"In my first prison case, I never actually went to the prison," he
says. "I thought it didn't make a difference, but it did. Unless you've
been in there, you just don't know."
Peters began to understand that, "In this case, people would die if I fouled up."
The inmates, once they heard that they had lawyers, started writing to
tell what was going on behind the walls, and what they faced if they
were forced out of protective segregation.
At one point, the attorneys were getting as many as five letters a day. They assigned
, then a paralegal with Osborn Maledon, the task of reading and filing each letter. She soon had almost 250 separate files.
At first, she recalls, it was "almost voyeuristic--kind of like
looking at a car accident." The inmates described a completely different
and deeply violent world.
Protective segregation, Molinsky learned, was hardly a lush life.
Inmates couldn't get the same educational and treatment programs as
general-population prisoners, or, often, regular visits with family.
They also had to suffer the wrath of the general-population inmates
simply for being PS inmates. Their food, which was prepared by
general-population inmates, often had feces, metal or glass in it. They
were taunted as they walked through the prison on their way to meals or
the library.
Prisoners know where the PS inmates stand in the food chain. "The new
inmate on a cellblock is referred to as a fish," Hammond says. "All
fishes are at risk from predators. But they call a PS inmate who's back
on the yard a 'fish trailing blood.'"
Molinsky also learned that not all of the PS inmates were rapists or
child molesters. "There's a lot of them in there for reasons that
reflect well on them," she says. "One inmate stopped another from
killing a guard at
[Street Jail in Phoenix]. Now that guy's a snitch, and his life is in danger."
DOC is not only supposed to protect the inmates' lives, but also
their identities, to avoid reprisals against them if they are moved out
of protective custody, and to keep their families safe.
But the department had a tough time even doing that, court records
show. "Turnout lists," which showed inmates' locations and movements,
were posted where they were read by all inmates and could reveal exactly
who was in protective segregation.
"These guys are incredibly sophisticated when it comes to the
day-to-day details of their lives," Gordon says. "Sure, these guys are
rapists and murderers. They're also smart, and DOC had done nothing to
hide [the PS inmates'] identities."
In one instance, DOC had even used inmates in protective custody in a
video which was supposed to be shown to prisoners entering the state
prison system, according to court records.
"The attitude was, prisoners like protective custody," Hammond says.
"People think it's some kind of country-club existence, these guys are
just living it up. Nothing could be further from the truth. The inmates
hate it. That's why some of these guys waive out. They start thinking,
'Maybe I could make it.'"
But if life inside protective segregation is unpleasant, life outside it is deadly.
When the case went to trial before Judge Hardy in late 1996, the
attorneys set out to prove that DOC couldn't keep inmates safe in
general population because DOC couldn't control the gangs.
According to testimony from DOC officials, there are more than 3,000
inmates involved in gangs in Arizona's prisons. That would add up to
about 10 to 14 percent of the state prison population.
There are at least 500 "patched"--fully initiated--gang members in
the system, according to testimony from DOC officials. Also, there are
1,200 to 1,500 "probates"--probationary members of the gangs, inmates
who are working to prove they're worthy of joining.
DOC officials say it's hard to know exactly how many other inmates
have some relationship with a gang, including potentially hundreds of
"wanna-bes"--inmates who want to be gang members and associate with the
gangs, but haven't started probating.
But more are on the way. DOC estimates that about half of all the
inmates entering Arizona's prisons from Maricopa and Pima counties enter
with a street-gang affiliation. While not every one will join a prison
gang, that adds up to about 3,200 to 4,000 more potential gangbangers
entering the prisons every year.
,
the Grandels and the Border Brothers. In the course of their research,
the prisoners' attorneys heard about at least 13 different gangs, with
groups like the New Mexican Mafia and the Aryan Brotherhood being the
most powerful. (According to testimony from one DOC official, there have
been 800 different street gangs identified by law enforcement in the
state of Arizona.)
