Stars, Dragons, and the Letter “M”: Consequential Symbols in California Prison Gang Policy Katie Lynn Joyce* California prison policy relies on symbols to identify prison gang affiliated inmates. This policy leads to many false positives and results in long-term solitary confinement of individuals who, in fact, are not affiliated with any gang at all. This Note examines the evolution of California’s symbol-driven policy, including regulations before 2012, after 2012, and the recent Ashker settlement. This Note finds that these symbols and their corresponding interpretations provide unreliable indicators of prison gang affiliation, resulting in unwarranted consequences for prisoners. By allowing prison officials to rely on nonindicative symbols in its process, California uses an unsound policy for managing prison gangs. Moving forward, the California Legislature should demand that prison officials limit their reliance on visual symbols when making prison gang identifications. California should implement a predominantly behavior-based process for identifying prison gang affiliates, with visual symbols used only to support the nexus between the behavior and a prison gang. The visual symbols that prison officials use to demonstrate this nexus should undergo public and prisoner comment before prison officials may use them. Furthermore, the Legislature should provide for annual commenting periods designed to foster critique and revision of symbolic meanings. Finally, prison officials should provide a full list of all nexus- demonstrating symbols to prisoners and the public to afford proper notice. By implementing these changes, California will take a step toward amending its faulty prison gang identification process by imposing consequences to only those prisoners who are truly prison gang members. DOI: http://dx.doi.org/10.15779/Z38QP0V Copyright © 2016 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * J.D., University of California, Berkeley, School of Law, 2015. 733 734 CALIFORNIA LAW REVIEW [Vol. 104:733 Introduction .................................................................................................... 734 I. California Prison Gangs and CDCR’s Response ......................................... 739 A. Prison Gangs in California ........................................................... 741 1. The Emergence and Growth of California Prison Gangs ...... 741 2. Governance Structures of California Prison Gangs ............... 742 3. Complex Behaviors and Membership Structures of California Prison Gangs ......................................................... 743 B. CDCR’s Changing Response to Prison Gangs ............................ 745 1. Prison Gang Identification Process ........................................ 746 2. Consequences of Prison Gang Identification ......................... 748 II. CDCR’s Identification and Use of Prison Gang Symbols.......................... 754 A. CDCR’s Process for Identifying Prison Gang Symbols .............. 754 1. Symbols Identified by CDCR as Prison Gang Symbols ........ 756 2. Nuances that Preclude Accuracy in CDCR’s Semiotic Process ................................................................................... 758 a. The Method of Communication Matters to the Meaning of the Symbol ................................................... 759 b. Prison Gang Relationships Exist Beyond an “In/Out” Paradigm ......................................................................... 761 c. Prison Gangs and Racial or Geographic Identities Nebulously Overlap ........................................................ 762 III. Proposal: Behavior-Based Process for Identifying Prison Gang Affiliates .............................................................................................. 763 A. Response to Expected Critiques .................................................. 765 Conclusion ...................................................................................................... 767 INTRODUCTION Three symbols—a star, a huelga bird, and the number fourteen—were used to condemn Ernesto Lira to eight years of solitary confinement at Pelican Bay State Prison.1 Prison officials viewed these symbols, along with a jail-yard “incident” with Southern California Latino prisoners and information from a “confidential informant” that listed Mr. Lira’s name on a laundry list of prison gang members, as indicative of Mr. Lira’s prison gang membership.2 But Mr. Lira was not a prison gang member.3 He challenged the determination, but 1. Lira v. Cate, No. C 00-0905 SI, 2009 U.S. Dist. LEXIS 91292, at *5–7, *16 (N.D. Cal. Sept. 30, 2009); Erica Goode, Fighting a Drawn-Out Battle Against Solitary Confinement, N.Y. TIMES (Mar. 30, 2012), http://www.nytimes.com/2012/03/31/us/battles-to-change-prison-policy-of-solitary- confinement.html [https://perma.cc/PD65-NYJQ]. 