IF YOU ARE AN EX SECURITY THREAT GROUP MEMBER
TO GET OUT OF AD SEG, THIS IS FOR YOU...

Introduction:

Presently, there are several thousand in our Texas prisons who are confined in Administrative Segregation ("Ad Seg") because they have been identified and "confirmed" as Security Threat Group *1 ("STG") members. And many want out. Do you know of an ex-STG member, or someone wrongly identified as one, who is confined in Ad Seg? If so, this applies to that person- or those persons-- (although this can apply to prisoners in Ad Seg in general). The next obvious question is what is being done to obtain the release of the prisoner from Ad Seg- Has he signed up for the "Gang Renunciation and Disassociation" ("GRAD") program? For now, that's what should be done if an Ad Seg prisoner wants his STG jacket removed, and a shot at getting out of Ad Seg and back to general population. I want to emphasize, however, the words "for now." There will come a time when the present policy will change and what will be available later may be different from the GRAD program policy as it stands now. The policy that currently governs the confinement and release of prisoners who have renounced or disputed their STG membership fails to meet due process standards. If an Ad Seg prisoner is currently trying to get out of Ad Seg through the GRAD program, the prisoner is not getting the due process he is entitled to under the U. S. Constitution. For that reason, I have taken the time to put this writing together in an effort to inform and encourage all interested parties (prisoners, their families, friends, and general outside supporters) to step up to the plate and come together as a challenge is made against the practices and policies of the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID") where the indefinite confinement of prisoners in Ad Seg is concerned. I also encourage those who read these words to spread the word and encourage others to join in the struggle for a change.

Administrative Segregation in Texas Prisons

Imagine living in a space the size of your bathroom for 23 out of 24 hours each day with no end in sight. Imagine a scenario where you are confined in a prison within a prison. For prisoners in Texas who are confined in maximum security-otherwise known as "Administrative Segregation" -that is their reality. "Administrative" (or "non-disciplinary") segregation is a prison management term that refers to non-punitive segregation imposed on a prisoner typically due to the prisoner's inability, or perceived inability, to exist in the general population in a nonviolent manner. When a prisoner is placed in Ad Seg, he is confined alone in a cell for 23 out of 24 hours each day with one out-of-cell recreation and shower. Ad Ad Seg prisoner's privileges are so limited that they can reasonably be said to be non-existent. There are no educational, training, or rehabilitative programs available to the Ad Seg prisoner. Visitation privileges-if the prisoner is fortunate to receive visits from anyone-are non-contact *2 and, depending on the "Level Status" of the prisoner, may be weekly, bi-weekly, or once a month. Depending upon which prison unit the prisoner is assigned to, telephone privileges are either non-existent or very limited (usually a 5-minute call once every 90 days): this privilege depends upon the whim of the warden of each unit.

A typical day for the Ad Seg prisoner will consist of recreating for one hour, then taking a 10-minute shower. A guard will approach the prisoner's cell, strip-search the prisoner. Then escort the prisoner-always in restraints (e.g., handcuffs)-to either a dayroom or one of the outside "yards." The dayroom is basically a large cage with a table, a chin-up bar, and a small foam mat. The "yard" consists of an outside concrete and steel cage (depending upon the unit, it's either heavily fences and topped with razor wire, it's surrounded by concrete walls with steel bars overhead) with just enough space to play with a basketball and hoop provided in the "yard." A chin-up bar is made available as well. (Prisoners , irrespective of what the weather may be like, will be place outside in these cages: if it's raining, the prisoner must suffer through a soaking during his period in the yard, or be forced to refuse recreation for that day. Rarely will consideration be given to the prisoner's well-being.) All activities are conducted alone by the prisoner in Ad Seg: whether he showers, recreates, eats his meals, or sleeps-his entire time in Ad Seg is spent in relative isolation.

A prisoner's time in Ad Seg can be, and usually is, stressful at best and tragic at worst. Prisoners- confinement in Ad Seg is indefinite because they have been confirmed as STG members. It is not unheard of in Texas to find prisoners who have been confined under these conditions for 10, 15, even 20 or more years. (Presently, I have been so confined going on 17 years with almost 15 years spent here at the Hughes Unit in Gatesville, Texas.)

