MEMORANDUM OPINION AND ORDER
MORAN, Senior District Judge.
This is the most recent chapter in the saga of Arizona prisoner Mark Koch. His epic journey through the state and federal courts has been documented elsewhere and we will not recount it here. Suffice it so say that Koch is the subject of no fewer than 14 state and federal court opinions spanning 20 years of litigation and hundreds of pages of published and unpublished decisions.
Since March 1996, Koch has been detained in Special Management Unit II (SMU II) of the Arizona Department of Corrections (ADOC) facility in Florence, Arizona. He is there because he has been validated as a member of the Aryan Brotherhood (AB) prison gang. While Koch has raised a number of claims during the course of this lawsuit, by the time his case went to trial on April 17, 2001, only two issues remained: 1) whether Koch's indefinite confinement in SMU II based on his status as an AB member violates the Due Process Clause; and 2) whether the individual defendants
Trial commenced on April 17, 2001. The testimonial and documentary evidence established the following. Prior to 1996, Koch was designated as a relatively lowrisk inmate and housed in a number of different medium-security facilities within the ADOC. At these facilities Koch was allowed to spend several hours of each day outside of his cell and was able to interact with other prisoners during recreation time in the prison yard and while taking meals in the dining hall. Koch also had the opportunity to take advantage of educational and employment programs. With respect to the latter, Koch worked for several years as a staffer in prison law libraries and as a legal assistant and adviser to other inmates.
The ADOC held another validation hearing for Koch in 1998. Following Department Order 806 (DO 806), which had by then replaced DMO 57,
Life in SMU II is grim.
Koch has existed under these conditions for 66 consecutive months. Koch is serving a sentence of 25 years to life. His status as an STG member and the concomitant level 5 institutional risk score effectively foreclose any possibility of parole. Therefore, unless he debriefs, Koch will remain in SMU II until he dies. The alternative of debriefing, however, presents its own problems. Debriefers are targeted for execution by gang members. In an attempt to provide security the ADOC places debriefers in protective custody in SMU I — a similarly restrictive segregated facility (Herman Dep. at 8). Thus, although ADOC policy in theory provides for a means of release from SMU II, the reality for Koch is that he is likely to remain in what amounts to solitary confinement for the rest of his life.
Given the severity of the conditions in SMU II and the indefinite nature of Koch's confinement there, the question presented is whether the Constitution permits such segregation based solely on Koch's status as an STG member. After three days of trial it was abundantly clear that even if Koch's detention violates due process, there were no clearly established constitutional rules on the subject when Koch was validated as an AB member and placed in SMU II. Therefore, on April 20, 2001, we granted defendants' motion to dismiss Koch's individual capacity claims based on the doctrine of qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Having dismissed all claims for money damages, we then discharged the jury and retained jurisdiction over Koch's claim for injunctive relief — the only remaining part of this lawsuit. We instructed the parties to submit supplemental briefing on the issue whether the Due Process Clause warrants injunctive relief in this case. The parties have now completed their post-trial briefs.
The framework for our analysis is straightforward. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and its progeny establish a two-part inquiry. We must first determine whether Koch's indefinite detention in SMU II implicates a constitutionally-protected liberty interest. If we conclude that it does we must then examine the procedural and evidentiary safeguards afforded to Koch in order to decide whether there has been a deprivation of due process. See Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir.1987), cert. denied, 487 U.S. 1207, 108 S.Ct. 2851, 101 L.Ed.2d 888 (1988); Madrid v. Gomez, 889 F.Supp. 1146, 1270 (N.D.Cal.1995).
I. Is There a Liberty Interest At Stake?
As we discussed at length in our prior opinion, the Sandin decision worked a fundamental change in the way courts determine whether an inmate possesses a constitutionally-protected liberty interest. See Koch, 96 F.Supp.2d at 961-66. Specifically, Sandin abandoned the mandatory/permissive analysis of Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), in favor of an inquiry focusing on the nature of the deprivation suffered by the inmate. Sandin, 515 U.S. at 481, 115 S.Ct. 2293; see Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir.1996) ("Sandin ... refocused the test for determining
Defendants initially argue that Sandin did not discard Hewitt's methodology as much as it added an additional requirement to the basic test. Hewitt held that mandatory language in a prison regulation could give rise to a liberty interest whereas permissive language could not. Hewitt, 459 U.S. at 471-72, 103 S.Ct. 864. Defendants contend that after Sandin an inmate must prove that he has suffered an atypical and significant harship in addition to establishing the existence of a mandatory regulation. Applying this reading of Sandin, defendants conclude that because the state of Arizona has abolished all mandatory-language prison regulations, see McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir.1986), there is no foundation upon which Koch can construct a Sandin-based liberty interest in this case.
