Prison Law Office follow up letter to Sheriff Laurie Smith

PRISON LAW OFFICE General Delivery, San Quentin, CA 94964 Telephone (510) 280-2621  Fax (510) 280-2704 www.prisonlaw.com

August 5, 2015 Sheriff Laurie Smith Santa Clara Sheriff’s Office 55 West Younger Avenue San Jose, CA 95110 Fax: (408) 294-2467 Email: so.website@sheriff.sccgov.org

Director: Donald Specter Managing Attorney: Sara Norman Staff Attorneys: Rana Anabtawi Rebekah Evenson Steven Fama Penny Godbold Alison Hardy Corene Kendrick Kelly Knapp Millard Murphy Lynn Wu

Dear Sheriff Smith, Thank you for meeting with us on July 28, 2015, and for allowing us to tour certain areas of the Main Jail. We found the meeting and tour to be productive, and helped us better understand some of the challenges you face in safely operating the jail facilities. However, we continue to believe there are serious violations of inmates’ federal and state constitutional and regulatory rights occurring in the Jail, as described in our letter dated June 25, 2015, that must be addressed.

In the paragraphs below, we further describe our concerns and propose a framework for resolving them. Our goal is to work cooperatively with you to find solutions.

I. Conditions in Maximum Security Housing Units During our tour, we went to Third West, 4C, and two recreation yards in the Main Jail. All of the inmates we observed were housed in solitary confinement, as defined by being locked down in their cells at least 22 hours a day.1 In Third West, we observed inmates single-celled in exceptionally small cells (approximately 6 by 7 ft), without any natural light, and with space for only a bed and toilet. All of the inmates were either in their beds or standing at their doors as there was no room for them to be anywhere else and nothing else to do. There were a few televisions in the hallway, but it was 11

For support for this accepted definition of solitary confinement, see, e.g., U.S. Department of Justice, Investigation of State Correctional Institution at Cresson, May 13, 2013, available at http://www.justice.gov/crt/about/spl/documents/cresson_findings_5-31-13.pdf (“terms ‘isolation’ or ‘solitary confinement’ mean the state of being confined to one’s cell for approximately 22 hours per day or more, alone or with other prisoners, that limits contact with others. … An isolation unit means a unit where either all or most of those housed in the unit are subjected to isolation.”); Wilkinson v. Austin, 545 U.S. 209, 214, 224 (2005) (describing solitary confinement as limiting human contact for 23 hours per day); Tillery v. Owens, 907 F.2d 418, 422 (3d Cir. 1990) (21 to 22 hours per day).

Board of Directors 1 WalkinHawk, Vice President Penelope Cooper, President  Michele Marshall Krause, Treasurer  Christiane Hipps  Margaret Johns Cesar Lagleva  Laura Magnani  Michael Marcum  Ruth Morgan  Dennis Roberts

not clear that all of the inmates could view them, and the sound was turned down. Lieutenant Davis and Captain Hoyt stated that inmates in this unit are provided out-of-cell time 70 minutes every other day alone in a cell removed of its furnishings or in an outdoor recreation yard four hours a month.2 In 4C, we observed inmates single-celled in slightly larger cells with windows to the outside and space for a bed, toilet, and writing desk. Lieutenant Davis stated that inmates are provided with 60 minutes of out-of-cell time every other day alone in a dayroom, where they can talk to other inmates through the cell doors, or alone in an empty gym for an unknown amount of time.

We did not observe any recreational equipment (e.g., basketballs, pull-up bars, board games, etc.) or places to sit in any of the recreational areas or dayrooms. Indeed, these spaces were void of stimulation or activities, and did very little to ameliorate the effects of being locked down in cells over 23 hours a day.

We have toured scores of jails and prisons throughout the nation, and the conditions we observed in the Santa Clara Jail units were harsher and more punitive than most we have visited.

