of room confinement for juveniles in federal custody for any reason other than as a temporary response to the juvenile’s behavior that poses a serious and immediate risk of physical harm to any individual. (18 U.S.C. § 5043.)
   
10. Prohibits the use of segregated confinement in federal penal or corrections institutions for individuals who are pregnant or in post-partum recovery, unless the individual presents an immediate risk of harm to the individual or others. Any placement in a segregated housing unit must be limited and temporary. (18 U.S.C. § 4051, subd. (c).)
    

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “This proposal, amended from a previous iteration of the bill, requires the CDCR to track data related to their use of solitary confinement, which the department typically labels “restricted housing.” Additionally, CDCR must submit an annual report to the Legislature, starting on or before January 1, 2026, detailing several data points. The data points include demographic information, mental health diagnoses, the outcomes of appeals, and participation in rehabilitative programs. These data points will provide the Legislature and the public a holistic understanding of the experiences of individuals in solitary confinement. Additionally, these data points can help identify patterns, assess the effectiveness of existing policies and practices, and highlight where improvement is needed. This proposal brings visibility to the conditions and practices within correctional institutions. This transparency is vital for advocacy groups, policymakers, and the public to assess the solitary confinement’s impact on incarcerated individuals.”
   
2. Mental, Psychological, and Physical Effects of Segregated Confinement: There is an increasing body of evidence that suggests that segregated housing produces unwanted and harmful outcomes, for the mental and physical health of those placed in isolation, for the public safety of the communities to which most will return, and for the corrections budgets of jurisdictions that rely on the practice for facility safety. When individuals are placed into segregated housing, it affects access to programming (e.g., education, treatment), the nature and extent of contact they can have with family and friends, and can even impact terms of community supervision. (U.S. DOJ Office of Justice Programs’ (OJP) National Criminal Justice Reference Service (NCJRS), Examining Race and Gender Disparities in Restrictive Housing Placements (Sept. 2018) <https://www.ojp.gov/pdffiles1/nij/grants/252062.pdf> [as of March 3, 2023].) According to a report by the Vera Institute of Justice, “nearly every scientific inquiry into the effects of solitary confinement over the past 150 years has concluded that subjecting an individual to more than 10 days of involuntary segregation results in a distinct set of emotional, cognitive, social, and physical pathologies.” (Vera Institute of Justice, Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives (May 2015) <https://www.vera.org/downloads/publications/solitary-confinement-misconceptions-safe-alternatives-report_1.pdf>[as of March 3, 2023].)
   

Further research has shown that there is an increased prevalence of hypertension in persons who have been in solitary condiment, which results in millions in additional future health care costs. (The Cardiovascular Health Burdens of Solitary Confinement (2019) J. Gen. Intern. Med. 34, 1977–1980.) Also, vulnerable populations like pregnant women are far more susceptible to the potential dangers of solitary confinement. (Unjust Isolation: The Diminishing Returns of Solitary Confinement of Pregnant Women and California’s Need to Regulate It (2021) 2 Hastings J. Crime & Punish. 122.)

The World Health Organization, United Nations, and other international bodies have recognized solitary confinement as greatly harmful and potentially fatal. In 2015, the United Nations General Assembly ratified the Nelson Mandela Rules, prohibiting any period of segregation beyond 15 days and defining it as torture. (The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), (2015).) The American Medical Association (AMA) recently called for the elimination of solitary confinement of any length, for the mentally ill, citing its mental health harms. (MA House of Delegates, Reducing the Use of Restrictive Housing in Prisoners with Mental Illness: Resolution 412 (2018) at p. 641.)

1. Ineffectiveness of Segregated Confinement as a Penological Tool: Prison and jail administrators consider segregated confinement as a necessary tool to maintain safe and orderly correctional facilities and to promote the safety of staff and incarcerated people within prisons and jails. However, use of segregated confinement is not associated with reductions in facility or system wide misconduct and violence. Several studies on segregated confinement have found that its use does not decrease misconduct or violence, including staff assaults, and therefore does not improve the safety of the facility. (Benjamin Steiner and Calli M. Cain, The Relationship Between Inmate Misconduct, Institutional Violence, and Administrative Segregation: A Systematic Review of the Evidence, U.S. Department of Justice, National Institute of Justice (2016) <https://perma.cc/BCJ3-HYK3>[as of April 5, 2022].)

Further empirical and anecdotal evidence suggests that segregated housing may have little influence on improving the behavior of incarcerated people and deterring violence. (Vera Institute of Justice, Solitary Confinement: Common Misconceptions and Emerging Safe Alternatives, supra, (May 2015).) There is little evidence to support the claim that segregated housing increases facility safety or that its absence would increase in-prison violence. (Ibid.)

In addition, a report by the ACLU indicates that there is little evidence or research about the goals, impacts or cost-effectiveness of solitary confinement as a corrections tool. (ACLU, ACLU Briefing Paper: The Dangerous Overuse of Solitary Confinement in the United States (2014) <https://www.aclu.org/report/dangerous-overuse-solitary-confinement-united-states> [as of Feb. 15, 2023].) Data from some states suggest that recidivism rates for incarcerated people who have been held in segregated housing, regardless of whether they are released directly to the community, is significantly higher than for those who have not spent time in segregated housing while in prison. (Ibid.) Research from California suggests that rates of return to prison are 20% higher for solitary confinement prisoners. (Ibid.)

1. Ashker v. Governor of State of California: In 2015, California settled Ashker v. Governor, a historic class-action lawsuit brought by the Center for Constitutional Rights (CCR) on behalf of a group of Pelican Bay State prisoners who had each spent at least a decade in isolation. (CCR, Summary of Ashker v. Governor of California Settlement Terms <https://ccrjustice.org/sites/default/files/attach/2015/08/2015-09-01-Ashker-settlement-summary.pdf> [as of Feb. 15, 2022].) The settlement intended to end the practice of isolating prisoners who have not violated prison rules, cap the length of time a prisoner can spend in solitary confinement, and provide a restrictive but not isolating alternative for prisoners who violate prison rules on behalf of a gang. (Ibid.)
   
   The Ashker agreement was first extended in 2019 by the federal court, based on a finding that CDCR was “effectively frustrating the purpose” of the settlement agreement by systemically violating due process rights. (CCR, Court Finds Continued Systemic Constitutional Violations in California Prisons, CCR (Feb. 3, 2022) <https://ccrjustice.org/home/press-center/press-releases/court-finds-continued-systemic-constitutional-violations-california> [as of Feb. 15, 2023].) In February 2022, the court determined that CDCR continues to violate the due process rights of incarcerated persons despite the Ashker agreement. The court found that CDCR is relying on inaccurate and fabricated confidential information to place individuals in solitary confinement and holding individuals in a restricted unit in the general population without adequate procedural safeguards. (Ibid.) Citing these violations, the court extended the Ashker agreement for a second one-year term. (Ibid.) CDCR appealed the orders extending the settlement agreement. The appeals were consolidated, and in August 2023, the Ninth Circuit reversed the district court’s order granting the first extension of the settlement agreement and vacated the order granting the second extension of the settlement agreement on jurisdictional grounds.
   