Gang members enforce their will with violence. They deal drugs, run
protection rackets and even take contracts out to kill those who cross
them, prison officials testified. Gang members have a sophisticated
communications system which can quickly disseminate information
throughout the prisons and to the outside.
In court records, DOC officials say there are gang members on every prison yard in the state.
Hill says bluntly, "The gangs really run the yards."
DOC spokesman Arra disagrees, but says the state is taking the gang problem very seriously.
"There's definitely an acknowledgment just by what we are doing that
gangs cause problems," he says, "but do gangs run the yards? Absolutely
not."
At least four inmates who have left protective segregation in recent
years have been killed, according to court records. The murderer of one
admitted he did so because he knew his victim was out of PS.
Maria (a pseudonym) has a long history with DOC. She has two family
members in prison, including a son in protective segregation. She agreed
to speak to New Times if her identity was protected. Her son became a
plaintiff in the class-action suit; while he was still in the county
jail, he was stabbed seven times in the back.
When Maria learned that
DOC planned to transfer him into the general population--to turn him, in
her view, back over to the gangs--she was devastated.
"I couldn't believe it," she says. "I said, 'Over my dead body are they going to do this.'"
DOC, Maria says, didn't care what the consequences of the new policy
would be. "They think that just by having a change of classification,
it's going to make a difference, but it's not. And until they take care
of the predatory presence inside the prison, it's going to stay like
that," she says. "And it's almost like they don't care. It's like, if
one dies, that's one less they have to worry about."
The case went to trial before Judge Hardy in late 1996. The lawsuit
was kept a strict secret. It was even filed under a fake name and phony
case number. The plaintiffs' lawyers feared their clients would be
harmed if their identities were discovered. Lawyers were instructed not
to discuss the case.
(Few people on the outside knew about the lawsuit, but as it turned
out, the Aryan Brotherhood got a complete list of the plaintiffs
anyway--no one's really sure how--and distributed it to members
throughout the prisons.)
All of the inmates who testified for the plaintiffs said that they'd
been beaten, threatened or extorted--or all of the above--when they were
in general population.
On December 2, 1996, Judge Hardy agreed that lives were at stake.
After hearing the evidence, he found that DOC didn't care that the move
to put PS inmates back in general population exposed them to "a
substantial risk of harm." He prevented DOC from moving any of the PS
inmates into maximum-security units because of the threat posed by
gangs.
"The most violent and dangerous inmates are in those units," Hardy
wrote. "They regard anyone who has been in protective segregation as a
snitch who poses a threat to the continuance of their illegal
activities. The risk is exacerbated if the inmate has been placed in
protective segregation because of difficulties with a gang. . . . the
gang is capable of having the former protective segregation inmate
attacked, usually by a probate who wants to qualify for gang
membership."
The ruling incensed Terry Stewart. Stewart had not attended a day of
the trial before Judge Hardy. But in spite of that and the court seal on
the case, he issued a press release two days before Christmas. In it,
the director blasted yet another decision by yet another meddling,
activist federal judge.
"It is the most egregious intrusion into prison administration that
the courts have been involved with in Arizona," Stewart said. He also
claimed--wrongly--that, "There was never any showing that harm would
come to inmates if they were removed from protective segregation."
Stewart promised a battle to the end.
"Inmate classification is at the core of prison management. The only
thing I see accomplished with this ruling is that a federal court has
once again flagrantly interfered with my authority, and I have no choice
but to appeal," he said.
The fight, which the lawyers thought would be over by now, had one more important round to go.
Last month, DOC's appeal came before U.S. District Court Judge
Richard M. Bilby in Tucson. Bilby also unsealed the transcripts of the
appeal at the request of the Arizona Daily Star.
Bilby, a plain-spoken judge, let the lawyers know he was a
see-things-for-himself kind of guy. At one point in the transcripts,
Bilby talks about visiting a prison and eating in the dining hall to
test an inmate's claims that the food constituted cruel and unusual
punishment.
"I went out and ate three meals and decided they were edible. Didn't have the meat loaf, I might add," Bilby said.
