Vasquez testified in federal court in the case of a former inmate, Ernesto Lira, who was gang validated in part based on a drawing that included an image of the huelga bird, the symbol of the United Farm Workers. While the image has been co-opted by the Nuestra Familia prison gang, Vasquez testified that it is "a popular symbol widely used in Hispanic culture and by California farmworkers." Lira's validation was one of a handful to ever be reversed in federal court—though not until after he was released on parole, having spent eight years in the SHU. And though the court ruled that the huelga bird is of "obscure and ambiguous meaning," it continues to be used as validation evidence.
Evidence used to send inmates to solitary indefinitely includes possession of books like Sun Tzu's The Art of War and Machiavelli's The Prince.
Gang evidence comes in countless forms. Possession of Machiavelli's The Prince, Robert Greene's The 48 Laws of Power, or Sun Tzu's The Art of War has been invoked as evidence. One inmate's validation includes a Christmas card with stars drawn on it—alleged gang symbols—among Hershey's Kisses and a candy cane. Another included a poetry booklet the inmate had coauthored with a validated BGF member. One poem reflected on what it was like to feel human touch after 14 years and another warned against spreading HIV. The only reference to violence was the line, "this senseless dying gotta end."
"Direct links" that appear in inmates' case files are often things they have no control over, like having their names found in the cells of validated gang members or associates or having a validated gang affiliate send them a letter, even if they never received it or knew of its existence. Appearing in a group picture with one validated gang associate counts as a direct link, even if that person wasn't validated at the time.
In the course of my investigation, I obtained CDCR's confidential validation manual. It teaches investigators that use of the words tío or hermano, Spanish for uncle and brother, can indicate gang activity, as can señor. Validation files on Latino inmates have included drawings of the ancient Aztec jaguar knight and Aztec war shields, and anything in the indigenous Nahuatl language, spoken by an estimated 1.4 million people in central Mexico.
Lieutenant David Barneburg has the power to decide who's put into solitary for years—or decades. Photo by Shane Bauer.Some SHU inmates, aside from the "bona fide gang members," are those "the guards don't like," says Carbone, Pennington's lawyer. "They get annihilated with gang validations in order to get them off the main lines…The rules are so flimsy that if the department wants somebody validated, he will get validated."
California is just one of many states where inmates can be thrown into solitary confinement on sketchy grounds—though just how many is hard to know. A survey conducted by Mother Jones found that most states had some kind of gang validation process, but implementation varied widely, and a number of states would not disclose their policies at all. Seventeen states said they don't house inmates in "single-celled segregation" indeterminately. (No state officially uses the term "solitary.")
It's unclear how many states keep inmates in solitary as long as California does. Texas has 4,748 validated affiliates of "security threat groups" in indefinite solitary—more than California's prison gang affiliates—and some have been there for more than 20 years. Louisiana has held two Black Panthers in solitary for 40 years. Minnesota is near the opposite end of the spectrum, holding inmates in segregation for an average term of 29 days. At least 12 states review an inmate's segregation status every 30 days or less; Massachusetts does it weekly.
Keeping all these inmates segregated is an expensive proposition for taxpayers. Pelican Bay spends at least 20 percent more to keep an inmate in isolation—an extra $12,317 per inmate per year, or $14 million annually.
AT PELICAN BAY, decisions about who gets put in the hole indefinitely come down to one man: Institutional Gang Investigator David Barneburg. A stocky man with a shaved head and a seven-point star on the breast of his khaki uniform, Barneburg comes from a lineage of loggers who found themselves out of work when the timber industry busted. When Pelican Bay opened its doors amidst the majestic redwoods in 1989, his father signed up.
Pelican Bay was a new kind of prison—one of the nation's first full-fledged supermaxes, built with the explicit purpose of housing inmates in long-term isolation. After Pelican Bay, supermaxes popped up across the country, in part to deal with rising violence in increasingly crowded prisons. Today, there are roughly 60 nationwide.
Barneburg started here in 1997, and after 15 years on the job, he comes off as a man under duress. He makes a point of assuring me that he and his gang investigations team of 10 are not "knuckle-dragging thugs." He tells me he has to regularly take the stand in court to defend gang validations. To date, prisoners have sued him at least 30 times, though I could find no record of any having succeeded. "I don't want to go as far as saying gang investigators are persecuted, but…"
He is giving me a PowerPoint presentation detailing the structures and operations of the seven prison gangs targeted by the department of corrections. The Nazi Low Riders. The Aryan Brotherhood. The Texas Syndicate. The Black Guerilla Family. The Mexican Mafia. The Nuestra Familia. The Northern Structure. "It's about power," he says. "It's about control. It's about extortion. It's about money. It's about dope. It's about murder." Membership in a gang is not illegal in the United States—it's a right protected by the First Amendment—but Barneburg says segregating gang members is the only way to keep prisons from being overrun by racial strife, stabbings, and killings.
When I ask him how well that's worked, he stutters and says diffidently, "I think there's been less violence."
