Interview with Jules Lobel, Lead Attorney for California Lawsuit Against Solitary Confinement

June 6, 2013 | Revolution Newspaper |


Editor’s note: Prisoners at the Pelican Bay State Prison (PBSP) Security Housing Unit (SHU) who catalyzed the 2011 hunger strikes to stop long-term solitary confinement have announced they plan a new hunger strike (and work stoppage) in July 2013. See “New, Important Developments in Battle to Stop Torture in California and U.S. Prisons” for background on this critical struggle, and look to for ongoing coverage.

Jules Lobel is the President of the Center for Constitutional Rights (CCR), and professor of law at the University of Pittsburgh School of Law. He is the lead attorney in the important lawsuit, Ashker v. Brown, a lawsuit brought by prisoners against solitary confinement in the Pelican Bay Secure Housing Unit (SHU) in California.


A Note on the Interview
We are publishing this interview, which aired on April 26, 2013, courtesy of The Michael Slate Show on KPFK radio, Los Angeles. The views expressed by the interviewee are, of course, his own, and he is not responsible for the views expressed elsewhere in this newspaper and website. Michel Slate’s questions have been slightly edited for publication.


Michael Slate: Let's give people an overview of what the case is about, where it came from, what are the main issues that are being raised.

Jules Lobel: It challenges the solitary confinement up in Pelican Bay, in which prisoners are living in a small cell, essentially 80 square feet, twice the size of the average American walk-in closet, with no windows. They never get any phone calls. Pelican Bay is one of the most isolated places in the United States. It's about seven hours from San Francisco, 14 hours from LA where most of the prisoners are from, and therefore they get very few family or social visits. There's virtually no programming: no educational programs. They get recreation, but in another small area, which is theoretically outside, but it's got very, very high walls, and a mesh grate that covers it so you barely get any sun. they stay in these cells 23 hours.

Now, many people might say, well, how long could I survive in such a place? You know, 15 days, a month, maybe a year. We have almost a hundred prisoners who've been there over 20 years, and about 500 who've been there over ten years. So these people are spending decades in these kinds of conditions. And you might also say, well, what do they do to get in there? They must have done something heinous in prison: they killed a prison guard—well, for most of my clients, they have never done anything in prison that's a serious infraction.

You get put into this Pelican Bay solitary unit, which holds a thousand prisoners, simply by having some association with, or membership in, a prison gang. And the way that California determines who has association is you might have an artwork, like a Hispanic prisoner—and most of the prisoners there are Latinos—has an Aztec warrior with a spear pointed in a certain way, and California says, well, this is indicative that you're in some prison gang. And that's all you had to have done. You don't have to show any behavior that's misconduct, or that's antisocial, as long as you have some artwork, or your name appears on a list, or you write something that could be considered gang-related, you get put into this solitary unit for years and years and years.

And for most of them, there's no way out. The only way out is to do what's known as "debriefing," which is become an informant for the state, and not only foreswear your allegiance to the gang, but also tell the prison authorities everything you know about the gang, assuming, by the way, that any of these people know anything. And after 20 years, it's hard to imagine that even if they did know something, and even if they were members, they would know something much now.

So you have to become an informant, which puts you and your family at risk, and which my clients are unwilling to do, most of the people are unwilling to do. So they languish there with no hope of getting out, and spend decades there. Probably many of them will spend—unless something happens, will spend their whole lives there. At least that's what they have to contemplate.

So we brought a suit challenging this as cruel and unusual punishment in violation of the 8th Amendment, and also violation of the due process clause, because the Supreme Court has held that in this kind of confinement, you have to give people periodic hearings which are meaningful. And these folks aren't getting any meaningful hearings at all. They're just essentially rubber-stamped and kept in. Every six years they get some kind of review, but the review is essentially a rubber stamp.

So our claim essentially is that this is torture. And it violates both the Constitution and the international law agreements prohibiting torture. It's cruel and unusual punishment and it's a violation of due process to warehouse people like this for years without any meaningful hearings.

