PRISON LAW OFFICE General Delivery, San Quentin, CA 94964 Telephone (510) 280-2621  Fax (510) 280-2704 www.prisonlaw.com June 25, 2015 Sheriff Laurie Smith Santa Clara Sheriff’s Office 55 West Younger Avenue San Jose, CA 95110 Fax: (408) 294-2467 Email: so.website@sheriff.sccgov.org Director: Donald Specter Managing Attorney: Sara Norman Staff Attorneys: Rana Anabtawi Rebekah Evenson Steven Fama Penny Godbold Alison Hardy Corene Kendrick Kelly Knapp Millard Murphy Lynn Wu Dear Sheriff Smith, In recent months, we have received an unusually high number of complaints from pretrial detainees, criminal defense attorneys, and family members regarding conditions in the administrative segregation units (“Ad-Seg”) in the Main Jail. The conditions they describe are harsher and more punitive than conditions in the SHU at the CDCR. They have been subjected to these conditions, indefinitely, even though they have not been convicted of their pending criminal charges or charged with jail rule violations. I called you to discuss these matters on June 18, 2015, but did not receive a response. Thus, this letter describes the issues that need to be addressed. We would like to meet with you to discuss how these issues can be resolved. I. Conditions in Ad-Seg Violate Due Process Pretrial detainees are being subjected to punitive conditions in Ad-Seg in violation of their due process rights. They report being moved to Ad-Seg without notice, explanation, or rule violations. Indeed, many of the detainees in Third West Ad-Seg were moved there in November 2014 for no reason other than their pending gang-related charges. But despite their charges, they had been in dorms or cells for two years or longer without any allegations of gang activity or other misconduct in the jail. Since they have been moved, some have been told they will be housed there indefinitely. The conditions and restrictions in Ad-Seg are harsher and more extreme than those in other Jail locations. Detainees in Ad-Seg are locked down 23 to 24 hours a day in small cells; have little or no opportunity to interact with other inmates; have little or no access to outdoor exercise, fresh air, or natural light; are handcuffed and shackled whenever they leave their cell; have reduced access to personal property and legal materials; have reduced visits and phone access; are subjected to frequent cell searches; and have no access to programs. They are also subjected to body cavity searches each time they leave and return to their cells, sometimes six to eight times a day, despite having no contact with other inmates or members of the public and no allegations involving contraband. These conditions, even for a short stay, often cause detainees to suffer from severe mental health symptoms and suicidality. See Davis v. Ayala, 576 U.S. ___, No. 13-1428, 2015 WL 2473373, at *20 (U.S. June 18, 2015) (Kennedy, J., concurring). Board of Directors 1 WalkinHawk, Vice President Penelope Cooper, President  Michele Marshall Krause, Treasurer  Christiane Hipps  Margaret Johns Cesar Lagleva  Laura Magnani  Michael Marcum  Ruth Morgan  Dennis Roberts Pretrial detainees may not be “punished” by jail conditions or restrictions before an adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Jail restrictions or conditions are “punishment” if they are not reasonably related to a legitimate penological purpose. Id. at 539. Also, Title 15 Section 1053 prohibits jail officials from depriving inmates of privileges in Ad-Seg unless is it “necessary to obtain the objective of protecting the inmates and staff.” There does not appear to be any legitimate penological purpose for housing the detainees in such punitive Ad-Seg conditions. Moreover, detainees must be provided with due process procedural protections when they are placed in Ad-Seg. They must receive “(1) a hearing with advance written notice (except in case of a genuine emergency) before initial placement…, (2) the opportunity to present witnesses and documentary evidence, (3) written reasons for the decision and (4) counsel-substitute for an illiterate inmate or in a case with complex issues.” Inmates of Sybil Brand Inst. for Women v. Cnty. of Los Angeles, 130 Cal. App. 3d 89, 108 (Ct. App. 1982); accord Bistrian v. Levi, 696 F. 3d 352, 375 (3d Cir. 2012); Johnston v. Maha, 606 F.3d 39, 41 (2d Cir. 2010) (“[P]retrial detainees can only be subjected to segregation or other heightened restraints if a pre-deprivation hearing is held to determine whether any rule has been violated.”). Pretrial detainees in Ad-Seg have not received these basic procedural protections. In July 2014, Santa Clara County selected the MGT of America, Inc. (MGT) Team to conduct a needs assessment/facility study. In a final report dated December 2014, MGT found that the jail classification system was inadequate. (See report at pgs. 87-93.) It determined the system was overly complicated, based on subjective rather than objective factors, and did not include consideration of individual inmates’ institutional behaviors. MGT found that many inmates were classified incorrectly. It also concluded that “the reliability and integrity, as well as the validity of the System