There are certain collateral consequences which come about as the result of the confinement of a prisoner in Ad Seg. One of these is the impact on the ability of an Ad Seg prisoner to make parole. While I don't presently possess any supporting statistics, I have been here long enough to be able to say with confidence that if the current rate of parole-release is relatively low for the typical Texas prisoner, it's been lower for the prisoner confined in Ad Seg at the time of consideration by the Parole Board. If the prisoner is confined in Ad Seg because he purportedly is a current STG member, the Board will almost always use that as a reason to deny release of that prisoner-regardless of the prisoner's good disciplinary history. For those prisoners who still have the ability to benefit from the Mandatory Supervision laws in effect prior to September 1, 1996, confinement in As Seg creates a situation where the prisoner's actual prison confinement is prolonged or extended because of a governing policy that prohibits any Ad Seg prisoner from obtaining any good time-earning status higher than "State-Approved Trusty IV" ("SAT-4"). As a result, this prevents the prisoner from accruing a higher rate of good conduct time and, consequently, this causes the prisoner to serve a longer period of time in prison in order to reach his Mandatory Supervision release date. (NOTE: For those of you who don't understand what "Mandatory Supervision" is and how it works, I'll explain. When a qualified prisoner earns enough good conduct time and has served enough calendar (or actual or "flat" time), and both combined equal the length of his sentence, then by law the prisoner is entitled to automatic release, and the Parole Board has no discretion to deny any prisoner release under those circumstances. For example, if a prisoner is serving a 10-year sentence and he has accrued 5 years of good conduct time and has served 5 years of actual confinement, then the prisoner's release is mandatory-unlike parole, which is discretionary. This applies only to prisoners who qualify under the laws in effect prior to September 1, 1996.) The difference in additional time spent incarcerated before reaching a mandatory release date is significant: it can be the difference of several months to several years.

Administrative Segregation and Due Process

What rights do prisoners in Ad Seg possess? On a nutshell, once a prisoner has been confined in Ad Seg for whatever reason, the prisoner possess the due process right to a periodic and meaningful review of his confinement in Ad Seg. In other words, prisoners have the right to go before an authority (whether it be one person or a committee) every so often so that the validity of their confinement can be reviewed and to decide on whether release to general population is appropriate or not. Unfortunately, prisoners who have renounced their STG membership or have disputed their STG membership designation, and who are trying to obtain release from Ad Seg, are not being given the benefit of due process. Under current TDCJ-CID practices and policies, the "reviews" conducted by Texas prison officials do not comport with due process standards because: (1) as a confirmed STG member, the prisoner will receive only annual reviews by the State Classification Committee ("SCC"), which does not meet the definition of "Periodic review" as intended by the Supreme Court; and (2) the "reviews" each prisoner receives by the SCC are not meaningful because: (a) the SCC has abrogated its authority to determine the validity of each Ad Seg prisoner's confinement by delegating the act of making that determination to those charged with implementing the GRAD program policy, and (b) as a result, any and all review by the SCC are held in a perfunctory and rote manner, thus rendering the review process nothing more than a sham.*3

To illustrate the basis of my contentions, I'm going to provide you with actual legal authority which supports what I've said here. I encourage anyone reading these words to go to a law library and review these court opinions so that it will be understood what various courts have said when dealing with facts similar to those presented by our own circumstances here.

