Pandemic History Lessons: What the Past Can Teach Us About Covid 19

BY SHARLEEN GARCIA

Lessons from past pandemics and epidemics can direct professionals across sectors to know where attention is needed to improve public health in the present and future. Although each infectious disease and outbreak is different in its nature, studying past pandemics and epidemics can teach us how social institutions deliver and influence knowledge or technology transfer through socially constructed pathways (Dingwall 2013). These histories can help improve surveillance, communication effectiveness, policies to reduce disease transmission, and other health outcomes that may arise from a public health crisis. As the world continues to navigate the current COVID-19 pandemic, it is critical that those at the forefront of the public health response (including those in media, government, and law) learn from the past in order to better assess today’s public health responses and apply lessons from history to prevent similar occurrences in the future.

In the past, the media as a social institution has delivered knowledge contributing to the social distress, politicization, or stigma around an infectious disease. In some instances, the media has failed to address the emergence of these issues during an outbreak, creating more confusion, fear, denial, or hostility in society. The investigation of the 1976 outbreak of Legionnaires’ disease, for example, which primarily infected people who went to a convention of the American Legion in Philadelphia (CDC), was complicated by the publicity of the event and confusing methods of communication that created uncertainty, fear, and circulation of rumors among the public (Thacker). In this case, social distress proceeded from unclear and inconsistent media communication. In addition, when opinions that had no basis in science or medicine were not addressed right away, more confusion, speculation, and panic arose. Similar events have occurred during the COVID-19 pandemic, including the “buyers club” leaving supermarkets with shortages and conspiracy theories such as the 5G conspiracy which wrongly suggested that phone signals either transmit the virus or reduce our defenses to it (UCSF Dept. of Psychiatry and Behavioral Sciences). Going forward, it will be important to remain on the lookout for opinions or rumors about infectious diseases which have no basis in science and address them right away, especially as the origin and cause of COVID-19 is known. Failing to communicate with transparency, consistency, and sensitivity will generate distress, especially among those who are already prone to anxiety about health. Such a failure will have ramifications for public health decision-makers, health authorities, and health care providers. At the same time, when an infectious disease like Legionnaires’ disease or SARS-CoV-2 becomes heavily politicalized in a presidential election year, the media’s role can be complicated

(Thacker). Both the Legionnaires’ disease epidemic of 1976 and the COVID-19 pandemic occurred concurrently with a presidential election year. In both cases, the media became a mediator for both public health experts and politicians, resulting in confusion, distrust in governing bodies, and denial of public health guidelines. In addition, the media can play into political strategies or technologies that attempt to monopolize the situation or dangerously downplay pandemics to ensure reelection. Thus the media can influence the distribution of power by determining when and which knowledge is shared with the public (Entman 2007). As the exercise of power intensifies, the media becomes a greater source of knowledge during a presidential election year and different political strategies and technologies come into play. In these situations, the media must be more considerate of the ways in which the political climate can confuse the public and prompt fear, anger, distrust, or denial of public health guidelines. The media as a social institution must also learn from the past since it has played an important role in both the perpetuation and reduction of stigma during public health crises. During the 1980s AIDS epidemic, men who have sex with men (MSM) were disproportionately affected. As a result, the infectious disease HIV became known as “the gay plague” and was associated with risk behaviors like drug use and promiscuity, unless the victims were “innocent mothers or babies” (UCSF Dept. of Psychiatry and Behavioral Sciences). In the beginning, the mainstream media paid relatively little attention to the AIDS epidemic and did not address the fear that contributed to the stigma around HIV. The subsequent rise in hostility and shame had adverse effects on the mental health of those infected, preventing people from getting tested and increasing the likelihood of disease transmission (Jaffee; UCSF Dept. of Psychiatry and Behavioral Sciences). However, the multidisciplinary response to the AIDS epidemic (including the increase in grassroots activism by national and transnational alliances, non-governmental and governmental organizations, advocacy groups, elites, and private foundations) resulted in research advancement and increased media advocacy (Messac and Prabhu; Gillet 2003). With the development of AIDS research and coalition building, the media could more easily present clear data on community prevalence and disease transmission, improve prevention, and dismantle fear. During the current COVID-19 pandemic, the media could learn from the AIDS crisis, especially considering today’s increase in xenophobia and discrimination against people of Chinese descent (and people of color in general) who might not be able to socially distance due to living situation or occupation (UCSF Dept. of Psychiatry and Behavioral Sciences). By presenting more data revealing the root causes of health inequities, the media can prevent the suffering of those most at risk of being shamed or condemned for their SARS-CoV-2 infection. In addition, by fostering cross-sector international collaboration, the media industry can improve mass communication during a pandemic and eliminate fear and hostility.

