California bucks trend by rejecting new limits on ‘solitary’

Introduction

At the first-ever congressional hearing on the subject of solitary confinement, Sen. Dick Durbin of Illinois recently observed that it’s not always “the worst of the worst” who are subjected to the practice. Mentally-ill inmates, immigrants and juvenile offenders are put in solitary as well. And perhaps, said a series of witnesses at the hearing, the time has come to rethink the issue.

Many states are now doing just that. But the debate is not devoid of its own unique politics.

In California, for instance, a bid to require every-four-hour mental-health evaluations of minors who are “segregated” from other wards died a quick death this spring — even though the Golden State’s legislature is one of the nation’s most liberal and the measure was endorsed by the Los Angeles Times. The legislation failed by one vote to move beyond the seven-member state Senate Public Safety Committee. Three of five Democrats voted for the bill, including the Senate’s top leader, Democrat Darrell Steinberg of Sacramento. But two Democrats and the committee’s only two Republicans voted against it.

Depending on who’s talking, the idea faltered because it was flawed, unnecessary and would cost the Golden State money it doesn’t have — or it died because law-enforcement groups with savvy lobbying and financial clout leaned on key legislators to kill it. The dispute is the latest in a series of Sacramento battles over policies pitting liberal juvenile-justice reformers against cops and corrections officers.

State-based reform

Others states have been forced into statewide restrictions. Last year, in response to a lawsuit, Mississippi agreed to tight limits on solitary confinement for juveniles who are in adult prison. Montana settled a lawsuit by adopting strict terms, including a requirement that wardens approve putting juveniles into solitary or “behavior management” isolation for more than 72 hours. In April, West Virginia joined six other states in prohibiting solitary confinement as a way to punish minors in detention.

That same month, the American Academy of Child & Adolescent Psychiatry announced its opposition to solitary confinement for juvenile offenders, warning that the practice deepens depression, psychosis and suicidal tendencies. Indeed, a 2009 U.S. Department of Justice study showed that half of the 110 suicides by juvenile wards over a four-year period in the late 1990s were committed by those in solitary confinement. More than two-thirds had been put into facilities for non-violent offenses.

Adult inmates in California who’ve been held in solitary for years as a way to sever gang ties are currently suing the state, arguing that solitary’s corrosive psychological impact undermines their ability to re-enter society.

Against this backdrop, earlier this year the Ella Baker Center for Human Rights, a small Oakland, Calif., nonprofit that works with parents of juvenile offenders, approached state Sen. Leland Yee, a San Francisco Democrat, about the possibility of sponsoring legislation that would put limits on solitary for juveniles.

Yee’s bill, introduced in February, called for licensed mental-health clinicians to evaluate minors placed in isolation within an hour’s time and then every four hours afterward. Staff would have to create intervention plans before putting any minor identified as suicidal in isolation. Staff would also need a supervisor’s written permission before isolating wards for more than 24 hours straight in a one-week period.

The regulations would have applied to state institutions, where mostly more serious or violent juvenile offenders — about 1,000 now — are held, as well as to county facilities, where many thousands more mostly lower-level wards are now housed.

“We spend so much money locking up kids,” said Jennifer Kim, a legislative advocate for the Ella Baker Center for Human Rights. “Let’s divert some of that to make sure that we not exacerbating mental-health issues.”

Bill Sessa, a spokesman for the state Division of Juvenile Justice, strongly disputed the need for the bill, calling it a “solution looking for problem that doesn’t exist,” at least in state juvenile-offender facilities. The state’s three facilities are now under strict court orders, and treatment of offenders is monitored by outside auditors and highly prescribed, he said. “There is no solitary confinement,” Sessa said.

But Lina Roldan, a Southern California mother, says that in late 2010 her teenage son was put into isolation after using a plastic fork to try to cut his neck at a California state-run correctional facility in the city of Stockton. In response, she said, guards put the teen into a room she said wards called “the box” for 24 hours. Another time, Roldan said, her son was in isolation in a room for 48 hours straight. She claims he received no mental-health help.

“They waited until he cut his head open, hitting it against the wall, and then they sent him to a hospital,” she said in an interview.

Sessa said he couldn’t discuss the ward’s specific case. But he called Roldan’s characterization “untrue,” and said rules require wards to get mental-health assessments when they enter facilities and to benefit from frequent psychological aid if their condition requires it. “There is no ‘box,’ “he said. “This isn’t the Shawshank Redemption.”

