On August 31, Arizona State Prison inmate Mark Koch finally got some good news. It happened more than five years after prison officials transferred him to a super-maximum unit in Florence, solely because he's an alleged gangbanger.
In a decision that is sending ripples through the criminal justice system, U.S. District Court Judge James Moran ruled that authorities shouldn't have locked Koch in "some of the most draconian conditions that can be found in a modern American prison," just because they'd identified him as a member of the Aryan Brotherhood gang.
Moran agreed with the state that gang members pose a real threat to the safety and security of Arizona's prisons. But the judge took Arizona's prison officials to task for keeping the convicted murderer in solitary confinement for more than five years on the basis of apparently flimsy evidence of gang membership and activity.
"We are not unmindful of the danger posed by prison gangs," Moran wrote, ". . . but we do not agree with the defendant's conclusion that indefinite segregation in SMU II based on status alone passes constitutional muster."
Phoenix Suns vs. Portland Trail Blazers
TicketsWed., Nov. 2, 7:00pm
Arizona Coyotes vs. Nashville Predators
TicketsThu., Nov. 3, 7:00pm
Arizona State University Sun Devils Hockey vs. University of Michigan
TicketsFri., Nov. 4, 7:05pm
2016 Charles Schwab Cup Championship
TicketsWed., Nov. 9, 9:00am
Special Management Unit II houses about 620 inmates, including those on death row; the most uncontrollably violent; the seriously mentally ill; and those designated as "STGs," or members of Security Threat Groups -- gangs. The prison within a prison is Department of Corrections Director Terry Stewart's pride and joy, and he says its existence since 1996 has made life far safer for inmates and staff.
But critics of SMU II liken the treatment of the inmates housed there to that of movie character Hannibal Lecter. "They are treated worse than individuals with the Ebola virus," forensic psychiatrist Dr. Jack Potts wrote earlier this year, in a report to the court on Koch's behalf. "There is an unequivocal toll on individuals placed in such isolation."
One of Koch's attorneys, Dan Pochoda, says the ruling creates new law, and may be far-reaching if it withstands an expected appeal by the state, and other inmates in similar situations then join in a class-action lawsuit.
But DOC's Stewart contends the ruling will have little effect on prison policy; Moran simply has ordered the agency to move Koch out of SMU II to a still-undetermined location.
"This is one inmate and one action, and that's it," Stewart says. ". . . Our feeling is that, once you have 'blooded in' to a gang, you are like a loaded weapon to that gang. Once they want you to do something, you do it or they kill you. That means potential danger for everyone, inmates and staff.
"As for whether inmate Koch is a member of the Aryan Brotherhood or not, we don't have any question about that."
Counters Dan Pochoda, "Terry Stewart's view is that every gang member is a loaded gun, so stick them in a super-max prison and throw away the key until they recant and snitch. But they never came up with credible evidence concerning Mark."
Pochoda and co-counsel Tim Eckstein said the state never has alleged that Koch "was a leader or a central gang figure, nor that he took any action to demonstrate a lifelong commitment, including by initiation ritual, body marking, or any gang-related activity."
Though Koch denies being a member of the Aryan Brotherhood, Judge Moran wrote in a footnote, "We will assume for the purposes of this opinion that Koch's AB (Aryan Brotherhood) status has been established."
But membership alone is not enough to deprive a gang member of what little freedom can be found within prison walls, the judge ruled: "Indefinite, and likely permanent detention in SMU II strikes us as one of the most severe deprivations of liberty that can be visited upon an inmate within the DOC."
Unless there is overt misconduct on the part of the inmate, gang status alone does not justify the "extreme nature of the deprivation at issue here," Moran wrote.
That deprivation has meant an existence for Mark Koch that is unfathomable for civilians and even other, less restricted inmates.
SMU II was designed, as the judge wrote, "to minimize human contact." To that end, the all-male unit's residents remain in their windowless 10-feet-by-8-feet cells for all but three hours a week. For one hour every other day, officers handcuff and shackle an inmate, then lead him to a "recreation room," a small, empty space with 20-foot-high walls and a mesh-grate ceiling. He's allowed to shower for eight minutes. Inmates are permitted one short phone call a week, and may receive visitors behind a thick glass window for up to two hours weekly. All visitors must wear bulletproof jackets and protective eye goggles while on SMU II.
