Challenging the Indeterminate SHU Term
by Steve Castillo and Graham Noyes
Pelican Bay Information Project and other prisoner/human rights advocates
are closely monitoring a case arising out of Peli-can Bay State Prison that
raises vital issues that could have far reaching results for prisoners across
this country.
On October 25, 1995, the U.S. District Court for the Northern District of
California, in the case of Castillo v. Marshall et al., No: C-94-2847 CW,
issued an order referring civil rights prisoner plaintiff, Steve M. Castillo,
to the Federal Pro Bono Project and appointing Graham Noyes as counsel.
Mr. Noyes practices criminal defense and civil rights law in San Francisco.
Attorney Allen Hopper is also providing substantial assistance on Mr. Castillo's
case.
For those unfamiliar with this jailhouse lawyer and his litigation, Mr.
Castillo's claims are based on retaliation by prison officials for his jailhouse
lawyer activities and prisoner peace proposal efforts. In retaliation, prison
officials have labeled Mr. Castillo as a "prison gang associate"
and confined him indefinitely within the infamous Security Housing Unit
(SHU) at Pelican Bay. Mr. Castillo's allegations are strengthened by the
ridiculously weak evidence presented by Pelican Bay Prison to support the
classification. Defendants have proffered six items of so-called evidence
to support their action. The first three are actually three different descriptions
of the same accusation and have all been found to be unreliable by the prison
itself. The fourth and fifth items are from confidential informants (Cl's):
one labeled Mr. Castillo a gang member in order to get himself out of the
SHU; the other labeled Mr. Castillo a gang associate under undisclosed circumstances.
The sixth item represents the only piece of evidence that Mr. Castillo or
his counsel have had the chance to review and consists of two letters from
a fellow inmate requesting legal assistance from Mr. Castillo.
The original complaint filed by Mr. Castillo raised the following issues:
1. The ongoing retaliation against plaintiff for jailhouse lawyer activities
violates the First Amendment.
2. The use of false and unreliable confidential information to support gang
label and SHU term is unconstitutional.
3. The lack of opportunity to present views or evidence prior to the imposition
of gang label and SHU term violates Due Process Clause.
4. The prison debriefing policy requiring plaintiff to become an informant
and incriminate himself before being released from the SHU violates the
Fifth Amendment right against self-incrimination.1
Counsel for plaintiff has successfully amended the original complaint (anticipating
strong opposition by defendants) to include the following issues:
1. The SHU regime violates international law in that it constitutes retaliation
for political activities, is racially discriminatory, and is a form of torture.
2. The fact that Hispanics are represented in PBSP at 270% their rate in
the general population provides prima facie evidence of invidious racial
discrimination in violation of the Equal Protection Clause.
3. The debriefing policy violates the Religious Freedom Restoration Act
(RFRA) in that the requirement to inform substantially burdens plaintiff's
exercise of his religion.2
4. The scheme of using informants, confidential information, and providing
meaningless classification committee reviews violates fundamental due process
rights.4
Defendants have filed a Motion to Dismiss/for Summary judgment. Plaintiffs
have filed an Opposition including approximately 150 pages of supporting
declarations and exhibits. This motion is currently pending before the Honorable
Claudia Wilken, a District Court Judge in the Northern District of California.
Also pending is a Motion to have Mr. Castillo appointed as co-counsel so
that he can provide greater assistance on the case. Pursuant to a prior
motion by Mr. Noyes, the judge has ordered weekly phone calls for Mr. Castillo
to his attorney while the action is pending. Those who are interested in
the issues raised by Mr. Castillo's case should also be aware of the case
of Pifer v. Marshall C.A. No.95-16221, D.C. No. CIV S-87-1623 EJG JFM P
(E.D. Cal.), now pending in the Ninth Circuit Court of Appeals.
Those who are interested in this case or have similar cases that they are
interested in filing should visit the site on the Internet: http://www.surf.com~graham.
This site contains all the briefs filed in the case which can be downloaded
to any computer, modified and used in similar cases. This site also contains
links to other prison sites and is being updated continuously to provide
more resources. Attorneys Noyes and Hopper are committed to struggling against
the growing injustices within the so-called criminal justice system but
are unable at this time to take additional prisoner cases. Thus they are
attempting to make resources available to all through the Internet. The
site can be visited by anyone with a computer and access to the Internet.
In conclusion, this case deserves close attention not only because of the
injustice placed on this individual prisoner, but also because this case
seeks to fully pursue those issues abandoned or neglected in Madrid v. Gomez
(i.e. debriefing policy, confidential informant scheme, meaningless classification
reviews etc.).
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1 In Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995), prison officials
testified that prisoners who become informants stand the risk of being assaulted
or killed, and prisoners who incriminate themselves are not granted immunity.
2 The New American Bible for Catholics (Greenlaw Press) Sirach 21, Chapter
19. Disdain for informer activities has other religious roots predating
the development of our judicial system. The Book of Leviticus 19:16 commands,
"Thou shalt not go up and down as a tale bearer among the people."
The Book of Daniel teaches that an informant is "one who eats the flesh
of another." Under Jewish law penalties for being an informer included
flogging, imprisonment, branding and death. Orthodox Jews condemn the informer
thrice daily in their prayers. In Christianity, the informer is personified
by Judas who betrayed Jesus for thirty pieces of silver, repented and hanged
himself. Matthew 26:15, 27:3-5 (see Trial Practice, by Barry Tarlow, Vol.
22 No.3, 1995.)
3 Every 120 days a committee reviews a SHU prisoner's classification. However,
the extent of such review is inquiring if the prisoner is going to debrief
or not; if not, he simply remains in the SHU.
4 As an example of the historical underpinnings of the aversion to informant
schemes, a recently withdrawn opinion by the Ninth Circuit compared a contemporary
contingency informer agreement to "blood money certificates" paid
by English authorities over 300 years ago. "Infamous reward statutes
which were enacted by the English Parliament in 1692 promised monetary rewards,
so-called "blood money certificates" to those who would provide
information leading to the conviction of criminals. This perverse incentive
structure was sharply criticized and eventually abandoned, when in 1754,
it was discovered that a group of career informants had framed innocent
individuals in order to collect the monetary reward and had provided false
information which led to their executions." U.S. v. Solono 37F. 3d
454 (9th Cir. 1994), withdrawn, U.S. v. Solono 1995 U.S. App. Lexis 9697
(April 26, 1995) (unpublished opinion).
Any contributions to the case to provide resources for investigation, experts
and other costs would be highly appreciated (Note: contributions are not
limited to financial support. Any information, including but not limited
to, suggestions, advice, research/materials, affidavits would be equally
appreciated). For more information, contact:
Graham Noyes, Attorney At Law
368 Hayes Street, San Francisco, CA 94102
(415) 575-3223 ·(415) 575-3230 (fax)
e-mail: gnoyes@igc.apc.org
Steve M. Castillo #D89028
P.O. Box 7500 (D5-108), Crescent City, CA 95531
