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March 31, 2012

Lengthy fights in California over lengthy stays in solitary

A helpful reader altered me to this new piece in the New York Times, headlined "Fighting a Drawn-Out Battle Against Solitary Confinement." Here are excerpts:

Ernesto Lira is not a murderer. He has never participated in a prison riot. The crime that landed him behind bars was carrying three foil-wrapped grams of methamphetamine in his car. But on the basis of evidence that a federal court later deemed unreliable, prison officials labeled Mr. Lira a gang member and sent him to the super-maximum-security unit at Pelican Bay State Prison, the state’s toughest correctional institution.

There, for eight years, he spent 23 or more hours a day in a windowless 7.6-by-11.6-foot cell, allowed out for showers and exercise. His view through the perforated steel door — there were 2,220 holes; he counted them — was a blank wall, his companions a family of spiders that he watched grow, “season by season, year by year.”

Mr. Lira insisted that he was not a gang member, to no avail. He was eventually vindicated and is now out of prison, but he still struggles with the legacy of his solitary confinement. He suffers from depression and avoids crowds. At night, he puts blankets over the windows to block out any light. “He’s not the same person at all,” said his sister Luzie Harville. “Whatever happened, the experience he had in there changed him.”

California has for decades used long-term segregation to combat gang violence in its prisons — a model also used by states like Arizona with significant gang problems. Thousands of inmates said to have gang ties have been sent to units like that at Pelican Bay, where they remain for years, or in some cases decades. But California corrections officials — prodded by two hunger strikes by inmates at Pelican Bay last year and the advice of national prison experts — this month proposed changes in the state’s gang policy that could decrease the number of inmates in isolation.

Depending on how aggressively California moves forward — critics say that the changes do not go far enough and have enough loopholes that they may have little effect — it could join a small but increasing number of states that are rethinking the use of long-term solitary confinement, a practice that had become common in this country over the past three decades.

The changes in California’s system would represent one of the largest shifts in how it handles prison gangs since officials began pulling gang leaders, known as shot-callers, out of the general population in the late 1970s. Prison reform advocates say that if California, with the largest prison population in the nation, changes its practices, states like Arizona that have similar policies might follow suit....

Few dispute the threat posed by prison gangs, or the murders, assaults, drug smuggling and other mayhem they are responsible for. In 2011, there were 1,759 gang-related homicides, attempted homicides and violent attacks on staff members or other inmates inside state prisons, the California Department of Corrections and Rehabilitation said.

Most states identify inmates who are members of prison gangs, and gang members account for a large percentage of the prisoners held in solitary confinement around the country. But California’s policy has been among the most severe, sending not only full gang members but also inmates found to associate regularly with gangs to one of the state’s three super-maximum-security facilities. More than 3,000 prisoners judged to have gang ties are held in such conditions. Of the inmates sent to the unit at Pelican Bay for gang affiliation, 248 have been there for 5 to 10 years; 218 for 10 to 20 years; and 90 for 20 years or more....

But civil rights lawyers have long been critical of California’s gang policy. The procedures used to identify gang members are flawed and lacking in due process, they say, leading to mistaken identifications like the one that sent Mr. Lira — who was vindicated by a civil rights lawsuit resolved last year, long after he was paroled — to Pelican Bay.

The piece in accompanied by this slideshow titled "A Legacy of Solitary."

March 31, 2012 at 10:27 AM | Permalink


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This article is not telling you the whole story. It is impossible in California to go to prison for 8 years for possession, or even sales, of methamphetamine in the amounts described. Impossible. The only way to even go to prison is if your selling it and even then you cannot ever get 8 years in prison. Mr. Lira had to have a serious criminal history such as a strike prior or had to have used a gun in his sales transaction, or possibly both. Really the only other way would have been to have multiple sales priors, but it is hard to get the judges to ship sellers of small amounts of drugs for the kind of time discussed in this article.

Given that they cannot tell the whole truth about why he is in prison, it is hard to accept that they are telling the whole truth about what the federal judge found. Maybe the evidence was unreliable; I have been doing gang cases for the better part of my prosecutorial career and law enforcement is sometimes willing to say gang member when they have a hunch, rather than evidence. Howevever this article convinces me of nothing.

The full article is behind a pay wall, so I cannot see if they fill in the facts of his crime and criminal history. Somehow I doubt it.

