Compliance or Critical Thinking?

By Terry Kupers, M.D., M.S.P.
June 8, 2020

Many thanks to Willow Katz and Dolores Canales for support and editing

        Prisoners consigned to solitary confinement or Security Housing Unit (SHU) are derided as “the worst of the worst.” But when I enter SHUs around the country in preparation for expert testimony in class action litigation, I find very ordinary people, with some exceptions. There are very bright people, and there are not so bright people, just as in the community. There are mean and ornery people and there are peaceful and very caring people, just as in the community (and in prison the peaceful and caring are much more numerous). The exceptions include the fact that: 1. A disproportionate number of prisoners in solitary suffer from serious mental illness (S.M.I.) — either they were diagnosed before entering solitary or they developed emotional problems on account of the harsh conditions — and that’s why, when I started touring supermax solitary confinement units in the 80s and 90s, I found that 50% of SHU-dwellers suffered from S.M.I.; 2. A disproportionate number are people of color — the racism that permeates the criminal “justice” system does not stop at the prison walls; and 3. A large proportion of individuals in solitary confinement are very bright and very political — I think officers are intimidated by willful and very intelligent prisoners, and selectively send them to solitary. Of course, the subgroups can overlap, so there are no sharp boundaries. In any case, the population in SHUs are very far from “the worst of the worst.”

        When I set out to interview and examine the plaintiffs in the Ashker v. Governor of California lawsuit about unconstitutional conditions and a lack of due process at the Pelican Bay State Prison SHU, I met men in the second and third categories, people of color and very bright and very political. There were not very many prisoners who suffer from S.M.I. because prior litigation, Coleman v. Governor of California, resulted in a federal court order that SHU residents receive mental health evaluations and those suffering from S.M.I. be transferred to special units, the Psychiatric Services Units (PSUs), where they might receive mental health treatment. Of course, conditions in the PSUs closely approximate SHU conditions except that prisoners are moved from their cells to “cages” (the staff call them “treatment or programming modules”) for mental health sessions. A majority of the inhabitants of the Pelican Bay SHU were alleged to be “gang-affiliates” or members, based on “confidential information,” typically meaning other prisoners had informed they were gang-related. Those other prisoners were granted privileges or released from SHU in exchange for their “snitching,” and of course the prisoners in SHU had never been told what evidence there was against them, nor were they given an opportunity to defend themselves against the charge of gang-affiliation. So, in an average case, a Latinx man from an East L.A. barrio was seen giving the high five to a suspected gang member, or wrote a letter to a cousin in prison who was suspected of gang-affiliation, and from then on he was classified gang-affiliated and sent to SHU. Alleged gang-affiliation was sufficient cause for the CDCR to consign prisoners to SHU for the remainder of their lives, unless they were willing to snitch on other prisoners (the “debriefing” process), reach the end of their prison sentence (parole), or die. Prisoners described their choices as “snitch, parole or die.” The Ashker settlement supposedly ended the practice of sending prisoners to SHU for alleged gang-affiliation alone.

       The 24 prisoners I interviewed were all very bright, many were very well read, and all of them were very aware of and articulate about social injustices and inequities. On average, they had gotten into trouble with the law as teenagers, maybe were doing drugs, and in some cases they were involved with street gangs. Almost all of them dropped out of school before graduating high school. They entered the criminal legal system in their late teens or early twenties, settled down and looked back with regret on their criminal ways (or, a significant number were actually innocent of the charges against them, having been falsely convicted on the basis of tampered or bribed witness identification, the same unfortunate process that would get them consigned to SHU and then denied parole).

       I found myself face-to-face with men I found simpatico, and very interesting to talk to. I rarely find people in the wider community who have so thoroughly studied philosophy and history and are conversant with the theories not only of Freud, Marx, and Darwin, but also Malcolm X, Franz Fanon and Che Guevera. But in the Pelican Bay SHU these were studies and theories that might pop into the conversation at any moment. The men had started studying on their own as soon as they entered prison, earned their G.E.D.s, took college courses when permitted, and in many cases studied the law and became jailhouse lawyers, helping other prisoners with their appeals and legal cases. In fact, the Ashker v. Governor of California lawsuit began as a pro se case (meaning prisoners act as their own attorneys) brought by plaintiffs Todd Ashker and Danny Troxell. Imagine how difficult it is to study law and file claims from a windowless cell with no library privileges except being able to request a few specific books or cases and hope officers will deliver them to the cell.

