The lawsuit could result in yet another instance in which a judge will oversee certain aspects of the prison system--an arrangement loathed by Governor J. Fife Symington III and his Department of Corrections director, Terry Stewart. Yet the state apparently hastened the lawsuit by failing to cooperate with federal investigators.
Past lawsuits filed on behalf of Arizona's prisoners have resulted in judgments or consent decrees regulating many prison functions, such as overcrowding, access to legal services, delivery of Christmas packages, adequacy of medical and mental-health care, and protective segregation of prisoners.
Last week, New Times reported that the U.S. Department of Justice had completed an investigation of Arizona women's prisons and had found an "unconstitutional pattern or practice of sexual misconduct" by prison guards and Department of Corrections employees.
Based on those findings--and the lack of cooperation by state prison officials during the 18-month investigation--federal investigators notified Symington last August that Reno was considering filing a lawsuit to force the state to improve its treatment of women prisoners.
The complaint filed in federal court by Reno on Monday morning names the State of Arizona as a defendant along with five individuals: Symington, Stewart, and three women's-prison wardens (Dale Copeland, Jeff Hood and John Hallahan).
It charges them with "failing to protect [DOC] women inmates from sexual misconduct by correctional officers and staff. ADOC women inmates are subjected to a variety of sexual misconduct from Defendants' employees, including sexual relationships, sexual assaults, sexual touching and fondling, and without good reason, frequent, prolonged, close-up and prurient viewing during dressing, showering and use of toilet facilities."
Symington, Stewart and the others, the complaint goes on to allege, were "consciously aware of, but deliberately indifferent to," these conditions in women's prisons.
Symington, in Washington, D.C., on Monday, was unavailable for comment. DOC spokesman Mike Arra, meanwhile, would say only, "We are aware that [the lawsuit] was filed. But we have no comment on it for now."
Since August, when Reno's investigators notified Symington of their findings, both sides have negotiated to prevent the filing of a lawsuit, says Janet Napolitano, U.S. Attorney for Arizona.
"We engaged in a series of negotiations with the DOC leadership about investigatory access. That effort was unsuccessful," says Napolitano, adding, "The allegations are of such a nature, really we were left with no alternative but to pursue this lawsuit.
"One of the things we were trying to set up was sending in an independent, mutually agreed-upon expert to conduct interviews and make an assessment. [DOC] put such limitations on it that it wouldn't have been a useful exercise," Napolitano says.
DOC's unwillingness to allow outside inspection of its operations continues the stonewalling of federal agents DOC has practiced throughout the investigation. In response to the Justice Department's request for access to inmates, DOC instead supplied documents that it felt justified its responses to cases of sexual misconduct.
Notes from a June 1995 executive staff meeting indicate that DOC officials discussed how to frustrate federal agents: "They cannot interview without our permission. We can deny them. If/when they come or call, send them to [an employee] where they will have to fill out a form that explains what they are looking for and why. Then we have the right to deny, can tell them we will do our own investigation and send them a copy."
Stewart, in a September 1996 letter to Reno, wrote he was "perplexed" that she was considering a lawsuit based on the paperwork DOC was willing to release and other evidence federal investigators obtained without entering the prisons themselves. Stewart complained that such evidence was only indicative of "isolated instances of staff misconduct."
"There is simply no basis . . . to suggest a pattern or practice of misconduct rising to the level of Constitutional dimensions," he wrote.
Napolitano disagrees. "We wouldn't file it if we didn't believe . . . we were justified in filing the action. So we would disagree that there is not enough [evidence] already. And the issue then is gaining access to find out more.