Solitary Confinement Reform and the Value of Pro Bono Representation

The California Department of Corrections, in a settlement of a long-running lawsuit brought by prisoners, has agreed to reduce dramatically the number of inmates held in solitary confinement.

This is a reform that prisoners, academics, mental health professionals and religious activists have been seeking for decades, and it should have numerous benefits for the prison system and the state at large. Solitary confinement wreaks a tremendous psychological toll on prisoners. It exacerbates mental illness, creates huge costs inside and outside the prison system, even aside from the burdens on prisoners and their families. Moreover, its alleged overuse—and alleged abuse as a tool of retaliation and coercion—has been the subject of hundreds of lawsuits.

The settlement highlights the importance of quality legal representation for prisoners. Unlike criminal defendants, prisoners challenging their conditions of confinement have no right to publicly-financed legal assistance. Prisoners almost never have resources to hire an attorney, and face poor prospects in the courts if they try to bring cases pro se. Most successful prison-conditions litigation has been the result of pro bono representation, as was the solitary confinement settlement.

Another recent reform in the California prison system is due in part to a pro bono case I handled a few years ago, involving “contraband watch,” wherein prisoners suspected of having swallowed contraband were shackled, duct-taped into jumpsuits, and chained to a cot under bright lights for days at a time, under 24-hour a day surveillance by guards tasked with searching the prisoners’ excrement for anything suspicious.

It was not a pleasant experience for anyone, nor was it particularly effective, especially in comparison with available technological alternatives such as x-ray or MRI exams. My client was duct-taped into a jumpsuit, shackled at wrists and ankles, and chained to an iron cot under bright lights. His wrists were cuffed to his waist chain, so he couldn’t move his arms, and had to eat by lying on the floor with his face on the food tray. He was held this way for more than six days.

I argued that this practice violated the 8th Amendment. I lost the case: in a contentious 2-1 decision, the Ninth Circuit held that even if it did violate the Constitution, the prison officials had “qualified immunity” because the law was not clear enough at the time the search was carried out.

But the case attracted significant media attention, and earlier this year, the department (now under new leadership) enacted new regulations that severely curtail the use of contraband watch. There are now strict limits on the amount of time a prisoner can be held, and on the degree of restraint. And the regulations require approval and monitoring by prison command staff and medical personnel. The new rules should ensure that what happened to my client will never happen again.

At Brown White & Osborn LPP, we take seriously our ethical obligation to take on pro bono matters. We encourage our attorneys to pursue pro bono opportunities, and we our attorneys have provided free and low-cost representation to dozens of clients, ranging from prisoners to immigrants to schools to small business owners to victims of alleged police misconduct. Every case makes a difference.

Caleb Mason

Caleb Mason

Caleb Mason is a partner with Brown White & Osborn LLP. He is a former federal prosecutor, and handles a wide variety of civil and criminal litigation. He has authored numerous scholarly publications on criminal and constitutional law, and is a frequent media commentator on criminal-justice issues. He was recently appointed to the Police Commission for the city of Claremont, California.
Caleb Mason