Case studies from the past also help assess and progress the development of surveillance systems and public health governance today. For example, the case of Typhoid Mary, an asymptomatic carrier of Typhoid who was believed to be responsible for 53 cases of typhoid fever

between 1900 and 1915, taught public health officials and epidemiologists about the importance of tracking of asymptomatic and symptomatic carriers (Merrill). The lessons learned from Typhoid Mary’s case are as relevant today as they were in 1915, with epidemiologists and governing bodies in 2020 placing greater importance on surveillance technology, contact tracing, and the testing of symptomatic and asymptomatic carriers. However, the case of Typhoid Mary also highlights the need to apply social network topology to control the spread of infectious diseases or other health outcomes that might arise from a public health crisis. Social network topology (which is based on social network theory) rests on the testable assumption that the social structure of an individual’s network itself is largely responsible for determining behavior and attitudes that might influence health status or the spread of disease (Berkman and Krishna; Christakis). Despite its value, social network topology has not been applied to the extent that it is needed during public health crises (Ferguson 2020). There have been no extensive applications of social network topology for the surveillance and prevention of the longterm negative mental health outcomes which emerge from a public health crisis. One such outcome is an increase in suicides, which have reached historic highs in past pandemics and epidemics (Liu et al. 2012; Mamelund 2008). Therefore, the application of social network topology may prove to be useful during the COVID-19 crisis and future pandemics, not only to prevent the spread of infectious disease but also to prevent negative mental health outcomes such as depression and suicide. To prevent an endless variety of new virus strains from causing new pandemics, public health professionals should consider the geographic origins of past outbreaks and previous points of disease transmission to plan for and prevent future public health crises. Since most pandemics are believed to have originated in Asia (typically in the eastern boundaries of European Russia or southern China, with the most recent highly infectious disease strains believed to have originated in China), scientists and epidemiologists should focus their surveillance and prevention efforts there. In addition, since history suggests that future pandemics will originate in this area before following major routes of commerce and communication, epidemiologists should consider planning any future prevention efforts in accordance with this information (Mamelund 2008). To minimize the possibility of cross-infection between species, governments should also increase surveillance on animal species that have been identified as a possible origin of a viral strain or vector for transmission to humans. Specifically, increasing systematic data collection and observation of wet markets in Western China will be critical. Animal reservoirs of plague and influenza have long been known to exist in these sites and animal-to-human disease transmission has occurred in these markets the past (Hardy 2020). Further investigation into different strains and genetic interplay among species will also be necessary to prevent the onset of new pandemics in the future (Tsoucalas et al. 2016). Given the viral nature of SARS-CoV-2, the emergence of strains via different pathways would not be unusual. After all, viruses are capable of boundless genetic variability by continuous, gradual mutation and by reassortment of gene segments between viruses (Reid and Taubenberger 2003). One of the greatest examples of a virus’ genetic variability and the emergence of strains is the H1N1 virus which onset the deadly 1918 Spanish Influenza

Pandemic, infecting nearly 1.8 billion people and killing an estimated 50–100 million in less than a year (Mamelund 2008). Since 1918, the novel influenza virus strains emerging from the H1N1 virus have killed more than 30,000 per year in the U.S. alone (Reid and Taubenberger 2003). Therefore, investing in research that seeks to understand the sequencing of the virus genome and the genetic interplay among different species may be helpful to direct surveillance in the future and prevent the spread of SARS-CoV-2 or any novel strains that might emerge. Finally, animal populations in the past have had surveillance systems that work quite independently from those directed at humans. Thus reconstituting and hybridizing both systems will improve the management and administration of public health systems, provide earlier warnings to prevent future pandemics, and prevent overburden (Dingwall 2013). Some may argue that this is not beneficial in the middle of a pandemic that has overburdened the U.S. public health and healthcare systems. Reconstructing these surveillance systems may be useful for ongoing vaccine treatment research, however, since past vaccine development has proven to be difficult and often not a comprehensive solution due to the genetic variability of viruses.

