Is Continued Maximum Custody Confinement Illegal?

The following case arises in Arizona, but was decided at the U.S. Court of Appeals for the Ninth Circuit, which includes California. Therefore, the Ninth Circuit’s holding applies to California for similar claims, particularly those in California state prisons and county jails, which is why we present this here.

Richard Johnson is an inmate in a prison controlled by the Arizona Department of Corrections (ADC). He is a validated member of a Security Threat Group (STG) called the Warrior Society, which is an active, violent prison gang. He refuses to renounce his membership in the gang.

Under ADC’s policies, such a gang member like Johnson is segregated from other prisoners into a maximum security area where he is confined to his cell 24 hours per day. Once per year, his confinement is reviewed for removal from maximum security and reassignment to ADC’s Step Down Program (SDP), wherein the prisoner may reintegrate into the general prison population with “close custody confinement.”

Mr. Johnson brought a federal civil rights action against Charles L. Ryan, Director of the Arizona Department of Corrections, claiming the annual review procedure was insufficiently frequent and therefore violated his rights under the First and Fourteenth Amendments. He also claimed the standards for maintaining him in maximum security were unfairly prejudicial and a violation of equal protection because he was kept in maximum security segregation based solely on his alleged gang affiliation, without regard to other factors such as his criminal history or propensity for violence.

The U.S. District Court dismissed his claim attacking ARC’s annual review process as failing to state a claim. The District Court later granted summary judgment in favor of defendant.

Mr. Johnson then appealed to the United States Court of Appeals for the Ninth Circuit in San Francisco, challenging both orders.

The Ninth Circuit, in Richard Johnson v. Charles L. Ryan, affirmed the district court.

The ruling and the explanation merit a closer look for anyone held in a “SHU” or other form of segregated housing away from the general population in a prison, ostensibly for security issues and the safety of the general prison population.

The Ninth Circuit began its analysis by noting that the U.S. Supreme Court pointed out in 2005, that “the use of Supermax prisons has increased over the last 20 years, in part as a response to the rise in prison gangs and prison violence.” Wilkinson v. Austin (2005) 545 U.S. 209, 213. These facilities, often referred to as “jails within prisons,” “are more restrictive than any other form of incarceration.” Wilkinson, 545 U.S. at 214.

In 1991, ADC addressed its own prison gang challenges by adopting a Security Threat Group (STG) policy. The policy’s purpose is to “minimize the threat that inmate gang or gangs like activity poses to the safe, secure and efficient operation of institutions.”

The policy defines an STG as “any organization, club, association or group of individuals, either formal or informal (including traditional prison gangs . . . whose members engage in activities that include . . . committing or attempting to commit unlawful acts or acts that violate the Department’s written instructions, which detract from the safe and orderly operation of prisons.”

The policy contemplates “[m]inimizing gang or gang like activity” through two programs: (1) “the debriefing and segregation of inmates who disavow gang membership,” and (2) “a stepdown process for gang members who participate in programming, reject gang activity and affiliation, and remain disciplinary free.”

The Ninth Circuit then addressed whether an inmate was deprived of a constitutionally protected liberty interest. The Ninth Circuit distilled down the analysis to whether the procedure had a high risk of depriving that interest erroneously. Here, the risk that ADC would erroneously determine that Mr. Johnson remained a security risk to the other prison inmates and staff was low.

According to the U.S. Supreme Court case of Hewitt v. Helms (1983) 459 U.S. 460, 477, n.9, abrogated on other grounds, Sandin v. Conner (1995) 515 U.S. 472, the decision as to whether a prisoner remains a security risk will be based on facts particular to the prisoner. While more periodic reviews would be useful for conduct-based threats, this was not the basis for Johnson’s segregation. Therefore, an annual review was sufficient to satisfy Due Process requirements and allow him to renounce his membership if he wanted the opportunity to change his confinement status.

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