The following email from Middle Ground Prison Reform founder Donna Hamm was sent to the AZ Senate Appropriations Committee after the AZ DOC director, Charles Ryan, presented his Dumb on Crime Budget. Donna and I don't exactly see eye to eye on a lot - I think privatizing the prison business is unethical and dangerous, myself - but she really nailed it with this email about protective custody.
Frankly, I think the prisoners could do a much better job running the prisons than the Good Old Boys at the DOC are - it's just that the wrong prisoners are in charge right now. See When the Prisoners Ran Walpole for more on that theme...
----1/23/14 email from Donna Hamm to AZ Senate appropriations chair Don Shooter--
Subject: Appropriations Hearing Follow-up
Date: Thu, 23 Jan 2014 08:25:11 -0700
Senator Shooter and Members of the Senate Appropriations Committee:
First, thank you for taking public testimony at the hearing on January 21, 2014. I am aware that these types of hearings usually do not include opportunity for public testimony.
Second, during my remarks to the committee, I misspoke regarding one fact. The Does v. Stewart litigation that was mentioned by myself and by Charles Ryan was initially a lawsuit that began in the district court as Does 1-5 v. Lewis. Hence, it was former DOC Director Sam Lewis, not Terry Stewart, who arbitrarily decided to limit the number of beds that would be available to prisoners requiring protection custody (PC). When Terry Stewart took over as Director, the litigation caption was changed to Does v. Stewart. I apologize for the error and I advised Terry Stewart that I would inform you of my mistake.
Thank you for requesting that I put my notes taken at the hearing into an email to you and assuring me that you would distribute my comments to the rest of the committee members. Since the DOC budget is one of the largest in state government, it is important that legislators make informed decisions about all aspects of that budget.
Middle Ground Prison Reform, by the way, does not oppose private prisons per se. In fact, of the many letters we receive each month from prisoners located in prisons throughout the state, few come from prisoners housed in private prisons. Prisoners tell us, for the most part, that private prisons have newer, better infrastructure; more polite and professional guards; better food; better, more effective programming; and more relaxed visitation. Of course, we acknowledge that the prisoners confined in private prisons are better behaved than maximum and close custody prisoners housed in state facilities, and that their crimes are usually less serious. Although there are many arguments back and forth about whether the private prisons save money or are a good bargain for the state, we believe that the better service they provide is worth the extra cost, if they cost more. We do disagree with the fact that the contracts require a 90% guaranteed occupancy rate and that it is much more difficult to obtain information (public records) from a private facility. Still, we don't oppose the use of private prisons to provide relatively quick provision of prison beds when needed. Many functions of government are privatized and we do not object to privatized prisons as long as they are held strictly accountable to their negotiated contracts and that proper and diligent monitoring of their operations is consistently maintained.
With respect to some of the discussion that took place at the hearing and with regard to some of the questions asked by committee members and the responses provided by Director Ryan, we provide the following observations/opinions for the committee's consideration.
Director Ryan spoke of the huge increase since 1998 in protective custody population (432 in 1998; 3,553 (9.5% of the population) as of 12/13). We believe this must raise alarm bells for legislators -- what on earth is causing all these inmates to require protection? Remember, Director Ryan did not provide you with the number of inmates who are currently in the 805 process (which refers to Department Order 805, the internal management policy which governs the process for obtaining protective custody). Those 3,553 inmates who are already assigned to PC as of December 2013 have already been thoroughly investigated by the DOC and have been determined to have a genuine state-wide security issue. That is to say, whatever security issue or issues have developed for them has been determined by DOC administrators -- all the way up to the Central Office where the final decisions are made, and not by the prisoner himself -- to be an issue so serious that he cannot be placed in any general population unit of any prison in the Arizona system. That's the only way a prisoner obtains PC classification.
We were dismayed to hear Mr. Ryan's somewhat cavalier description of the reasons why inmates "need" PC and his implying that many inmates arrive on the doorstep of DOC and immediately request PC because they want to be housed in a one-man cell. Clearly, of the 3,553 already investigated and approved for PC (admittedly, by Charles Ryan, the largest PC population of any state prison in the USA), there are none of these malingerers in the count. The Director testified that either as of 12/13 or during the month of 12/13, 358 inmates requested PC. How many of that number were granted during the relevant time frame? The actual number granted PC out of the 358 requesting PC will demonstrate that the DOC is not over-using PC and is not granting it to malingerers. Inmates who are being investigated for potential classification to PC should not be counted in the 3,553 number mentioned by the Director; instead, they are in the "805 process" (referring to Department Order 805, which is the policy governing protective custody).