are questionable.” We are concerned that the jail’s unreliable classification system, lack of individual behavior-based justification for detainees’ placement, and the punishing conditions in Ad-Seg violate detainees’ procedural and substantive due process rights. We would like to discuss your policies and practices regarding classification and Ad-Seg to ensure that pretrial detainees’ due process rights are not violated. II. Outdoor Recreation Pretrial detainees in Ad-Seg are not receiving outdoor exercise as required by federal and state law. In fact, detainees housed in Third West were denied any outdoor exercise for at least seven months. During that seven month period, their only “yard” was a small, empty cell in their unit. In this “yard,” they had no access to fresh air or natural light, and no room to exercise. This is in stark contrast to the SHU at Pelican Bay State Prison where convicted prisoners in the most restrictive setting receive ten hours of outdoor yard time each week. Many pretrial detainees in the Jail report medical and mental health symptoms as a result of this extreme deprivation. Detainees in Unit 6C, especially those on “walk-alone status,” typically get 30 minutes at a time out of their cells a few days a week, and did not receive a total of three hours during any week in the month of May. Moreover, if and when detainees are allowed out of their cell, it is their only time to shower, groom, or use the phone, and they rarely—if ever—receive three hours dedicated solely to outdoor exercise. As Sheriff, you are obligated to provide inmates with opportunities for outdoor exercise and recreation under Title 15, Section 1065, and the United States Constitution. See Lopez v. Smith, 203 F.3d 2 1122, 1132-33 (9th Cir. 2000) (en banc); Keenan v. Hall, 83 F.3d 1083, 1089-90 (9th Cir. 1996) as amended 135 F.3d 1318 (9th Cir. 1998); Allen v. Sakai, 48 F.3d 1082, 1088 (9th Cir. 1994); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979); Kane v. Pierce, 2009 WL 160255, at *5 (E.D. Cal. Jan. 21, 2009). Under Santa Clara County Department of Correction’s own policies and procedures, inmates must be offered a minimum of three hours of outdoor recreation each week. SANTA CLARA DEP’T OF CORR., POLICY & PROCEDURE MANUAL, Policy No.18.07, at 2 (2001). Indeed, outdoor exercise is widely recognized as one of the most basic human necessities protected by the United States Constitution. Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010). Fresh air and exercise are extremely important to the psychological and physical well-being of inmates, and denial of outdoor recreation may constitute cruel and unusual punishment. Allen, 48 F.3d at 1087; Spain, 600 F.2d at 199. We would like to discuss how inmates in Ad-Seg can receive adequate outdoor exercise each week. III. Access to Court Pretrial detainees in Third West Ad-Seg who are actively engaged in complex litigation of their pending criminal cases consistently report that staff deny them meaningful access to the courts and confidential communications with attorneys. During cell searches, jail staff read and/or confiscate clearly marked legal materials for periods of several hours to two weeks. In some cases, legal papers have not been returned at all. Despite the complexity of their pending cases, detainees are also not allowed to keep any legal materials that cannot fit in one small plastic bin. In the case of one detainee, jail staff are defying a court order requiring them to provide a second bin for that detainee to store his legal documents (see attached). Detainees and their attorneys report that jail staff also deny detainees the right of confidential consultation with their attorneys by prohibiting them from using the phone during business hours and by interfering with outgoing legal mail. Moreover, jail staff often take up to an hour or longer to bring detainees to legal visits, which significantly obstructs such visits. Jail staff may not actively interfere with prisoners’ access to the courts. Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011). Title 15, Sections 1063 and 1068, also require that you ensure detainees’ access to the courts and counsel, including “unlimited mail” and “confidential consultation with attorneys.” Further, “jail staff shall not review inmate correspondence to or from state and federal courts, [or] any member of the State Bar ….” 15 CCR § 1063(c). These rights may never be suspended as discipline. 15 CCR § 1083(i). We would like to discuss how you can ensure detainees’ access to the courts and counsel, as required by Title 15 and the Constitution. IV. Cell Searches Pretrial detainees in Third West Ad-Seg report that jail staff on the “A-Team” conduct excessive and harassing cell searches. They state that A-Team deputies search their cells every time the detainees leave, in contrast to other teams that only search cells when the detainees are moved for recreation. They further report that A-Team deputies search all of their cells in response to minor transgressions by a single detainee, such as a light in one cell being covered. In addition, the A-Team reportedly destroys or confiscates detainees’ property during cell searches without explanation or justification. 