Administrative Segregation and "HEWITT v. HELMS"

In Hewitt v. Helms, 459 U.S. 460 (1983), *4 the Supreme Court held that a prisoner confined in Ad Seg is entitled to an informal, non adversarial review to evaluate the validity of his initial placement in Ad Seg. The Court explained that the prisoner "must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him" to Ad Seg. Id. at 476. The Court further stated that "[s}o long as this occurs, and the decision-maker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied." Id. This "review" should occur within a "reasonable time" after a prisoner is placed in Ad Seg. Id. N. 8 The Court was explicit with its warning that Ad Seg must not be used a pretext for indefinite confinement of a prisoner. Id. at 477-78 & n. 9. With this warning, the Court instructed that subsequent reviews of a prisoner's Ad Seg confinement must be "periodic." Id. Finally a decision by prison officials to keep a prisoner in Ad Seg must be supported by "some evidence." Superintendent v. Hill, 472 U. S., 445, 447 (1985). In interpreting Hewitt, one must understand that a prisoner confined in Ad Seg possesses the right to a periodic and meaningful review of the prisoner's confinement. That means that a prisoner's reviews not only have to take place within a reasonable time, but to have meaning , the review must be conducted by someone with the authority to decide whether or not the release of the prisoner to the general population is appropriate.

A. "Periodic Review"

Unfortunately, while the Court held the above, it did not define what "periodic" meant. So I had to turn to cases decided by lower federal courts to determine how "periodic" has been defined in the context of how frequent the reviews should be in order satisfy due process. I found a case where the 8th Circuit of Appeals noted that reviews occurring every 90 days "approaches constitutional limits," but did not hold this to be unconstitutional under the circumstances presented in that case. See Tyler v. Black, 811 F.2d 424, 429 (8th Cir. 1987). The 9th Circuit Court of Appeals, however, held that reviews occurring every 120 days "satisfies due process." See Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir 1990). Significantly, in Ruiz v. Estelle, 503 F.Supp. 1265 (S.D. Tex. 1980), a class-action case against the Texas prison system, the district court held that SCC reviews that take place "thirty to forty-five days after an inmate is first placed in segregation and every ninety days thereafter allows an inmate to deteriorate in the dormancy of segregation long after the valid reasons for such confinement may have expired." Id. at 1366 (emphasis added.) One can reasonable conclude that this case raises the issue of at least implying that anything longer than 90 days, where periodic reviews are concerned, will certainly "approach constitutional limits." Finally, it has been help specifically that annual reviews do not satisfy due process. See Toussaint v. McCarthy, 801 F.2d 1080, 1101 (9th Cir.1986) (the Toussaint case here is the same as the one cited above; Toussaint was to the California prison system what Ruiz was to the Texas prison system).

So, what does all of this mean? It means this: where the issue of "periodic reviews" is concerned, the consensus appears to be that as long as the reviews are held within the approximation of 90 to 120 days, this will suffice for due process purposes, but in no way do annual reviews comport with due process standards. The bottom line is that the yearly reviews which Ad Seg prisoners, who have been confined due to STG membership or activity, receive by the SCC violate the right to periodic review. Additionally, because it takes an average of four or more years for qualified prisoners to get into the GRAD program, *5 any "review" these prisoners receive (assuming successful completion of the program) certainly fails to meet the definition of "periodic review." Therefore, there must be a challenge of the frequency of the review process and a demand for more frequent reviews.

B. Meaningful Review

Having demonstrated how the policy and practice of annual reviews by the SCC violates the right to "periodic review" for Ad Seg prisoners who have been confined due to STG membership or activity, I'll now demonstrate how the right to meaningful review is being violated by the implementation of the policy governing the release of ex-STG members from Ad Seg.

As previously stated, the SCC is violating the right to due process by failing to conduct a "meaningful review" in two ways: (i) by delegating the authority to evaluate and release ex-STG members to those who are charged with implementing the GRAD program policy, and (iii) by conducting "reviews" in a perfunctory and rote fashion as a result of the delegation of that authority. Because of these acts, any "review" of a prisoner?s Ad Seg confinement by the SCC is nothing but a sham.

i.

The Supreme Court in Hewitt held that to satisfy due process a prisoner confined in Ad Seg should be given an "opportunity to present his views to the prison official charged with deciding" the status of the prisoner's confinement when the validity of the prisoner's confinement is reviewed. Id. 459 U.S. at 476. What that means is, when Ad Seg prisoners go before the SCC, there must be at least one individual who has the authority to decide right then and there whether or not there is justification to continue the prisoner's Ad Seg confinement and, if not, whether to release that prisoner to general population. If there is not one present with that authority, the prisoner is not being accorded his due process right to a meaningful review of his confinement.

