I Thought Solitary Confinement in Iran Was Bad -- Then I Went Inside America's Prisons

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Being associated with a prison gang—even if you haven't done anything illegal—carries a much heavier penalty than, say, stabbing someone. Association could land you in solitary for decades. An inmate who murders a guard—the severest crime in prison—can get no more than five years in the SHU.
 

THE DECISION TO PUT A MAN in solitary indefinitely is made at internal hearings that last, prisoners say, about 20 minutes. They are closed-door affairs. CDCR told me I couldn't witness one. No one can.

When Josh Fattal and I finally came before the Revolutionary Court in Iran, we had a lawyer present, but weren't allowed to speak to him. In California, an inmate facing the worst punishment our penal system has to offer short of death can't even have a lawyer in the room. He can't gather or present evidence in his defense. He can't call witnesses. Much of the evidence—anything provided by informants—is confidential and thus impossible to refute. That's what Judge Salavati told us after our prosecutor spun his yarn about our role in a vast American-Israeli conspiracy: There were heaps of evidence, but neither we nor our lawyer were allowed to see it.

None of the gang validation proceedings, from the initial investigation to the final sentencing, have any judicial oversight. They are all internal. Other than the inmate, there is only one person present—the gang investigator—and he serves as judge, jury, and prosecutor. After the hearing, the investigator will send his validation package to Sacramento for approval. The chances of it being refused are vanishingly small: The department's own data shows that of the 6,300 validations submitted since 2009, only 25 have been rejected—0.4 percent. "It's pretty much a rubber stamping," Vasquez says.

"That is a system that has no place in a constitutional democracy," says  David Fathi, director of the American Civil Liberties Union's National Prison Project. He says California's policy is "a form of guilt by association that is completely foreign to our legal system. Prison administrators have absolute power, and that is a recipe for abuse and violation of rights."

CDCR officials are quick to point out that inmates can challenge their gang status: They can appeal to the gang investigator, the warden, and, as a last resort, the departmental appeals office in Sacramento. But former Pelican Bay Warden Joseph McGrath testified in court that "officers do not reevaluate the evidence" and that, if an appeal came to him, he would "assume the truth of whatever was written" in the validation documents. When I asked CDCR for an example of an appeal resulting in a reversal of a gang validation, they couldn't produce a single case. Gang investigator Barneburg, who has worked at Pelican Bay for 15 years, has never seen a validation appeal succeed either—evidence, he says, of his team's thoroughness. "We put out really quality work," he says.

If an inmate exhausts his administrative appeals, he has the legal right to take his case to court. Most can't afford a lawyer, so they end up representing themselves. Attorney Charles Carbone, who has challenged more than 200 gang validations (of which he says about 25 have been successful), says inmates who represent themselves succeed "less than 1 percent" of the time. The biggest obstacle is the "some evidence" standard, which essentially means that CDCR only has to provide a bare minimum of proof. The courts do not weigh the evidence or decide whether or not a prisoner is in a gang. The judge's job is only to "see whether any evidence exists," Carbone says. "And if it does, he won't evaluate it. He'll leave that to the prison authorities."