In a San Diego courtroom recently, Judge David Danielsen faced a tough decision: Should he grant freedom to a state prison inmate under a voter approved ballot initiative, even though the offender had been held in isolation for 15 years because authorities alleged he was a player in a violent prison gang?
Sitting before Judge Danielson in a green jumpsuit was 44-year-old Tino Aguilar. The repeat felon was serving a 25-to-life sentence under California’s Three Strikes law. But due to a change in the law last fall, Aguilar was eligible for release because his third strike was a minor crime -- possession of stolen property. That is, unless a judge decides he’s a significant threat to public safety.
Aguilar’s many years at Pelican Bay State Prison, where inmates are often called the worst of the worst, was a key issue in the case, according to San Diego County deputy district attorney Greg Walden.
“That’s the first thing you think,” he said. “It’s the worst of the worst. It’s like the super max. It’s where they put the Hannibal Lecters.”
Aguilar was transferred to Pelican Bay when state prison officials found items in his cell, which they claimed linked him to the Mexican Mafia, a notorious prison gang.
“When you’re using these labels, in Southern California we take it very seriously” said deputy public defender Joey Super, Aguilar’s attorney.
“We do have a lot of cases involving the Mexican Mafia and so being a judge in this community and being lawyers in this community, we do know what’s really going on,” she said.
Initially, Judge Danielsen was reluctant to release Aguilar. But when the lawyers dug up his prison file, they were surprised to discover that a key piece of evidence held up as proof of gang involvement was a drawing of a Mexican flag, supposedly with hidden symbols. Even the prosecutor, Greg Walden, agreed, it wasn’t much.
“We look at evidence,” he said. “We don’t make decisions based on flights of fancy. The fact is that for the last 18 years or however long he (Aguilar) had been up there he hadn’t done anything.”
Walden surmises that while Aguilar hadn’t done anything tangible for the gang, prison officials believed he might be able to provide useful intelligence. So they placed him in Pelican Bay’s stark security unit, hoping he would give up information.
“He was being housed there not because he was the worst of the worst, only because they felt he had information that might be important in order to run the prison, to keep the prison safe,” Walden said.
Aguilar’s case is not unique. Hundreds of other inmates have been held in the security units based on indirect evidence such as drawings, letters and tattoos as well as secret reports from confidential informants, according to figures compiled for a 2007 Department of Corrections internal review.
“Once you get in there, it’s hard to get out of there,” said Lonnie Rose, a former inmate.
Rose was convicted of drug possession under California’s original Three Strikes law and then held at Pelican Bay for nearly ten years for gang ties. In April, a San Joaquin County judge found Rose also wasn’t a threat to public safety and ordered his release.
“I was lucky enough to where the judge and the district attorney took it for what it was,” he said. “They looked at ‘What has he done,’ not ‘What did people say.’ ‘what has he done himself, personally’”
At his apartment in Stockton, Rose paged through documents spread out on a coffee table, including copies of items used by prison staff to connect him to the Aryan Brotherhood. He pointed to a greeting card from his son, a drawing and a book of complicated word puzzles. The book was inscribed with the name of an alleged prison gang member. When guards discovered the book in Rose’s cell, Pelican Bay staff claimed it indicated he was “actively associating” with the Aryan Brotherhood.
Cases like Rose’s are fueling the large-scale hunger strike that began on July 8 at Pelican Bay and spread to 24 prisons around the state.
Kelly Harrington, an associate director in the California Department of Corrections and Rehabilitation, said officials are sharpening the criteria used to place men in the security units but he defended the use of books, drawings and greeting cards as indicators of gang ties.
“What most people don’t realize,” he said, “is those items, they may seem trivial, those are very significiant items to inmates when they want to be part of a gang. And it’s incumbent upon us to actually have to get the intelligence to figure out which of those items are significant in the gang lifestyle.”
Still, some judges aren’t convinced.
San Diego Superior Court Judge David Danielsen completed a review hundreds of documents from Tino Aguilar’s file. At a June 14 hearing, he ordered Aguilar’s release from prison
“The facts and evidence in this case demonstrate to this court that this petitioner at this time does not pose an unreasonable risk to public safety,” the judge said.
Three weeks later, Aguilar was on hand at a protest in Norwalk to support the inmate hunger strike.
“It was my opportunity to give back and be a voice for individuals who do not have a voice at this time,” he said.