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.

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."

Contact Chris Farnsworth at his online address:

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