Prison officials don't like to admit it, but there is an aspect to prison life that fits the "inmates are running the asylum" theory. Here's why.
When an inmate arrives on any DOC yard/unit, a prisoner who represents the gang that runs the yard (for prisoners of the same ethnic group as the new arrival) will approach the newly arrived inmate and perform what is referred to as a "roll call." " Roll call" is the process of determining whether the new arrival has "bad paperwork." The new arrival will be asked for his "paperwork." His paperwork consists of police reports on his case, his Presentence Report, his Sentencing Minute Entry, his Plea Agreement, etc. The prisoner is expected to produce these documents so that the "head" of the yard (for his race) can determine if there are any obvious problems with the paperwork, such as the prisoner having turned over the names (snitched off) any other co-defendant (even if that other person was never charged with a crime); testified against anyone; committed a crime that involved or occurred in the presence of children or against a young female; or anything that calls into question the person's "loyalty" to the unwritten convict code, which includes certain "rules" that all inmates are expected to follow.
If the paperwork is determined to be "bad paperwork," most of the time the inmate is advised by someone that he should get himself rolled up off the yard (that is, go to PC/805 investigation) by the next morning or he will be removed from the yard in a helicopter (implying that he will be injured badly enough to require air evacuation to a hospital). Even if this act would not actually be carried out, the threat alone constitutes ample reason for an inmate to request an 805 investigation. Sometimes the threat is, in fact, carried out, with resultant injuries to the targeted inmate -- sometimes serious; sometimes not.
Checking the paperwork in the first step in roll call. For example, if the inmate arrived from another yard on a bus with other inmates, one of the yard leaders will pick up a (contraband) cellphone and call his counterpart on the other yard and will ask if there are any known "problems" with the inmate (problems include such things as drug or gambling debts, previous requests for PC, other known issues with that inmate, or any suspicions or unresolved issues on that other unit).
Inmates who are perceived to be weak, often young or young-looking-for-their-age, small in stature; naïve, first-time-in-prison offenders (which, according to DOC documents presented to you, comprise 51.9% of the total current population), are often approached and advised that they must pay protection money or they will be beaten. Many of these inmates are very fearful and pay "taxes" or "respect money" to gang members and others in order to avoid being assaulted or having their property or commissary items stolen.
Some prisoners fall prey to the wide variety of drugs that are readily available in every prison unit (albeit, they are more expensive in prison due to the risk involved in securing them either through visitors or staff). As the DOC noted in its materials presented to you, 75% of prisoners at intake have significant substance abuse histories. Despite what you were informed about all the programs available, there are long waiting lists for substance abuse programs, and such programs are not available on every prison yard, nor are AA or NA groups available on every yard. Once a prisoner begins using drugs in prison, it is almost a sure bet that he will eventually owe debts for the drugs, in addition to "tax" when he doesn't pay his drug supplier on time, and "respect" money that is paid to the gangs just because they demand it. Middle Ground frequently assists family members pleading for their son's placement in PC who have paid thousands of dollars in extortion monies which began as paying off debts for their son, etc. and end up with just paying money because they become a ready source of cash.
Recently, the DOC implemented a policy whereby only a person on the prisoner's visitation list may send a Securepak (i.e., items that may be sent as a gift box to an inmate, which includes everything from specialty food items to toiletries). This policy was implemented because extortionists were ordering extortion victims to have the victim's family member send a Securepak to the extortionist. However, money orders can still be sent to any prisoner by any free world person. Hence, when extorting an victim, an inmate can simply have the victim's family send a money order to the extortionist's inmate account. If he wishes to avoid having the money come to his account, or if the DOC passes a policy to prohibit money orders except from someone on the prisoner's own visitation list, the extortionist will simply demand that his victim's family send a money order to a girlfriend, parent, etc. who lives in the community, and that person, on the extortionist's visitation list, will have the money forwarded to his inmate spendable account.
The point is: What is the DOC doing about this serious problem? How much do these problems affect prison operating budgets?
Case law abounds from the U.S. Supreme Court, which is binding in Arizona, and from the Ninth Circuit Court, and even from Arizona courts, formally holding that prisoners have a constitutional right to be safe from harm and that prison officials must take steps to protect an inmate when prison officials know or should know that a credible security issue exists. Prison officials must protect a prisoner from harm even if he has never actually been assaulted (a credible threat of assault is sufficient to trigger constitutional protections) and even if the security issues are of his own making.
