The California Legislature has sent Governor Newsom two criminal justice reform bills, one that would provide remedy to incarcerated people whose convictions or sentences were tainted by racial bias and another that would place restrictions on draconian solitary confinement practices in state prisons, jails and private detention facilities.
State lawmakers passed the California Mandela Act on Solitary Confinement, AB 2632, which would make it illegal to detain in solitary confinement anyone with a mental or physical disability, incarcerated people 25 and younger or 60 and older, and pregnant women. It would also require prisons, jails, and private correctional facilities to document use of the Security Housing Unit (solitary confinement) and prohibit facilities from holding an individual in solitary for more than 15 consecutive days and no more than 45 days in a six-month period. Some incarcerated people in California have spent more than 20 years in solitary confinement. One incarcerated person spent 46 years in a California prison SHU.
The Racial Justice Act for All, AB 256, builds on the current Racial Justice Act of 2020, prohibiting the state from seeking or obtaining a criminal conviction or imposing a sentence based upon race, ethnicity or national origin. While the current Racial Justice Act only applies to those convicted after Jan. 1, 2021, the Racial Justice Act for All would make this law retroactive.
“Now that we have already passed the Racial Justice Act, there has been an acknowledgment that it is important for us to root out racism from these criminal proceedings,” said Assemblymember Ash Kalra, author of the Racial Justice Acts, in an interview. “Once this acknowledgement has been made, there is no reason why we shouldn’t go back and allow those who have previously been convicted to also have the opportunity to take advantage of the Racial Justice Act in their particular case.”
Since the current Racial Justice Act was signed into law, Kalra said he has seen more thoughtfulness in terms of how district attorneys are charging, as well as rulings coming forward from judges in favor of the accused. He hopes that the Racial Justice Act will lead to a behavior change on the part of all parties in the criminal justice system from police officers making the arrest to the district attorneys charging and trying these cases, to defense attorneys keeping a keen eye as to how to challenge certain items based upon racial bias, to the judges playing a key role in actually instituting the elements of the law.
“I think that the Racial Justice Act being passed is forcing them to put a mirror up to themselves to see if they have had racial biases in their practices, whether it was intentional or not,” said Kalra.
If signed into law, AB 256 would allow individuals facing deportation or sentenced to death to petition the court for relief starting Jan. 2023, and then allow individuals incarcerated for a felony to do so the following year. By 2025, individuals convicted of a felony after 2015 will be able to apply, then by 2026, all other felony convictions will be eligible for relief from the act.
“Racial bias has played a role in our system since its inception,” said Kalra. “There is no doubt that there will be individuals who will get the opportunity to have justice, and certainly individuals who will be able to get released from incarceration because they were able to show racial bias is what in part led them there.”
The California Mandela Act is named after Nelson Mandela, the late president of South Africa who spent 27 years in prison in a crusade for global human rights and found solitary confinement to be “the most forbidding aspect of prison life.”
Assemblymember Chris Holden, author of the California Mandela Act, said in a news conference last week that the bill is designed to change the way that our solitary confinement is run in California by protecting vulnerable populations and banning long term use.
“We are steadfast in the commitment to recognize people who are held in solitary confinement in the state of California and the way that they are treated constitutes torture,” Holden said during the press conference.
“When we look at what is happening around the world, international human rights organizations, the United Nations and others have defined the use of solitary confinement as torture,” Holden added. “There is no way in the world that California could still operate under systems that are designed to put people in a cell the size of a parking stall and leave them there for extended periods of time without having proper breaks, interaction with people, nutritional engagement, and other things that keep them healthy not only physically, but mentally.”
In 2011, the United Nations, and then World Health Organization in 2014, declared that solitary confinement is a prison health issue. Regardless of international solidarity to end the use of solitary confinement, it is still common in jails, prisons, and detention facilities in California. Holden said that if the international community is declaring that solitary confinement is torture, the state must break that system and put rules in place that the world recognizes. Many experts acknowledge that solitary confinement is linked to irreparable psychological damage and suicide, as those in the SHU are likely to have their visits, phone calls, television, reading materials and art supplies withheld from them in a state of total isolation.
“How can we operate as California saying we are ahead of the curve on so many things, that we are leaders in so many areas, only to find in this one, where people of color primarily are held in situations that aren’t fair and represent a tortuous environment?” Holden said.
The abuse of solitary confinement in California prisons led to a federal class-action lawsuit filed in 2012 when California prisons held nearly 10,000 incarcerated individuals in solitary confinement, including 1,557 who had been there for 10 years or more. More than 500 of the incarcerated people were at Pelican Bay State Prison in Crescent City, California, and more than 75 of them had been in the SHU for over 20 years. The landmark case ended in a settlement in 2015, ending indeterminate solitary confinement use in California.
Currently, New York lawmakers are moving the HALT Solitary Confinement Act though the legislature. The bill would end most harmful isolation and solitary confinement practices. In 2017, Colorado made a landmark decision to limit its long term solitary confinement use down to 15 days at a time. In 2019, New Jersey also passed a law restricting the use of solitary confinement, as have about a dozen states.
While the Mandela Act faced strong opposition from law enforcement groups and the California Department of Corrections and Rehabilitation, as they stated that including these provisions in the law would make facilities more dangerous and inflate correctional costs, it has the support of more than 100 organizations including the ACLU, California Innocence Coalition, Prison Law Office and the Underground Scholars Initiative.
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