Toersbijns: Plausible deniability, neglect, and abuse at the AZ DOC

What follows is a former Az Department of Corrections' Deputy Warden's response to:

Open letter from Charles Ryan to ADC Employees
(May 9, 2011)

(read that first, folks)

ACLU-AZ: "Demolish the Prisons"
Prisoner Names Project
April 25, 2011

---stolen from Carl Toersbijns' blog. Read it daily to keep up on the ADC---

Open Letter to Arizona Prison Director Charles L. Ryan

By Carl ToersBijns

May 13, 2011

In writing an open letter addressing the abuses of inmates by employees working for the Arizona Department of Corrections, you, as the prison director omitted much information during your recent attempt to illustrate compliance with guidelines and responsibilities already in policies and procedures and still not being followed. You are obviously failing as you are trying to reinforce your position on this matter but appear to be falling on the deaf ears of your own wardens. An obvious attempt to cover your own administrative weaknesses and shifting the blame of these abuses to others, you are continuing a strategy of plausible deniability and credibility within your own agency and expectations of subordinates.

According to Wikipedia, "plausible deniability" refers to the denial of blame in loose and informal chains of command where upper rungs quarantine the blame to the lower rungs, and the lower rungs are often inaccessible, meaning confirming responsibility for the action is nearly impossible These positions of "power" and "authority" must stay "clean" and be in a position to denounce any unethical approaches or innuendoes that impacts their own sovereignty and domain. Such is the case where you point the finger at someone else and act like you condemn their actions but in all reality, you endorsed it through several means provided in a chain of command that is intact by careful grooming and selection of those individuals hand-picked for such tasks. In other words, you must "walk the talk" to be a solid role model and it appears your rogue wardens are doing their own walking and talking behind close doors contrary to your expectations of program delivery and soundness of operational issues. Because they work for you, I, along with many others, blame you for failure to supervise issues.

In your most recent open letter paragraph titled Abuse of Inmates and dated May 9, 2011, I find it curious that it states that '"Abuses of inmates by anyone in the Arizona Department of Corrections is never acceptable or justified." You opportunely avoid the subject of unusually high prison deaths that are listed either as natural, suicide or homicides yet they are the highest ever. You also avoid mentioning the private prison contractors who do not report any statistics on such events and are not obligated via contract or any other means to collect such data for statistical purposes available to the ADOC and the public. I am sure that if there was a level of transparency here, your words would be more trustful regarding their operational status and efficiency to the taxpayers. You go on by writing "It is the responsibility of all employees to ensure that the inmate population is managed and controlled in a manner that is both professional and requires the minimal force necessary to maintain control. You wrap this deniability approach by stating that "It is not acceptable or reassuring that a supervisor's or manager's response was they "did not know" what was going on in their unit when you stated the very same comment when the Kingman prison escape security report was released and identified so many security deficiencies right under your direct command.

More generally, "plausible deniability / credibility" can also apply to any act that leaves little or no evidence of wrongdoing or abuse. In a prison setting, this could range from physical and psychological abuses through misguided management practices, tacit approval for excessive force. You also deliberately omit other known inmate abuses in this letter as you cite a case out of ASPC- Florence and another out of ASPC-Lewis to strengthen your position on the "good job" closing.

It is true that many of the agencies employees are doing good or great work and that is important to be recognized. However, although strong and driven to excel, they are getting their most of their work done through multi-tasking and forming shortcuts to be in compliance. This achievement is not without hindrance from you administrators and their lack of support to do a good job. Your circle of influence that surrounds your decision making mechanism is flawed as many have their own agendas and not in step with your policies or expectations. You can deny this all you want but recent security audits revealed that even after your "stricter" controls and oversight of the Kingman prison, two of your own state prisons reflected the same problems found in Kingman nine months after your directive to correct these "flaws." This falls on the wardens and deputy wardens for not following your orders to make prisons safer for the public.

Clearly an attempt to circumvent the horrific events such as "preventable suicides" in ASPC Tucson and ASPC Eyman and less than acceptable medical conduct that contributes to "natural deaths" within the prison, I am appalled that you continue this crusade to blame everybody else but yourself for the agency's shortcomings. Plausible deniability is a legal concept. It refers to lack of evidence proving an allegation. In civil cases, the standard of proof is "preponderance of the evidence" whereas in a criminal matter, the standard is "beyond a reasonable doubt."