2. Argument in Support: None submitted.
   
3. Argument in Opposition: According to Oakland Privacy, “Senate Bill 733 is a day late and an inch short. The California Legislature has already expressed its commitment to ending lengthy solitary confinement in California with the passage of Assembly Bill 2632 in 2022 . That bill, re-introduced as AB 280 in 2023 and also passed again by the State Assembly, limits consecutive days in solitary confinement to 15 and ends its use entirely for some vulnerable inmate populations, including youth, elders and pregnant and post-partum people.
   
   “AB 2632 passed the Senate with 23 votes and the Assembly with 51 votes in 2022 and AB 280 passed the CA Assembly with 56 votes in 2023.
   
   “Senate Bill 733 asks for the state to collect information on the use of solitary confinement. The state’s own publications refer to the Compstat data already collected from CDCR on inmate confinement levels.
   
   “SB 733 says in its legislative findings:
   
   “SECTION 1.
   The department shall collect data to track the department’s progress toward improving solitary confinement, also known as restricted housing, standards.
   
   “However, the Legislature has already defined the goal, not as improving solitary confinement, but instead to eliminate entirely its use on vulnerable communities (youth, the elderly, pregnant and post-partum individuals, and the mentally and physically disabled) and significantly restrict use on others.
   
   “The net impact of the bill’s language is to implement redundant paperwork that is unnecessary to end indeterminate solitary confinement and will, largely, tell the Legislature what we already know.
   
   “Namely, that solitary confinement exacerbates existing, and creates new, mental and physical health issues and behavioral problems for inmates in California jails and prisons.
   
   “With all due respect, it is time for the Legislature to move beyond collecting data and take affirmative action to restrict solitary confinement and end its use on vulnerable populations.
   
   “We believe the author of the Mandela Act (Assembly member Holden) should be allowed to proceed with negotiations with the Governor’s office to find a mutually acceptable way to implement the Mandela Act, and that the Legislature and the committee should stand behind Assembly Bill 280.
   
   “Senate Bill 733 is a distraction from this necessary work.”
   
4. Related Legislation: AB 2527 (Bauer-Kahan), would prohibit incarcerated pregnant person from being placed in solitary confinement or restrictive housing units during their pregnancy or for 12 weeks postpartum. AB 2527 is currently pending referral in the Senate.
   
5. Prior Legislation:
   
   1. AB 280 (Holden), of the 2023-2024 Legislative Session, would limit the use of segregated confinement and requires facilities in the State in which individuals are subject to confinement or involuntary detention to follow specified procedures related to segregated confinement. AB 280 was placed on the inactive file in the Assembly.
      
   2. AB 2632 (Holden), of the 2021-2022 Legislative Session, was substantially similar to AB 280. AB 2632 was vetoed.
      
   3. AB 2321 (Jones-Sawyer), Chapter 781, Statutes of 2022, prohibits confinement of a minor in a locked single-person room or cell in a juvenile facility for a period lasting longer than one hour when room confinement is necessary for institutional operations.
      
   4. AB 1225 (Waldron), of the 2021-2022 Legislative Session, would have prohibited an incarcerated woman from being placed in solitary confinement for medical observation. AB 1225 was held in the Assembly Appropriations Committee.
      
   5. SB 759 (Anderson), Chapter 191, Statutes of 2016, repealed provisions of law that made incarcerated persons housed in segregation units ineligible to earn credits.
      
   6. SB 124 (Leno), of the 2015-2016 Legislative Session, would have established standards and protocols for the placement of juveniles in solitary confinement. SB 124 was held in the Assembly Appropriations Committee.
      
   7. SB 1289 (Lara), of the 2015-2016 Legislative Session, would have, among other things, prohibited an immigration detention facility from involuntarily placing a detainee in segregated housing because of his or her actual or perceived gender, gender identity, gender expression, or sexual orientation. SB 1289 was vetoed.
      
   8. SB 892 (Hancock), of the 2013-2014 Legislative Session, would have declared the intent of the Legislature that long-term segregated housing as a prison management strategy should be used only as a last resort and should be limited in duration. SB 892 failed passage on the Assembly Floor.
   9. SB 970 (Yee), of the 2013-2014 Legislative Session, would have prohibited a minor who is detained in, or sentenced to, any juvenile facility or other secure state or local facility from being subject to solitary confinement. SB 970 died in this Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

None submitted.

Opposition

ACT
Alianza
Alianza Sacramento
American Friends Service Committee
Amnesty International USA
Asian Americans Advancing Justice - Asian Law Caucus
California Alliance for Youth and Community Justice
California Collaborative for Immigrant Justice
California Families Against Solitary Confinement
California United for A Responsible Budget (CURB)
Californians for Safety and Justice
Communities United for Restorative Youth Justice (CURYJ)
Community Legal Services in East Palo Alto
Cure California
Disability Rights California
Ella Baker Center for Human Right
Empowering Women Impacted by Incarceration
End Solitary Santa Cruz County
Fair Chance Project
Freedom for Immigrants
Friends Committee on Legislation of California
Halt Solitary Campaign
Immigrant Defenders Law Center
Immigrant Defense Advocates
Immigrant Legal Defense
Indivisible Ca: Statestrong
Initiate Justice
Interfaith Refugee & Immigration Service (IRIS)
LA Cosecha
Law Foundation of Silicon Valley
Law Office of Helen Lawrence
Lawyers Committee for Civil Rights of The San Francisco Bay Area
Legal Services for Prisoners With Children
National Lawyers Guild San Francisco Bay Area Chapter
National Religious Campaign Against Torture
Nextgen California
Nikkei Progressives
Oakland Privacy
Orange County Equality Coalition
Plymouth United Church of Christ - Oakland
Prison Law Office
Psychologists for Social Responsibility
San Francisco Public Defender's Office
Silicon Valley De-bug
Sister Warrior Freedom Coalition
Social Workers & Allies Against Solitary Confinement
Sunita Jain Anti-trafficking Initiative
T'ruah: the Rabbinic Call for Human Rights
Temple Beth El Aptos Jewish Community Center
Underground Scholars Initiative At UC Berkeley
Universidad Popular
Unlock the Box
USF Immigration and Deportation Defense Clinic
Young Women's Freedom Center

Analysis Prepared by: Andrew Ironside / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 733

Author: Glazer (D)

Amended: 1/3/24

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 1-3, 4/18/23 (FAIL)

AYES: Ochoa Bogh

NOES: Wahab, Skinner, Wiener

NO VOTE RECORDED: Bradford

SENATE PUBLIC SAFETY COMMITTEE: 3-0, 1/9/24

AYES: Wahab, Seyarto, Wiener

NO VOTE RECORDED: Bradford, Skinner

SENATE APPROPRIATIONS COMMITTEE: 6-0, 1/18/24

AYES: Portantino, Jones, Bradford, Seyarto, Wahab, Wiener

NO VOTE RECORDED: Ashby

SUBJECT: Solitary confinement

SOURCE: Author

DIGEST:

This bill requires the California Department of Corrections and Rehabilitation (CDCR) to collect data on its progress toward improving the standards of solitary confinement and to report the data annually to the Legislature.

