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State Auditor: Texas Prisoners Face Retaliation for Airing Grievances

State Auditor: Texas Prisoners Face Retaliation for Airing Grievances

by Matt Clarke

In September 2008, the Texas State Auditor released a report on the investigation and resolution of complaints in the Texas Department of Criminal Justice (TDCJ). The report found that while grievance administrators filled out investigation forms properly and resolved grievances on time, many prisoners and employees had suffered retaliation for filing complaints.

By the end of FY 2007, 139,577 prisoners were incarcerated in 101 state prisons and 20 privately-operated facilities. At that time, TDCJ had 39,030 full-time equivalent employees. The audit covered FY 2007 and the first six months of FY 2008. Over that time period there were 376,421 non-medical prisoner grievances; 46,492 medical prisoner grievances; 12,364 Patient Liaison Program complaints; 34,436 Safe Prison Program prisoner protection complaints; 1,492 employee grievances; and 1,120 Equal Employment Opportunity Complaints (EEOCs).

Surveys of 1,641 prisoners at 7 prisons regarding the TDCJ grievance system revealed that many prisoners did not know about the grievance system, most believed they would be subjected to retaliation if they filed a grievance, and almost all questioned the objectivity and independence of grievance staff. Similar surveys of 673 employees at seven prisons as well as parole and TDCJ offices indicated a similar fear of retaliation, but a better understanding of the grievance procedure.

The audit report focused on whether documents were properly completed and timelines were followed. For the most part they were. However, that should not be an indication of the quality of grievance investigations. Experience by prisoners has demonstrated that grievance staff typically send an unredacted copy of a grievance to the complained-of employee for a response, and there is no interview of the prisoner’s witnesses. This violates grievance regulations, breaches confidentiality and invites retaliation.

The grievance is then resolved in the employee’s favor because the grievance investigator “fails” to find evidence supporting the prisoner’s complaint. Indeed, the audit found that some grievance files contained nothing more than the prisoner’s statement, the staff member’s statement and a notation that there was insufficient evidence to sustain the grievance, with no indication of what had been done to investigate the complaint. This sham grievance procedure cannot be adequately evaluated by an audit that fails to take into account the investigator’s lack of investigation.

The audit revealed that 83% of grievances that identified the employee who processed the form showed an “alternative grievance investigator”; that is, an employee who assisted the regular grievance staff. Training of grievance personnel was also a problem, with officials at all TDCJ prisons believing that existing grievance staff was responsible for training new grievance employees, when TDCJ regulations place that responsibility on the regional grievance supervisors.

According to the audit, 62% of surveyed prisoners reported having previously faced retaliation for filing one or more grievances, and 35% said they were afraid to file a grievance due to fear of retaliation. 55% reported that no TDCJ employee ever told them a grievance process existed, while 78% said they did not trust the grievance investigators. Only 5% of grievances filed by prisoners were resolved through the grievance process with some action taken; another 8% were resolved by informal action outside the formal grievance procedure.

Between 21% and 50% of prisoners’ grievances claiming life endangerment of various types did not have documentation showing that appropriate staff had been notified of the allegations. Likewise, 30% of grievances that were not resolved within required deadlines failed to show documentation requesting an extension of time. Although it could be easily done, grievances were not tracked to show how often an employee was the subject of complaints.

Thirteen of the 187 audited medical-related grievances did not have proper supporting documentation showing an investigation, and 4 could not be found at all. Three others were not signed by proper medical personnel. Interestingly, 2% of the grievances had case-closed dates that predated their filing dates.

The Office of Inspector General (OIG) investigated 7,186 cases during the audit period. Criminal prosecutions were undertaken in 1,153 OIG cases. However, only 34% of surveyed TDCJ prisoners said they knew how to access the OIG.

There were 94,436 Offender Protection Investigations (OPIs) by TDCJ under the Safe Prisons Plan, 32% of which were not properly documented. The Safe Prisons Program Office conducted 3,820 OPIs and activated the Extortion Investigation Team 6,628 times, confirming 836 allegations of sexual assault – 321 of which required further investigation and possible prosecution by the OIG. Larger prisons had the highest rates of reported sexual assaults. Private prisons and state jails had the lowest reported rates, while 20 prisons had no reports of sexual assaults.

The Ombudsman Program, which received 31,071 complaints from elected officials and the public, was untimely in processing up to ten percent of its responses.

Employee grievances and EEOCs were appropriately screened. However, 60% of the EEOCs were not reviewed and forwarded within established deadlines, and 20% of the investigations were not completed in a timely manner. See: Audit Report on the Dept. of Criminal Justice’s Complaint Resolution and Investigation Functions, Texas State Auditor’s Office, Report No. 09-004 (September 2008), available on PLN’s website.

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