PRISON LAW OFFICE Director:

Donald Specter
General Delivery, San Quentin CA. 94964
Telephone (510) 280-2621  Fax (510) 280-2704 Managing Attorney:
www.prisonlaw.com Sara Norman

Staff Attorneys:
Rana Anabtawi
Susan Christian
July 14, 2010 Rebekah Evenson
Steven Fama
Penny Godbold
Matthew Cate Megan Hagler
Secretary Alison Hardy
California Department of Corrections and Rehabilitation Kelly Knapp
Millard Murphy
1515 S Street, Room 113S Zoe Schonfeld
Sacramento, CA 95811 Lynn Wu
[email protected]

Via U.S. Mail and Email PDF

Dear Matt:

We are writing to request that you take steps to stop CDCR’s ongoing policy and practice of
locking down prisoners on the basis of their race.

The evidence we have reviewed demonstrates that prison staff throughout the state are instituting
and perpetuating lockdowns of entire racial groups, well past the period when any arguable emergency
warranting such a blanket lockdown has passed. We analyzed all Program Status Reports (PSRs) issued
by California’s 30 men’s prisons over a six-month period. Those PSRs reveal that there were 379
security-related lockdowns imposed between January 1 and June 30, 2009.1 Of those 379 lockdowns,
we found troubling evidence of racial discrimination in more than 100 lockdowns – more than a quarter
of the sample. Of the thirty men’s prisons in California, twenty-five were involved in one or more
discriminatory lockdown:

 On more than 75 occasions during that six month period, prisons imposed and maintained
restrictions on all inmates of a particular race in response to an incident that is reported to
involve only a small number of identified inmates of that race, or in response to more
indeterminate security risks, such as anonymous threats against staff or the discovery of inmate-
manufactured weapons. Based on the PSRs, it appears that the prison staff never conducted
individualized assessments of individuals within the affected racial groups to assess whether they
in fact pose a threat to security.

 On more than 25 occasions during the first six months of 2009, the prisons imposed lockdowns
on all individuals of a specific race after a so-called “race riot” and then maintained the
lockdown on the entire racial group for more than two weeks. Based on the PSRs, it appears that
prison staff never conducted individualized assessments of individuals to determine whether all
members of the racial group posed a security risk.

1
This figure excludes all lockdowns imposed for health reasons, such as medical quarantines.
Board of Directors
Penelope Cooper, President  Michele WalkinHawk, Vice President  Marshall Krause, Treasurer
Honorable John Burton  Felecia Gaston  Christiane Hipps  Margaret Johns
Cesar Lagleva  Laura Magnani  Michael Marcum  Ruth Morgan  Dennis Roberts
Matthew Cate
July 14, 2010
Page 2

The lockdowns in the six-month sample lasted an average of 109 days, meaning that prison staff
typically had almost four months to make individualized risk determinations, but did not do so.2

The information in the PSRs is further supported by extensive communications we have had with
prisoners at more than a dozen institutions, all of whom complain of extended lockdowns based on
racial classifications, for incidents in which they had no involvement.3 For example, African-American
prisoners from CSP-Solano wrote to us complaining that the institution continues its practice of locking
prisoners down based only on racial classification, despite a decision by a California Superior Court that
this practice was unlawful. See In re Tucker, Solano Co. Super. Ct. Case No. FCR233502 (May 13,
2009). Several Northern Hispanic prisoners in one facility at CSP-Sacramento have written to us stating
that they have been on “modified program” more or less continuously for the last ten years, and as a
result receive fewer privileges, job opportunities and yard time than prisoners of other races. More than
twenty African-Americans prisoners housed at Kern Valley State Prison informed us that all African-
American prisoners in certain facilities have been locked down frequently as a consequence of fights
between individual African-American prisoners, and that even African-American prisoners who are
“unaffiliated” must endure extended denials of their rights or privileges with respect to movement,
feeding, ducats, visiting, work, shower, medical, library, dayroom, recreation, canteen, packages, phone
calls, family visits and religious services. Over a dozen White prisoners in one facility at SATF wrote to
us complaining of multiple lengthy lockdowns; some informed us that they had been locked down for
over a year. These deprivations of rights are imposed purely on the basis of race and even apply to
prisoners who arrived at the prison after the date of the incident which provoked the lockdown.