Posted by: David | Mar 31, 2012 11:29:21 AM

well david since calif is also know via it's 3 strikes law to send someone to prison for life for stealing a 10 dollar disney video or a gulf club...i'm gonna belive this is also entirely possible!

Posted by: rodsmith | Mar 31, 2012 1:29:07 PM

Rodsmith: feel free to believe that but you would still be wrong. Either way, this is not a debate about the wisdom of CA sentencing, my point was simply to identify the fact that the article is not fully or accurately stating why he was in prison for so long. It is simply not possible to get that amount of time for only three grams of methamphetamine. There must be more going on that they do not tell us about.

Posted by: David | Mar 31, 2012 1:49:23 PM

David --

"There must be more going on that they do not tell us about."

Welcome to the New York Times, where the material omission has become an art form.

Posted by: Bill Otis | Mar 31, 2012 3:41:30 PM


Was it also impossible to end up in prison in California for this offense in the early 90s when Lira was separated into solitary confinement? Note he apparently did have some sort of a record even before that as other articles I've found calls him a petty thief.
He's been out since at least 2004, not sure how much earlier than that, but a CA9 opinion I've found from then says he was already out. http://law.justia.com/cases/federal/appellate-courts/F3/427/1164/531547/

The linked opinion says nothing about what he was in for. It is really just dealing with an appeal of having the case dismissed due to lack of exhaustion.

Also, even the NPR piece I found on this story was from 2009, not sure about the NYT article. 2009 was apparently when the federal hearing was held and the gang affiliation documents ordered removed from his prisoner records.

Posted by: Soronel Haetir | Mar 31, 2012 5:07:51 PM

E. 1995-1996: Plaintiff’s Return to Prison and Administrative Segregation
18. On February 25, 2005, plaintiff was arrested and charged with possession and transportation of methamphetamine. Plaintiff’s parole was revoked, and on October 31, 1995, he returned to DVI to await trial. In March of 1996, a jury convicted plaintiff of possession of methamphetamine, and he received an eleven year sentence.


Posted by: Some Facts | Mar 31, 2012 5:28:50 PM

The only way in the 90s to get such a large sentence (11 years) for possession would be to have both a strike prior and multiple prior prison commitments or no strike prior and even more prior prison commitments. Each separate prison commitment carries 1 additional year, possession of methamphetamine (if only 3 grams) was then a maximum of 3 years, a strike prior would double that. Sad that the NYT has no interest in telling us any of this.

Posted by: David | Mar 31, 2012 6:26:36 PM

"He suffers from depression and avoids crowds. At night, he puts blankets over the windows to block out any light."

First of all it's difficult to see any of these symptoms as alarming in their own right. Really, he puts blankets over the window to block out the light. OMG!!! Call the police!!

Moreover, can these issue can be traced to being in solitary. Maybe he had depression before he went in. Maybe he would have got depression in the normal prison. Maybe...maybe...maybe. Coincidence is not equal to causation.

Posted by: Daniel | Mar 31, 2012 6:46:08 PM

maybe not daniel but close enough for govt work! unless in a civil suit the govt can prove he had them BEFORE he went to prison!

Posted by: rodsmith | Mar 31, 2012 10:23:12 PM

What is the alternative to physical controls? More staffing. This left wing propaganda has a hidden agenda, more government make work, lazy, worthless government workers.

Contrast to 123D. No criminals left, because they are all dead. Thus almost no crime. Prisoners should be terrified of the guards, instead of the reverse. Thank the pro-criminal lawyer for ruinous litigation and impossibly pro-criminal regulations for the anomalous current situation.

Posted by: Supremacy Claus | Mar 31, 2012 11:58:32 PM


I will also say that as far as I can tell he is not challenging his conviction at all, only his prison classification and the process used to arrive at it and maintain it once arrived at. Given that, I'm not entirely sure what relevance the offense that landed him there is supposed to have.

Posted by: Soronel Haetir | Apr 1, 2012 8:41:56 AM

Lots of boohooing for one person who may have misclassified. Nothing for the hundreds of guards, prisoners, and visitors, tortured and killed by gangbangers in prison. Disgusting left wing bad faith and self-dealing. Morally reprehensible.

Posted by: Supremacy Claus | Apr 1, 2012 9:56:37 AM

well SC when the prison guard stops going after justice on their own and instead file charges and get a conviction for the new crime. Not much we can do for the!

Posted by: rodsmith | Apr 2, 2012 12:01:30 AM

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