It is highly likely because of so many incidents of staff mistakes [misconduct] and poor decision making by command staff , the agency will continue to pay out court settlements to inmates who have been subject to these acts considered "abused" and sue for the agency's mistakes and misconduct. Your letter only incited more fear and more intimidation into the workplace. You have shown by selective enforcement methods and through careful dissection of the facts you do not care if your wardens don't follow your words to provide proper custodial care and operational soundness. Your sanctions imposed to these administrators are mild compared to line staff and illustrates a desire to protect them as they protect you. In fact, I suspect you are facing several lawsuits at the moment that will embarrass you and your administration when it gets aired on the media evening news in due time.


Disclaimer: this article does not reflect the opinions of the web site Thunder Rolls Inc. where this link is located.

Link to open letter from Charles Ryan to ADC Employees dated May 9, 2011:

http://www.thunderrolls.net

Negligent Homicide of Marcia Powell

The Arizona State Personnel Board office is located at 1400 W. Washington St., Suite 280 Phoenix, AZ 85007-2939. As I posted previously, at their June meeting, with no discussion, on a motion from Joseph Smith, they reinstated Electra Allen to her previous position at Perryville, despite the ADC's decision to terminate her and their recommendation that she be criminally prosecuted. To their credit, they did not reinstate Iain Fenyves; Joseph Smith was the only member who didn't agree, however. He seems to be far more sympathetic to ADC employees than to the woman they killed.

Here is the additional contact information: I'm sure they will be hearing more ADC employee appeals. Before their September meeting, perhaps they should hear from Friends of Marcia Powell's and others in the community who are disturbed by these developments.

Phone: (602) 542-3888
Fax: (602) 542-3588
Email: judy.henkel@personnel.az.gov (executive director)

Additionally, it's my understanding that negligent homicide isn't just a crime in Maricopa County - it's a state and federal crime. If Romley (602-506-3411) won't make his people take responsibility, then we should pressure Goddard to. The Attorney General's office is at 1275 W. Washington St., Phoenix, AZ 85007 (602-542-5025). Make it clear that we expect leadership from him on getting justice for Marcia, be it in a courtroom or otherwise.

I looked into Arizona's victim's rights laws to see if the public can ever be considered a secondary victim of violence done by public employees in their official capacity. Apparently, under the Arizona Constitution, a person who is "in custody for an offense" is not considered a "victim" themselves, regardless of their vulnerability to neglect or abuse or the heinousness of the crime perpetrated against them. No wonder the perpetrators aren't treated as criminals.

In light of the horrendous abuses in our prisons and jails here, I have a real problem with people having no rights when victimized in custody, and plan to make it an issue while lobbying for "Marcia's Law", beginning tomorrow.

Finally, Donna Hamm's reference to getting the Justice Department to investigate is regarding the Civil Rights for Institutionalized Persons Act (CRIPA). It takes years for them to get around to it; the more people who complain to them about abuses in the state prisons and our county jails, the better. They need to see a pattern of abuse, not just a single incident.

I periodically forward them packets to establish such patterns, as I suspect Middle Ground does. You can send them local news articles about prisoner abuse and neglect every time you find them, too, beginning now. An expression of public outrage directed to them, not just the blogs, would help, too. Get them familiar with the name of Marcia Powell.

US Department of Justice
Civil Rights Division
Special Litigation Section
950 Pennsylvania Avenue, NW, PHB
Washington, D.C. 20530

Telephone Number
(202) 514-0195
toll-free at (877) 218-5228

Fax Numbers
(202) 514-0212; (202) 514-6273

Acting Chief: Judy Preston
(202) 514-6258

Thank you.

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Marcia Powell Cage Death: County Attorney Releases ADC PowerPoint, Internal ADC Investigation Not Reviewed by CA

By Stephen Lemons, Tue., Sep. 7 2010 @ 10:11AM

The Maricopa County Attorney's Office did not review a 3,000 page internal Arizona Department of Corrections investigation into the 2009 cage death of Perryville Prison inmate Marcia Powell.

The County Attorney's office last week declined to prosecute anyone involved in Powell's heat-related death. The ADC had asked for charges of negligent homicide to be brought against seven corrections officers on duty May 19, 2009, the day Powell was kept in an outside enclosure for four hours in 107 degree heat.

Powell collapsed and was never revived. She later died at West Valley Hospital in the early morning hours of May 20, after ADC director Charles Ryan authorized doctors to suspend life support.