I have been personally informed by members of the SCC, on more than one occasion, that anyone in my position (e.g., an ex-STG member waiting to go to the GRAD program) cannot be released by the SCC because any release must be through the completion of the GRAD program. Obviously, this renders the review process meaningless.

In Toussaint, the court of appeals upheld a lower court's order compelling the "Criminal Activities Coordinator" ("CAC") *6 to directly participate in the review process conducted by the "Institutional Classification Committee" ("ICC") *7 because the CAC was the individual; who had the authority to decide whether or not to release a prisoner from Ad Seg. See Toussaint, 926, F.2d at 803. Before the lower court's order, ICC reviews were conducted separately from the actual authority that decided the outcome of the ICC review process. The lower court found this policy inadequate to meet due process standards, as established by Hewitt, and ordered the correction of that policy by ordering the CAC's direct participation in the review process. Id. Compelling the CAC's direct participation in the review process allowed each prisoner "an opportunity to present his views" to the official "charged with deciding" the validity of the prisoner's confinement in Ad Seg. Id. (quoting Hewitt).

Consider what takes place as pat of TDCJ-CID policy and practice where Ad Seg prisoners engaging in the GRAD process is concerned, and you will find that there are similarities to the above-mentioned case. If a prisoner is signed up for the GRAD program, he will experience what I have: he goes before the SCC and requests release to general population, only to be informed that the SCC cannot release him because the only way out is through the GRAD process. It is common knowledge among prisoners that prisoners engaging the GRAD process remain classified as "confirmed" and "active" STG members-despite evidence to the contrary-until the process is complete. Only upon removal of the STG member designation is a prisoner in Ad Seg released to general population. The SCC "reviews" the prisoner's case, but the decision to release that prisoner is made separately by those charged with implementing the GRAD program policy. Sound familiar? What it comes down to is this: all reviews conducted by the SCC before a prisoner actually participates in the GRAD process are meaningless, thus rendering the review process a sham. In effect, the prisoner is "reviewed" after he completes, if he does complete, the GRAD process.

ii.

In addition to meaningless reviews by the SCC, the review process is conducted in a perfunctory and rote fashion. This is a separate reason for why the policy should be challenged. If a prisoner is just signing up for the GRAD process, he should be aware that the criteria for becoming eligible for actual participation conflicts with the right to meaningful review. Until a prisoner meets the eligibility criteria, any review of his confinement during this period is meaningless. In effect, he'll get no meaningful review until after these periods have passed. For those prisoners who have had their "Attachment B" papers forwarded to Huntsville, this is, in effect, an implicit acknowledgement that the prisoners have satisfactorily established their ex-member status. At the very least, it would be contrary to common sense for any Security Threat Group Official to forward any "Attachment B" papers when there is a reasonable basis for concluding that a prisoner has not satisfactorily established his ex-member status. To say otherwise will bring into question the effectiveness of the program. With all of this in mind, the question then remains: if the administration (including the Security Threat Group Management Office in Huntsville) is aware of a prisoner's established ex-member status, does it also mean that the SCC is aware of the prisoner's status? Of course. Nevertheless, prisoners engaging the GRAD process are forced to wait for a significant period of time before being sent to the GRAD program. During this waiting period, the SCC can only go through the motions when conducting the review process.

In Sourbeer v. Robinson, 791 F.2d 1094 (3rd Cir. 1986), the court of appeals upheld a lower court's finding that the review processes complained about were perfunctory and, therefore, denied "the most fundamental right of due process: a meaningful opportunity to be heard." Id. at 11011 (emphasis in original). There, the court found that, despite contradicting periodic reviews, the officials conducting the reviews were essentially going through the motions and superficially appearing as if the prisoner was receiving a meaningful review-and this despite the fact that the purported justifications for continuing the prisoner's confinement were based upon erroneous facts. In such a situation, a prisoner can have his confinement reviewed by an individual with the authority to decide whether or not to release him, but if that individual is simply going through the motions, the prisoner is not getting his right to a meaningful review. Therefore, there must be a challenge of the lack of meaningful review and a correction of that aspect of the review process.

