ACLU, Prison Law Office File Suit against the Arizona Prison System

Here’s some interesting news on the prison litigation front: The ACLU of Arizona has joined forces with the Berkeley, Calif.-based Prison Law Office — they’re the ones who’ve been litigating California prison conditions cases for years, and brought us last year’s Plata decision at SCOTUS. The two groups have filed a federal lawsuit charging that the Arizona prison system’s use of solitary confinement amounts to cruel and unusual punishment, in violation of the Eighth Amendment:

In one particularly tragic case, a prisoner at the state prison complex in Tucson died last year of untreated lung cancer that spread to his liver, lymph nodes and other major organs before prison officials even bothered to send him to a hospital. The prisoner, Ferdinand Dix, filed repeated health needs requests and presented numerous symptoms associated with lung cancer. His liver was infested with tumors and swelled to four times its normal size, pressing on other internal organs and impeding his ability to eat. Prison medical staff responded by telling him to drink energy shakes. He died in February 2011, days after finally being sent to a hospital but only after his abdomen was distended to the size of that of a full-term pregnant woman. A photograph of Dix shortly before his death appears in the lawsuit.

Jackie Thomas, one of the lawsuit’s named plaintiffs who is housed in solitary confinement at the state prison complex in Eyman, has suffered significant deterioration in his physical and mental health as a result of being held in isolation, where he has become suicidal and repeatedly harmed himself in other ways. Prison staff have failed to treat his mental illness, improperly starting and stopping psychotropic medications and repeatedly using ineffective medications that carry severe side effects. Last November, Thomas overdosed on medication but did not receive any medical care.

Given the unique circumstances under which Plata rose to the Supreme Court — California’s prison overcrowding had been endemic for years, and had reached the level of a state of emergency, as declared by Governor Schwarzenegger — I wasn’t sure that the Plata ruling would have much practical effect beyond the Golden State. So it’ll be interesting to watch as the Prison Law Office expands its work to Arizona. As Plata itself demonstrates, the staff there have a track record of translating concerns about prison conditions into legal claims that courts take seriously.

You can read the full complaint here [PDF]. Also involved in the suit is the Arizona Center for Disability Law. And there’s more info at the always excellent Solitary Watch blog.

And for broader historical context on the Arizona prison system, I highly recommend Mona Lynch’s Sunbelt Justice, which I blogged about here.

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String of Lawsuits Isn’t Scaring States Away from Corrections Corp. of America

Bob Ortega of the Arizona Republic has been reporting an excellent series on the private prison business. This article is a must-read for summarizing the many connections between Arizona local and state officials and the Nashville-based Corrections Corporation of America. Definitely go read the article, and the “Price of Prisons” series it’s part of, in full. For the purposes of this blog, the highlight of the article is the litany of lawsuits that CCA is facing all over the country. Several stem from the Arizona CCA facilities where Hawaii ships a large number of its prisoners. One Hawaii inmate alleges he was forced to give oral sex to a guard at an Arizona CCA prison; 18 Hawaiian inmates say they were stripped, beaten, and threatened by guards in retaliation for a fight; two other Hawaii inmates were killed by other inmates and their families are alleging that prison security was inadequate. Elsewhere around the country, three female inmates claim they were sexually assaulted at a Kentucky CCA facility; after a series of sexual assault cases nationwide, both Kentucky and Hawaii have removed all their female prisoners from CCA institutions. The most notorious CCA lawsuit, though, is the Idaho “Gladiator School” suit, which alleges 13 instances in which CCA officers opened doors to let violent inmates attack other prisoners and did not intervene during the beatings.

Here, as reported by Ortega, is CCA’s response:

Asked about the suits, CCA’s Owen said, “These are allegations that have not yet been proven in a court of law. These are not established facts, and we respond in court, so I’m not at liberty to respond.”

He said that in June, Hawaii awarded CCA a three-year, $136.5 million contract to continue housing that state’s inmates in Arizona.

“That was a competitive-bid process,” Owen said.

CCA was the only bidder.