A 3,000 page internal investigation released by ADC 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.

The CA's office is currently preparing the criminal case file for release. In the meantime, they have released a PowerPoint presentation given by ADC staff to the CA's office. You can see a copy of it, here. (Warning, it contains some blurry photos of Powell's corpse.)

"That was like reading the Reader's Digest condensed version of things," said prison reform advocate Donna Hamm after reviewing the document. "Clearly they left out a lot of relevant, very important stuff, like the fact that she had soiled herself a couple of times. It was a cleaned-up condensed version."

Nevertheless, the PowerPoint is damning. It notes that some officers were aware that the mentally ill Powell was on psychotropic drugs that could cause "an elevation of the body temperature."

And you would think that staff psychologist Dr. Susan Kaz, the person who (according to the PowerPoint) directed the c.o.'s to move Powell from her cell to the outside enclosure, would have been aware of this as well.

When Powell's body was examined by the county coroner, it was found to have a core body temperature of 108 degrees Fahrenheit. It may have been higher, as medical thermometers only go as far as 108 degrees.

Corrections officers provided conflicting statements according to the PowerPoint. They didn't keep proper logs and notes. And some displayed callous indifference to Powell's suffering.

When officers discovered that Powell had collapsed, one asked officer Esmeralda Pegues, who was stationed nearby the enclosure, how long Powell had been on the ground.

"Officer Pegues replied with words to the effect of, `several minutes,'" the PowerPoint states.

Pegues was one of the seven officers the ADC requested felony charges on. The others were Evan Hazelton, Iain Fenyves, Electra Allen, Cortez Agnew, Anita Macias and Ariana Mena.

Hamm told me that she doesn't believe that conflicting statements from the c.o.'s should be enough to stop a prosecution.

"In any big crime, there are conflicting witnesses," she argued. "That shouldn't scare off the county attorney."

The CA's decision on this matter is disappointing. I'm left to wonder if things might have been different if Powell had next-of-kin willing to push for indictments on her behalf.

Indeed, there's no one around to even sue. Her aged, estranged adoptive mother, who lives in California, reportedly wanted nothing to do with Powell's case.

More than 16 ADC employees were ultimately fired or disciplined in the fallout from the Powell incident, but that's hardly justice. Powell's death deserves more.

ASPC-Tucson: Prisoners neglected in cages, again.

This is despicable. This makes the failure of the Maricopa County Attorney's Office to prosecute anyone from the Arizona Department of Corrections for Marcia Powell's death all the more disturbing. Clearly they think they are untouchable, like most agents of the law. In essence, the higher ups at ASPC-Tucson slapped them on the wrist for this one and kept it all under wraps. It was only because the prisoner and his wife (and finally Donna Hamm) complained that it got anyone's attention.

The investigation reads something like the one on Marcia's death - everyone pointing their finger at someone else, or just not being able to recall who did what. It went on through three shifts, evidently, so it's not like it was just the guard who was pissed off who locked the guy up and left him there. And it wasn't just prisoner Solis who got left in the cages that day - four other guys were left there too long, as well. I bet it's a routine thing that prisoners just don't often complain about because they're used to being treated like dirt. They're probably glad they aren't still getting hogtied and left in the sun as punishment.

I'm glad Ryan at least nailed his administrators - including Sonberg - though the punishments for the rest still hardly fit the crime. They're all implicated in suppressing reports of neglect and abuse that I hear about from prisoners - things that just get handled "in-house".

As far as I'm concerned, it's not the breakdown in staff discipline that's the problem so much as it's the dehumanization that allows ADC officers to treat prisoners as they do. If there wasn't an entrenched culture that tolerates and even encourages the humiliation, depersonalization, and trivialization of prisoners' needs so thoroughly - which comes from the top down (through policies that seek to discourage people from seeking medical care, for example, to save the department money) - abuse and neglect wouldn't be so commonplace at their prisons...

I have more to say but won't say it here - read the investigative report Stephen links to for yourself. I think I'm going to ask the Attorney General tomorrow why the state can't prosecute Marcia's killers since the county won't. The neglect and abuse of prisoners needs to be treated as a crime and the victims need to be seen as human beings worthy of protection, or this will just keep happening as a casual occurrence that no one thinks they should even be disciplined for.