Defendants are correct only to the extent that some courts have held that the existence of a state regulation remains necessary in the post-Sandin world. See Castaneda v. Marshall, 1997 WL 123253, at *3 (N.D.Cal. Mar.10, 1997), aff'd, 142 F.3d 442 (9th Cir.1998); Sandefur v. Lewis, 937 F.Supp. 890, 895 (D.Ariz.1996); Jones v. Moran, 900 F.Supp. 1267, 1273-74 (N.D.Cal.1995). Other post-Sandin courts, however, have not looked for a predicate state regulation and in an unpublished decision the Ninth Circuit held that restraints imposing atypical or significant hardship are sufficient "whether regulated by mandatory language in prison codes or not." Pifer v. Marshall, 1998 WL 81335, at *1 (9th Cir. Feb.24, 1998) (unpublished) (emphasis added); see Acker v. Maxwell, 1997 WL 311948, at *2 (9th Cir. Jun.3, 1997) (unpublished) ("We no longer examine the language of prison regulations to determine whether such regulations place substantive restrictions on officials' discretion.");
This brings us to the heart of the liberty inquiry — whether Koch's indefinite placement is SMU II constitutes an "atypical and significant hardship ... in relation to the ordinary incidents of prison life." The Sandin test requires a case-by-case examination of both the conditions of the inmate's confinement and the duration of the deprivation at issue. Sandin, 515 U.S. at 486, 115 S.Ct. 2293; Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir.1996), amended by 135 F.3d 1318 (9th Cir.1998); see Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir.1999). In Koch's case, the deprivation is extreme in both degree and duration. SMU II imposes some of the most draconian conditions that can be found in a modern American prison.
Not surprisingly, the severe conditions of SMU II have adverse psychological consequences. See Miller v. Stewart, 231 F.3d 1248, 1252 (9th Cir.2000) ("it is well accepted that conditions such as those present in the SMU II ... can cause psychological decompensation to the point that individuals may become incompetent"); Comer v. Stewart, 215 F.3d 910, 915 (9th Cir.2000) ("we and other courts have recognized that prison conditions remarkably similar to [SMU II] can adversely affect a person's mental health"); Madrid, 889 F.Supp. at 1230 (discussing the psychological deterioration that results from isolation in SMU-like conditions); see also McClary v. Kelly, 4 F.Supp.2d 195, 208 (W.D.N.Y.1998) ("[the notion that] prolonged isolation from social and environmental stimulation increases the risk of developing mental illness does not strike this Court as rocket science."). The expert testimony submitted by the parties served to confirm the obvious. At trial, Koch's expert testified that isolation in SMU II causes a detrimental pathological effect on the inmate. Defendants' witnesses quibbled with the degree of harm imposed by SMU II, but essentially agreed that extended isolation in SMU II subjects the inmate to heightened psychological stressors and creates a risk for mental deterioration. See Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. Rev. L. & Soc. Change 477 (1997) (summarizing literature on the effect of SMU-like conditions).
A short stay under the severe conditions of SMU II may not raise due process concerns.
Relying heavily on Resnick v. Hayes, 213 F.3d 443 (9th Cir.2000), defendants argue that Koch cannot establish a liberty interest because the conditions in SMU II are essentially the same as the conditions in other segregated units in Florence. See Resnick, 213 F.3d at 444-45; see also Sandefur, 937 F.Supp. at 896. We do not agree that Resnick compels such a conclusion. First, the plaintiff in Resnick was placed in Pelican Bay's SHU for 70 days pending a disciplinary hearing. Koch has been confined to SMU II for more than five and one-half years and is likely to stay there until he dies. This is enough of a difference to render Resnick inapposite. Second, the plaintiff in Resnick did not allege that the SHU was materially different from conditions imposed on inmates in discretionary segregation or the general population, nor did he contend that the SHU created a major disruption in his environment. In contrast, Koch has demonstrated quite forcefully that his existence in SMU II bears little resemblance to his prior prison life outside of that facility. Measured by both degree and duration, Koch has suffered a form of detention that is far worse than the conditions experienced by the typical inmate. Put simply, five and one-half years of isolation in SMU II far exceeds "what one could expect from prison life generally." Williams v. Ramos, 71 F.3d 1246, 1249 (7th Cir.1995).
