Salinas Valley State Prison A1-104
PO BOX 1050 Soledad, CA 93960

January 3, 2021

California Department of Corrections and Rehabilitation (CDCR)
Regulation and Policy Management Branch
PO BOX 942883
Sacramento, California 94283-0001

RE: NCR 21-13

Comments — in response to proposed regulatory changes


I am not a convict. I am not a prisoner. I am not an inmate. I am a person who has been falsely accused and convicted of sex crimes against children and I have been placed into a world of profound dysfunctionality within the custody and control of the CDCR, and yet in the proposed regulatory changed which are the subject of my comments herein, there is no mention of the inherent risks I face while in prison from prisoners and staff alike.

Nonetheless, convicts, prisoners, inmates, and myself are people, not conjecture. The proposed regulatory changes related to housing, special needs yards, non-designated programming facilities, and classification issued on December 3rd, 2021, with a designation of NCR 21-13 is welcomed by many prisoners and their families to be sure but in my estimation the proposal needs refinement before it should be adopted.

It is time for some straight talk. The proposal put forth is more idealistic that realistic and that places many people at risk and so I would simply say: Stakehold this.

Government is broken. The CDCR is broken. The right had does not know what the left hand is doing. My anecdotal evidence is well documented In the CDCR, the system is broken because there is a focus on saving money without any consideration as to the ramifications of that goal, based on empirical data, or boots on the ground research. Sure The People of California demand responsibility and accountability while abhorring waste, but the reality is that a proper cost vs. benefit analysis is mandatory for a successful business. And let's be clear, the CDCR is a business. It is the linchpin of the entire industrial prison complex.

I can anticipate your thoughts right now, and they are “Whoa, enough of these tired and typical prisoner complaints.” But this is far from a typical complaint, and in fact, it is a constructive suggestion as will be shown by the end of my comments. My comments will go much deeper than complaining for I will propose an alternative approach that is both idealistic and realistic while being cost effective at the same time. You see, I am a businessman who knows what it takes to get things done on a budget. I just happen to be in prison and the dysfunctionality which surround and oppresses me daily warrants this effort towards the proposed regulatory changes detailed in proposal No. NCR 21-13. Please consider these points:

  • The Anticipated Benefits

  • The Definitions

  • Inmate Housing Assignments

  • Sensitive Needs Yard Designation

  • Sensitive Needs Yard Designation Process

  • Non-Designated Programming Facility

  • Classification

  • Alternatives

  • Conclusion

I will conclude my comments with an invitation to read the attached article “Rehabilitation in the CDCR” which I wrote in response to the Koo Koo cray cray world that a prisoner faces in CDCR custody. I believe you will find my comments and article to be fodder for an idealistic and realistic solution.


The anticipated benefits are well presented in the proposal but the proposal is woefully incomplete despite the strong effort put forth in its creation. The proposal is lacking in addressing the specific needs in play at this time.

In this comment I will discuss the establishment of uniform criteria, the exclusion of non-programmers, the reality that no policy means no liability, that there are in fact fiscal impacts and effects on worker safety, and I will suggest that alternatives exist to the proposed regulatory changes. I will couch my premise in the concept that it doesn't need to be an either or solution, it needs to be a this-and-that solution.

The proposed regulations advertise the opportunity for lower-security level housing and enhance personal freedom and that may be true, however the cohesiveness and coherence of inmates in any facility, any unit, any cell, demands not only proper classification and resultant assignment, but also opportunity to incentives on a day to day basis. This incentivization will promote a better citizen upon release as well as a better citizen in prison. The fact that an NDPF inmate will be removed from a NDPF yard if they gangbang presents at least two issues that I can discern. The first is the fact that there are manifold reasons an inmate will victimize other inmates not related to gang activity. Second is the fact that there is nowhere else to go for an outcast NDPF inmate, especially when the goal of the CDCR is to eliminate all SNY/GP classifications. The one size fits all goal is on its face a dangerous proposition for prisoners and staff alike.

The fact that there are no policy violations found in the analysis of the proposed regulations belies the reality that most regulations are vague and rife with discretionary variables whereby an arbitrary and capricious decision is justified and Government Code § 820.2 eliminates liability for officials who make discretionary decisions. Basically this proposed regulatory change perpetuates this discretionary mandate and disguises it as well-meaning when the bottom line of it all is that the CSR still makes the final decision arbitrarily and capriciously.

As for the fiscal impacts of the proposed regulations, it is simply absurd that the CDCR can find no cost differential in its analysis. The actuality of violence on NDPF yards is well documented and there can be no prognostication as to the actual cost of these major changes proposed and so undetermined would be a more honest analysis rather than none as the projected fiscal impact.