Slate: One thing that struck me is how routine all of this is, the dehumanization of the prisoners that are sent to the SHU, the dehumanization is just so damn routine. Even when you're talking about the fact that they can sit there and say—and I read various things that came out from the Center for Constitutional Rights and other things that talked about how, when people are looking for medical care, when they're looking for psychological health care, they're looking for different things, just some things that are bare necessities of staying alive, that they're routinely told, "Well, you know how to get better medical care." To do exactly what you're saying, become a snitch, get debriefed. I know a lot of prisoners have been very severely impacted by the many years in solitary. But one of the things that's inspired a lot of people I think around the world is the fact that these prisoners are also some of the prisoners—some of the prisoners who are involved in the lawsuit that you brought, some of them were also people who've been very heavily involved in the hunger strikes that basically echoed what was said in Attica back in the 1970s, that we are human and we demand to be treated as such. That to me is an essential point of all this.

Lobel: Yeah, I think our most basic claim is that this type of solitary for this amount of years is designed to and does strip people of their human dignity and their basic humanness. Because a key element of being human is social interaction. We are inherently social beings. We want to talk to somebody else, we want to have some interaction. These folks have not had normal human interaction for 20 years, many of them. By normal human interaction, I mean they have the ability to talk by yelling through the walls to their next door neighbor, in the cell next to them. But they never see anybody's face. These cells are four walls. There are no windows. There are little holes where sometimes you might be able to catch a glimpse of somebody. But they're basically stripped of the social interaction and the environmental stimulation which is a basic human need of all humans. But despite that, as you point out, many of my clients are people who have decided to resist this. And in that resistance, I think they've struggled to regain their humanness.

In fact, they did a study of prisoners of war who were put in solitary, and as John McCain said, solitary is in a way the cruelest form of punishment because it attacks your spirit. But they found that the one way that these prisoners of war could prevent going totally crazy was to resist. And that's what these folks at Pelican Bay are doing and they've written a letter to Governor Brown saying that unless California significantly changes what's going on up there, ends indeterminate solitary sentences where instead of just getting a sentence of one or two or three years, you get a sentence for your life—unless they do that, then they are planning on going back on hunger strike on July 8. And I think the world, and California hopefully will pay attention to them.

Slate: As you were talking about this dehumanization, I was thinking, even the exercise yard that they talk about—not yard, the exercise pen—is called a "dog run." There's this whole thing that comes in around this, and I remember reading in a press release that the CCR put out that said that—it quoted some of the prisoners, and one of them talking about feeling like he was silently screaming 24/7, and another one talking about how his biggest worry is he had been in there so long that he was forgetting or he had forgotten what the touch of another human felt like, what a human touch felt like, what somebody else's skin touching your skin felt like. And you think about psychologically what happens to somebody in terms of what does make us human, what is required for a human being to actually flourish as a human.

And then I was thinking, even this thing of—I want people to know, to really contemplate this a little bit too, is that out of all the people that are in Pelican Bay, only 66 are actually in there for some kind of behavioral cause, some kind of misbehavior. That others are in there because of assertions and innuendo, and even some, I would venture to think that some are also in there for some of their political ideals.

Lobel: Many of the people are in there for their political beliefs. For example, one of my clients, a man by the name of Ron Dewberry who has an African name, Sitawa, he's there primarily because he's written pamphlets, and written histories of Black nationalist struggles and movements. And because of that they say he's a gang member. For many of the people it's because of their political ideology and not because of any behavioral misconduct that the outside world would think would be really bad, like riots or violence or something like that. I think this is a form that California uses to control people and not really to prevent violence in the prisons. I don't think it's worked to prevent violence. I think the function really is to repress people in the system.

Slate: The prisoners have actually issued a call for the unity of all the various nationalities inside the prison and outside the prison, and saying, look, when things start to get hot, step back and think a bit and let's put things into a bigger cause. And I thought that was really important in terms of what you're talking about, in term of these guys are—they are considered the worst of the worst. That's what we're told all the time, they're the worst of the worst. And they're living in what is unimaginable. I was just watching Herman's House the other day, on Herman Wallace in Angola, the man who's spent the longest time in solitary confinement in the country, and you're looking at the way that some of these prisoners are able to actually fight back and rise above that, it's extremely inspiring. And I do think the point of people actually standing in support and fighting in support of what the prisoners are doing is extremely important. And I wanted to ask you this. There's a whole point that's come out here where in the lawsuit that you guys brought against the state of California, the state has come back and said, well, really, they were asking for it to be dismissed because they say that since the hunger strike, they've already set in motion all kinds of reforms, and there's processes being put into place right now that will actually answer all of the demands of the prisoners. What do you guys say to that?