Executing various comparative studies will also be important for legal and policy public intervention. For instance, to ensure the effectiveness of mandatory mask-wearing policies, more comparative studies of manufactured masks and homemade masks should be conducted. It is not enough to rely on the most recent comparative study from 1975. Additionally, more comparative studies should be conducted on the different attitudes and beliefs that can influence mask-wearing (such as masculine toughness, political orientation, and fatalism) in order to improve policy interventions, particularly in community-wide institutions and services. (Palmer and Peterson 2020; Cheng 2020; Jimenez et al. 2020). Changing policies and laws that will reduce social and economic inequality, affect structural change, and act as preventative measures are also important. In the past, social determinants of disease such as structural racism, poverty, and unequal access to healthcare all increased the risk of infectious disease contraction, including influenza, smallpox, and cholera (Mamelund 2006; Merrill). Unlike cholera, however, SARS-CoV-2 cannot be controlled by environmental measures. More time and energy should be spent reducing social and economic inequalities at the policy level. Otherwise, social determinants of disease will continue to have downstream effects on morbidity, quality of life, mortality, and healthcare costs (Unnatural Causes 2008). Especially in the U.S., where the healthcare system is not inclusive of everyone living in the country, people of low socioeconomic status and people of color will be disproportionately affected. With higher rates of pre-existing conditions such as obesity, people of low socioeconomic status and people of color in the U.S. have an increased risk of morbidity and mortality associated with several diseases including SARS-CoV-2 (Ogden 2006; Dietz and Santos-Burgoa 2020). To regulate and support disease prevention as well as reduce social disparities in health, it will be necessary to implement policies such as early detection, control, and management.

There are many lessons to be learned from past pandemics, not only for public health professionals but also for professionals in media, government, law, and public policy. Responding to a public health crisis requires evidence-informed decision making. Therefore, an analysis of past public health responses to pandemics and epidemics is key for leaders seeking to understand the present and become better decision-makers. To improve communication, surveillance systems, and public health policy, we must continue to investigate past case studies and the role of different social institutions in delivering and influencing knowledge or technology transfer.

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Advocates have been trying for decades to reform California’s solitary confinement practices, with limited success. In 2012, almost 10,000 prisoners were kept in full isolation conditions within state prisons; some had been in solitary confinement for decades with little opportunity for review. Recent years have seen a stronger push to limit the use of solitary confinement, leading to a drop in solitary confinement populations around the state of California (Center for Constitutional Rights 2016). However, despite reform attempts, solitary confinement remains a grave issue in California prisons and jails for both adults and juveniles. This paper analyzes previous attempts at reform in California as well as successful changes to solitary confinement policies in other states. It argues that although litigation and legislative advocacy have been helpful in improving solitary confinement conditions and practices, the most effective way to create widespread, institutionalized change is through executive action directly from the governor or the California Department of Corrections and Rehabilitation (CDCR). While the direct action approach presents its own challenges since it may be difficult to achieve politically, it offers the most comprehensive opportunity for reform.

California’s excessive use of solitary confinement primarily stems from two key factors: prison gangs and facility overcrowding. Since the 1980s, when rehabilitative programs dwindled in an era of mass incarceration, gangs have had a tight grip on prison politics with an estimated 70% of inmates associated to some degree with a prison gang as of 2006 (Sullivan 2006). The state’s strategy to combat the power of gangs is to confine those associated with the gangs to isolated cells, in an effort to curb their influence and encourage affiliates to ‘debrief,’ or relate all their knowledge about their gang to prison officials (Sullivan 2006). After decades of placing gang members in solitary confinement, California has an entrenched pattern of putting non-dangerous inmates in solitary confinement for decades with little review simply because of gang affiliation (Lobel 2020). In fact, the vast majority of long-term solitary confinement prisoners (people who have been in solitary confinement for 10 or more years) are there due to gang affiliation and not prison rule violation or violence (Reiter 2016). These prisoners often do not see grass, sky, or dirt. Nor do they touch any human being besides prison officers for decades, sometimes for such arbitrary reasons as having tattoo art that resembles gang symbols (Lobel 2020). Facility overcrowding has also exacerbated solitary confinement practices, especially in county jails. Since 2011, when Governor Brown passed a reform bill to reduce state prison populations, county jails have become increasingly crowded as prisons transfer inmates to local facilities. Unfortunately, with increased populations comes increased violence and gang problems