The 46-year-old former Scottsdale resident has been in prison since 1978, and is serving a 25-years-to-life sentence for murdering another Valley man. DOC disciplinary records indicate that, while he hasn't been a model inmate, Koch apparently didn't pose a special threat to either staff or other inmates before being sent to SMU II.
He tells New Times in an interview: "I worked with a warden for years to try to reduce violence among inmates, and I was asked by the DOC to get involved with conflict-resolution issues among other inmates." Court documents corroborate Koch's involvement in those programs as the "Caucasian representative" in officially sanctioned inmate conferences.
Koch long has been a consummate jailhouse lawyer. In his ruling, Moran noted: "Koch's prison legal practice has been remarkable. . . . Suffice it to say that Koch is the subject of no fewer than 14 state and federal court opinions spanning 20 years of litigation and hundreds of pages of published and unpublished decisions."
Several years ago, for example, Koch won a $20,000 award from a jury after filing and litigating a lawsuit against the DOC that alleged illegal body searches. He says, "I was told by a warden in 1995 that they [top prison officials] were going to come after me because I was a thorn in their side." (Koch dropped the "retaliation" claim from his most recent lawsuit before it went to trial in April. For strategic reasons, his attorneys say, Koch also dropped an earlier claim that living at SMU II had caused him irreparable psychological and physical harm.)
In early 1996, Koch was housed in a medium-security facility, and prison officials had designated him as a "one" on a scale of one-to-five as an "institutional risk." (One is the low-risk end of the scale.) But in February 1996, prison officials informed Koch he'd been identified as a suspected member of the Aryan Brotherhood, which they'd just designated as a Security Threat Group.
Dan Pochoda says his client was stunned by the development because, just a few years earlier, authorities had offered to put Koch in protective custody because members of the Aryan Brotherhood allegedly had threatened his life. (He says Koch declined their offer.)
Prison officials held a "validation" hearing, after which they concluded that Koch indeed was a member of the infamous white supremacist gang. Within a few days, he was transferred to SMU II for an indefinite stay, and his formerly benign risk rating jumped to "five," the maximum.
The DOC held another validation hearing in 1998. This time, prison officials launched a three-pronged attack against Koch, including a 1981 photograph taken at a prison rodeo that showed Koch with alleged Aryan Brotherhood members, internal reports that claimed Koch had been seen associating with known AB members, and purported AB membership lists that identified Koch as a member.
Again, the three-person committee concluded that the evidence had confirmed Koch's status as a gangbanger. The ruling meant he would be staying in SMU II unless and until he renounced his membership in the Aryan Brotherhood, and submitted to what authorities call a debriefing.
"In other words," Moran wrote, "Koch must name names. Koch has refused to do so."
About 20 Aryan Brotherhood members have undergone such a debriefing, according to an affidavit filed by a DOC employee in the Koch case. Each "snitch" allegedly named Mark Koch as a fellow member. For obvious reasons, those who debrief aren't returned to the general prison population. Instead, court records show, they usually are moved into "protective segregation" in SMU I, which also is considered a super-max unit, but is much less restricted and isolated than its namesake across the prison yard.
Koch tells New Times that reaction from DOC staff to his legal victory has been mixed.
"Most of the [corrections] officers here congratulated me because they know me being here is inappropriate," he says. "But the higher-ups are a different story, They are mad, and now they're getting snotty. The warden came by my cell, and said that, at the very most, they'll move me to a place where the conditions will be the same, and that the ruling doesn't rescind my [gang] validation. It's all about their arrogance."
Calling it the "obvious way to conclude this," Koch says he hopes the DOC transfers him to a prison in another state, until he gets released. (He is eligible for parole in a few years.)
But assistant state attorney general Jim Morrow, who tried the case on behalf of the DOC, views it quite differently than his adversary.
"If this decision stays intact," Morrow says, "we will have to move this very dangerous individual back into the population, where the department won't be able to manage him in a way that's safe for other inmates and for staffers. If we end up having to move large numbers of STG inmates in a worst-case scenario situation out of SMU II, well, that won't be good news for anyone.
"At any rate, Mark Koch is not the kind of guy you'd want living next door to you."
Get the ICYMI: Today's Top Stories
Catch up on the day's news and stay informed with our daily digest of the most popular news, music, food and arts stories in Phoenix, delivered to your inbox Monday through Friday.