He's wrong. The rate of violent incidents in California prisons is nearly 20 percent higher than when Pelican Bay opened in 1989. As I walk with Lieutenant Acosta alongside the general population yard—a grassy, if bleak, fenced-in area where, unlike in the SHU, prisoners are allowed to interact—he unwittingly contradicts Barneburg's claim too, saying that violence in Pelican Bay has seen dramatic spikes over the years. In the 1990s, he says, "you didn't see the big fights, all the riots. It was like one, two guys fighting, maybe three guys." But since then, prison gang violence has escalated dramatically, with riots involving upwards of 200 people.
Prison violence fluctuates for myriad reasons, among them overcrowding, gang politics, and prison conditions. It's impossible to say for certain what role SHUs play; what is clear is that in states that have reduced solitary confinement—Colorado, Maine, and Mississippi—violence has not increased. (Illinois plans to close its notorious Tamms supermax soon.) Since Mississippi State Penitentiary at Parchman released 75 percent of inmates from solitary in the mid-2000s, violence has dropped 50 percent.
An inmate who murders a guard can get no more than five years in the SHU. But being found to be associated with a gang—even if you haven't done anything illegal—can land you in isolation for decades.
CDCR officials claim California is different because the gang problem is worse here, though they don't have data to confirm this. Barneburg says without SHUs, there would be no way to prevent gang leaders from giving orders to the general population. What he doesn't say is that very few SHU inmates are considered gang leaders even by CDCR's standards. Only 22 percent of those serving indeterminate SHU terms are validated even as members of prison gangs. The rest, like Dietrich Pennington, are classified as associates, people who are accused of having had some connection with members—or other associates—of prison gangs.
Former San Quentin Warden Daniel Vasquez says association with prison gangs—for protection, among other things—is "pretty inescapable" in the hostile and racially segregated atmosphere inside. "You're going to come across them in some form or fashion," he says. "You are going to start experiencing the pressures of these gangs." Barneburg himself acknowledges it is hard for a Mexican from Southern California, for example, to keep away from the Mexican Mafia, since the gang sees itself as the authority over any Mexican prisoner from the lower part of the state. A full 2,201 people currently serving indeterminate SHU terms are validated as associates of that gang; there are only 98 validated members.
Being associated with a prison gang—even if you haven't done anything illegal—carries a much heavier penalty than, say, stabbing someone. Association could land you in solitary for decades. An inmate who murders a guard—the severest crime in prison—can get no more than five years in the SHU.
THE DECISION to put a man in solitary indefinitely is made at internal hearings that last, prisoners say, about 20 minutes. They are closed-door affairs. CDCR told me I couldn't witness one. No one can.
When Josh Fattal and I finally came before the Revolutionary Court in Iran, we had a lawyer present, but weren't allowed to speak to him. In California, an inmate facing the worst punishment our penal system has to offer short of death can't even have a lawyer in the room. He can't gather or present evidence in his defense. He can't call witnesses. Much of the evidence—anything provided by informants—is confidential and thus impossible to refute. That's what Judge Salavati told us after our prosecutor spun his yarn about our role in a vast American-Israeli conspiracy: There were heaps of evidence, but neither we nor our lawyer were allowed to see it.
Ronald Brown, a prisoner who was moved from SHU into another prison unit Photo by James West.None of the gang validation proceedings, from the initial investigation to the final sentencing, have any judicial oversight. They are all internal. Other than the inmate, there is only one person present—the gang investigator—and he serves as judge, jury, and prosecutor. After the hearing, the investigator will send his validation package to Sacramento for approval. The chances of it being refused are vanishingly small: The department's own data shows that of the 6,300 validations submitted since 2009, only 25 have been rejected—0.4 percent. "It's pretty much a rubber stamping," Vasquez says.
"That is a system that has no place in a constitutional democracy," says David Fathi, director of the American Civil Liberties Union's National Prison Project. He says California's policy is "a form of guilt by association that is completely foreign to our legal system. Prison administrators have absolute power, and that is a recipe for abuse and violation of rights."
CDCR officials are quick to point out that inmates can challenge their gang status: They can appeal to the gang investigator, the warden, and, as a last resort, the departmental appeals office in Sacramento. But former Pelican Bay Warden Joseph McGrath testified in court that "officers do not reevaluate the evidence" and that, if an appeal came to him, he would "assume the truth of whatever was written" in the validation documents. When I asked CDCR for an example of an appeal resulting in a reversal of a gang validation, they couldn't produce a single case. Gang investigator Barneburg, who has worked at Pelican Bay for 15 years, has never seen a validation appeal succeed either—evidence, he says, of his team's thoroughness. "We put out really quality work," he says.
If an inmate exhausts his administrative appeals, he has the legal right to take his case to court. Most can't afford a lawyer, so they end up representing themselves. Attorney Charles Carbone, who has challenged more than 200 gang validations (of which he says about 25 have been successful), says inmates who represent themselves succeed "less than 1 percent" of the time. The biggest obstacle is the "some evidence" standard, which essentially means that CDCR only has to provide a bare minimum of proof. The courts do not weigh the evidence or decide whether or not a prisoner is in a gang. The judge's job is only to "see whether any evidence exists," Carbone says. "And if it does, he won't evaluate it. He'll leave that to the prison authorities."