ANALYSIS:

Existing federal law:

1. Prohibits the deprivation of life, liberty, or property without due process of law or the denial of equal protection of the laws. (U.S. Const., 5th & 14th Amends.)
2. Prohibits the infliction of cruel and unusual punishment. (U.S. Const., 8th Amend.)

Existing state law:

1. Grants all people certain inalienable rights, including pursing and obtaining safety, happiness, and privacy. (Cal. Const., art. I, § 1.)
2. Prohibits the deprivation of life, liberty, or property without due process of law or the denial of equal protection of the laws. (Cal. Const., art. I, § 7.)
3. Prohibits the infliction of cruel and unusual punishment. (Cal. Const., art. I, § 17.)
4. Establishes rights for persons sentenced to imprisonment in a state prison, and provides that a person may, during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests. (Pen. Code, § 2600.)
5. Prohibits the use of any cruel, corporal or unusual punishment or to inflict any treatment or allow any lack of care whatever which would injure or impair the health of the prisoner, inmate or person confined. (Pen. Code, § 2652.)
6. Authorizes CDCR to prescribe and amend rules and regulations for the administration of the prisons. (Pen. Code, § 5058.)
7. Requires the Director of CDCR to classify and assign an incarcerated individual to the institution of the appropriate security level and gender population nearest the individual’s home, unless other classification factors make such a placement unreasonable. (Pen. Code, § 5068.)

This bill:

1. Requires CDCR to collect data to track the CDCR’s progress toward improving solitary confinement standards. Requires CDCR on or before January 1, 2026, and annually thereafter, to report to the Legislature the data it collected.
2. Provides that any reference to “solitary confinement” also means and includes “restricted housing.”
3. Requires CDCR to collect all of the following data points: (1) name, race, sex, age disaggregated by those placed in solitary confinement; (2) specific description of the types of offenses for which incarcerated persons are held in solitary confinement; (3) the types of placement similar to solitary confinement, including, but not limited to, lockdown and quarantine; (4) the types of rehabilitative programs made available to inmates in each solitary confinement unit; (5) staffing ratios for solitary confinement; (6) the number of times individuals were kept in solitary confinement for that year; (7) the total time individuals placed in solitary confinement were kept in solitary for that year; (8) the number of solitary confinement units within the previous calendar year; (9) the number of solitary confinement units in use of an institution within the previous calendar year; (10) existing mental health diagnoses of those placed in solitary confinement; (11) whether individuals developed mental health diagnoses or required mental health treatment during or soon after placements in solitary confinement; (12) whether individuals experienced medical or psychiatric emergencies while in solitary confinement; (13) whether individuals committed or attempted to commit suicide or engaged in serious self-harm during, or soon after, placement in solitary confinement; (14) whether there were appeals of the decision to place an individual in solitary confinement and the outcome of those appeals; (15) whether the term of solitary confinement was shorter than originally ordered and the reason for the shortened placement; and (16) the number of individuals who received reductions in their restrictive housing terms based on successful completion of rehabilitative programs.

Background

There are no clear standards or limits on the use of segregated confinement in detention facilities operated by the state which are codified in statute. Under the current system, CDCR possesses broad discretion regarding the use of solitary confinement, administrative segregated housing, or other forms of isolated placement. According to CDCR’s Department Operations Manual (DOM), some individuals are in “controlled housing” because they present “too great management problem for housing in general population settings.” (DOM § 33010.30.) These housing units include but are not limited to the Security Housing Unit (SHU), Administrative Segregation Unit (Ad-Seg), Psychiatric Services Unit (PSU), and the Protective Housing Unit (PHU). SHU terms are calculated using a matrix which allows for SHU terms from two to 60 months based on offense type. (Cal. Code Regs, tit. 15, § 3341.9.)

Individuals who violate criminal or administrative statutes “shall be dealt with in the strictest possible legal manner,” including among other things, segregation from the inmate general population. (DOM § 52070.5.4.) When an individual’s presence in an institution’s general population presents an immediate threat to the safety of the inmate or others, endangers institution security or jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity, the inmate is required to be immediately removed from general population and placed in Ad-Seg. (DOM § 52080.24.)

CDCR also utilizes disciplinary detention units or “DDs.” DD is a temporary housing status which confines individuals assigned to designated rooms or cells for prescribed periods of time as punishment for serious acts of misbehavior. (DOM § 52080.20.) Placement in DD is excluded from the regulations governing segregated housing. (Cal. Code Regs, tit. 15, § 3335.5.)

In 2015, California settled Ashker v. Governor of California, a class-action lawsuit brought on behalf of a group of incarcerated individuals housed at Pelican Bay State Prison who had each spent at least a decade in isolation. (CCR, Summary of Ashker v. Governor of California Settlement Terms available at <https://ccrjustice.org/sites/default/files/attach/2015/08/2015-09-01-Ashker-settlement-summary.pdf .) The settlement was intended to end the practice of isolating incarcerated individuals who have not violated prison rules, cap the length of time an incarcerated individual can spend in solitary confinement, and provide a restrictive but not isolating alternative for those incarcerated individuals who continue to violate prison rules on behalf of a gang. (Ibid.)

The Ashker agreement was first extended in 2019 by the federal court, based on a finding that CDCR was “effectively frustrating the purpose” of the settlement agreement by systemically violating due process rights. (CCR, Court Finds Continued Systemic Constitutional Violations in California Prisons (Feb. 3, 2022) available at <https://ccrjustice.org/home/press-center/press-

releases/court-finds-continued-systemic-constitutional-violations-california .) In February 2022, the court determined that CDCR had continued to systematically violate the due process rights of incarcerated individuals despite the Ashker agreement. The court found that CDCR had relied on inaccurate and fabricated confidential information to place individuals in solitary confinement, used dubious gang affiliations to deny them a fair opportunity for parole, and held them in a restricted unit in the general population without adequate procedural safeguards. (Ibid.) Citing these violations, the court extended the Ashker agreement for a second one-year term. (Ibid.) CDCR appealed the orders extending the settlement agreement. The appeals were consolidated, and in August 2023, the Ninth Circuit reversed the district court’s order granting the first extension of the settlement agreement and vacated the order granting the second extension of the settlement agreement on jurisdictional grounds.

