LOS ANGELES — At least 524 times last year, California prison inmates suspected of swallowing weapons or drugs had to undergo a “contraband surveillance watch” procedure that, at a minimum, lasted as long as it took them to have three bowel movements.
Also known as “potty watch,” the practice — as described clinically in the operations manual of the California Department of Corrections and Rehabilitation — allows prison authorities to place an inmate “in a medically approved controlled isolated setting … under constant visual supervision observation until the contraband can be retrieved through natural means, or is voluntarily surrendered by the inmate.”
While being watched, the inmate’s hands are restrained so he cannot reach his rectum, the restraints only being relaxed “to facilitate his bodily functions.” Once he has relieved himself into a portable toilet, the toilet or toilet liner “shall be immediately retrieved or removed” so the feces can be examined for contraband.
Normally, the manual states, “inmates will be retained on CSW for a period of not less than 72 hours, or the inmate may be required to complete at least three bowel movements free of contraband prior to being removed from CSW.”
Prison officials say the policy advances the “legitimate penological purpose” of preventing the smuggling of drugs and weapons in prison. Other states have similar “dry cell” procedures designed to extract contraband from inmate feces.
But in California, prisoners have reported being held for much longer than three days, with one inmate last year being kept on contraband watch for 52 days.
“[W]hen I had to use the restroom, they’d have me defecate in a bucket with three guards surrounding me,” an inmate at the Pelican Bay State Prison in Crescent City, California, told the American Friends Service Committee, a Quaker human rights group that reported on the practice in 2011.
“When I had to eat, it was with my dirty hands,” he added. “Even though I gave them five bowel movements they said two were not big enough.”
Laura Magnani, interim regional director of the Quaker group’s San Francisco office, says California goes further than other states in its use of restraints and that the contraband watch policy amounts to torture.
“Even in the history of slavery, I have never heard of a practice this invasive of the human person,” she told MintPress News. “I believe it is used primarily to humiliate and punish people and that there is no justification for it.”
She and others have lobbied lawmakers to tighten regulation of the practice, for example, by requiring prison officials to obtain a court order before conducting a search. Inmates have also filed numerous civil rights suits alleging that the conditions of their confinement while guards awaited their bowel movements violated the Eighth Amendment’s ban on “cruel and unusual” punishment.
According to Magnani, prison officials have found ways around the court order requirement. And a decision last year by a 2-1 majority of the 9th U.S. Circuit Court of Appeals upholding the search of inmate Rex Chappell dealt a blow to hopes of relief from the courts.
“Given [its] important penological purpose and the state of the law at the time, the contraband watch was not ‘such a far cry from what any reasonable prison official could have believed was legal that the defendants knew or should have known they were breaking the law,’” Judge Jay S. Bybee wrote for the majority.
“Warped mentality”
The decision in the case known as Chappell v. Mandeville was a particularly bitter pill for human rights activists to swallow because when Bybee was a top lawyer in the George W. Bush administration, he co-authored memos sanctioning the use of waterboarding and other interrogation methods against CIA detainees.
“[T]he warped mentality that wrought the torture memos has been transplanted, in the form of Judge Bybee, to domestic criminal law, to non-terrorism cases involving American prisoners who, we all can agree, are supposed to have stronger constitutional rights than the men and women who Jay Bybee once authorized to be tortured,” legal commentator Andrew Cohen wrote in a February 2013 column for The Atlantic.
Critics of waterboarding cited the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.”
Magnani believes California’s contraband surveillance watches also meet that definition, noting that the convention “also specifically mentions inflicting pain to punish someone or to extract information.”
According to the California Department of Corrections and Rehabilitation, the practice has been in effect for at least 40 years. The objective, the operations manual says, is “to retrieve contraband without physical intrusion if possible, ensure that contraband is not circulated into the general population, and ensure the safety of the inmate suspected of having the concealed contraband.”
There must be a “reasonable suspicion” that an inmate has ingested contraband, and a request to place an inmate on watch must be approved at the level of captain or above for the first 72-hour period. Approval for an additional 72 hours must come from the prison warden.
Inmates are placed in a single cell with a metal bed, their clothing — one pair of boxer shorts, one T-shirt and one pair of socks — is taped to their bodies, and their hands are shackled so they can’t interfere with any objects that may be excreted. For additional security, they “may be placed in two pairs of boxer shorts with the openings placed/worn in the opposite direction of each other.”
“Sometimes the tape would be so tight it semi-cut off blood flow to my arms or legs,” an inmate at High Desert State Prison in Susanville, California, told the American Friends. “It was truly three days of torture and discomfort.”
The Pelican Bay inmate said he couldn’t sleep because “I couldn’t move my body limbs in any sleep positions due to my circulation being cut off.”
Corrections department records, however, show that only 6 percent of the California inmates who underwent contraband watch last year were found to have ingested weapons and 20 percent were found to have swallowed drugs. Critics say those numbers simply aren’t large enough to justify such an intrusive practice.
“Preventing contraband is a reasonable goal,” Caleb Mason, an attorney for Rex Chappell, told MintPress in an interview. “But that doesn’t mean guards should have to sort through shit in a bucket.”
“Classic torture technique”
Chappell, an inmate at California State Prison, Sacramento, was placed on contraband watch after items that his fiancée had discarded in the women’s bathroom during a visit tested positive for cocaine residue. He was released after three bowel movements did not reveal contraband.
In bringing a civil rights suit against prison officials, the odds were against Chappell. Under U.S. Supreme Court precedent, officials are immune from liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
A federal judge ruled that Chappell could take his case to trial, finding the conditions of his confinement had the “mutually enforcing effect of sleep deprivation that any reasonable officer would know” was unconstitutional. He had complained, among other things, that he could not move his arms, the cell was constantly illuminated, and he was deprived of a mattress.
The 9th Circuit majority, however, reversed that decision. At the time Chappell was under contraband watch, Judge Bybee wrote, “no court had held that conditions similar to those Chappell experienced were unconstitutional in the face of the important penological purpose of discovering contraband.”
Judge Marsha S. Berzon disagreed with the majority, saying it had wrongly applied the immunity test because Chappell did not have to show that the precise facts in his particular case had been addressed previously.
The Chappell case is now the law in the 9th Circuit’s jurisdiction and was recently cited by a California judge who dismissed the claims of an inmate who required six days of contraband watch to produce three adequate bowel movements.
Chappell asked to be X-rayed rather than be subjected to contraband watch but such requests are routinely denied. The sleep deprivation he claims to have suffered, says Magnani, is a “classic torture technique.”
Magnani also noted that contraband watch causescan cause medical problems such as skin rashes that develop from the tape used to restrain them. “Prisoners’ elimination systems are often thrown out of whack by the pressure of the process,” she added.
In 2011, the corrections department agreed to stop using restraint devices fashioned out of large PVC tubes that extended from an inmate’s fingers to elbows, but according to Magnani, prison guards are still using additional hand restraints when the inmate is already handcuffed.
“Can someone really remove something from their feces when they are taped into a suit and handcuffed?” she asked. “It is an extreme form of abuse that must be stopped.”
Magnani now sits on a committee that mediates between the prison system and inmates. One of the demands of inmates who recently went on hunger strikes to protest prison conditions was that contraband watch should be banned.
Officials claim the procedure is “the most reviewed part of the system,” Magnani said. “We’re not convinced review is working. They’re still allowing abuses.”