Prisons are in the business of depriving liberty. And federal courts are to tread lightly with respect to prison management. We are neither unaware of nor naive to these realities. Even so, the Constitution
II. Has There Been a Due Process Deprivation?
Having determined that a liberty interest is at stake, we look next to see if Koch was given all the process he was due under the Fourteenth Amendment. The Due Process Clause provides inmates with two types of safeguards. The first category consists of procedural protections. Generally, an inmate designated for placement in segregated confinement must receive adequate notice, an opportunity to be heard, and periodic review. See Wolff v. McDonnell, 418 U.S. 539, 563-70, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987).
At this stage in Koch's lawsuit, only the evidentiary component of due process remains relevant. Koch is being confined in SMU II based on the 1998 validation hearing. He makes no allegations of procedural deficiencies in connection with that hearing. In his brief Koch points to the numerous procedural shortcomings of the 1996 validation hearing. But those failings are no longer relevant, as the only claims remaining in this lawsuit are for injunctive relief and Koch's present detention in SMU II stems from the 1998 validation hearing. Thus, the procedural component of due process is not at issue. The focus here is on the evidentiary element, i.e., whether defendants presented "some evidence" with "indicia of reliability" sufficient to justify placing Koch in SMU II for an indefinite (likely permanent) term.
Koch was validated as an STG member at the 1998 validation hearing based on three types of proof: a group photograph, evidence of associations, and membership lists. The photograph was taken in 1981 at a prison rodeo event and depicts Koch posing with other inmates known to ADOC officials as members of the Aryan Brotherhood. At trial, Harkins testified that AB
Hill admonishes that courts should refrain from re-weighing the evidence when conducting a due process examination, and instead look to see if "there is any evidence in the record that could support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 455-56, 105 S.Ct. 2768. An even more important charge, however, is that courts must never lose sight of the nature of the liberty deprivation that is at stake in the first instance. That is the central lesson of Sandin. The nature of the deprivation is the paramount consideration in the due process analysis, critically relevant at both the liberty and process stages of the inquiry. As we held in our prior opinion: "Sandin was an attempt to return to basic due process principles which stress proportionality and a balancing of the interests involved. More process is due where the deprivation is greatest." Koch, 96 F.Supp.2d at 964-65 (footnote omitted). This is in keeping with Sandin and Hill. See Sandin, 515 U.S. at 478, 115 S.Ct. 2293 (hearkening a return to the principles of Wolff and "its intricate balancing of prison management concerns with prisoners' liberty in determining the amount of process due"); Hill, 472 U.S. at 454, 105 S.Ct. 2768 ("The requirements of due process are flexible and depend on a balancing of the interests affected by the relevant government action.").
Indefinite, and likely permanent, detention in SMU II strikes us as one of the most severe deprivations of liberty that can be visited upon an inmate within the ADOC. Defendants do not dispute this point. Given the extreme nature of the deprivation at issue here, the question then becomes: is Koch's status as a member of the Aryan Brotherhood, absent evidence of any overt acts of misconduct, sufficient to justify indefinite detention in SMU II? We think that status absent misconduct is not enough under these circumstances.
Determining the status of an inmate as a gang member is fraught with difficulties. According to one court-appointed monitor:
Madrid, 889 F.Supp. at 1272 n. 221 (quoting report of the monitor appointed in the Toussaint litigation). The director of California's STG program concurs, stating that gang membership is difficult to ascertain with precision absent evidence of "over acts, self-admission, [or] gang related offenses." (Parry Dep. at 21). The extreme act of placing an inmate in SMU II for an indefinite term should not be based on such a precarious endeavor.
This conclusion has support in the literature regarding prison management of gangs. A number of recent studies conclude that incarceration in SMU-like conditions should be based on some evidence of overt misconduct and not on status alone. See Scott N. Tachild, Indeterminate Sentences in Supermax Prisons Based Upon Alleged Gang Affiliations: A Reexamination of Procedural Protection and a Proposal for Greater Procedural Requirements, 83 Calif.L.Rev. 1115, 1138-46 (1995); Supermax Prisons: An Overview and General Considerations, U.S. Department of Justice, National Institute of Corrections, Jan. 1999 (Koch Exh. II.5) (suggesting that segregation should be based "solely on actual behavior" because "[a]ttempting to use predictive criteria based on subjective information has led historically to unsatisfactory and possibly indefensible results"); Phillip Kassel, The Gang Crackdown in Massachusetts Prisons: Arbitrary and Harsh Treatment Can Only Make Matters Worse, 24 New Eng. J. on Crim. & Civ. Confinement 37, 59 (1998) (discussing prison studies and arguing that prisons should "punish prisoners' conduct, not their status" in part because "[p]unishing status, particularly since accurate gang identifications are so difficult, can give rise to the justified perception of arbitrariness in prison management, contributing to instability."); Human Rights Watch, Supermax Prisons: An Overview, at http://www.hrw.org/reports/2000/supermax/Sprmx002.htm (arguing that "[m]ere membership in a gang, absent actual dangerous or predatory behavior, should not be the basis for supermax confinement."); Jerry R. DeMaio, If you Build It, They Will Come: The Threat of Overclassification In Wisconsin's Supermax Prison, 2001 Wis.L.Rev. 207, 229 (2001) ("The only fair solution may be to define gang activity based on objective, concrete criteria, such as documented assaultive or threatening behavior. This would lower the risk of misidentifying gang members, and subjecting them to unnecessary intensive incarceration at [Wisconsin's SMU equivalent].").