“There isn’t a corrections system in the country that’s immune to lawsuits or incidents,” Owen said. “Those don’t necessarily tell the whole story. You have to look at our overall track record. . . . Do incidents occur? Yes. Are we responsive when things happen? Do our partners continue to trust and work with us? Yes.”

The article also notes the troubling lack of security at the Arizona private prisons where many California prisoners are transferred. I’ve heard from prisoners who’ve done time in private prisons that they did not feel safe there. Paid a low hourly wage, private prison guards have little incentive to risk physical harm by intervening in violent situations. In addition, Ortega’s article points out that CCA does not perform full background checks on guards or check whether they have relationships with inmates.

Ninth Circuit: Sheriff Joe-Approved Cross-Sex Strip Searches Are Unconstitutional

An Arizona pretrial detainee’s Fourth Amendment rights were violated when he was strip-searched by a female guard, the Ninth Circuit ruled last week in a sharply divided en banc decision. The case arose out of Sheriff Joe Arpaio’s notorious Maricopa County jail system. The San Francisco Chronicle‘s Bob Egelko sums up:

[Charles] Byrd was ordered to strip down to his shorts – colored pink, as required for all inmates by Joe Arpaio, the county’s hard-line sheriff – and was searched by a female cadet from a training academy. She said she had taken no more than 20 seconds, while Byrd estimated the time at a minute. No contraband was found. …

“The right to be free from strip searches and degrading body inspections is … basic to the concept of privacy,” Judge Johnnie Rawlinson said in the majority opinion, quoting an earlier ruling.

No emergency existed, Rawlinson said, because male guards were present and could have conducted the search. She said the “humiliating event” was aggravated by the presence of onlookers, one of whom videotaped the search.

Dissenting Judge N. Randy Smith said the cadet had conducted the search professionally and, although it was “unsavory to our sensibilities,” the action met legal standards.

More reporting here from CNN; the full opinion can be downloaded here (PDF). For some background on Ninth Circuit case law on jailhouse strip searches generally, see my earlier post here.

No Criminal Charges in Case of Arizona Inmate Who Died after Four Hours in 107-Degree Cage

The Maricopa County Attorney’s Office recently announced that it will not file criminal charges against correctional officers involved in the death of Marcia Powell, an Arizona inmate who succumbed to heat exhaustion after she was left outside in a cage, in 107-degree heat, for four hours. From the Phoenix New Times:

A 3,000 page internal investigation released by [the Arizona Department of Corrections] last year revealed accounts by inmates that Powell was never given water and that she was mocked or ignored by ADC staff when she asked for water, to go to the bathroom, or to be taken back inside.

Though corrections officers maintained that Powell had been given water, her desiccated corpse argued otherwise. She had been kept outside in the blazing Arizona sun hours past the department’s own two-hour cutoff for such en plein air detention. Also, her body was covered in excrement, as she soiled herself while in the enclosure.

But according to ADC spokesman Barrett Marson, the County Attorney’s office never reviewed the 3,000 page report released last year. Instead, the CA received a copy of ADC’s separate, criminal investigation, which Marson characterized as “even more voluminous.”

Based on that criminal investigation, the CA’s office concluded that there was “insufficient evidence” to go forward with a prosecution.

Why didn’t the CA get to see the internal investigation, which was made public and reported on by several news outlets? This has to do with something called “the Garrity rule,” based on the U.S. Supreme Court decision Garrity vs. New Jersey.

According to the Garrity rule, law enforcement officers can be compelled to answer certain questions by their employers, but those statements cannot be used against a LEO in criminal proceedings.

Meanwhile, another Arizona prisoner was apparently recently kept in a cage overnight, for 19 hours, though not under the life-threatening conditions that killed Powell. After learning of the incident from a prisoners’ advocacy group, Middle Ground Prison Reform, ADC Director Charles Ryan ordered an investigation and ultimately suspended the warden involved for a few days without pay.