in jails that are ill-equipped to handle the influx of prisoners. In an effort to respond to escalating murder and gang violence in their facilities, officials keep jail inmates in solitary confinement for months and even years (Pohl and Gabrielson 2020). Using solitary confinement as the standard tactic to control prison violence is extremely harmful to inmates. There is well-established research on the severe mental, physical, and emotional consequences of isolation. In a study conducted at the notorious California supermax prison Pelican Bay, 7 out of 10 Security Housing Unit (SHU) prisoners interviewed reported that they were on the verge of a mental breakdown and over half of prisoners reported chronic depression and violent fantasies (Haney 2015). Compared to prisoners in general population housing, inmates kept in solitary confinement have more pain, social withdrawal, trauma, stress, and hypertension (Haney 2015; Hawkley 2015). There is widespread international condemnation of solitary confinement practices; UN human rights expert Nils Melzer described prolonged solitary confinement in the U.S. as “psychological torture” (UN Human Rights 2020). California’s policy of keeping prisoners in solitary confinement for decades simply because of gang affiliation is an especially inhumane practice as it arbitrarily inflicts severe damage on prisoners who have not committed violent offenses. The fact that California continues to rely on such a devastating practice to address issues within prisons and jails has spurred advocates to demand reform. It has been very difficult, however, to induce corrections officers to move away from such an ingrained policy.

California solitary confinement practices have been challenged numerous times in court with largely minimal results. In the 1970s, various lawsuits against the state succeeded in advancing due process rights requiring that prisoners be notified before a transfer to solitary confinement and have a hearing with representation. In the 1980s, lawsuits gave prisoners the right to three showers and eight to ten hours of exercise a week, clean cells, and adequate lighting (Hinds and Butler 2015). Still, the courts upheld solitary confinement as a constitutional practice. The most comprehensive early attempt to confront the practice was through the 1990 case Madrid v. Gomez, a class action lawsuit filed by Pelican Bay inmates just a few years after the prison opened. In this lawsuit, the judge ruled that keeping mentally ill prisoners in long-term solitary confinement was a violation of the Eighth Amendment but for other prisoners the physical and mental damages of isolation were not severe enough to exceed the standards of cruel and unusual punishment (Lobel 2020). Thus, indefinite solitary confinement was upheld and the many lawsuits filed during these years only succeeded in providing basic human rights to inmates. In 2011, hunger strikes throughout California prisons brought international attention to the conditions of solitary confinement in the state. The leaders of the hunger strike, confined to the Pelican Bay SHU, filed a pro se lawsuit against the state and demanded reform. At the time of the lawsuit, the conditions in the SHU were deplorable. Of the more than 1,000 prisoners kept in the SHU in conditions of solitary confinement, over 500 had been in SHU for over a decade and 78 had been there for more than two decades. They were kept in eight feet by ten feet cells for 22 or

