A few days after the end of the Pelican Bay hunger strike, I was interviewed on KCRW’s “Which Way, LA?” in the same segment as spokespeople from California Prison Health Services and the California Department of Corrections and Rehabilitation. The CDCR, through Undersecretary of Operations Scott Kernan, tried to defend its reckless and indiscriminate use of solitary confinement; it succeeded only in giving an exhibition in government speak. “Which Way, LA?” host Warren Olney asked Kernan if Pelican Bay prisoners in solitary confinement do in fact “spend at least 22 and a half hours every day in windowless, concrete cells, the remaining time alone in concrete exercise yards.”
Parsing Kernan’s answer should have yielded, at some point, either a yes or no. Kernan started by stating that “solitary confinement is a word that’s used . . . loosely . . . ”
But instead of explaining how he thought the word has been misapplied to Pelican Bay, he just reverted to the talking point that the guys in “the hole” are the so-called worst of the worst.

“[t]hese inmates again are the most dangerous gang leaders that we have in the state of California and, let the truth be told, in the nation. So these guys are really truly the most dangerous offenders. So we have definitely—Pelican Bay was built to house the worst of the worst. And it is meant to control their movements considerably. . . . So let’s just be very, very clear that these are bad guys, and so we keep them very controlled. But it is not solitary confinement, nor is it torturous behavior as described by some.

Ok, so these guys are the most dangerous, the worst of the worst. But are they in fact kept in windowless, concrete cells for 22 and a half hours a day?
A couple minutes later, when Kernan suggested that there was no overcrowding at Pelican Bay because the inmates are housed in single cells, Olney pressed the question one more time: “Well, are those single cells, in fact, windowless concrete cells, and are they required to stay there 22 and a half hours a day?”
Kernan responded: “Um, well, they have programming, I don’t know if I would say 22 hours, 22 and a half hours a day, but, probably very close to that.” This is a sizeable number of words to say, in effect, "yes."
What could be the point of Kernan’s filibustering other than to avoid the real questions: Does it benefit public safety to house inmates in a concrete box? How do people react to extreme isolation? Is it inhumane to isolate a person in a windowless concrete cell for 22.5 hours a day for months, years, or even decades?
Mr. Kernan elected to end his interview rather than attempt to answer.
Hector Villagra is the Executive Director of the ACLU/SC.
 
 
 