In 2005, state juvenile facilities came under attack after an 18-year-old ward, Joseph Daniel Maldonado, hanged himself in the same youth facility where Roldan said her son was isolated in 2010. A state inspector general report, also in 2005, blamed staff for failing to respond to respond to Maldonado’s pleas for psychological help and for failing to enter his room quickly after knocks on his door went unanswered during guard rounds. The report revealed how Maldonado and other wards had been confined to their cells all day for eight weeks. The previous year, guards had been filmed punching and kicking wards.

For the safety of other wards and guards, Sessa said, guards do move to segregate offenders in their cells if they become violent or disruptive. Counselors are now required, he said, to immediately approach youths who’ve been segregated to try to get them talk through what might be causing outbursts. Wards showing any indication of suicidal tendencies can also be segregated in special cells, under close watch.

Sessa accused the Ella Baker Center of spreading “misinformation,” and of wrongly suggesting that California’s three state juvenile facilities — there used to be a dozen — remain as rife with scandalous practices as was alleged in lawsuits that led to court-ordered changes beginning in 2004.

“The courts are practically running the facilities,” he said.

Still, last year a state audit found nearly 250 violations of California’s state juvenile system’s guidelines, not regulations, against isolating wards for more than 21 hours straight. Court orders require that 40 to 70 percent of wards’ waking hours are spent in constructive activities, said Sara Norman of the Prison Law Office, which sued state juvenile prisons.

Sessa did not contest the audit’s findings. But the violations, he said, largely involved a small number of wards with violent tendencies, some with gang affiliations.

Barry Krisberg, a criminal-justice expert at the University of California at Berkeley School of Law, said he is more concerned now about the county facilities than the state institutions. “There could be whole wings where they could be spending days in confinement. Nobody knows,” said Krisberg, who has served as a monitor of court orders at state facilities.

Existing regulations that do govern counties are vague, Krisberg said, and give wide latitude for facility supervisors to set rules for isolating wards for up to 24 hours for a minor violation of facility rules, or longer for a major offense.

In April, as Yee’s bill went before the public safety committee, the Los Angeles Times published a spirited editorial that urged legislators to approve the measure. The Times called solitary confinement a practice that remains “as dark as ever” and stands in contrast to California’s progress in improving rehabilitation of young offenders. The editorial also singled out two Los Angeles Democrats who had abstained on a first round of voting on and pressed them to embrace the measure.

Unaffordable?

As debate on Yee’s bill began, Gov. Jerry Brown’s administration and juvenile-justice officials did not take a position. But law-enforcement unions and associations, representing state and county and local police, deputies and probation officers, weighed in against it.

The California Correctional Peace Officers Association, the state prison guards’ union, summed up its opposition in testimony at a committee hearing and in a letter to legislators. “We recognize that many parties believed that solitary confinement was overused in the past” at state facilities, the guards said. However, the union said, court orders have produced reforms. Yee’s bill would “far exceed” those reforms and “compromise the programming of the ward population,” the guards said, as well as the safety of guards and other wards.

The prison guards are a powerful force at the state capitol. Their clout in Sacramento stretches back to the 1980s, when the union first became heavily involved in law-and-order campaigns. It financed a big chunk of the state’s 1994 landmark Three Strikes ballot initiative, which began filling prisons. The union has continued to enjoy a prominent role publicly and in negotiations among lawmakers over public safety reforms and correctional spending. With the state facing lawsuits over overcrowded prisons and pressure to cut costs, the union has often offered its own “blueprints” for change.

“They’re the highest paid guards in the country,” said Krisberg of UC Berkeley. And even though the state’s fiscal crisis has required the union to accept hits in employee benefits, he said, “they got everything they wanted (at the capitol) this year.”

Krisberg said that local law enforcement is enjoying extra clout right now because the state, in cost-cutting reforms, is transferring responsibility for many adult state inmates to local control.

The California State Sheriff’s Association, one of those local interest groups, argued that the definition of solitary in Yee’s bill was too vague and would leave counties vulnerable to lawsuits and the cost of new training. The Peace Officers Research Association of California, with more than 63,000 members, said the bill “would put an additional burden on counties and raise the cost of housing juveniles.” The Chief Probation Officers of California, whose members are now responsible for most young offenders, added that “counties and state facilities do not have licensed mental health staff working 24/7 to perform this function.”