23 hours a day, allowed limited or no phone calls, and separated from visitors by glass panes. Their recreation yard was a concrete box with no equipment, minimal sunlight, and a grate overhead. They had no access to rehabilitation, work, or employment programs. The prisoners faced review only once every six years and the review rarely led to release from isolation. According to prisoners, the only way to get out of SHU was to “snitch, parole, or die”; that is, give information to prison officials about your gang and face retribution once returned to the general population, be released directly from SHU to parole after serving a full prison sentence, or die inside SHU (Lobel 2020). In 2012, justice organizations from around the state joined the cause and filed the class action lawsuit Ashker v. Brown, contending that long-term solitary confinement on the basis of gang affiliation violated the Eighth and Fourteenth Amendments. They brought in experts to back their case. For his expert report, UK correctional authority Andrew Coyle reviewed Pelican Bay SHU and found that its conditions “fail[ed] to meet basic standards of humanity.” UN official Juan Mendez went further and called Pelican Bay SHU confinement “torture” based on his review of the facility (Lobel 369). Faced with such a strong case, the state finally settled in 2015. Under the settlement agreement, state-wide solitary sentencing changed from status-based (gang identity) to behaviorbased (rule violation within prison) and all solitary confinement sentences were to be determinate. At Pelican Bay, the Restricted Custody General Population Unit (RCGP) was created as an alternative to complete isolation. It was intended for prisoners whose rule violations did not warrant full isolation or who would be in danger if released from SHU directly back to the general population. In the RCGP, inmates could have contact visits, receive education, and interact with other inmates in their unit (Center for Constitutional Rights 2015). At first, the settlement appeared to be producing significant changes. The state reviewed all inmates kept in indefinite isolation as well as all gang-affiliated inmates kept in any isolation. Within the first year of implementation, 99.6% of long-term solitary confinement inmates at Pelican Bay were transferred out of SHU isolation and more than 1,500 prisoners statewide were released from their solitary confinement housing units (Center for Constitutional Rights 2016). At the time, it seemed like litigation could be a successful avenue for reform. However, the CDCR remained in charge of all state prisons and started finding ways to keep inmates in solitary confinement. Instead of transferring SHU inmates to standard general populations, prison officials moved prisoners to extremely restrictive general population housing that kept them in the same isolating conditions inmates faced in SHU (Center for Constitutional Rights 2017). These RCGP units, intended to be more rehabilitative and less isolating, became another form of solitary confinement with very limited access to job training and social interaction (Center for Constitutional Rights 2019). Although prisoners were allowed contact visits as RCGP inmates, the only RCGP unit in the state was located at Pelican Bay Prison. The prison is a six hour drive from San Francisco and twelve hours from Los Angeles. In addition, contact visits were only allowed on weekdays, making it very difficult for family and friends to visit. The prisons also violated due process by using unreliable information to accuse inmates of violence and send them back to SHU. Based on these practices, a judge found in 2019 that the CDCR was not complying

with the terms of the 2015 settlement and extended the case oversight period by one year (Ashker v. Newsom 2019). Clearly, the landmark settlement in Ashker v. Brown has not achieved its objective. Although official statistics showed vast improvement, in reality the CDCR continued to use solitary confinement as its primary control tactic, use unreliable information to put prisoners back in SHU, and force inmates who had been transferred to the general population to live in just as much isolation as in the SHU. Without the CDCR's compliance with the reforms specified in the 2015 settlement, the system reverted back to its deep-rooted reliance on solitary confinement. Thus, the lawsuit has done little to improve the daily lives of prisoners in solitary confinement despite years of litigation and a successful settlement. Today, eight years after Ashker v. Brown was filed, litigation for the case (now Ashker v. Newsom) continues. Whether the case will ever successfully engender long-term institutionalized change remains to be seen. It is clear, however, that 50 years of litigation have been unsuccessful in meaningfully improving California’s statewide practice of solitary confinement. Since the main resistance to change has come from the CDCR, advocates have begun turning to county jails, which are not under CDCR jurisdiction, as sites of reform. The past few years have seen a new push to sue county jails for unconstitutional solitary confinement practices. So far, three lawsuits have been settled. In Chavez v. County of Santa Clara, the Prison Law Office filed a class action lawsuit on behalf of hundreds of incarcerated people kept in small concrete cells for 22-24 hours a day for months or even years. Some of these individuals were potentially innocent people who had not even been tried and were awaiting court dates. Recreation time was limited to just three hours a week and placement in these solitary confinement cells was based on an unreliable classification system (Chavez v. County of Santa Clara 2015). The settlement agreement for the case required county jails to create a system of “administrative management” in which isolated individuals would spend more time outside their cells, have opportunities to show good behavior, and potentially return to the general population. The classification system for administrative management placement would require specific criteria and incorporate a high level of review (Prison Law Office 2019). Two other counties, Contra Costa and Sacramento, had similar settlement agreements with increased due process requirements and improved conditions in confinement (Associated Press 2019; Mays v. County of Sacramento 2019). Initial statistics seem promising. The Santa Clara County solitary confinement population dropped from 400 inmates to 26 throughout 2019, while Contra Costa County dropped from 100 to 3 and the Sacramento County population decreased by half (“In California prisons” 2019). The case of Ashker v. Brown, however, cautions against placing too much value on these one-year-post-settlement statistics. Since comprehensive reports on county compliance with the settlements are not available to the public, it is unclear whether these litigation attempts will prove more successful than the statewide efforts. It is possible that county jails will either find ways to comply with the settlements while still retaining harsh isolation conditions or revert to old practices without comprehensive oversight. An additional concern stems from the highly diverse communities which county jails serve. Some jails are located in high-crime, high-poverty areas

