San Francisco Chronicle - (Sunday)
Inmate punished over solitary challenge
California prison officials agreed seven years ago to drastically limit their use of solitary confinement against thousands of prisoners, in a suit led by an inmate from the Bay Area. Now a federal judge says officials have punished the inmate, Todd Ashker, by concocting evidence that has kept him in an isolation cell for nearly the last six years.
The state “retaliated against Ashker for his participation and activities in this action, which are protected under the First Amendment,” U.S. District Judge Claudia Wilken of Oakland said in a ruling released late Thursday. She had issued the decision Jan. 5 but kept it confidential until now to allow time for discussions to arrange Ashker’s return to the general prison population. Those talks are still going on, a lawyer for the inmates said Friday.
“There is a culture within CDCR (the California Department of Corrections and Rehabilitation) that is not used to accountability,” said the attorney, Carmen Bremer. “They systematically fabricate confidential information and use it to put people in (isolation cells) for rules violations.”
She said the prison system has retaliated against at least one other participant in the lawsuit, but said the inmate’s identity could not yet be disclosed.
“It is gratifying to be vindicated in this way,” Ashker said in a statement released by his legal team, which also included the Center for Constitutional Rights and the American Civil
Liberties Union.
In response, Vicky Waters, a CDCR spokesperson, said the department “always makes housing decisions based on individual case factors, including the department’s duty to protect which implicates the safety and security of people under our care.” She said the department plans to appeal the ruling.
Ashker, 59, from Contra Costa County, was first sentenced to prison for burglary in 1985 and has since been convicted of crimes in prison that have resulted
in a sentence of 21 years to life. He was held in solitary confinement for 29 years and was the lead plaintiff in the inmates’ lawsuit in 2012. He was also one of the leaders of a hunger strike protesting the practice, and in negotiations that led to the settlement.
The suit challenged a system that allowed solitary confinement for gang “affiliation,” which officials sometimes determined merely by an inmate’s tattoos, or by letters or books they possessed. In solitary
quarters known as Security Housing Units, inmates are kept in concrete cells for more than 22 hours a day, are fed through a slot, and have said they are punished for trying to talk to other inmates.
In the settlement, announced in September 2015, CDCR agreed to return as many as 1,800 inmates, half the total then in solitary, to the general prison population, where they could regain access to vocational and educational programs, phone calls, mail deliveries and family visits. The settlement allowed continuing solitary confinement of inmates convicted of violent crimes and others found to pose dangers to guards or other prisoners.
But a federal magistrate found in January 2019 that prison officials had regularly fabricated claims of information from confidential sources to classify inmates as dangerous. And Wilken said in her latest ruling that the CDCR had singled out Ashker for punishment.
After his transfer in 2016, Wilken said, Ashker was held in the general population at Kern Valley State Prison without incident for 15 months, then abruptly sent to an isolation cell in another prison out of purported concerns for his safety. Officials at the Kern Valley prison opposed his removal but were overruled by officials at CDCR headquarters, who were motivated by Ashker’s “leadership role in this litigation,” the judge said.
Later, she said, a department official falsely told a federal magistrate that prison staff believed Ashker would be attacked by a gang if he remained in the general population. When CDCR, years later, acknowledged that the allegations of danger came from department headquarters rather than guards at the prison, the department attributed the confusion to a breakdown in communications — a “lack of candor,” Wilken said, that was further “evidence of an improper retaliatory motive.”