3 Jail staff may not engage in cell searches which constitute “calculated harassment” or which “ride roughshod over inmates’ property rights with impunity.” See Hudson v. Palmer, 468 U.S. 517, 530 (1984). They are also prohibited from confiscating or destroying detainees’ personal property during cell searches unless there is a legitimate security interest. See Antonetti v. Skolnik, 748 F. Supp. 2d 1201, 1212, 1216 (D. Nev. 2010). If jail staff confiscates a detainee’s personal property, they must give the detainee a receipt without delay. CAL. PENAL CODE § 4003. We would like to discuss jail policies and practices regarding cell searches to ensure they are related to legitimate security interests. V. Cleaning Supplies Pretrial detainees in Ad-Seg describe excessively strict policies related to cleaning supplies, leading to unsanitary conditions in their cells. They are denied access to a broom, mop, sponge, rag, or towel to clean their living spaces. They are only periodically given a small amount of powder cleanser and a scouring pad the size of a business card. They cannot use these items to clean the floors and surfaces because without towels or rags they cannot wipe up cleanser residue and water. They are forced to use their sole personal bathing towel to wipe down the floors and surfaces, and the deputies will not allow them to exchange the towel for a clean one until the regularly scheduled laundry exchange. Also, detainees in Third West regularly use hair clippers to cut their hair in the “yard” cell. Hair and grime continues to build up because no one is given the materials to clean these spaces. As Sheriff, you are obligated under Title 15 to guarantee cleanliness and sanitation in your facilities. 15 CCR § 1280. Sanitation is also a basic human necessity protected by the Eighth and Fourteenth Amendments to the United States Constitution. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Anderson v. Cnty. of Kern, 45 F.3d 1310, 1312-13 (9th Cir. 1995), as amended 75 F. 3d 448 (9th Cir. 1995); Martino v. Carey, 563 F. Supp. 984, 995-96 (D. Or. 1983). We would like to discuss your policies and procedures regarding sanitation and whether they adequately balance security interests and the need for clean and sanitary living spaces for prisoners. **** In sum, we have serious concerns about conditions in Ad-Seg. We would like to schedule a meeting with you at your office to discuss possible solutions to these problems that do not involve costly and inefficient litigation. We propose one of the following dates for our meeting: July 1, 8, 10, 20, 21, 22, or 28. Please contact me about scheduling, and let me know if you have any questions in the meantime. Sincerely, /s/ Donald Specter Donald Specter Cc: Orry B. Korb, County Counsel 70 West Hedding Street, East Wing, Ninth Floor San Jose, CA 95110 4 LAW OFFICES OF DANIEL JENSEN, PC. 4675 STEVENS CREEK BLVD, SUITE 250 SANTA CLARA, CALIFORNIA 95051 TELEPHONE (408) FACSIMILE (408) 296?4101 y?A 00 Ch U) Daniel Jensen (C SB #104553) .. Caitlin Robinett achimowicz 273121) LAW OFFICES OF DANIEL JENSEN, PC. 4675 Stevens Creek Blvd, Suite 250 Santa Clara, California 95051 Telephone; E408 296-4100 Facsnnile: 408 296-4101 Attorney fer Defendant, - JOSEPH LUIS VEJAR SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CRIMINAL LAW DIVISION In re the Matter of: CASE NO. 213441 THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff EX Parte Declaration in Support of an Order for the Defendant to temporarily possess and use a plastic bin to store legal materials while in the custody of the Santa Clara County V. Department of Correction JOSEPH LUIS EVE-AR (LUCERO ET AL) I, attorney Daniel Jensen, hereby declare that I am- an Attorney at Law, duly licensed to practice in the State of California and before this Court. I represent the Defendant, JOSEPH LUIS VEJAR, in the above captioned matter. Defendant is in the custody of the n? ?N?r Pr? 0, in?rl Dania. Clara LULuity ucpai uncut aw airing, tum. Discovery provided by the prosecution consist to date of over 1,000 pages of police interviews, over 2,000 pages of a Grand Jury Transcript, photographs and exhibits. To date, there have been 100 DVDS and CDs full of discovery turned over to the Defense. Some of those CDs include audio testimony that has been transcribed, creating additional paperwork. After discussions with the Defendant, have decided that it is in his best interest to be able to study and report to me about the signi?cance, or lack thereof, of this material. This may be an on?going and repetitive process, requiring he be able to review each aspect of this Declaration and Order re: Plastic Bin to store legal materials People v. Lucero et 31 Case No. 213441 OE DANIEL JENSEN, PC. 4675 STEVENS CREEK BLVD, 250 LAW SANTA CLARA, 9505l TELEPHONE (408) 296-4l 00 Ol (408) 296?4l rad i 00 \l 43 p?A discovery several times; It will assist counsel in the effective representation of the Defendant in the preparation and management of this case. I am informed and believe that the SCC DOC will allow the Defendant to possess and use plastic ??l?upperware?lil