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."
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.