and likely have little money to invest in new solutions while others like the Santa Clara County jail have already benefited from substantial government funding (Vansickle 2019). Liberal counties may be more willing to embrace reform than conservative ones, while the scope of reform could be dependent on one sheriff’s open mindedness and tolerance for change. Overall, challenging statewide solitary confinement in the courts through litigation seems to have limited results. While it is still too early to analyze the recent county reform, local efforts may have limited results as well. Lawsuits have succeeded in providing basic human rights to inmates, but there has been no substantial solitary confinement reform to create meaningful change for the thousands of California inmates kept in isolation.

Although California advocates’ primary method of challenging solitary confinement has been through the courts, they have also pushed for lawmakers to introduce legislation on this issue. Unfortunately, they have only had success with legislation that addresses the most shocking instances of confinement: isolation for pregnant women and juveniles. Currently, a bill prohibiting solitary confinement for pregnant inmates, AB 732, has passed the Assembly and is now in the Senate awaiting a vote. As for juvenile confinement, legislation that severely limits isolation for juvenile offenders in prisons and jails, SB 1143, was passed in 2016. SB 1143 is the only bill addressing solitary confinement that has passed into law in the 21st century in California. It allows isolation only when a juvenile poses an immediate threat of harm and all other options have been tried and prohibits juvenile solitary confinement for punishment purposes. Despite the clear imperative to protect juveniles, it took five different attempts before the bill was finally passed due to opposition from the Chief Probation Officers of California and the California Correctional Peace Officers Association (Burrell 2019). Legislative success addressing isolation in the state is extremely difficult to attain but can lead to important changes. Forced to comply with SB 1143, a Sacramento County youth detention facility has taken the lead in demonstrating more rehabilitative approaches than solitary confinement. Officials recorded a decrease in the number of solitary confinement hours at the facility and built ‘the Cove,’ a brightly lit multi-sensory de-escalation room where inmates are sent instead of solitary confinement (Burrell 2019). In the Cove, youth can talk to staff, build communication skills, or play games (McCluskey 2018). The positive effects of SB 1143 were seen throughout the state as well. After the legislation was passed, the Division of Juvenile Justice (DJJ) started collecting data on juvenile solitary confinement (which the DJJ calls “room confinement”), with encouraging results. In the first five months of 2018, juvenile detention facilities confined an average of 14 inmates for an average of 5 hours per confinement incident, far less than the 22 hours per day, multi-day isolation documented in previous years (Washburn and Menart 2019; Burrell 2019). However, these statistics track only official room confinement. Facilities often have behavioral treatment programs (BTPs) where violent and aggressive juveniles are kept in isolation for extended periods of time, but these programs are not considered room confinement. Youth can be confined in BTPs for months with only seven hours of out-of-cell time per day and limited

interaction or activities (Washburn and Menart 2019). Thus BTPs represent an unregulated loophole in SB 1143 that allows solitary confinement to continue for juveniles. Overall, SB 1143 appears to have been effective in limiting official solitary confinement but was not sufficiently comprehensive to restrict all forms of isolation. This suggests that legislation has the potential to be more successful than litigation if it is inclusive of all solitary confinement practices. However, the great difficulty lawmakers experienced passing SB 1143, especially the opposition they faced from the Chief Probation Officers of California and the California Correctional Peace Officers Association, indicates it may be difficult to pursue meaningful legislation in the future.