Full transcript of Mr. Kernan’s radio interview:
Warren Olney: “Scott Kernan is Undersecretary of the Department of Corrections and [Rehabilitation], welcome back to our program. I understand that you helped to resolve some of these issues. Which of those that I listed were in fact dealt with, and did the state make some concessions?”
Scott Kernan: “I don’t know that I would say concessions; you know, the inmates had a list of demands, we took a look at them, and I think that at the end of the day we realized that as you just described a watch cap in inclement weather and a wall calendar didn’t pose significant security concerns and so those changes were made. We’re also looking at a number of things including the very complicated gang validation process. I’d also just point out to you that the inmates at Pelican Bay that started this are there because of their behavior. These are the gang leaders that are running the various prison gangs and as such are the scourge of society in our prisons. A lot of violence associated with it. So anyway we did evaluate it and we did make some changes to our policy and we’re going to look at the other changes that the inmates desire moving forward.”
KCRW: “What about at the other prisons?”
Scott Kernan: “Well really it was, again, generated by inmates at Pelican Bay. So the central issues were related to them and it really is a illustration of the power that these guys represent over other offenders. For at the height of it, six thousand, sixty-five hundred or so, at 13 prisons, although that dissipated very quickly, and really the core hunger strikers were probably under a hundred at Pelican Bay.”
KCRW: “It’s been reported that at Pelican Bay many prisoners are in solitary confinement, and then when they are they spend at least 22 and a half hours every day in windowless, concrete cells, the remaining time alone in concrete exercise yards, are those things true?”
Scott Kernan: “The solitary confinement is a word that’s used, I guess, loosely, a little bit. These inmates again are the most dangerous gang leaders that we have in the state of California and, let the truth be told, in the nation. These guys are running the Mexican mafia, the Nuestra Familia, the Black Guerilla family, the Aryan Brotherhood.” So these guys are really truly the most dangerous offenders. So we have definitely—Pelican Bay was built to house the worst of the worst. And it is meant to control their movements considerably. I mean these inmates are not there at Pelican Bay for just not obeying simple rules. They’re in there for murdering inmates, and for you know following through with their criminal enterprises on the street. So let’s just be very, very clear that these are bad guys, and so we keep them very controlled. But it is not solitary confinement, nor is it torturous behavior as described by some.”
KCRW: “There’s a panel of federal judges that have said the conditions within the prisons violate the constitutional ban on cruel and unusual punishment. Did they single out the kind of treatment that I described?”
Scott Kernan: “No, not at all. The court decision that you described is overall overcrowding in the system, and the fact that Pelican Bay inmates are largely single cell because they’re so dangerous. They’re one of the few areas that we have very reduced overcrowding, while the courts ruled that overall the Department’s population is overcrowded leading to those constitutional violations; it had nothing to do with the SHU specifically at Pelican Bay or any of the other SHUs that we have in the state.”
KCRW: “Well are those single cells, in fact, windowless concrete cells and are they required to stay there 22 and a half hours a day?”
Scott Kernan: “Um, well, they have programming, I don’t know if I would say 22 hours, 22 and a half hours a day, but, probably very close to that. They get an hour a day of yard and showers and if they have to go to they can have visits and go to medical appointments and the like but it is, it is stark correctional environment for our most dangerous offenders.”
KCRW: “Most dangerous as they are, there are those who say that conditions of that kind can produce panic attacks, depression, inability to concentrate, memory loss, aggression, self-mutilation, and various forms of psychosis. Is that true? And even if they are worst of the worst, is it appropriate to have those kinds of consequences?”
Scott Kernan: “Interesting question. The federal courts have been in the Department of corrections and rehabilitations mental health process for a long time and none of the inmates that are involved in this hunger strike at SHU, we don’t allow mental health inmates to be there. So any inmate that had any kind of mental health concern would not be housed in the SHU at Pelican Bay.”
KCRW: “Ok, so how long do you think it will take to resolve these other issues with what, you don’t want to call solitary confinement, and also with the question of gang validation which they complain as though I understand it that it takes so long that they’re then accused of being snitches when they get back into the general population or anywhere near it. I suppose if they’re confined to single cells they’re not really in the general population. What about those issues? Will that take you longer to resolve?”
Scott Kernan: “It’s a little bit more complicated than that. What they’re referring to is about the debriefing process is that when an inmate wants to get out of SHU and wants to disassociate himself with the gangs he can do so and he has to go through a debriefing process. And in that debriefing process he must identify criminal behavior that he’s been involved in, and others. The SHU inmates are taking umbrage with that suggestion, that that’s not appropriate. We completely disagree and if you talk to the inmates that have went[sic] through the debriefing process and got out of the gang life, they will tell you that the debriefing process, we get it right a hundred percent of the time. So you know while we’re going to look at all these issues, we definitely think that there could be some changes to the validation and debriefing process but we’re going to do that with the input of not only the stakeholders of the inmate side but the stakeholders of the law enforcement and the gang investigators that work so hard every day to protect our streets and our prisons.”
KCRW: “Okay, well thanks for being on our program."
Scott Kernan: “Thank you.”
KCRW: “Scott Kernan, Undersecretary of the California Department of Corrections and Rehabilitation, elected not to talk with any of our other guests.”

No one is surprised to learn that California’s death penalty is a broken and dysfunctional system. After all, you don’t have to go far in California to find any government bureaucracy that’s broken or dysfunctional – it’s finding a functional government program that might take a while. The question is: How do we fix it? How do we punish the worst criminals in a way that maximizes public safety without bankrupting the budget?
A new bill in the California State Assembly, SB 490, has a shockingly simple solution: give voters the facts and let the voters decide. (The shock is that it’s taken 30 years to figure that out.)

In 1978, when California voters first reinstated the death penalty, no one knew how much it would cost. No one knew how long executions would take, how many attorneys would be required to prosecute and defend the appeals, how large a facility would be needed to house death row inmates – in short, no one knew what a big, expensive mess it would be.
Thirty-three years later, we know. We now know that the death penalty is a hollow promise to victims’ family members. These families wait 25 years-- on average-- for resolution to a death sentence. 99% of those sentenced to die are never executed and die from old age or sickness instead.
And we know from empirical research that the death penalty costs vastly more than the alternative of life without parole – $184 million every year. We also know from common sense that public safety improves when money is used for real solutions, like law enforcement officers on the street or violence prevention and education in schools.
Don Heller is the man behind the 1978 initiative to reinstate the death penalty. The Don Heller of 2011, however, acknowledges that he simply didn’t know enough 33 years ago. No one in California, including him, had the experience or foresight to predict such a dismal failure. In 2011, even Don Heller supports SB 490 to replace the death penalty. He thinks California voters will too -- once they know the facts.
SB 490 will give voters the option of replacing the death penalty with life without parole. If passed, it will save us $1 billion over the next five years. It’s often assumed that voters strongly support the death penalty, but people are rarely asked if they really think it’s worth a billion dollars. With the real-world costs and real-world solutions laid plainly on the table, California voters must decide once and for all if the death penalty is really the most efficient use of those dollars.
Here are some other things California could invest in. For the cost of one execution ($308 million), California taxpayers could afford to:

• Provide a complete K-12 education, including food and transportation, for 2,865 kids.
• Pay for a four-year Cal State education for 14,569 college students.
• Cover the average middle-income cost of raising 1,385 children from birth to age 18.
• Sign Alexander Rodriguez to the Dodgers for 11.2 years.