It is exactly these types of conditions that Supreme Court Justice Kennedy criticized in a recent opinion in part because they commonly cause “anxiety, panic, withdrawal, hallucinations, selfmutilation, and suicidal thoughts and behaviors.” Davis v. Ayala, 576 U.S. ___, No. 13-1428, 2015 WL 2473373 at *21 (U.S. June 18, 2015) (Kennedy, J., concurring).

The following measures should be implemented to ameliorate the risk of harm from the conditions in the Maximum Security Units:  Significantly increase out-of-cell and outdoor recreation time;  Provide recreational, education, and vocational programs;  Provide exercise and recreational equipment in the dayrooms and yards (e.g., basketball hoops and basketballs, pull-up bars, tables and chairs, board games, televisions);  Provide increased opportunities for in-cell reading, and allow craft and hobby materials (e.g., art supplies), and radios in the cells;  Provide increased opportunities for interactions with other inmates;  Increase the number of family visits and phone calls; and  Provide regular, documented wellness checks by healthcare staff.

2

Captain Hoyt claims that inmates in Third West are provided with one hour of exercise once a week. The inmates dispute this claim and state they are only provided with one hour of outdoor exercise every other week. Even if Captain Hoyt is correct, four hours of outdoor exercise a month is woefully inadequate and violates Title 15, Section 1065. Kane v. Pierce, 2009 WL 160255 at *5 (E.D. Cal. 2009) (Title 15 Section 1065 must be interpreted to require three hours of outdoor exercise each week.)

2

II. Inmates Who Are Housed in Maximum Security Inmates in the Main Jail seem to be indefinitely housed in the punitive conditions described above without any legitimate penological purpose. During the meeting, we received conflicting information about whether inmates in Third West were housed there because of their behavior or solely based on their criminal charges. If what many of the inmates in Third West and other Maximum Security units are alleging is true, they have not been charged with any jail infractions or engaged in any misconduct at all in the jail, or at least within the last year. It is not clear what, if anything, inmates can do to get out of solitary confinement or higher level security classifications. Indeed, staff acknowledged in the meeting that inmates in Third West were permanently housed there despite ongoing 30-day classification reviews. Unless there are documented reasons that inmates are housed in restricted housing because of current and legitimate safety or security risks, they should be moved to less restrictive housing. Brown-El v.

Delo, 969 F.2d 644, 648 (8th Cir. 1992) (decisions to segregate are unconstitutional if they are “arbitrary or purposeless”).

Although all inmates are at risk of harm from the conditions in solitary confinement, there does not seem to be any regard for the devastating impact of such conditions on prisoners with mental illness. During the meeting, we notified you that an inmate in Cell of Third West was reportedly suffering from severe mental health symptoms. Lieutenant Davis minimized this inmate’s textbook behavioral manifestations of mental illness as “manipulative,” and did not know whether he was receiving treatment for a mental illness. This inmate, has since written to our office and claims that he is diagnosed with bipolar disorder and a developmental disability, and was recently receiving the most enhanced available mental health outpatient services in the CDCR. He also described acute symptoms and a suicide attempt as a result of being housed in Third West. Jail staff may not house prisoners with mental illness in solitary confinement without taking measures to address the negative effects of that environment.

Coleman v. Brown, 938 F. Supp.2d 955, 979-80 (E.D. Cal. 2013). 3 The following measures should be implemented to minimize the use of solitary confinement:  Pretrial detainees must be provided with “(1) a hearing with advance written notice (except in case of a genuine emergency) before initial placement…, (2) the opportunity to present witnesses and documentary evidence, (3) written reasons for the decision and (4) counsel-substitute for an illiterate inmate or in a case with 3

See Coleman v. Brown, 28 F. Supp. 3d 1068, 1109 (E.D. Cal. 2014) (“Defendants are prohibited from housing any class member at any SHU in California unless that class member's treating clinician certifies that (1) the behavior leading to the SHU assignment was not the product of mental illness and the inmate's mental illness did not preclude the inmate from conforming his or her conduct to the relevant institutional requirements; (2) the inmate's mental illness can be safely and adequately managed in the SHU to which the inmate will be assigned for the entire length of the SHU term; and (3) the inmate does not face a substantial risk of exacerbation of his or her mental illness or decompensation as a result of confinement in a SHU. In addition, defendants are prohibited from returning any seriously mentally ill inmate to any SHU unit if said inmate has at any time following placement in a SHU required a higher level of mental health care.”)