Another comment I have is in reference to the statement that the proposed regulatory changes will have no effect on worker safety and that is just plain crazy talk. Without clear classification mandates, it is left to the arbitrary actions of staff and/or the CSR to determine housing and facility assignments and so the forced housing of inmates who are not compatible in real terms and from an actual safety standpoint will continue. Take the case of Williams v. Allison 2021 U.S. Dist. LEXIS 152808 (clarified as 2021 U.S. Dist. LEXIS 148827). This is a case where an inmate was forced into a cell (Id. At pp. 7-9) and I was at Corcoran on 3B yard in building 01 cell 126 at the time of these incidents and saw how dirty Castro and Hicks were. Suffice to say, arbitrary and capricious empowerment of staff negates all the principled idealism which is the apparent goal of these proposed regulatory changes. (See Attachment A).

So while worker safety is stated to not be affected, the result of these proposed regulations cannot be prognosticated in this instance either. The formal process described in this section is nothing more than idealistic hyperbole and the reality is as I just described, and is detailed throughout LexisNexis.

As to alternatives, I have many for this Regulation and Policy Management Branch to consider but I will present them last after a complete review of the proposed regulatory changes related to housing, special needs yards, non-designated programming facilities, and classification.


Missing from the list of definitions is “screening authority” even though the proposal attempts to explain what is mean in the Specific Rationale portion on page six of the Initial Statement of Reasons document.

The definition of Confidential Inmate Safety Closure Report does not specifically identify the sources to be considered in relation to facts or evidence directly as opposed to anecdotal facts or evidence.

Localized and Systemic Safety Concerns notably do not mentions sex offenders with an “R” suffix who are most at risk on a prison yard by prisoners and staff alike. (See Attachment A). The regulatory changes should define “R” suffix inmates as requiring special systemic considerations by staff, and the CSR as mandates, not discretionary decisions.


As discussed above, the arbitrary and capricious housing assignments made by staff are sometimes dangerous and are made by staff and in essence, can be made by any staff member per regulation even though there is a proviso in the Specific Rationale portion of the proposal as to whom may make that decision. The reality on the ground is that the correctional officers, who are often also acting correctional sergeants or have sway with their sergeants can and often do get their way in housing “problem” inmates to punish them. This is not make believe innuendo, this is reality and the Regulation and Policy Management Branch knows this or is woefully ill equipped to fulfill its mandate to properly classify inmates, and house them in a safe manner at all times. There is no mention directly of sex offender or “R” suffix prisoner in 15 CCR § 3269(b) even though subsection (b)(15) vaguely refers to commitment offense. Why beat around the bush? The CDCR labels and discriminates against sex offenders with the attachment of an “R” suffix to all their paperwork all day long and yet is afraid to state the obvious. C'mon, really?

So the “screening authority” makes the housing call but in all reality, the CDCR staff is on the same page and the mandate as best I can read it is that “staff” or the “screening authority” can do whatever they want to with impunity, and in support of each other's agenda or goals in managing prisoners. I get it. The CDCR's attitude is fine, so sue me. And therein lies the rub.

Let's examine the case of Samaniego v. CDCR 2021 U.S. Dist. LEXIS 29750 which involves an NDPF inmate who is not a child molester, he is a gang member with gang tattoos on his face. Here a prisoner is attacked after telling staff he was at risk, and beaten while numerous correctional officers stood by and did nothing. Yet even though he became a quadriplegic as a result of the attack, and was granted medical parole, his case was basically screened out because he lacked the ability to properly state a claim and litigate it.

The facts are not in dispute. Prisoners messed him up and still the CDCR skirts responsibility for a variety of reasons and then claims that any generalized fear is purely speculative and does not therefore put staff on notice of a specific threat that they can then be accused of being deliberately indifferent to. The law is clear, but there is a catch, at least in the federal courts, and that if the policies put in play by the CDCR are shown to always be creating a risk for inmates, then the policy is subject to attack in the federal courts. The state courts are a different matter but I will leave this discussion and return to the comments about housing assignments. Even though I could sue, it doesn't save me from harm, it only compensates me for it. The “staff” or the “screening authority” can set me up and so there needs to be specific and meaningful mandates for a regulation to have teeth and achieve its idealistic objectives.

One final comment on housing assignments and that relates to the racial component. This is derived from Johnson v. California (2005) 543 U.S. 499 which forced the CDCR to racially integrate inmates in double cells. The CDCR's housing protocol should be based on compatibility of a similar growth path and a commonality among cellmates, not on some one size fits all “first available and appropriate bed” arbitrary and capricious (or lazy) decision making process. The CDCR can do better. In the alternatives portion, post, I will discuss an alternative that ameliorates my concerns stated here.


Here we are again at the use of the term “verified systemic safety concern”. I am sure every prisoner has one of some sort. But the new 15 CCR § 3269.2 in subsection (b)(2) refers to a definition that I have already states makes no mention of “R” suffix inmates. In fact, it makes no mention of any specific criteria other than the concern extends system wide as opposed to localized safety concerns. Clearly a sex offender as systemic safety concerns and there is no reason to hide this fact, or disguise it with abstruse reference. The new § 3269.2 subd. (b)(4) identifies an STG-1 label so why not “R” suffix identifiers? Just wonderin'.