CONCLUSION:

Prisoners possess a due process right to periodic and meaningful review of their Ad Seg confinement. Anything less violates that right. There must be a further understanding that one without the other denies due process. In other words, there can be a periodic review of a prisoner's Ad Seg confinement. But if the review process is not meaningful, it lacks due process. Conversely, if the prisoner is getting meaningful reviews, but the reviews are not periodic, it lacks due process. One can't be had without the other: prisoners ARE ENTITLED TO BOTH.

Currently, there is a legal challenge being made in the United States District Court for the Southern District of Texas, Houston Division. I have filed a federal civil action making a constitutional challenge of these policies and practices and I now urge others to come forward with their stories. This case is not only for me: it's for every similarly situated prisoner. I have drawn up a questionnaire for the purpose of facilitating my selection of the best possible candidates for potential witness-testimony. The questionnaire will serve other purposed as well. It will (1) facilitate the preparation of affidavits from everyone interested in submitting one for my case, and (2) allow each participating prisoner to gauge whether or not he is a good candidate for actual participation in this case and to make adjustments if not. (To determine whether a prisoner is a good candidate for actual participation, all the prisoner has to do is answer most of the questions in the questionnaire in the affirmative-especially where the grievance process is concerned.)

The style of my case is Salazar, et al. v. Dretke, et al., USDC No. H-05-0152.

II am currently in the process of preparing a motion seeking class-action certification by the district court. Whether I am successful in that regard remains to be seen, however. Whether the case is certified by the court as a class-action or not, participation in this case by interested prisoners can still make a difference since the case can still be litigated as an individual action if the court denies my motion for class certification.

All inquiries are welcomed and will receive a response.

DATE: May 23, 2005


[FOOTNOTES]

*1 "Security Threat Group" is a penologist's term for prison gang.

*2 Visitation for Ad Seg prisoners is conducted with a shatterproof glass between the visitor and the prisoner, with the prisoner locked in a small booth. Communication must be conducted via telephone handsets. Presumably, all conversation is strictly monitored during the visitation period.

*3 The TDCJ-CID :Administrative Segregation Plan (Ad Seg Plan) governs the review process for all Ad Seg prisoners. The "Ad Seg Plan" makes clear, however, that the "r[e]lease of STG offenders shall be in accordance with the "Security Threat Group Plan." Unfortunately, the "Security Threat Group Plan" is not made available to the prison population. One must assume this policy governs the GRAD process.

*4 It should be noted that, in Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court revisited the question of what "liberty interest" a prisoner possesses in remaining in the general prison population. Sandin abandoned the method for determining a prisoner?s liberty interest, as established by Hewitt, but specifically did not overrule Hewitt. See Sandin, 515 U.S. at 483 n. 5 ("Such abandonment of Hewitt's methodology does not technically require us to overrule any holding of this Court... Our decision today only abandons an approach that in practice is difficult to administer and which produces anomalous results.") This means that Hewitt and its progeny remain good law insofar as what the standard for due process is under our circumstances. How long current case law will continue as is is up for question once again, however. In December 2004, the Supreme Court again took up the question of how much flexibility prison officials should be accorded when confining prisoners in super-max security facilities. The case is styled Wilkinson v. Austin, 04-495. A decision is expected sometime later this year.

*5 According to the April 2005 edition of THE ECHO prison newspaper, "two dates are taken into consideration when placing offenders in the GRAD program. The projected release date and the date they were placed on the waiting list...? For prisoners waiting to go to the GRAD program, any prisoner serving a lengthy sentence is guaranteed to wait for an extended period of time before getting into the program. Prisoners with relatively short prison terms are routinely entered into the program at a faster rate and this is regardless of the chronological date a prisoner requested enrollment into the program.

*6 Someone similar to what is referred to an STG Officer within the Texas prison system.

*7 An entity similar to the SCC.





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