DOJ Hands Sheriff Joe an Ultimatum in Ongoing Civil Rights Investigation

The Department of Justice Civil Rights Division has handed Sheriff Joe Arpaio of Maricopa County, Ariz., an ultimatum: Cooperate with the division’s ongoing investigation into his office’s treatment of immigrants, or face a federal lawsuit. Sheriff Arpaio has previously announced his refusal to cooperate in the investigation, and his office has denied the DOJ access to its facilities, personnel, and requested documents. Among the practices being investigated, as summarized by the Seattle Times:

Arpaio’s office has conducted 17 sweeps in which deputies and “posse” volunteers, focusing on heavily Latino neighborhoods, stop people for sometimes minor violations, such as jaywalking, and then check their immigration status. Prisoners are fed twice a day, sleep in tents with no air conditioning and are issued striped prison uniforms and pink underwear and socks.

Main Justice links to the letter sent to Sheriff Arpaio by Assistant Attorney General Tom Perez. Some highlights:

MCSO’s refusal to cooperate fully with the Division’s investigation makes it an extreme outlier when compared with other recipients of federal financial assistance… Although we would prefer voluntary compliance in this case as well, we will not hesitate to commence litigation on August 17, 2010…

Oregon to Deport Selected Nonviolent Offenders in Exchange for Early Release

The Corvallis Gazette-Times reports that Oregon’s new inmate deportation program is off to a start, albeit a slow one. The program applies only to inmates who are in the U.S. illegally, have less than six months left on their sentences, and have been convicted for certain nonviolent crimes, such as drugs or theft:

The state hopes to save more than $2 million over the current two-year budget cycle by sending the inmates back to their home countries, in Oregon’s case, mostly to Mexico.

The savings from the early deportation program were expected to begin shortly after it was approved by the Legislature last year. But a legal glitch delayed finalizing the agreement with U.S. Immigration and Customs Enforcement, or ICE, until January.

Oregon Department of Corrections officials said the program is now under way, with about a dozen inmates already handed over to ICE for deportation.

Prisoners waive their rights to challenge the deportation in exchange for commutation of their sentence by the governor and early release. They also face tough penalties if they return illegally.
…

Only a handful of other states have similar programs, but most have saved money.

New York has saved about $152 million since 1995 with its version of the program, while Arizona has saved more than $33 million since 2005, immigration officials said.

Georgia has reported the most successful program so far, removing more than 3,600 illegal immigrant inmates from October 2008 through August 2009 for an estimated savings of $204 million.

However — as the article also notes, and as the Boston Globe reported a few weeks ago, a similar program in Rhode Island has yet to result in a single deportation, because of the program’s strict criteria combined with the small number of illegal immigrants in Rhode Island prisons.

New Book: Sunbelt Justice

I am reading a new history of the Arizona prison system entitled Sunbelt Justice: Arizona and the Transformation of American Punishment, by Mona Lynch (Stanford UP, 2009). Like many states, Arizona has experienced exponential growth in its prison population in recent decades. However, Arizona’s penal history is also unique in a few ways. For one thing, Arizona was relatively late both to statehood (1912) and to having a centralized statewide department of corrections (1968), so its penal system offered policymakers something of a clean slate (in contrast to the Eastern and Midwestern states, and even to some extent California, where the penitentiary model and rehabilitative ideal had deeper institutional and philosophical roots). Also, Arizona did not start out as a high-incarceration state. Rather, within 20 years or so, Arizona leapfrogged from a state with “a modest and stable level of imprisonment” into “a national trend-setting leader in delivering harsh punishment” (p. 3). Thus, it offers an interesting case study in how and why the prison population exploded in the late twentieth century.

Lynch’s study merits reading in full for anyone with an interest in penal policy or the tragedy of mass incarceration, and I hope to blog further about her findings (particularly her account of federal court oversight of the Arizona prisons). If you don’t have time to read the whole book, at least check out this detailed review and summary over at the California Corrections Crisis blog. For now, I’d like to highlight two of Lynch’s findings that stood out for me, and that could alter the way that we think about the history of the prison-industrial complex — and how to challenge it.