CDCR adopted emergency regulations (effective from November 1, 2023 through April 10, 2024) that significantly revise existing regulations related to housing for incarcerated individuals. Changes include consolidating the ASU, SHU, and PSU categories into the Restricted Housing Unit (RHU), reducing RHU terms by 50%, eliminating consecutive RHU terms, establishing set RHU terms and eliminating subjective mitigating and aggravating factors previously used to calculate terms, eliminating the Step Down Program, increasing out-of-cell time for individuals assigned to RHU, and increasing and expanding types and amounts of authorized privileges and personal property. CDCR has also proposed permanent regulations regarding RHUs, which are currently in the public comment period through February 2, 2024.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to Senate Appropriations Committee:

Unknown, potentially significant CDCR costs to collect, aggregate, and report specified demographic and experiential data on inmates placed in solitary confinement, and additional information on the use of solitary confinement in state detention facilities. CDCR costs have yet to be determined, but staff estimates one-time and ongoing administrative costs to collect and report required data would likely be in the high hundreds of thousands at a minimum. The magnitude of one-time and ongoing costs is unknown at this time. (General Fund)

SUPPORT: (Verified 1/18/24)

None received

OPPOSITION: (Verified 1/18/24)

Alianza Sacramento

American Friends Service Committee

Amnesty International USA

California Alliance for Youth and Community Justice

California Collaborative for Immigrant Justice

California Families Against Solitary Confinement

California United for a Responsible Budget

Disability Rights California

Ella Baker Center for Human Right

Fair Chance Project

Freedom for Immigrants

Immigrant Defense Advocates

Indivisible CA: StateStrong

Law Foundation of Silicon Valley

Legal Services for Prisoners With Children

National Religious Campaign Against Torture

NextGen California

Oakland Privacy

Prison Law Office

San Francisco Public Defender’s Office

Social Workers and Allies Against Solitary Confinement

Unlock the Box

One Individual

Prepared by: Stephanie Jordan / PUB. S. /

1/22/24 15:22:44

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 733 (Glazer) - Solitary confinement

Bill Summary:

SB 733 would require the California Department of Corrections and Rehabilitation (CDCR) to track and collect specified data regarding the use of solitary confinement in state detention facilities, and report the information to the Legislature by January 1, 2026, and annually thereafter.

Fiscal Impact:

• Unknown, potentially significant CDCR costs to collect, aggregate, and report specified demographic and experiential data on inmates placed in solitary confinement, and additional information on the use of solitary confinement in state detention facilities. CDCR costs have yet to be determined, but staff estimates one-time and ongoing administrative costs to collect and report required data would likely be in the high hundreds of thousands at a minimum. The magnitude of one-time and ongoing costs is unknown at this time. See staff comments. (General Fund)

Background:

Under the current system, CDCR possesses broad discretion regarding the use of solitary confinement, administrative segregated housing, or other forms of isolated placement. According CDCR’s Department Operations Manual, some individuals are in “controlled housing” because they present “too great management problem for housing in general population settings.” These housing units include but are not limited to the Security Housing Unit (SHU), Administrative Segregation Unit (Ad-Seg), Psychiatric Services Unit (PSU), and the Protective Housing Unit (PHU). SHU terms are calculated using a matrix which allows for SHU terms from two to 60 months based on offense type. See staff comments for a brief description of ongoing regulatory action to consolidate these types of isolated placements into a single Restricted Housing Unit (RHU) category, and restrict the use of segregated confinement.

Individuals who violate criminal or administrative statutes “shall be dealt with in the strictest possible legal manner,” including among other things, segregation from the inmate general population. When an individual’s presence in an institution’s general population presents an immediate threat to the safety of the inmate or others, endangers institution security or jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity, the inmate is required to be immediately removed from general population and placed in Ad-Seg.

CDCR also utilizes disciplinary detention units or “DDs.” DD is a temporary housing status which confines individuals assigned to designated rooms or cells for prescribed periods of time as punishment for serious acts of misbehavior. Placement in DD is excluded from the regulations governing segregated housing.

Incarcerated individuals can also be “confined to quarters” (CTQ), which is an authorized disciplinary hearing action whereby the person is restricted to their assigned quarters for a period not to exceed five days for administrative rule violations, or ten days for serious rule violations. A person charged with a serious rule violation may be subject to immediate segregation from the general population, and can be placed in CTQ for up to 10 days, or longer with director approval.

In 2015, California settled Ashker v. Governor of California, a class-action lawsuit brought on behalf of a group of individuals incarcerated at Pelican Bay State Prison who had each spent at least a decade in isolation. The settlement was intended to end the practice of isolating incarcerated individuals who have not violated prison rules, cap the length of time a prisoner can spend in solitary confinement, and provide a restrictive but not isolating alternative for the minority of prisoners who continue to violate prison rules on behalf of a gang.

The Ashker agreement was first extended in 2019 by the federal court, based on a finding that CDCR was “effectively frustrating the purpose” of the settlement agreement by systemically violating due process rights. In February 2022, the court determined that CDCR was continuing to systematically violate the due process rights of inmates despite the Ashker agreement. The court found that CDCR is relying on inaccurate and fabricated confidential information to place individuals in solitary confinement, using dubious gang affiliations to deny them a fair opportunity for parole, and holding them in a restricted unit in the general population without adequate procedural safeguards. Citing these violations, the court extended the Ashker agreement for a second one-year term. CDCR appealed the orders extending the settlement agreement. The appeals were consolidated, and in August 2023, the Ninth Circuit reversed the district court’s order granting the first extension of the settlement agreement and vacated the order granting the second extension of the settlement agreement on jurisdictional grounds.

Proposed Law:

AB 733 would require CDCR to collect data to track the department’s progress toward improving solitary confinement standards. Specifically, this bill would require CDCR to collect the following data points, and report the information to the Legislature by January 1, 2026, and annually thereafter:

• Name.
• Race.
• Sex.
• Age disaggregated by those placed in solitary confinement or restrictive housing.
• Specific description of the types of offenses for which incarcerated persons are held in solitary confinement.
• The types of placement similar to solitary confinement, including, but not limited to, lockdown and quarantine.
• The types of rehabilitative programs made available to inmates in each solitary confinement unit.
• Staffing ratios for solitary confinement.
• The number of times individuals were kept in solitary confinement for that year.
• The total time individuals placed in solitary confinement were kept in solitary for that year.
• The number of solitary confinement units within the previous calendar year.
• The number of solitary confinement units in use of an institution within the previous calendar year.
• Existing mental health diagnoses of those placed in solitary confinement.
• Whether individuals developed mental health diagnoses or required mental health treatment during or soon after placements in solitary confinement.
• Whether individuals experienced medical or psychiatric emergencies while in solitary confinement.
• Whether individuals committed or attempted to commit suicide or engaged in serious self-harm during, or soon after, placement in solitary confinement.
• Whether there were appeals of the decision to place an individual in solitary confinement and the outcome of those appeals.
• Whether the term of solitary confinement was shorter than originally ordered and the reason for the shortened placement.
• The number of individuals who received reductions in their restrictive housing terms based on successful completion of rehabilitative programs.