For the annual cost of the death penalty system ($184 million per year), California taxpayers could afford to:

• Hire 3,579 new police officers.
• Hire 3,407 new fire fighters.
• Shut down and remodel the 405 freeway a la “Carmageddon” every five years.

Sign the petition to tell the California legislature it’s time the people had all the facts to make an informed decision about the death penalty.

On July 26, ACLU/SC Executive Director Hector Villagra joined "Which Way, LA?" to discuss the destructive effects of the Secure Housing Units on public safety.

"Imagine how bad conditions have to be there that people would risk starving themselves to death. I could cite to you any number of studies showing the negative effects of prolonged isolation but I think there's just one simple fact that will show you how desperate these inmates are. In 2005, here in California, inmates in solitary confinement were only 5% of the total prison population, but they were 70% of the suicides among the prison population. That is people who are incredibly desperate, and for whom life has become intolerable."

Via KCRW's "Which Way, LA?"

Full Transcript:

Warren Olney, KCRW: "Also with us is Hector Villagra, who is Executive Director of the ACLU of Southern California. Thank you for being on our program."

Hector Villagra: "Thank you, Warren."

KCRW: "How concerned are you about the conditions I just discussed with Scott Kernan?"

Hector Villagra: "We are very concerned. Imagine how bad conditions have to be there, that people would risk starving themselves to death. I could cite to you any number of studies showing the negative effects of prolonged isolation but I think there's just one simple fact that will show you how desperate these inmates are: In 2005, here in California, inmates in solitary confinement were only 5% of the total prison population, but they were 70% of the suicides in the state that year among the prison population. That is people who are incredibly desperate, and for whom life has become intolerable. And it’s because of their prolonged confinement and they're being cut off from all human interaction."

KCRW: "What about what Scott Kernan said about the misery that they have caused to other people, as what he describes as 'the most dangerous criminals in California?'"

Hector Villagra: "There's no question that we have forms of punishment that we mete out against people who deserve them, on the basis of their criminal actions. But there are lines that we have drawn as a society and our constitution forbids cruel and unusual punishment. So it’s not enough to say 'they are the worst of the worst' and act as if there were no bounds of decency with respect to how we treat them."

KCRW: "Do you agree with Nancy Kincaid that the health situation in the prisons has improved?"

Hector Villagra: "You know, I don’t know enough about that to say. I do know that the crush of overcrowding makes it difficult for inmates to receive medical care on a timely basis in many instances. I’d be surprised if substantial change has occurred in the time that the receiver has been in effect, but I have no doubt that some change has occurred."

KCRW: "And Miss Kincaid, back to you. You said that the health conditions have improved -- does that mean that prisons are less crowded or is that a health issue?"

Nancy Kincaid, California Prison Health Services: "No, the overcrowding does continue to be an issue. The receiver would tell you that the one thing that it is keeping us from achieving the absolute that the court is requiring is overcrowding. But on our website, and the OIG website, there are public reports that show the substantial improvement that has been made in every one of the prisons.

Do we still have work to be done? Yes. Once the construction that has been authorized by the legislature is funded and we're able to move forward on what will give us the capacity, we will be able to finish the last of the work that needs to be done regarding medical care."

KCRW: "Hector Villagra, with the ACLU, do you think that will also ease the situation at Pelican Bay, or is it going to be policy for the state of California to have this single cell treatment that you say is so damaging to people?"

Hector Villagra: "More needs to be done to address this issue. We have to revisit whether it is in the interest of the public to be treating inmates this way. Because even though these may be 'the worst of the worst', we have to recognized that the great majority of these men will be released into the community at some point in time.

And what we know is that breaking them off from all social interaction, and sort of breaking their minds down, leaves them incapable of reintegrating back into society and makes them more likely to recidivate. So we have to be very careful that it might be nice to mete out vengeance against these worst of the worst, but we may be paying the price in the long run with higher crime rates."

KCRW: "They're not all serving life terms."

Hector Villagra: "That's right. That's right. I think I've seen studies that suggest that 95% of the inmates at the SHU in Pelican Bay will be released at some point in time and some, in fact, are actually released directly from solitary confinement into the community. They're completely unprepared to reintegrate into society."

KCRW: "Ok, I'm sorry Scott Kernan didn't want to talk with us. We'd like to be able to raise that issue with the Department of Corrections and Rehabilitation. We'd like to make an effort to do that on a future program. In the meantime, thanks to you all for being with us. Once again, Hector Villagra, Executive Director of the ACLU Southern California. Nancy Kincaid, Director of Communications for the California Prison Health Services. And our earlier guest Scott Kernan with the Department of Corrections and Rehabilitation. We'll be right back with Which Way, LA?"