Lobel: The prisoners say, and we agree, that the reforms are a sham, that they're cosmetic, designed to make people believe that they're actually doing something without real serious movement. For example, they claim that it's going to be a new behavioral-based system. But it still can be the case that you can get put into solitary, to Pelican Bay, and you can be maintained there simply because of some association with a gang, as opposed to some specific misconduct. And as you pointed out, often people are put in there simply because some informant says, well this guy is a member of the gang. Well, the informant said that and he's trying to get out and he's saying whatever. We know that, when people are under enormous pressure, psychological pressure to inform, they'll say many things and may or may not be true, and that's why people are there now.

You made one other point which I want to comment on which is a very important thing has happened up there, which is that 32 leaders of different ethnic groups, Hispanics, whites, Blacks, have put out a call throughout the California prisons, not only for unity, but to end ethnic and racial violence in California prisons. You would think that the California authorities looking at this, and I believe it's had an effect already in the California prisons, would say, well this is a really good thing. We should encourage it. Instead they introduced this document as evidence that these folks are gang leaders and have tremendous control over their subordinates. Namely they're trying to urge everybody to end violence. Again, it's ironic that California looks at this statement, which I consider historic, as simply another form of gang activity.

Slate: I wanted people to get a sense of what goes on. During the hunger strike or maybe a little after that, Terry Thornton, who I don't think is any longer the prison spokesperson, but she may be, but she was at the time. She made a statement about when everybody's attention was focused on solitary confinement—and people should know, California is the only state that has indefinite solitary confinement, still uses it. It was thrown out a century ago as too cruel, too barbaric, in a time when a lot was cruel and barbaric. And it was noted then and California still to this day is the only state that actually practices and uses indefinite solitary confinement, meaning you can go in there when you're 22 and turn around you're 72 and you're still sitting in a small little box. And she had the audacity to say, "Is it really solitary confinement if you can take correspondence courses and watch something like 27 channels on your own TV? If I went to prison, I wouldn't want to share a cell with anybody." Now contrast that with what you said when you said that solitary confinement is beyond the pale for any civilized nation. Let's talk about that.

Lobel: Two things and then I'll answer your question. One is that I believe that this situation in Pelican Bay and California is the domestic equivalent in a way to Guantánamo. Because people are put into this situation indefinitely. They have no hope of getting out. And they haven't been charged with anything. They are simply there because they're believed to be, in this case gang members, in Guantánamo, terrorists. But there's no formal charges. And it's the same thing that we have here in California.

The second thing is I don't think it's quite accurate to say no other state practices indefinite solitary confinement. What California does, however, which is fairly unique is it practices it on a wholesale variety. There are people like Herman Wallace who have been in indefinite solitary confinement for many years in other states. But California has thousands of them. And that's where California is unique, in the numbers and also in the draconian nature of the conditions.

Now in terms of "This isn't really solitary confinement; it's not really so bad. People can watch TV, people can take correspondence courses." It's true. People can watch TV. But if the listener imagines themselves sitting in a large closet with no windows 23 hours a day and going out only to something which is marginally different for one hour a day, for many, many years, I think if you really put yourself in that situation you could see the terrible toll it must take on the human condition. To say that you can take a correspondence course or that you can watch TV doesn't go to the essence of our being, which is communicating with people. You can't communicate with a TV. Some people do talk at TVs, but the TV doesn't talk back. Now you can communicate possibly with the guy in the other cell, but you never see him, and it's not normal communication to shout over walls.

If this happens to you over years and years and years, it eventually crushes, or it's an attempt to crush, what makes us human. And even these guys who are survivors here, and many of my clients are—they haven't gone crazy, they don't claim that they're crazy. In a way then, they're the survivors, but it's taken a terrible toll on them. And I think it's totally insensitive and a flight from reality for the California officials to say, well, this really isn't solitary. They should try it for a little bit, and I'm sure they'd find it solitary.

Slate: And I think on that point, it just bears out what you said: beyond the pale of any civilized nation. And frankly, someone that could make a comment like that, oh boy! Jules, thank you very much for joining us today.

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