Focusing on conduct rather than status is a familiar constitutional concept. The Supreme Court has endorsed this principle in a variety of different substantive contexts. For example, when it examined McCarthy-era laws regarding subversive organizations, the Court held that "the bare fact of membership" in the Communist Party was an insufficient basis for punishment; rather, due process required proof of active involvement, specific intent, or illegal conduct prior to deprivation of a protected right. Aptheker v. Secretary of State, 378 U.S. 500, 509-14, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964) (holding that a provision of the Subversive Activities Control Act which prohibited a Communist Party member from applying for or using a passport infringed on Fifth Amendment guarantees); Scales v. United States, 367 U.S. 203, 221-28, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961) (holding that the Smith Act's membership provision did not violate the Fifth Amendment's Due Process Clause only because it required evidence of active membership and a specific intent to overthrow the government and was not directed at punishing "nominal membership"). Similarly, in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962),
More recently, the Supreme Court has criticized status-based deprivations as contrary to equal protection principles. See Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (striking down Colorado Amendment 2, which prohibited local governments from enacting laws protecting the civil rights of gays and lesbians, in part because "[i]t is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests ..."). See also Steffan v. Perry, 41 F.3d 677, 709-14 (D.C.Cir.1994) (en banc) (Wald, J., dissenting) (arguing that military regulations prohibiting gays and lesbians from serving in the armed forces are unconstitutional because, inter alia, they punish status not conduct); City of Chicago v. Youkhana, 277 Ill.App.3d 101, 213 Ill.Dec. 777, 660 N.E.2d 34, 41-42 (1 Dist.1995) (holding that a city ordinance prohibiting gang members from loitering was unconstitutional because, inter alia, "it is not the conduct, but the status, that triggers the ordinance."), aff'd on other grounds sub nom., City of Chicago v. Morales, 177 Ill.2d 440, 227 Ill.Dec. 130, 687 N.E.2d 53 (1997), aff'd, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). The consistent theme to be drawn from these varied cases is that a liberty deprivation should be based on misconduct, not status, and courts should be wary of regulations that provide otherwise.
The indefinite nature of Koch's confinement in SMU II makes his status-based detention even more alarming. Under DMO 57, a validated STG member was allowed to demonstrate that he was no longer an active member of the gang and thereby become eligible for transfer out of SMU II. Indeed, the ADOC determined that Koch was an inactive AB member in 1997 (Koch Exh. I.10). DO 806 rescinded the active/inactive provision of the regulation as it pertained to validated STG members. According to defendants, the distinction between active and inactive is meaningless because gang membership is a lifetime commitment. Defendants contend that there essentially is no way out of a prison gang. And since debriefing sets the inmate on a path to protective custody in SMU I and not release to the general population, there is no realistic way out of solitary confinement.
We are not unmindful of the danger posed by prison gangs.
Due process is a flexible concept that balances the need to avoid arbitrary deprivations of liberty against the interests of deferential prison administration. Hill, 472 U.S. at 454-55, 105 S.Ct. 2768. Here, Koch has endured five and one-half years in SMU II—an extreme form of liberty deprivation. In order to balance the scale, due process requires more than just proof of status. The ADOC presented no evidence of misconduct on the part of Koch at the 1998 validation hearing. Therefore, his continued detention in SMU II offends the Due Process Clause.
For the reasons set forth above, Koch's motion for injunctive relief is granted. Five and one-half years in SMU II, with no realistic prospect of release from solitary confinement, cannot follow from a process based solely on status and not at all on evidence of overt acts of misconduct. We order that Koch be released from SMU II.