At the hearing, DOC argued it had changed its policies to meet Judge
Hardy's ruling, that it was no longer deliberately indifferent.
And, in fact, the department under Stewart had made great strides in
addressing the problem of gangs--or STGs, "Security Threat Groups" in
DOC jargon--the court transcripts show.
Don Greenwald, the DOC's operations officer for security, conceded
that DOC had not addressed the gang problems in the past. Under
questioning by an assistant attorney general,
Greenwald said that DOC had only identified 29 "validated" gang members when the case first went to trial in 1996.
"[W]as that a sufficient showing?" the AG asked.
"It was ridiculous," Greenwald said.
DOC, Greenwald testified, had begun an aggressive policy to identify and
isolate gang members, as well as crack down on gang activity. More than
160 gang members had been identified and moved "out of the mainstream."
And a new policy promised protection for those inmates who renounced
the gangs.
Stewart testified that there was even a contract on his head by the gangs because of his efforts--which he took as a good sign.
"When the STG population is trying to impact the director . . . there
is no question that it [the new policy] is having an impact on them and
an adverse one," Stewart said.
At one point, it looked like DOC had put Bilby's mind at ease about
the threat to PS inmates from gangs. "If you are assuring me now that a
gang member who renounces the gang will either be put into protective
segregation or will be sent out of the state, you have assuaged a lot of
the problems that Judge Hardy was concerned about," Bilby told Stewart
near the close of the first day of the hearing.
But under Hammond's cross-examination, Stewart was forced to admit that not much had really changed in a number of areas in DOC.
As a mark of his success, Stewart brought a list of 60 PS inmates who
had been reviewed under the new classification policies implemented
since Judge Hardy's trial. He told the court that 58 out of 60 were put
in protective custody against their wishes. In fact, Hammond proved,
exactly the opposite was true: All 60 of those people were slated to be
removed from protection against their wishes. Further, all 60 had been
recommended for removal before Judge Hardy's order two and a half years
earlier. In short, nothing had changed--except the policy.
But the most powerful moment in the three-day hearing came when
Hammond, while cross-examining Stewart, asked about the apparent gang
slaying of inmate
Steve Benitez. And it was a murder the plaintiffs almost never learned about.
While preparing for the hearing before Bilby, Debbie Hill went to the
Santa Rita
facility to interview an inmate who'd been assaulted a year earlier.
When she arrived, she found the place locked down. An inmate had been
killed, she discovered.
At first, DOC refused to tell the plaintiff's legal team anything
about Benitez's death. Hill filed a motion to get information from DOC.
What she learned became a turning point in the appeal.
"It was like something from the Heart of Darkness," Hammond says.
"What happened to that man went to the center of every issue in the
case."
Benitez was an informer who had helped prevent a gang war inside the
system. The New Mexican Mafia put a contract out on his head for his
betrayal, and he spent the rest of his sentence in PS. After he got out,
Benitez violated parole by stealing beer.
In a presentencing report for that violation, a
Maricopa County
sheriff's deputy spoke on Benitez's behalf: "Let's not kill him for a
12-pack of beer. He gave us righteous information. Give him one
opportunity, just one more time."
But Benitez blew that second chance by violating parole again, and
was sent back into the system. Prison officials who knew his history
ordered him to the facility in Globe, but through an error which has not
yet been explained by DOC, Benitez was sent to the Santa Rita facility
near Tucson on December 16. Benitez, according to DOC records, refused,
but after he was "counseled" by a correctional officer, he ended up
getting on the bus to Tucson.
On January 25, Benitez was killed in his cell, a handmade shank
buried so deep between his ribs it was first thought he'd died of a
heart attack.
Hammond drove his point home just as deeply when questioning Stewart.
Benitez was sent to a yard where DOC officials knew "the New Mexican
Mafia is alive and well," Hammond said.
"Can you possibly explain then how it is possible that a man who has a
contract on his life from the New Mexican Mafia is being sent there?"