Related Legislation:

AB 280 (Holden), which is currently pending on the Assembly Inactive File after being approved by the Senate in 2023 on a vote of 21-12, would limit the use of “segregated confinement” and establish procedures related to the use of segregated confinement in detention facilities throughout the state.

AB 2632 (Holden), which was vetoed by the Governor in 2022, was substantially similar to AB 280. The Governor’s veto message indicated that he would direct CDCR to develop regulations that would restrict the use of segregated confinement except in limited situations, such as when the individual has been found to have engaged in violence in the prison. The veto message, in part, stated the following objections:

“AB 2632…establishes standards that are overly broad and exclusions that could risk the safety of both the staff and incarcerated population within these facilities. Specifically, this bill would categorically prohibit the placement of large portions of the incarcerated population in segregated housing- even if such a placement is to protect the safety of all incarcerated individuals in the institution. I am additionally concerned that the restrictions in this bill could interrupt the rehabilitation efforts of other incarcerated people and the staff at these facilities.”

Staff Comments:

As noted in the veto message of AB 2632 (Holden, 2022) and at the direction of the Governor, CDCR has adopted emergency regulations (effective from November 1, 2023 through April 10, 2024) that significantly revise existing regulations related to inmate housing. Changes include consolidating the ASU, SHU, and PSU categories into the Restricted Housing Unit (RHU), reducing RHU terms by 50%, eliminating consecutive RHU terms, establishing set RHU terms and eliminating subjective mitigating and aggravating factors previously used to calculate terms, eliminating the Step Down Program, and increasing out-of-cell time for inmates assigned to RHU, and increasing and expanding types and amounts of authorized privileges and personal property. CDCR has also proposed permanent regulations regarding RHUs, which are currently in the public comment period through February 2, 2024. The Notice of Proposed Regulations (NCR 23-15) includes the following information regarding the intent of the regulatory changes:

The main objective of this regulatory action is to reduce the use of segregated confinement. Restricted Housing will be used in limited situations for inmates who engage in violence or have serious safety concerns. This regulatory action will allow for more effective and efficient use of the department’s resources, which will result in a streamlined process for the inmates to receive enhanced services such as medical and mental health treatment. Regulations will include enhanced rehabilitative programming to promote a positive behavioral model and aid in rehabilitation efforts.

In addition to reducing the use of segregated confinement, another primary objective of these proposed regulations is to better serve the inmate population in restricted housing by reducing the amount of transfers, standardizing access to property and privileges, creating new access to rehabilitative programs and education, clinically approved treatment therapies and skill building activities as well as increasing out of cell time. This will be beneficial for inmates as participation in rehabilitative programming may result in less time in restricted housing and assist in a successful transition to less restrictive housing and, upon release, to society.

Staff notes that this bill would result in both one-time and ongoing costs to CDCR. It is unclear at this time whether the collection and aggregation of certain data points can be accomplished primarily through IT systems improvements, which would result in more significant one-time costs, or if it would require more manual, labor-intensive data collection tasks that would result in more significant ongoing costs.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 733 Hearing Date: January 9, 2024

Subject: Solitary confinement

HISTORY

Source: Author

Prior Legislation: AB 280 (Holden), Assembly Inactive File 2023

AB 2632 (Holden), vetoed in 2022

AB 1225 (Waldron), died in Assembly Appropriations in 2021

SB 132 (Wiener), Ch. 182, Stats. 2019
SB 124 (Leno), held in Assembly Appropriations in 2015

SB 970 (Yee), not heard in 2014

SB 61 (Yee), ordered to Inactive File in 2013

SB 1363 (Yee), failed passage in Senate Public Safety in 2012

Support: Unknown

Opposition: Disability Rights California; Immigrant Defense Advocates; NextGen California (to prior version) ACLU California Action; Alianza Sacramento; American Friends Service Committee; Amnesty International USA; California Alliance for Youth and Community Justice; California Collaborative for Immigrant Justice; California Families Against Solitary Confinement; California United for A Responsible Budget; Ella Baker Center for Human Right; Fair Chance Project; Freedom for Immigrants; Friends Committee on Legislation of California; Indivisible CA: StateStrong; Law Foundation of Silicon Valley; Legal Services for Prisoners With Children; National Religious Campaign Against Torture; Oakland Privacy; Prison Law Office; San Francisco Public Defender’s Office; Social Workers and Allies Against Solitary Confinement; Unlock the Box; Jules Lobel- lead counsel in Ashker v Governor of California

PURPOSE

The purpose of this bill is to require the California Department of Corrections and Rehabilitation (CDCR) to collect data on its progress toward improving the standards of solitary confinement and to report the data annually to the Legislature.

Existing federal law prohibits the deprivation of life, liberty, or property without due process of law or the denial of equal protection of the laws. (U.S. Const., 5th & 14th Amends.)

Existing federal law prohibits the infliction of cruel and unusual punishment. (U.S. Const., 8th Amend.)

Existing law grants all people certain inalienable rights, including pursing and obtaining safety, happiness, and privacy. (Cal. Const., art. I, § 1.)

Existing law prohibits the deprivation of life, liberty, or property without due process of law or the denial of equal protection of the laws. (Cal. Const., art. I, § 7.)

Existing law prohibits the infliction of cruel and unusual punishment. (Cal. Const., art. I, § 17.)

Existing law establishes rights for persons sentenced to imprisonment in a state prison, and provides that a person may, during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests. (Pen. Code, § 2600.)

Existing law prohibits the use of any cruel, corporal or unusual punishment or to inflict any treatment or allow any lack of care whatever which would injure or impair the health of the prisoner, inmate or person confined. (Pen. Code, § 2652.)

Existing law authorizes CDCR to prescribe and amend rules and regulations for the administration of the prisons. (Pen. Code, § 5058.)

Existing law requires the Director of CDCR to classify and assign an incarcerated individual to the institution of the appropriate security level and gender population nearest the individual’s home, unless other classification factors make such a placement unreasonable. (Pen. Code, § 5068.)

This bill requires CDCR to collect data to track the department’s progress toward improving solitary confinement standards. Requires CDCR on or before January 1, 2026, and annually thereafter, to report to the Legislature the data collected by the department.

This bill provides that any reference to “solitary confinement” also means and includes “restricted housing.”

This bill requires CDCR to collect all of the following data points:

• Name.
• Race.
• Sex.
• Age disaggregated by those placed in solitary confinement or restrictive housing.
• Specific description of the types of offenses for which incarcerated persons are held in solitary confinement.
• The types of placement similar to solitary confinement, including, but not limited to, lockdown and quarantine.
• The types of rehabilitative programs made available to inmates in each solitary confinement unit.
• Staffing ratios for solitary confinement.
• The number of times individuals were kept in solitary confinement for that year.
• The total time individuals placed in solitary confinement were kept in solitary for that year.
• The number of solitary confinement units within the previous calendar year.
• The number of solitary confinement units in use of an institution within the previous calendar year.
• Existing mental health diagnoses of those placed in solitary confinement.
• Whether individuals developed mental health diagnoses or required mental health treatment during or soon after placements in solitary confinement.
• Whether individuals experienced medical or psychiatric emergencies while in solitary confinement.
• Whether individuals committed or attempted to commit suicide or engaged in serious self-harm during, or soon after, placement in solitary confinement.
• Whether there were appeals of the decision to place an individual in solitary confinement and the outcome of those appeals.
• Whether the term of solitary confinement was shorter than originally ordered and the reason for the shortened placement.
• The number of individuals who received reductions in their restrictive housing terms based on successful completion of rehabilitative programs.