The final approach to reforming solitary confinement in California is direct changes to the system through executive action. While this has not yet occurred on any meaningful scale in California, the approach has successfully worked elsewhere in the nation. Colorado was spurred to action in 2013 after a prisoner released directly from solitary confinement to parole murdered the state corrections chief. The governor appointed a new chief corrections officer with three goals: to eliminate solitary confinement for the mentally ill, to address the needs of inmates in long-term solitary confinement, and to mitigate the release of inmates directly from solitary confinement to parole. The new state corrections chief, Rick Raemisch, decided to spend 20 hours in a solitary confinement cell. The experience moved him and when he emerged he implemented the proposed reform. The state saw immediate improvements. The number of people in isolation decreased by over 80% in just a few years, from 1,505 in September 2011 to 185 in May 2018. The number of inmates released straight from solitary confinement to the public decreased by more than 90% (Hall 2016). Granted, as with Ashker v. Brown, these statistics may hide loopholes allowing Colorado to keep prisoners in near-complete isolation while still technically transferring prisoners out of solitary confinement. It is heartening, however, that Colorado has continued its reforms. Raemisch continues to be an outspoken critic of solitary confinement and in 2017, full isolation was limited to 15 days for punitive cases 2017). In Maine, executive reform was equally impressive. In 2010, a group of experts released a comprehensive and scathing report of Maine’s Special Management Units (similar to California’s SHUs) and their use of solitary confinement. As a result, the Commissioner of Corrections, Joseph Ponte, decided to implement many of the reforms recommended in the report. Ponte created much stricter admissions criteria for the Special Management Units (SMUs) and expanded recreation and rehabilitation within the units. Inmates now have access to reading materials, radios, television, group recreation, and counseling. Additionally, the inmates have ‘roadmaps’ for getting out of the SMU and can gain privileges through good behavior. 18 months after the reforms were implemented, SMU populations were down by half. Fathi further details Maine’s improvements: correction officers are now trained in de-escalation techniques and solitary confinement includes group recreation and counseling (2015). Although there is still much work to be done, overall it appears that reforms in both Colorado and Maine have been effective. When state corrections

departments actively and creatively implement changes instead of opposing them, as has been the case in California, change can be quick and long lasting. Is this type of change possible in California? The California Department of Corrections and Rehabilitation has certainly not been cooperative in implementing the settlement agreement from Ashker v. Brown and has continued to appeal new orders. The organization’s continued push to uphold the status quo indicates a resistance to widespread change. Although few prominent staff members have made public statements about solitary confinement, Connie Gipson, the current director of the Division of Adult Institutions, has publicly supported isolation. Gipson was the warden of the Corcoran state prison during the solitary confinement hunger strikes of the early 2010s. Gipson justified solitary confinement: “just like if you have a barrel of apples and you have one apple going spoiled. You gotta remove it out or everybody spoils" (Palta 2013). Gipson, like current secretary Ralph Diaz and many other top officials in the CDCR, was appointed by Governor Newsom. This means that the governor has the power to completely change the CDCR’s leadership and appoint progressive, optimistic champions of reform. Although Newsom failed to do so in his first round of appointments after taking office, he has since taken action to support prison reform by signing multiple beneficial bills (Office of Governor Newsom 2019). Since Newsom does seem open to criminal justice reform, voters should start by lobbying the governor to bring change to the CDCR. In the next election, California voters should make solitary confinement and new CDCR leadership a key issue. Communities can also focus their efforts on appointing progressive county leadership to enact meaningful changes in jails. If this succeeds in precipitating executive action, I believe California could finally see the long-awaited overhaul of its solitary confinement system.

This paper has examined attempts at reforming solitary confinement in California prisons, jails, and juvenile facilities, including litigation, legislation, and the potential for executive action. Analyzing the efficacy of these attempts has revealed the difficulties in enacting meaningful change in the state. Litigation often secures specific rights without actually leading to significant changes in solitary confinement practices. In Ashker v. Brown, pushback from the CDCR has caused the lawsuit to drag on for almost a decade with little material change for prisoners living in isolation. Legislation has been more successful. But with only one piece of major legislation on solitary confinement reform in twenty years, it seems unlikely that a focus on bills will engender the change needed with any rapidity. Executive action from within the CDCR and county-specific leadership seems the most promising strategy to create sweeping reform. With California’s current CDCR leadership this is next to impossible. But if advocates can mobilize Governor Newsom or future governors to overhaul CDCR leadership and bring in reformists like Rick Raemisch and Joseph Ponte, there is a possibility for real and long-lasting change.

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