2. Lira, 2009 U.S. Dist. LEXIS 91292, at *12–19. 3. See id. at *7–8. 2016] STARS, DRAGONS, AND THE LETTER “M” 735 remained in solitary confinement for over eight years before Judge Susan Illston of the Northern District of California reversed the determination.4 For those eight years, Mr. Lira was housed indefinitely in solitary confinement, as were nearly all prisoners identified as prison gang members prior to 2015. It meant twenty-three hours per day in a 7.6-by-11 foot concrete cell; behind perforated steel doors; without access to a phone, family visits, or educational programming; and ineligibility for parole.5 Mr. Lira has said of solitary confinement, “[y]ou take a person and you just peel back the skin and make him just some raw flesh in a tomb and all he has is his mind.”6 Though Mr. Lira won his case and the wrongful determination of his prison gang affiliation was reversed and remedied,7 the damage he endured could not be undone. As a result of his solitary confinement at Pelican Bay, even years after his release, Mr. Lira battles depression, experiences social anxiety, avoids crowds, and covers his windows to block the light.8 In Ashker v. Brown, a class of prisoners—all identified as prison gang members or associates by the California Department of Corrections and Rehabilitation (CDCR)—brought a constitutional challenge against CDCR’s practice of holding prisoners like Mr. Lira in prolonged solitary confinement.9 Many of the class members alleged that their decades-long, no-end-in-sight assignments to solitary confinement were not based on their security threat risk but merely on their prison gang status.10 They further identified the weak evidence that supported their prison gang status determinations. For example, one class member alleged that he had been detained in solitary confinement for 4. See id. at *1–6. 5. See Goode, supra note 1; see also Mariam Hinds & John Butler, Solitary Confinement: Can the Courts Get Inmates out of the Hole?, 11 STAN. J. C.R. & C.L. 331, 336–37 (2015) (describing the Pelican Bay Secure Housing Unit, which is one of the facilities that housed Mr. Lira). 6. Goode, supra note 1. 7. See Lira, 2009 U.S. Dist. LEXIS 91292, at *7–8 (“The Court finds that plaintiff is entitled to a judicial declaration that his gang validation was never supported by accurate or reliable evidence and was implemented in violation of his procedural rights. The Court also finds that plaintiff is entitled to an order . to expunge plaintiff’s validation as a Northern Structure associate from [California Department of Corrections and Rehabilitation] records, to report the expungement to all gang-related law enforcement databases . and to remove all documents related to the validation from plaintiff’s prison file.”). 8. Goode, supra note 1. 9. Ashker v. Brown was initially filed as an individual lawsuit, but in 2012 several other plaintiffs joined the lawsuit. See Plaintiffs’ Second Amended Complaint, Ashker v. Brown, No. 4:09- cv-05796-CW (N.D. Cal. May 31, 2012). In 2013, Chief Judge Claudia Wilken of the Northern District of California refused to dismiss the case and granted a motion for class certification of “all inmates who are assigned to an indeterminate term at the Pelican Bay [Secure Housing Unit] on the basis of gang validation, under the policies and procedures in place as of Sept. 10, 2012” for a “Due Process Class” and “all inmates who are now, or will be in the future, assigned to the Pelican Bay [Secure Housing Unit] for a period of more than ten continuous years” for an “Eighth Amendment Class.” See Order Granting in Part Motion for Class Certification; Denying Motion to Intervene, No. C 09–5796 CW, 2014 WL 2465191, at *9 (N.D. Cal. June 2, 2014); Order Denying Motion to Dismiss, No. 4:09-cv-05796-CW, 2013 WL 1435148 (N.D. Cal. Apr. 9, 2013). 10. Plaintiffs’ Second Amended Complaint, supra note 9, ¶¶ 6, 14–23. 736 CALIFORNIA LAW REVIEW [Vol. 104:733 more than twenty years “based on nothing more than his appearance on lists of alleged gang members discovered in some unnamed prisoners’ cells and his possession of allegedly gang-related drawings.”11 Another class member, who purportedly “never incurred a serious disciplinary violation,” spent thirteen years in solitary confinement, and had recently been reidentified as a prison gang member “because he possessed allegedly gang-related Aztec artwork.”12 In 2015, CDCR and the plaintiffs in Askher reached a settlement agreement, which has received final approval by the court.13 The Ashker settlement addressed some of the