COMMENTS

1. Need for This Bill

According to the author:

The intent of this legislation is to … ensure that the conditions and treatment for those who are confined to segregated housing are humane and have the overall goal of rehabilitation to ensure inmates are equipped to be integrated back into the prison’s general population and into the communities into which they are released.

…

…[T]he California Department of Corrections and Rehabilitation would be required to provide data that allows California to track the CDCR’s progress toward improving solitary confinement standards.

1. Existing Rules Governing Segregated Confinement in State Prisons

There are no clear standards or limits on the use of segregated confinement in detention facilities operated by the state which are codified in statute. Under the current system, CDCR possesses broad discretion regarding the use of solitary confinement, administrative segregated housing, or other forms of isolated placement. According to CDCR’s Department Operations Manual (DOM), some individuals are in “controlled housing” because they present “too great management problem for housing in general population settings.” (DOM § 33010.30.) These housing units include but are not limited to the Security Housing Unit (SHU), Administrative Segregation Unit (Ad-Seg), Psychiatric Services Unit (PSU), and the Protective Housing Unit (PHU). SHU terms are calculated using a matrix which allows for SHU terms from two to 60 months based on offense type. (Cal. Code Regs, tit. 15, § 3341.9.)

Individuals who violate criminal or administrative statutes “shall be dealt with in the strictest possible legal manner,” including among other things, segregation from the inmate general population. (DOM § 52070.5.4.) When an individual’s presence in an institution’s general population presents an immediate threat to the safety of the inmate or others, endangers institution security or jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity, the inmate is required to be immediately removed from general population and placed in Ad-Seg. (DOM § 52080.24.)

CDCR also utilizes disciplinary detention units or “DDs.” DD is a temporary housing status which confines individuals assigned to designated rooms or cells for prescribed periods of time as punishment for serious acts of misbehavior. (DOM § 52080.20.) Placement in DD is excluded from the regulations governing segregated housing. (Cal. Code Regs, tit. 15, § 3335.5.)

Incarcerated individuals can also be “confined to quarters” (CTQ). CTQ refers to an authorized disciplinary hearing action whereby the person is restricted to their assigned quarters for a period not to exceed five days for administrative rule violations or ten days for serious rule violations. (DOM § 52080.23.) A person charged with a serious rule violation may be subject to immediate segregation from the general population, and can be placed in CTQ for up to 10 days, or longer with director approval. (DOM §§ 52080.5.6, 52080.19.)

1. Ashker

In 2015, California settled Ashker v. Governor of California, a class-action lawsuit brought on behalf of a group of incarcerated individuals housed at Pelican Bay State Prison who had each spent at least a decade in isolation. (CCR, Summary of Ashker v. Governor of California Settlement Terms available at <https://ccrjustice.org/sites/default/files/attach/2015/08/2015-09-01-Ashker-settlement-summary.pdf>.) The settlement was intended to end the practice of isolating incarcerated individuals who have not violated prison rules, cap the length of time an incarcerated individual can spend in solitary confinement, and provide a restrictive but not isolating alternative for those incarcerated individuals who continue to violate prison rules on behalf of a gang. (Ibid.)

The Ashker agreement was first extended in 2019 by the federal court, based on a finding that CDCR was “effectively frustrating the purpose” of the settlement agreement by systemically violating due process rights. (CCR, Court Finds Continued Systemic Constitutional Violations in California Prisons (Feb. 3, 2022) available at <https://ccrjustice.org/home/press-center/press-

releases/court-finds-continued-systemic-constitutional-violations-california>.) In February 2022, the court determined that CDCR had continued to systematically violate the due process rights of incarcerated individuals despite the Ashker agreement. The court found that CDCR had relied on inaccurate and fabricated confidential information to place individuals in solitary confinement, used dubious gang affiliations to deny them a fair opportunity for parole, and held them in a restricted unit in the general population without adequate procedural safeguards. (Ibid.) Citing these violations, the court extended the Ashker agreement for a second one-year term. (Ibid.) CDCR appealed the orders extending the settlement agreement. The appeals were consolidated, and in August 2023, the Ninth Circuit reversed the district court’s order granting the first extension of the settlement agreement and vacated the order granting the second extension of the settlement agreement on jurisdictional grounds.

1. Effect of This Bill

This bill requires CDCR to collect data on its progress toward improving the standards of solitary confinement and to report the data annually to the Legislature. The bill requires the collection of specified demographic information; a description of the types of restrictions for solitary confinement; the types of placement similar to solitary confinement; staffing ratios for solitary confinement units; the number of times individuals were kept in solitary confinement for that year; the total time individuals were kept in solitary confinement for that year; information related to mental health diagnoses of the individuals placed in solitary confinement; information related to medical and psychiatric emergencies of the individuals placed in solitary confinement; whether individuals committed or attempted to commit suicide or engaged in serious self-harm during, or soon after, placement in solitary confinement; and whether there were appeals of the decision to place an individual in solitary confinement and the outcome of those appeals, among other things.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 733 Hearing Date: April 18, 2023

Subject: Solitary confinement

HISTORY

Source: Author

Prior Legislation: AB 2632 (Holden), vetoed in 2022

AB 1225 (Waldron), died in Assembly Appropriations in 2021

SB 132 (Wiener), Ch. 182, Stats. 2019
SB 124 (Leno), held in Assembly Appropriations in 2015

SB 970 (Yee), not heard in 2014

SB 61 (Yee), ordered to Inactive File in 2013

SB 1363 (Yee), failed passage in Senate Public Safety in 2012

Support: Unknown

Opposition: Alianza Sacramento; American Friends Service Committee; Amnesty International USA; California Alliance for Youth and Community Justice; California Collaborative for Immigrant Justice; California Families Against Solitary Confinement; California United for A Responsible Budget; Disability Rights California; Ella Baker Center for Human Right; Fair Chance Project; Freedom for Immigrants; Friends Committee on Legislation of California; Immigrant Defense Advocates; Indivisible CA: StateStrong; Law Foundation of Silicon Valley; Legal Services for Prisoners With Children; National Religious Campaign Against Torture; NextGen California; Oakland Privacy; Prison Law Office; San Francisco Public Defender’s Office; Social Workers and Allies Against Solitary Confinement; Unlock the Box; Jules Lobel- lead counsel in Ashker v Governor of California

PURPOSE

The purpose of this bill is to require the California Department of Corrections and Rehabilitation (CDCR) to develop standards for placement and conditions in solitary confinement consistent with the Ashker settlement, to collect data on its progress toward improving the standards of solitary confinement, and to report the data annually to the Legislature.