Legitimate Questions for the DOC:
1. How/why are drugs so readily accessible in prison?
2. What are you doing to prevent introduction by visitors? By staff?
By private vendors entering the prisons?
3. How are cell phones being introduced in the prisons?
4. How many visitors/fiscal year are arrested on site with illegal contraband?
5. How many staff members of all types (uniformed/non-uniformed) are caught in illegal activity involving facilitating the introduction of illegal contraband?
6. How many staff and visitors are prosecuted for activity in Questions 4 and 5?
7. What types of security procedures are in place for each shift of workers/seven days/week at each prison unit to prevent introduction of illegal contraband?
8. How does Arizona's prison system compare with other states with similar sized populations with respect to contraband and prosecutions?
9. What is Arizona doing to affirmatively control and/or moderate the prolific influence of gangs and gang activity on all prison yards?
10. Why is Arizona's PC population the largest in the USA?
With respect to the paperwork/colorful handouts provided by the DOC to your committee members, it is important to understand that much very valuable information is excluded, or, more precisely, presented in a format that is of little use to the Legislature. For example, the DOC presented a chart on the subject of Assaults on Staff (presented in a red column) and Assaults on Staff With Injuries (presented in a blue column), and presented it for Fiscal years 2009 through 2014. Three things seem important for the Committee. First, there is no breakdown of the two types of assaults by prison unit, which would provide the Committee with truly significant information by identifying the actual prison units that have high numbers of assaults and therefore enable targeting for the purpose of increasing staff safety, investigating why the numbers are so high for those units, and enabling additional questions and information for those units (High staff turnover? Questionable policies? High numbers of inmate grievances? Lack of educational or treatment programs or other positive activity available on that unit? Excessive gang activity? High numbers of inmate-on-inmate assaults as well? High numbers of positive drug tests? High staff vacancy?) In contrast, the information presented in the current DOC document ("Corrections at a Glance") is virtually useless for any genuinely meaningful purpose.
For a second example, the DOC presented a pie-chart on the 9,891 inmates admitted to DOC to date in FY 2014, and the chart states that 70% were new court commitments, 14% were county probationers revoked, and 15 percent were parolees revoked. Since parole was eliminated for offenses committed on or after January 1, 1994, and replaced by Community Supervision, it is unlikely that absolutely no Community Supervision revocations occurred and similarly unlikely that there were that many persons revoked on parole. The DOC should clearly know the legal difference between "parole" (which is a release status granted by a vote of the members of the Board of Executive Clemency) and "community supervision" (which is a release status that is automatically granted to most prisoners who serve 85% of their imposed sentence). This lack of clarity is important for policy and budgetary considerations. The DOC supervises both those on parole and community supervision, but the Board is only involved in release decisions for old-code inmates who are still eligible for parole. It would be useful for legislators to know how many parolees are revoked, versus how many on community supervision. This knowledge might even form the basis for consideration of reinstating parole eligibility at some time in the future. Also, and importantly, what were the committing offenses for those returnees to DOC (if the numbers are unusually high for one or two types of offenses, perhaps a targeted program would reduce the recidivism rate). It also would be very important to know if there is overlap between the groups. That is, how many of the new court commitments were releases who committed new offenses (or how many of the release revocations were for committing new crimes as opposed to technical violations). The data as presented does not provide this type of detailed and useful information. Similarly, Arizona law allows a judge to waive community supervision if the person has a probation term to serve following release from prison, which raises the question of how many of the probation revocations were for persons who had completed a prison term and were serving a consecutive probation period? While seemingly providing useful information, the pie-chart on FY 2014 admissions fails to break out the data into more detailed, more meaningful, and more useful slices instead of three very general categories.
With regard to the presentations regarding the ADC Census (by prison complex) and the presentations regarding "Bed Capacity and Population Detail," one is left in the dark about how many inmates are in beds that were created as "temporary beds" long ago and have never been upgraded to permanent beds. One example would be the East Unit of the Florence Complex, an entire unit consisting solely of Quonset huts installed about 30 years ago. Are these beds now considered "rated" beds, or are they "temporary" beds? When is this Unit going to be upgraded with permanent facility construction?
As you can see from the above information, we simply don't think that Legislators are being provided sufficiently detailed information in order to make informed decisions about the budget for one of the largest state government agencies in Arizona.
Again, thank you for the opportunity to present our views. We would be happy to answer any questions of any member or provide additional information.
Donna Leone Hamm, Judge (Ret.)