3

complex issues.” Inmates of Sybil Brand Inst. for Women v. Cnty. of Los Angeles, 130 Cal. App. 3d 89, 108 (Ct. App. 1982);  When used as punishment for jail infractions, solitary confinement must only be used as a last resort, and then for the shortest time possible, lasting days rather than weeks or months;  Solitary confinement must not be imposed indefinitely, and inmates should know in advance its duration; and  Those suffering from mental illness must not be placed in solitary confinement and under no circumstances should the use of solitary confinement serve as a substitute for appropriate mental health care.

Given the December 2014 MGT report’s conclusion that the classification system is “questionable” and that many inmates were classified incorrectly, we would like more information about your current classification system. Specifically, we would like to review the classification policies, forms, and instructions used to determine inmates’ security levels and housing locations. We would also like to review the classification documents for all of the inmates currently housed in Third West. In the alternative, we propose that we jointly choose an expert to confidentially review the inmates’ classification documents and provide an opinion about whether they have been classified and housed appropriately.

III.

Access to Court, Cell Searches, and Cleaning Supplies

In regards to the access to court, cell search, and cleaning supply issues we discussed during the meeting and in our letter dated June 25, 2015, there is a disconnect between the policies and procedures that jail managers believe are being followed and what is actually happening in the jail units. As a case in point, Captain Hoyt seemed to sincerely believe that inmate Joseph Vejar had received a second bin to hold his legal documents, as ordered by the Court, when in fact we discovered during the tour that he had not. Jail managers should investigate and monitor whether there are unnecessary barriers to inmates’ access to the courts, whether jail staff are conducting excessive and harassing cell and strip searches, and whether inmates in all units, not just Third West, have adequate access to cleaning supplies to maintain sanitary conditions.

At a minimum, the following measures should be implemented to ensure inmates’ constitutional and regulatory rights are protected:  Inmates must have daily access to confidential phone lines during business hours to contact their attorneys;  All inmates (not just pro per) must have timely and reasonable access to legal materials necessary to file court documents, including but not limited to large manila envelopes, blank pleading template paper with lined numbering, photocopies, and reasonable in-cell storage space to store legal documents;

4

 Inmates must have access to unlimited confidential mail communication with attorneys;  Cell and strip searches must only be conducted when there are legitimate security interests;  Jail staff must not read or confiscate clearly marked legal materials during cell searches;  Jail staff must not destroy inmates’ property during cell searches;  Jail staff must only confiscate and retain inmates’ property during cell searches when it poses a legitimate security threat, and shall provide a written receipt for any confiscated property without delay;  Inmates must be provided with reasonable access to liquid cleanser, brooms, mops, towels, sponges, and other cleaning supplies;  All inmates, not just the indigent, must be provided with free and adequate supplies of bar soap to maintain personal hygiene and prevent the spread of infectious disease;  Jail staff must sterilize electric razors after each inmate’s use.

IV.Next Steps Our intention is to work with you and County officials to find mutually agreed upon solutions, memorialized in a written agreement, to remedy the violations of law we have identified and improve the conditions for inmates in your custody. We have successfully negotiated solutions to unlawful conditions in other systems, and can refer you to state and county officials for their perspectives on the process if you are interested. We would like to meet with you again to discuss the above remedial measures and the contours of a possible written agreement. We propose one of the following dates for our next meeting: August 21, 26, 27, 28, or 31, 2015. Please contact me about scheduling, and let me know if you have any questions in the meantime.

Sincerely, /s/ Donald Specter Donald Specter Cc: Cheryl Stevens, Deputy County Counsel 70 West Hedding Street, East Wing, Ninth Floor San Jose, CA 95110

cheryl.stevens@cco.sccgov.org

5