Custody Battle

Hundreds of inmates in state prisons need special protection from gang paybacks. When officials tried to mix them in with the general-prison population, they filed suit--and won.

You'd think the one place a person would be safe would be locked inside a prison cell. You'd be wrong.

In 1996, a team of lawyers brought a class-action suit against the Arizona Department of Corrections on behalf of 274 inmates in protective segregation. DOC wanted to move those inmates into the general population, where the prisoners said they'd be assaulted, threatened and possibly killed.

At a trial in Phoenix--kept secret because of the threat of reprisal against the prisoners--the lawyers argued that the inmates' lives were at risk from the literally thousands of gang members inside the state-prison system. And more potential gang members entered every day; some 3,200 to 4,000 gangbangers were coming into the prison system every year. Four inmates who'd left protective custody had ended up dead, killed by other inmates. DOC couldn't keep the inmates safe, the lawyers contended.

A federal judge agreed, saying DOC was deliberately indifferent to the threat to prisoners' lives. DOC Director Terry Stewart called the judge's decision "the most egregious intrusion into prison administration" in Arizona's history--and promised a fight to the bitter end.

But despite his strong words, Stewart ended up conceding defeat--or, at least, calling it a draw. Last month, after an emotional three-day hearing before an appeals court, DOC and the lawyers agreed to create a new policy over the next two years aimed at keeping the inmates safe. During that time, no prisoner will be transferred against his will.

Recently unsealed documents from the lawsuit provide a look into the management of Arizona's prisons, and offer some disturbing sights: a powerful gang population, an administration unaware of the cracks in its systems and the violence that threatens lives as a result.

Now, if the state wants to keep the federal courts from running its prisons from the outside, DOC has two years to prove the gangs aren't running things from the inside.

In spring of 1995, then-corrections director Sam Lewis decided it was time to do something about the inmates in protective custody.

At the time, the Arizona Department of Corrections was at the head of a national movement of "prison reform"--namely, getting the federal courts the hell out of prison management. DOC fought against court-mandated guidelines--even all the way to the Supreme Court--and it won.

Arizona was in the vanguard against "frivolous inmate lawsuits"--inmates arguing in court that their rights were violated by the inability to wear women's clothing, watch cable TV, receive skin magazines and otherwise waste the taxpayers' money. The clashes were often fierce--former governor J. Fife Symington III called for one federal judge's impeachment, and that judge repeatedly held Sam Lewis in contempt of court.

Lewis retired in 1995, but his successor, Terry Stewart, carried on the struggle with the same level of intensity. And, by that time, Arizona started winning.

In April 1996, the Prison Litigation Reform Act was quietly signed into law by President Bill Clinton, tagged onto an appropriations bill. The act has proven integral to efforts to shut down prison lawsuits by imposing substantial limits on the federal courts' authority over prisons and jails, and on inmates' ability to file suit. The PLRA makes it that much harder for prisoners to get an action--frivolous or otherwise--into court.

DOC also began winning those cases that did get into court. In 1996, the U.S. Supreme Court agreed with the state in a pivotal case. In Casey v. Lewis, a case where a judge had ruled that the state's prisoners had broad rights to access law libraries, the nation's highest court came down soundly on the side of DOC, which had argued it could run its prisons, law libraries and all, without being micromanaged by the federal courts.

It was a major victory for DOC. And when confronted with the problem of inmates in protective segregation, there was no reason for DOC to believe that the same "do-it-our-way" approach wouldn't work.

DOC spokesman Mike Arra says, "We've made it a point to fight our battles."
As Larry Hammond, the attorney who took the protective-segregation case for the inmates, put it, "All the major prison cases in Arizona ended up with the judge's orders overturned. They [DOC] were 10 and 0 heading into this one. Terry Stewart kept winning. He didn't have a sense this case was different."

Protective-segregation inmates--or PS inmates, for short--are the prisoners within the prison. They are in danger in regular, general-population facilities for a variety of reasons. They include child molesters and others whose crimes make them targets of hatred from other inmates. Former law enforcement personnel and known snitches are placed in PS, because both groups face the possibility of revenge. And almost half of the PS inmates in Arizona, according to court records, are those who have crossed the prison gangs. Some face contracts on their lives.

In 1995, there were 463 PS inmates in the Arizona prison system. About half were confined at Florence's maximum-security facility. According to court records, DOC decided to use the cellblock for other purposes. DOC officials also believed that there were too many inmates in protective custody.

At the time, PS inmates were "rubber-stamped" during their regular classification reviews. Even though their status was evaluated about every six months, PS inmates were allowed to stay in protective custody whether or not they still needed protection.

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