Existing federal law prohibits the deprivation of life, liberty, or property without due process of law or the denial of equal protection of the laws. (U.S. Const., 5th & 14th Amends.)

Existing federal law prohibits the infliction of cruel and unusual punishment. (U.S. Const., 8th Amend.)

Existing law grants all people certain inalienable rights, including pursing and obtaining safety, happiness, and privacy. (Cal. Const., art. I, § 1.)

Existing law prohibits the deprivation of life, liberty, or property without due process of law or the denial of equal protection of the laws. (Cal. Const., art. I, § 7.)

Existing law prohibits the infliction of cruel and unusual punishment. (Cal. Const., art. I, § 17.)

Existing law establishes rights for persons sentenced to imprisonment in a state prison, and provides that a person may, during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests. (Pen. Code, § 2600.)

Existing law prohibits the use of any cruel, corporal or unusual punishment or to inflict any treatment or allow any lack of care whatever which would injure or impair the health of the prisoner, inmate or person confined. (Pen. Code, § 2652.)

Existing law authorizes CDCR to prescribe and amend rules and regulations for the administration of the prisons. (Pen. Code, § 5058.)

Existing law requires the Director of CDCR to classify and assign an incarcerated individual to the institution of the appropriate security level and gender population nearest the individual’s home, unless other classification factors make such a placement unreasonable. (Pen. Code, § 5068.)

This bill states that it is the intent of the Legislature to end indeterminate solitary confinement and ensure that the conditions and treatment or those who are confined to segregated housing are humane and have the overall goal of rehabilitation to ensure inmates are equipped to be integrated back into the prison’s general population and into the communities into which they are ultimately released.

This bill requires CDCR to develop standards for placement and conditions in solitary confinement consistent with the settlement in Ashker v. Governor of the State of California (N.D.Cal., No. 4:09-CV-05796) to utilize a behavior-based system for solitary confinement.

This bill requires that the standards developed by the department include, but are not limited to, all of the following:

• Prohibiting the use of “gang-affiliation” as a justification for placing incarcerated persons in isolation.
• Creation of a “step-down” program to encourage and incentivize incarcerated persons to take steps to be released from solitary confinement.
• Expansion of programming and privileges for incarcerated persons in solitary confinement.
• Standards that alleviate the conditions of segregated confinement, including, but not limited to, all of the following: providing regular and meaningful social contact; providing adequate healthcare; providing access to sunlight; and, providing adequate food.

This bill requires CDCR to collect data to track the department’s progress toward improving solitary confinement standards. Requires CDCR on or before January 1, 2025, and annually thereafter, report to the Legislature the data collected by the department.

This bill requires CDCR to collect all of the following data points:

• Name.
• Race.
• Sex.
• Age disaggregated by those placed in solitary confinement that are under 25 years of age.
• Specific description of the types of restrictions for solitary confinement in the institution.
• The types of placement similar to solitary confinement, including, but not limited to, lockdown and quarantine.
• Staffing ratios for solitary confinement units.
• The number of solitary confinement units within the previous calendar year.
• The number of times individuals were kept in solitary confinement for that year.
• The total time individuals placed in solitary confinement were kept in solitary for that year.
• Existing mental health diagnoses of those placed in solitary confinement.
• Whether individuals developed mental health diagnoses or required mental health treatment during or soon after placements in solitary confinement.
• Whether individuals experienced medical or psychiatric emergencies while in solitary confinement.
• Whether individuals committed or attempted to commit suicide or engaged in serious self-harm during, or soon after, placement in solitary confinement.
• Whether there were appeals of the decision to place an individual in solitary confinement and the outcome of those appeals.
• Whether the term of solitary confinement was shorter than originally ordered and the reason for the shortened placement.

COMMENTS

1. Need For This Bill

According to the author:

The intent of this legislation is to end indeterminate (long-term) solitary confinement; but also to ensure that the conditions and treatment for those who are confined to segregated housing are humane and have the overall goal of rehabilitation to ensure inmates are equipped to be integrated back into the prison’s general population and into the communities into which they are released.

The proposed bill changes solitary confinement from a status-based system to a behavioral-based system, as ordered by U.S. District Court for the Northern District of California in the 2018 Ashker v Brown settlement. Among other things, it prohibits the use “gang-affiliation” as a justification for putting prisoners in isolation; and creates a “step-down” program, which provides incentives to inmates to work/take certain steps to be released from solitary confinement; and it alleviates conditions in segregation by requiring the provision of regular and meaningful social contact, adequate health care, access to sunlight and adequate food.

In addition, the California Department of Corrections and Rehabilitation would be required to provide data that allows California to track the CDCR’s progress toward improving solitary confinement standards.

1. Existing Rules Governing Segregated Confinement in State Prisons

There are no clear standards or limits on the use of segregated confinement in detention facilities operated by the state which are codified in statute. Under the current system, CDCR possesses broad discretion regarding the use of solitary confinement, administrative segregated housing, or other forms of isolated placement. According CDCR’s Department Operations Manual (DOM), some individuals are in “controlled housing” because they present “too great management problem for housing in general population settings.” (DOM § 33010.30.) These housing units include but are not limited to the Security Housing Unit (SHU), Administrative Segregation Unit (Ad-Seg), Psychiatric Services Unit (PSU), and the Protective Housing Unit (PHU). SHU terms are calculated using a matrix which allows for SHU terms from two to 60 months based on offense type. (Cal. Code Regs, tit. 15, § 3341.9.)

Individuals who violate criminal or administrative statutes “shall be dealt with in the strictest possible legal manner,” including among other things, segregation from the inmate general population. (DOM § 52070.5.4.) When an individual’s presence in an institution’s general population presents an immediate threat to the safety of the inmate or others, endangers institution security or jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity, the inmate is required to be immediately removed from general population and placed in Ad-Seg. (DOM § 52080.24.)

CDCR also utilizes disciplinary detention units or “DDs.” DD is a temporary housing status which confines individuals assigned to designated rooms or cells for prescribed periods of time as punishment for serious acts of misbehavior. (DOM § 52080.20.) Placement in DD is excluded from the regulations governing segregated housing. (Cal. Code Regs, tit. 15, § 3335.5.)

Incarcerated individuals can also be “confined to quarters” (CTQ). CTQ refers to an authorized disciplinary hearing action whereby the person is restricted to their assigned quarters for a period not to exceed five days for administrative rule violations or ten days for serious rule violations. (DOM § 52080.23.) A person charged with a serious rule violation may be subject to immediate segregation from the general population, and can be placed in CTQ for up to 10 days, or longer with director approval. (DOM §§ 52080.5.6, 52080.19.)