Hammond demanded.
Stewart said he could not.
Since Benitez could not name a specific inmate who threatened him at Santa Rita, DOC's policy required he go there.
"So what does that tell us?" Hammond asked. "That inmate is just out
of luck. . . . Director Stewart, why isn't every person in DOC up in
arms over this thing?"
"Mr. Hammond, I can't explain that," Stewart said. "I can tell you I
wish very, very deeply that this had not happened. . . . We moved
expeditiously to try to correct the situation so that it will never
happen again."
"No, sir," Hammond shot back. "What you did is you drafted another piece of paper."
The exchange clearly had an impact on Judge Bilby.
"You keep telling me, 'The reason this policy works, Judge, is because I
have all these qualified people down here doing it.' Boy, if this is an
example of it, you are being ill served," Bilby said.
Bilby then singled out Stewart's press release as creating an attitude "that just eviscerates your policy."
Bilby told Stewart, "I think the attitude of the average person is,
'Well if the director says this is a bunch of nonsense, to hell with it,
and we will go ahead and do what we are doing. That is all attitude,
sir."
"Sir, I don't think there is any evidence to link that to my
attitude," Stewart protested. "My attitude is we need to fix it. My
attitude is I never want that to happen again."
Bilby didn't buy it. "We can have every policy in the world and until
you and the other people running that department make it clear that
it's a new day, we are all spitting in the wind."
The court then went into recess.
Debbie Hill went up to Hammond, who was still standing in the courtroom after the emotional cross-examination.
"I think this judge gets it," Hammond told her.
"It was what we'd been saying to DOC all this time," Hill recalls. "It's just unfortunate it took someone's death to show that."
On the third day, four inmates told their stories about prison life. Stewart was in the courtroom the entire time.
Those accounts are still sealed to protect the inmates' identities,
but Hammond says one of the most powerful witnesses for the plaintiffs
was a predator, Hammond recalls, a former member of the Aryan
Brotherhood.
"I can say over and over that the gangs run the prisons, and it
doesn't mean anything," Hammond says. "But to hear a member of the Aryan
Brotherhood talk matter-of-factly about how they run the yards with
well-documented physical violence is absolutely chilling."
Stewart wouldn't talk about the case, but Hammond thinks that it made
an impact on the director. "I hope it was cathartic, and a little
terrifying," Hammond says. "It's a bit like Chinese water torture. It
takes so many stories of beatings and being bent over foot lockers
before you really understand this is about death, really internalize
it."
And by the end of the day, Stewart changed his mind about the
lawsuit. The attorney from the AG's Office announced that the director
had decided to settle the litigation. DOC agreed that over the next two
years, it would craft, with the plaintiffs, a policy which would keep
protective-segregation inmates safe. And until that policy is hammered
out, no one will be moved out of protective custody unless he agrees.
Bilby told the parties what he expected the policy to include, and then, with the sound of his gavel, the hearing was done.
The fight was suddenly over. And for the first time in a long time
with DOC, there was no bitter end. There was, instead, cooperation.
DOC spokesman Arra calls it a tactical decision, not a change of heart.
He notes that all of DOC's victories have come at the appellate level, not in the district courts.
"We look at the playing field. And we perceive the playing field at
the district-court level as being lopsided, not in our favor," Arra
says. "We made the decision to give ourselves time to formulate a plan
that will meet the court's scrutiny."
Arra maintains that even though PS can be improved, it was never
unconstitutional. He is reluctant to even call the case "settled"--he
instead refers to it as a "consent decree"--but the plaintiffs chalk it
up as a victory.
Hammond sums it up by saying everyone had something to learn from
this case. The lawyers and DOC had to find out that people on the inside
were in real danger in order to change things on the outside.
"This wasn't a case about hot pots or Christmas packages," says
Debbie Hill. "This was about people with families, about people's sons,
and their safety and their lives."
Reduce the number of prisoners in isolation to only those who are a serious and continuing threat.
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