Because in § 3269.2, subd. (c), it says the nature of their commitment offense is not enough to allow SNY housing. I am perplexed by this. This subdivision reads that even if you are a child rapist, you are not worthy of SNY protection anymore and so I am super opposed to this new regulatory language and I have standing to object so I am objecting. Subdivision even goes so far as to say the CDCR shall not rely solely on the nature of their commitment offense which in effect says do whatever you want to these perverts, they've got it coming. This is all based on conjecture that an “R” suffix prisoner can safely house with inmates and staff who are violently opposed to sex offenders. 'Nuff said.


There is really no need for a lengthy diatribe here, the new regulation 15 CCR § 3269.3 clearly empowers the CSR to do any and all things he or she wants to do with impunity. (See Id. subd. (c)(1)(A)(5)(C) and (d)(1)). I object to this language and I have standing to do so.


My comments regarding the new NDPF regulation 15 CCR § 3269.4 revolve around the emphasis on gangs and Security Threat Groups and the complete disregard for the safety and security of inmates with an “R” suffix who are being forced to house on NDPF yards with “active” inmates. Plainly it says in subdivision (a) that “NDPFs house inmates who demonstrate positive behavior and a willingness to participate in rehabilitative program and conform to departmental policies, free from [STG] influence and behavior." No mention of violence or predatory behavior or any other specific behavior besides STG activity. Hmm. Surely the word "willingness" is a misnomer because if you have level two points, you are in an NDPF facility in the existing CDCR world. And then there is the whole subdivision (b) mystery of what happens to an inmate who gets kicked off an NDPF yard? There simply is nowhere to go but another NDPF yard because there is no other option that provides for an outcast NDPF prisoner. Am I missing something here? For all the reasons I have stated I am objecting to this language as well and I have standing to do so.


In the amended 15 CCR § 3375.2(b), subsection (24) it identifies a new classification determinant SNY and states “SNY. Inmate has documented and verified systemic safety concerns.” Now surely the CDCR, with all its money and talent can do better than use some vague and conclusory language which has already been discussed herein regarding “systemic safety concerns” criteria.

There needs to be much more specificity as to what the documentation and verification actually is. The fact is that there should be valid and specific empirical data used to document and verify, not conjecture, supposition, prognostication, or anecdotal speculation, inter alia. Suffice to say, I am objecting to this language as well and I have standing to do so. I will now offer an alternative or two for your perusal.


The NDPF model is predicated on SNY or GP (non-SNY) designation and it shows the CDCR's unwillingness or inability to properly and competently classify, administer, discipline, and rehabilitate its wards. The CDCR and its efforts to find a one size fits all solution may be easier but it is not safer, for anyone. Here are some ideas to consider:

  • Broad based classification based on the desires, goals, and lifestyles of inmates that they may house and associate with likeminded and goal oriented inmates.

  • A step program that isolates the violent or less compliant inmates into structured yards and housing (with similar likeminded “convicts”) and utilize incentivization to motivate individuals into progressively more programming and benefit rich opportunities based on specifics efforts and desires, not on conjecture.

  • A database solution for use by “staff” or the “screening authority” and the “CSR” within SOMS that matches inmates with other likeminded inmates based on a match score similar to a risk score. This database would be built based on a questionnaire like Compas to assess a variety of factors from objectives in like to TV to family etc. This questionnaire should be completed before each committee and can be implemented via the GTL tablets. I am a database to web solutions expert and I would be happy to prototype a solution for the CDCR, on paper of course ;)

  • Eliminate the CSR override of a committee action related to SNY and especially sex offender, “R” suffix inmates and follow the spirit of AB 292 and allow prisoners to self-determine their outcome through incentivization instead of correction. Sure, you must correct those wayward souls who need correction, but it should lead to rehabilitation and reformation, not frustration. You can't keep them in prison forever, so you might as well fix them. I would suggest the risk vs. reward concept since reformation is the societal goal these days, not mass incarceration. The days of endless and mindless punitive action is over in my estimation.


Which leads me to this. I invite you to consider my article “Rehabilitation in the CDCR” which is available at but it may not be up quite yet so I have attached a copy. Remember, the CSR = Arbitrary and Capricious. Having the CSR be the sole determinant of a prisoners fate is an unreasonable criteria for determining all the idealist goals envisioned in the proposed regulatory changes. It is not a realistic way to achieve safety nor rehabilitation and therefore I object to this version of NCR 21-13 and I have the standing to do so.

I declare the foregoing to be true and correct and I have personally expressed my views and I declare this under penalty of perjury under the laws of the State of California. I have executed this declaration and created this document on January 3rd, 2022 at Salinas Valley State Prison in Soledad, Monterey County, California.

Michael Jay Harris