     The Ninth Circuit Court of Appeals is currently considering post-settlement arguments about solitary confinement in the Ashker v. Governor of California class action lawsuit. There were prisoner hunger strikes from 2011 to 2013, led by courageous prisoners in the Pelican Bay SHU, that involved many thousand prisoners as well as large gatherings of family members and advocates in the community. The demands of the hunger strikers included a fair process for consigning prisoners to SHU, meaningful programs, and steps to win release from SHU. The California Dept. of Corrections and Rehabilitation (CDCR) actually agreed to these very reasonable demands when the case was settled in 2015.

     The Ashker settlement should have been an important step in reversing the cruel trend toward confining a significant proportion of prisoners in solitary. Instead, the CDCR embarked on a nutshell game, transferring prisoners from SHU to what they called “general population” (GP) status. But conditions for those released from SHU to GP have been, on average, more like SHU conditions, with prisoners in their cells for more than 22 hours per day, very little in the way of programs, and, because they spent so much time in SHU and then have insufficient access to rehabilitation programs, former denizens of the SHU have little chance of winning parole. One of the issues in the current court proceedings in Ashker involves the “confidential information” the CDCR used to sentence prisoners to indeterminate SHU terms, and continues to use to block their parole. There is no due process if the prisoner is not permitted to know the evidence against him, and due process is one of the issues currently being considered by the Appeals Court.

     I feel honored to serve as an expert witness in class action lawsuits aimed at ending unconstitutional conditions, abuse of prisoners and a lack of due process. When I step back and think about the meaning of this entire scenario, I find myself often returning to the fact that the men and women being deprived of their freedom and tortured are very bright, even capable of studying law on their own and pressing very complicated civil rights litigation, and they speak up for their rights when they are wronged. Combining this observation with the fact that they are being forced to endure solitary confinement conditions even after being released from SHU, we have to arrive at the conclusion that officers, in the name of our criminal “justice” system, are terrified of their intelligence, their righteous willfulness and their passionate quest for freedom.

       In prison, the aim of staff and administration is to force compliance on the part of prisoners. Any time prisoners think for themselves, or (God forbid) stand up for themselves, the powers that be come down hard, consigning them to a windowless SHU cell for decades and then keeping them isolated and idle even after their release from SHU so they will be unable to participate in programs they need to win parole. The staff’s dread of prisoners’ capacity to think for themselves, to think critically, and to demand their rights is the impetus to keep them locked in solitary and manipulate “confidential” evidence against them. The staff’s single-minded quest for prisoner compliance is foolhardy. After all, when prisoners leave prison we want them to be able to think for themselves, and think critically, so they can succeed in a technology-infused world of work and participate fully in democratic processes. The overly compliant prisoner becomes a recluse after being released, whereas the jailhouse lawyers can work in law offices and the formerly incarcerated autodidact can perform in a high level job. We see the pro-social and valuable results of prisoners’ self-education and courage in the Agreement to End Hostilities that was initiated by the lead plaintiffs in the Ashker case, a system- and community-wide agreement between people of all races/ethnicities and geographic groups, to avoid the kinds of interracial and geographic strife the CDCR repeatedly tries to foster.

     The SHU is the ultimate weapon in the criminal injustice system’s retrograde and repressive attempt to bring prisoners to heal. But happily it isn’t working. There are legal cases like Ashker v. Governor of California, with prisoners, jailhouse lawyers and their dedicated civil rights attorneys teaming up to win in court. And then there are the families of prisoners, activists in the community and legislators who write new laws limiting the use of solitary confinement and confidential information. There are victories in the court cases — and that’s very important — but ultimately it is the combination of prisoner and community organizing with the prisoner-led lawsuits that makes real prison reform possible. And prison reform is part of the larger project of building community. As Zach Norris says in his hope-inspiring book, We Keep Us Safe: “Real safety results from reinstating full humanity and agency for everyone who has been dehumanized and traumatized, so they can participate fully in society.”