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.

Lewis wanted to change that. On June 6, 1995, he established a special review committee and ordered a complete reevaluation of all PS inmates to get the number down to 200.

In keeping with DOC's get-tough policies, the new standards were much stricter. An inmate had to prove that there was a "verified, potential attacker" out there in the system in order to remain in PS.

The review committee didn't think the nature of the inmate's crime was a factor in deciding if protection was necessary--child molesters couldn't stay in just because they were child molesters, for example. Nor did the committee consider the stigma attached to being in protective segregation. If the other inmates knew you'd been in PS, and thought you might be a molester or a snitch, that was your own problem.

The committee also didn't regard gang threats as a reason to stay in PS, unless the inmate could name a specific gang member who might hurt him. And the committee could opt to transfer that inmate out of PS and to a facility away from that gang member.

After the 1995 review, only 92 inmates made the cut to stay in protective segregation. Ninety-seven inmates left protective custody voluntarily. The other 274 were to be forced back on the yards, including 164 who were in PS for gang-related issues.

The lawsuits came in a flurry after that. More than 170 of the inmates being tossed out of PS filed actions against DOC, arguing that they were in real danger if they were forced back into the general-prison population.

That's when the case landed on the desk of Larry Hammond.

Hammond is best remembered for a case many people would like to forget: the John Knapp appeal. Knapp was convicted and sentenced to death for setting a fire which killed his two baby daughters in 1973. Hammond, after years of effort, proved Knapp was wrongly convicted and saved his life. (The story is recounted in full in the book Triple Jeopardy by Roger Parloff.) In his office at the downtown firm of Osborn Maledon, Hammond points to a photo of himself and Knapp on the courthouse steps, almost 14 years after Knapp's conviction. "That's the happiest day of my life," Hammond says. "That's the first day he [Knapp] left the courthouse without shackles on."

The dog pile of inmate lawsuits over DOC's new policy on protective custody had drawn the attention of both the Justice Department and U.S. District Court Magistrate Judge Barry Silverman. They both asked Hammond to represent the inmates in a class-action suit to settle the issue.

Hammond was leery at first, especially about taking another, possibly expensive, pro bono suit to his partners. "You always have to do a little marketing when you bring these things up before the [pro bono] committee," he says. "Every case is a small case; it won't take longer than the blink of an eyelash, and, of course, it never turns out that way."

But a federal judge and the Justice Department had asked; duty had called. And Hammond honestly thought the case would end fairly quickly.

"If you had told me this case would last as long as it did, that it would go to trial with 56 witnesses, including 36 inmates testifying, over 19 days, I never would have believed you," he says.

Hammond first enlisted Debbie Hill, another attorney at Osborn Maledon, to take on the case with him. In December 1995, U.S. District Court Judge Charles Hardy appointed Hammond, Hill and four other lawyers--Andrew Gordon, Don Peters, Alice Bendheim and Sam Whitten--to represent the inmates.

Andrew Gordon had already worked on one prison case--Hook v. Lewis, which was one of the cases where the former DOC director was held in contempt. Like Hammond, he was a little wary.

"It's hard work," he says of prison lawsuits. "You're representing a segment of society no one likes, it's politically hostile, the pay is rare if not nonexistent. But aside from that, it's great."

By way of contrast, Hill, a partner with Hammond at the firm and his co-counsel on many cases, jumped at the chance to work on the lawsuit. Pro bono work is one of the reasons Hill works at Osborn Maledon, she says.

Hill sometimes worked on the case until 4 a.m., answering the letters of inmates and talking to their families. One of the other lawyers, Don Peters, even worried she was taking on too much, trying to save the world.

Hill admits she got much more emotionally involved than many lawyers would. But given what she was learning, she says, "I don't see how you could do this case and be detached."

Peters, who mostly does commercial litigation, took the case because Hammond, an old friend, asked him. He admits that prisoners' rights aren't usually his first concern.

"Some guy who commits serial rapes is not going to be at the top of my list of people to help," he says. But the more he worked on the lawsuit, the more he realized that no one else was going to help people who were in real danger.

"Of course, these people have to be locked up, but there's a responsibility that goes along with that . . . prisons are doomed to be barbaric without court intervention because there's no one there to stand up for these prisoners," Peters says.

"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."

It started with the letters.
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 Sarah Molinsky, 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 Madison [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.

The main reason: prison gangs.
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.

DOC has identified five different gangs inside the prison system: the Aryan Brotherhood, the Old Mexican Mafia, the New Mexican Mafia, 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."

Contact Chris Farnsworth at his online address: cfarnsworth@newtimes.com

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