Complaints about costs are especially potent right now in California. The state’s fiscal problems have resulted in deep budget cuts that have chopped spending locally and statewide. This year, legislators have wrestled over how to bridge a $16 billion budget deficit.

Yee’s bill died before its costs were estimated as part of the legislative process. Kim of the Ella Baker Center said that mental-health evaluations shouldn’t be a cost problem given that taxpayers already spend $185,000 a year on each ward in state custody. Sessa didn’t disagree.

David Steinhart, director of the Commonweal Juvenile Justice Program in the Bay Area and a longtime collaborator with staff officials on reforms, said county probation departments have more reason to be concerned about costs — but only to a point.

California’s counties are getting a “big state payout” as part of a dramatic juvenile-justice shift that legislators voted for in 2007. The idea was to start requiring that the state’s 58 counties take responsibility for most wards rather than the state. Community-based rehabilitation programs seemed to work better at less cost.

Legislators in 2007 gave counties $117,000 for each ward they took, plus $300 million in construction money. Counties have continued to split almost $100 million more a year from the state. This year Gov. Jerry Brown proposed distributing another $200 million to counties if legislators would authorize shutting down the last three state-run facilities and transfer all wards to local custody. Probation chiefs and corrections officers — even union teachers at state facilities — fought the idea, arguing counties were ill-prepared to take more offenders. Brown dropped the idea.

Mark Varela, Ventura County’s probation chief and the probation chiefs’ legislative chair, told the Center that his county actually could have handled the mental-health evaluations of wards that Yee’s bill required. Ventura, he said, is using various streams of state money to pay for a “crisis team” that probation can turn to in mental-health emergencies. That move was in line with the recommendations of a statewide task force last year. But Varela conceded that other counties may be facing other kinds of fiscal problems.

Wielding power in Sacramento

The Ella Baker Center advocates say they can’t help but think that debate over proposals like theirs is clouded by the campaign-donations and high-priced lobbying game at the Capitol. Law-enforcement associations “always seem to seem to have unlimited resources to influence politicians,” Kim said.

To compete, the Ella Baker Center spent about $115,110 last year and through this past March on lobbying to push Yee’s solitary-confinement bill, among other criminal-justice proposals. At the same time, the California Correctional Peace Officers Association spent more than $421,511 lobbying on an array of bills. The Chief Probation Officers group also spent nearly $370,000 to push its view on the budget and other proposed measures, according to state lobbying records.

The correctional guards union has also given California politicians or committees more than $12.4 million in contributions since 2003, according to the National Institute on Money and State Politics.

On March 16, state records show, the guards union gave the California Democratic Party $60,000. On March 9, it gave the California Republican Party $15,000. And on May 30, it gave $10,000 to a newly minted California Black Political Action Committee, which is based in Los Angeles.

The three Democrats who voted for Yee’s bill and two who voted against it have all received donations from prison guards or other law-enforcement groups during their careers. But none have received more from the prison guards than Sen. Ron Calderon, Democrat of Los Angeles. He cast one of the votes against Yee’s bill after initially abstaining.

Between 2004 and 2010, Calderon received $14,050 in donations from the guards union. In March of this year, he reported a $3,900 donation pledged last July from the guards union, records show. The donation went to Calderon’s committee for a run at state controller in 2014.

Rocky Rushing, Calderon’s chief of staff, said Calderon’s vote had nothing to do with donations. “It’s not like that at all,” he said. “We were supportive of the intent of the legislation.” The costs of mental-health evaluations of wards every four hours, which Yee’s bill required, would have been “astronomical,” Rushing said. Advocates refused to budge on this matter, he said. Kim of the Baker Center said she felt that delineating a specific number of hours was necessary or checks might not happen.

Sen. Curren Price, the other Los Angeles Democrat and committee member — who also abstained before voting against Yee’s bill — said in a statement that he considered Yee’s bill “a provocation” that could have “compromised safety inside juvenile facilities …by ignoring the concerns of rank-and-file personnel.”

Price, who is the chair of the Legislative Black Caucus, additionally said the measure would have interfered with court-ordered improvements, and burdened counties. He’s “sympathetic to the issue,” however, and said he’s willing to consider alternatives to regulating solitary confinement of minors. The Ella Baker advocates, who submitted written testimony to Durbin’s office for the June 19 Congressional hearing, said they will try again to get strict, statewide regulations or to stop solitary confinement of juveniles.