-------------------------------------

Could Marcia Powell Happen Again? Prisoner Kept in Tucson Cage Overnight, Warden Sanctioned

By Stephen Lemons, Tue., Sep. 7 2010 @ 2:01PM

A warden, a deputy warden, and a regional director have all been suspended several days without pay as a result of an inmate being kept in an outdoor cage overnight at the Arizona State Prison Complex in Tucson.

According to a Department of Corrections investigation of the incident, inmate Elisio Solis was confined to an outdoor cage for 19 hours from around 9:45 a.m. on April 29 of this year to around 5 a.m. the following morning.

This is in violation of policies regarding such enclosures, policies that were revised in the wake of Marcia Powell's 2009 heat-related death at Perryville Prison in Goodyear.

ADC policy now prohibits a prisoner from being confined to an outdoor cage for more than one hour without the approval of a deputy warden. (Inmates can be in the cages for no longer than two hours max.) The policy also forbids the enclosures from being used for disciplinary purposes.

But these restrictions were transgressed in the case of Solis, who was placed in the outside enclosure after a verbal altercation with a corrections officer, who called Solis a "motherfucker."

According to the ADC investigation, when Warden Sandra Walker learned of the violation, she advised underlings that the matter was to be handled "in house."

ADC Director Charles Ryan did not learn of Solis' treatment till August 5, after receiving an e-mail complaining of the matter from prison reform advocate Donna Hamm of the Phoenix-based organization Middle Ground Prison Reform. Ryan then ordered an investigation into the incident.

The inquiry shows a breakdown in discipline, with corrections officers finding excuses for not following ADC guidelines, showing ignorance of ADC policies and generally shirking responsibility for their actions.

Their supervisors don't fare much better in the report.

"Supervisors failed to follow DO 704 [the policy regarding outside enclosures]," the report states. "And [they] `passed the buck' to each other during their interviews. Staff interviewed had memory issues related to their shift on April 29, 2010."

You can read the ADC report, minus its attachments, here.

During the investigation, ADC Regional Director Shelly Sonberg, who has to sign off on supervisor complaints, admitted that she doesn't read them all because there are too many. Instead, she selects one at random to read "cover to cover," and relies on her staff to make sure the complaints are complete.

Sonberg was recently suspended 40 hours without pay. Warden Walker received the same sanction. Deputy Warden Keith Hartsuck was suspended for 80 hours without pay.

ADC spokesman Barrett Marson denied that Walker had wanted to cover-up the Solis matter, only that she had kept the investigation at the complex level. Still, Marson called the breach of policy a "significant incident," which is why punishment was meted out.

"The director believes this should have elevated up the chain of command," Marson told me.

Solis, who is doing 19 years on a murder conviction in Maricopa County, complained that he was sick after his outdoor confinement and claimed he had to beg for a blanket. Temperatures had dipped to 48 degrees Fahrenheit by the time he was transferred from the cage in the early morning hours of April 30, according to the report.

Unlike Powell, Solis did not have to contend with the heat, as the high for April 29 in Tucson was 75 degrees, and there was shade in the cage. He had access to food and water, and was allowed bathroom breaks.

Solis' life was not endangered. But the fact that prison officials didn't want to alert higher-ups should tip you off to the importance of the Solis incident. Moreover, the ADC report notes that four other inmates were confined to the cage that day for longer than the time period allowed.

"Given the fact that this was originally scheduled to be handled `in house,' [Director Ryan] was never supposed to find out about it," observed Hamm, whose e-mail sparked the investigation. "You have to wonder how many incidents in other locations, or even in that location, have been deemed in-house and that Ryan never knew about."

Hamm believes the practice of holding prisoners in outside cages for long periods of time as punishment is widespread. She fears this could lead to another Marcia Powell-like incident, and she faulted the ADC's lack of discipline.

"Look, this is a paramilitary organization," she said of the ADC. "And that means that people pretty much don't get to question policy. You follow it.

"But people are not following policy all the way up and down the chain of command. They're winking at the policy. And that's just unacceptable."

She said she's suggested that Ryan name a unit after Marcia Powell as a way of reminding his staff of the importance of following ADC policies on outside enclosures. She said she also may ask the U.S. Justice Department to investigate ADC's practices regarding the cages.

That Ryan acted so swiftly in this matter is laudatory. However, the fact that he had to find out about it from an outside source is unsettling, as are the accounts of staff shiftlessness and complacency in the ADC's own report.