In short, the data, and our ongoing communication with prisoners and investigations of
lockdowns at individual prisons, point to a disturbing policy and practice of racial discrimination within
the prison system in violation of the Equal Protection Clause.

As you know, the Equal Protection Clause prohibits prisons from segregating or disciplining
prisoners on the basis of race unless such policy is narrowly tailored to a compelling state interest.
Johnson v. California (2005) 543 U.S. 499, 515. The Ninth Circuit Court of Appeals has explained that
this same standard applies to race-based lockdowns, and that the strict scrutiny standard cannot be
satisfied where race is the only connection between the perpetrators of an incident and the prisoners
subjected to lockdown. Richardson v. Runnels (9th Cir. 2010) 594 F.3d 666, 671.

2
In fact, this is a conservative estimate. Many of the lockdowns in our sample had not yet concluded by the end of June
2009, such that their end date was beyond the scope of the records produced to us. A concluding date of June 30, 2009 was
therefore used for the purposes of our calculations. It is likely that several of these lockdowns actually carried on for a longer
period than estimated.
3
Much of the correspondence we have received indicates that prisoners are exhausting their administrative remedies and
pursuing formal legal action regarding the race-based lockdowns they are experiencing. In fact, our research confirms that in
the last year, federal courts in California have heard at least eight civil rights complaints brought by CDCR prisoners
suffering from race-based lockdowns. See, e.g. Richardson v. Runnels, 2007 WL 586722 (E.D. Cal. Feb. 22, 2007), rev’d,
594 F.3d 666 at 671 (9th Cir. 2010) (reversing the lower court’s summary judgment for defendants and finding that
defendants “made no evidentiary showing at all concerning the basis for regarding all African-Americans as a security risk
when one or a few African-American inmates are responsible for an assault.”)
Matthew Cate
July 14, 2010
Page 3

We understand that CDCR’s rationale for maintaining lockdowns on entire racial groups is that
such policy is necessary to preserve security in the prisons. Yet the Johnson Court rejected that
rationale, finding that “racial classifications ‘threaten to stigmatize individuals by reason of their
membership in a racial group and to incite racial hostility.’ . . . By perpetuating the notion that race
matters most, racial segregation of inmates ‘may exacerbate the very patterns of [violence that it is] said
to counteract.’” Johnson at 507 (quoting Shaw v. Reno, 509 U.S. 630, 643, 648 (1993)). The
Richardson court, too, squarely rejected “the assertion that it [is] sufficient for prison officials simply to
believe there to be a link between an individual incident perpetrated by one or two inmates, and the risk
of violence from all the [prisoners of the same racial group in that facility].” Richardson, 594 F.3d at
671.

Even if the prisons were permitted to enforce race-based lockdowns for brief periods of time “as
a necessary and temporary response to a race riot or other serious threat of race-related violence,”
Johnson, at 509 (emphasis added), such race-based policies cannot remain in effect for weeks and even
months as CDCR’s lockdowns too often do. Thus, one California court noted that “inmates in
California prisons “may be separated on the basis of ethnicity for security purposes” only “in emergency
situations[] and on a short-term basis.” In re Tucker, Solano Co. Super. Ct. Case No. FCR233502, at 6,
7 n.5 (May 13, 2009) [emphasis added]. Lockdowns lasting on average more than three months, as
CDCR’s lockdowns do, surely fail this test.

CDCR must immediately end its policy and practice of implementing race-based lockdowns. To
resolve this matter without engaging in costly and time consuming litigation, the Prison Law Office asks
that CDCR enter a binding agreement requiring the Department to 1) stop imposing racially-
discriminatory lockdowns and implement a formal policy of conducting individualized assessments of
all prisoners on lockdown status as soon as possible after the incident causing the lockdown and 2)
create an accurate and reliable monitoring mechanism. We are willing to meet with you in an attempt to
resolve this matter informally, but to do so the parties must enter a tolling agreement to ensure that
aggrieved prisoners’ claims are not time-barred as a result of the negotiations.

Please contact Rebekah Evenson or Donald Specter to set up a meeting to discuss this matter
further.
Sincerely yours,

/s/ Donald Specter