1. Ashker

In 2015, California settled Ashker v. Governor of California, a class-action lawsuit brought on behalf of a group of incarcerated individuals housed at Pelican Bay State Prison who had each spent at least a decade in isolation. (CCR, Summary of Ashker v. Governor of California Settlement Terms available at <https://ccrjustice.org/sites/default/files/attach/2015/08/2015-09-01-Ashker-settlement-summary.pdf>.) The settlement was intended to end the practice of isolating incarcerated individuals who have not violated prison rules, cap the length of time an incarcerated individual can spend in solitary confinement, and provide a restrictive but not isolating alternative for those incarcerated individuals who continue to violate prison rules on behalf of a gang. (Ibid.)

The Ashker agreement was first extended in 2019 by the federal court, based on a finding that CDCR was “effectively frustrating the purpose” of the settlement agreement by systemically violating due process rights. (CCR, Court Finds Continued Systemic Constitutional Violations in California Prisons (Feb. 3, 2022) available at <https://ccrjustice.org/home/press-center/press-releases/court-finds-continued-systemic-constitutional-violations-california>.) In February 2022, the court determined that CDCR was continuing to systematically violate the due process rights of incarcerated individuals despite the Ashker agreement. The court found that CDCR was relying on inaccurate and fabricated confidential information to place individuals in solitary confinement, using dubious gang affiliations to deny them a fair opportunity for parole, and holding them in a restricted unit in the general population without adequate procedural safeguards. (Ibid.) Citing these violations, the court extended the Ashker agreement for a second one-year term. (Ibid.)

1. Effect of This Bill

This bill contains two primary components. The first requires CDCR to develop standards for placement and conditions in solitary confinement consistent with the Ashker settlement to utilize a behavior-based system for solitary confinement. Specifically, this bill requires the standards developed by the department, at a minimum: prohibit the use of gang-affiliation as a justification for placing incarcerated individuals in isolation; create of a “step-down” program to encourage and incentivize incarcerated individuals to take steps to be released from solitary confinement; expand programming and privileges for incarcerated individuals in solitary confinement; and alleviate the conditions of segregated confinement, including, but not limited to, providing regular and meaningful social contact, providing adequate healthcare, providing access to sunlight, and, providing adequate food.

The second component of the bill requires CDCR to collect data on its progress toward improving the standards of solitary confinement and to report the data annually to the Legislature. The bill requires the collection of specified demographic information; a description of the types of restrictions for solitary confinement; the types of placement similar to solitary confinement; staffing ratios for solitary confinement units; the number of times individuals were kept in solitary confinement for that year; the total time individuals were kept in solitary confinement for that year; information related to mental health diagnoses of the individuals placed in solitary confinement; information related to medical and psychiatric emergencies of the individuals placed in solitary confinement; whether individuals committed or attempted to commit suicide or engaged in serious self-harm during, or soon after, placement in solitary confinement; and whether there were appeals of the decision to place an individual in solitary confinement and the outcome of those appeals, among others.

The bill also declares that it is the intent of the Legislature “to end indeterminate solitary confinement and ensure that the conditions and treatment or those who are confined to segregated housing are humane and have the overall goal of rehabilitation to ensure inmates are equipped to be integrated back into the prison’s general population and into the communities into which they are ultimately released.”

Opponents of the bill largely represent a coalition supportive of AB 280 (Holden) which would make a number of significant changes to the use of solitary confinement in the state’s prisons, county jails, and private detention facilities. AB 280 is a reintroduction of AB 2632 (Holden), a bill that was vetoed by Governor Newsom during the 2021-2022 legislative session. In his veto message, Governor Newsom wrote:

I have prioritized improving the conditions within custodial settings, and I support limiting the use of segregated confinement. Segregated confinement is ripe for reform in the United States – and the same holds true in California. AB 2632, however, establishes standards that are overly broad and exclusions that could risk the safety of both the staff and incarcerated population within these facilities. … I am additionally concerned that the restrictions in this bill could interrupt the rehabilitation efforts of other incarcerated people and the staff at these facilities.

But in light of the deep need to reform California’s use of segregated confinement, I am directing the California Department of Corrections and Rehabilitation (CDCR) to develop regulations that would restrict the use of segregated confinement except in limited situations, such as where the individual has been found to have engaged in violence in the prison. To this end, when placement in segregated confinement is necessary, these regulations must include utilization of small group yards, when feasible and available, and development of a positive behavioral model to aid in rehabilitation efforts.

The opposition coalition asserts that SB 733 undermines the reform efforts put forth in AB 280 by codifying the status quo.

1. Argument in Opposition

A coalition of organizations, including Immigrant Defense Advocates, California Families Against Solitary Confinement, Prison Law Office, Legal Services for Prisoners with Children, and the Ella Baker Center for Human Rights, opposes the bill writing:

SB 733 seeks to codify the terms of the Ashker Settlement, a legal settlement of a class action first filed in 2007. However, the Ashker settlement agreement has already been codified into law through regulations which control CDCR’s ability to place people in solitary confinement. Legislation implementing the settlement thus serves no purpose, and changes nothing.

The Ashker settlement worked a major change in California’s approach to solitary confinement as it existed in the early aughts. However, since that time, momentum has grown around reducing all uses of solitary confinement, not just solitary based on gang affiliation or the prolonged placement in solitary that were the issues in the Ashker case.

In the fall of 2022 Governor Newsom noted that the issue of solitary confinement is “ripe for reform.” We agree. SB 733 would not advance reform, but instead seeks to re-codify the status quo. We do not believe the status quo is satisfactory, nor appropriate for a state as progressive as California. Passing legislation to re-codify the status quo would not only fall short of reform, but it would close the door on efforts to progress in our state.

Instead, we believe comprehensive reform on the issue of solitary confinement is both possible and necessary. Such reforms would go beyond simply shifting the basis through which CDCR makes custodial decisions, to truly finding alternatives to isolation that aid rehabilitation and are being used in other progressive states.

There is a bill before this legislature, AB 280, the California Mandela Act, that provides comprehensive solutions to the issue of solitary confinement in jails, prisons and private detention facilities. This bill recognizes the need not only to regulate the basis for solitary confinement, but to reimagine the entire concept of safe separation that allows individuals to continue to receive programming, counseling and rehabilitation.

Recent data obtained from CDCR demonstrates that while the Ashker settlement has reduced the number of individuals in specific types of secure housing, CDCR continues to overuse administrative segregation in its facilities. 

…

There is an established consensus among experts, advocates, and those who have firsthand experience on the issue: solitary confinement is torture and can have permanent deleterious effects on the health of an individual. Many states have passed laws to limit the use of solitary confinement, and it is important that California joins them, as well as the international community, in regulating this practice.

California must join the international community, and states like New York, New Jersey, Washington, and Colorado in setting clear standards and limits on the use of solitary confinement. This begins by recognizing that solitary confinement is torture, and setting uniform and consistent limits on how solitary is used in all detention facilities.

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