Lowers, Aaron, The Yale Law Journal
Prison discipline has come a long way since Attica, at least in California. The California Department of Corrections and Rehabilitation (CDCR) administers California's thirty-three adult correctional facilities, including California State Prison-Solano (CSP-Solano). Inmate discipline at these facilities is governed by Title 15 of the California Code of Regulations (CCR), which provides uniform rules and behavioral expectations for all California prisoners. (8) With uniformity comes a certain rigidity, however, and in many instances this rigidity leads to an unfair application of discipline in California prisons.
The primary purpose of CCR Title 15 is to ensure the safety and security of California prisons. It provides for violent or disruptive inmates to be isolated from the general population in administrative segregation (solitary confinement) for a period of time based on the gravity of the misconduct. If violent or disruptive behavior persists, the inmates can be isolated for progressively longer periods. While the level of violence varies from prison to prison, the disciplinary generally system works well to minimize violence.
Nonviolent misconduct is handled differently. Possession of most contraband, for example, is usually punishable by a loss of privileges and "good time" credit. "Good time" is time off of one's sentence for good behavior. The reality is that these sanctions have little impact on the availability of contraband. Drugs and tobacco are commonplace, as is inmate-manufactured alcohol. In recent years, cell phones have also become prevalent. In 2012, for example, CDCR staff discovered over fifteen thousand cell phones in California prisons and camps. (9) During that same year, staff at CSP-Solano confiscated 672 cell phones--at a prison housing approximately forty-five hundred inmates. (10)
There are several reasons the sanctions provided within CCR Title 15 have so little impact on the amount of contraband in California prisons, but perhaps the single biggest factor is that prison inmates are seldom caught red handed. Contraband items are typically found in and around inmates' living quarters, not on the inmates themselves. This allows a certain level of deniability to individuals who actually posses contraband. Prison overcrowding has exacerbated the situation. California's inmates are housed either in cells or dormitories. In some dormitory situations, as many as eighteen inmates have been crammed into living areas designed to accommodate only eight inmates. California prison cells designed to accommodate one inmate typically house two.
Attributing possession of contraband found in a cell housing two inmates is difficult enough. It is all but impossible in dormitory settings where bunk beds are often separated by as little as one foot.
In an effort to overcome this difficulty, prison officials have taken to relying on constructive possession in disciplinary hearings to determine guilt or innocence. Constructive possession exists when one does not have physical custody of an item, but is in a position to exercise control over it. If, for example, two men wearing ski masks are arrested in a car with a gun on the back seat, it can be construed that both men are in possession of the weapon. In a similar fashion, if two men are housed in the same prison cell where a cell phone is discovered, both men can, and often are, found guilty of possessing the contraband, and both suffer the consequences.
The overriding difference here is that the two men in ski masks choose to get into the car together, whereas the two men in the cell are ordered to live together by CDCR officials. When two men are found guilty of possessing the same contraband in a prison cell, almost invariably one innocent man is falsely accused. Admittedly, finding two or more inmates guilty for possessing the same contraband started out as a tactic CDCR to gain admissions from the guilty parties. …