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.

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.

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