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Arizona Prison System Plagued by Politics, Privatization and Prisoner Deaths
Even before Brewer assumed the governorship and brought Charles L. Ryan out of retirement to run the ADC, Arizona’s prisons were known to be ruthless and inhumane. Few other prison systems can claim the dubious distinction of leaving a mentally ill prisoner in an outdoor cage for hours in scorching summer heat until she literally baked to death. [See: PLN, Feb. 2010, p.32].
Yet by playing politics, contracting with for-profit prison healthcare companies and kowtowing to private prison firms, Governor Brewer and ADC Director Ryan have taken a prison system already infamous for its draconian conditions and unfettered incompetence and made it deadlier and even more vindictive and profit-driven than ever before.
The ADC, with a $1.1 billion budget in 2012, will soon open a new maximum-security facility with 500 solitary confinement cells at a prison complex in Buckeye, at a cost of $50 million. In doing so, state officials ignored warnings by the American Civil Liberties Union (ACLU), Amnesty International, American Friends Service Committee (AFSC) and other human rights groups about the lasting, negative effects of long-term isolation.
On June 11, 2013, Prison Legal News sent copies of PLN’s October 2012 cover story on solitary confinement to members of the Arizona legislative Joint Committee on Capital Review, noting that “budget expenditures are a zero-sum game and money spent on prison beds is money not spent on health care, education, affordable housing, infrastructure and other services for the state’s citizens.” PLN observed that solitary confinement has an adverse impact both in terms of fiscal costs and higher recidivism rates for prisoners released after being held in solitary.
“These conditions are gratuitously cruel,” David Fathi, director of the ACLU’s National Prison Project, said of the ADC’s Secure Management Units (SMUs), where prisoners are held in solitary confinement. “There [is] no penological nor security justification for those kinds of conditions.”
But ADC Director Ryan testified before the Joint Committee on Capital Review that “there are no solitary confinement cells in Arizona prisons,” apparently based on his own peculiar notion of what constitutes solitary confinement. The Committee duly approved the 500-bed maximum-security facility, which is scheduled to open in October 2014.
“Director Ryan saying that ADC’s maximum-security units aren’t solitary confinement is like the CIA claiming waterboarding is not torture,” observed Caroline Isaacs, program director for the AFSC’s office in Tucson. “Whatever you want to call them, the conditions in these facilities are harmful to people’s physical and mental health.”
Since Governor Brewer took office, the suicide rate in Arizona’s prison system has increased while drug overdoses, homicides and untreated medical conditions are responsible for other prisoner deaths. The ADC reported that 81 prisoners died in 2012 while 36 deaths occurred in the first half of 2013; most of the deaths were described as being due to “apparent natural causes” or “unknown causes.”
Even after being sued by the ACLU for failing to provide adequate medical treatment to the state’s more than 40,000 prisoners, the ADC has continued to contract prisoner healthcare to a for-profit company with a reputation for neglect and incompetence.
And to punctuate Arizona’s merciless criminal justice system under Governor Brewer’s leadership, she has granted only a handful of commutations and has not issued a single pardon – a dismal record that is unlikely to change during the remainder of her tenure.
With Brewer as governor and Ryan as director of Arizona’s prison system, conditions for the state’s prisoners have steadily deteriorated – though private prison companies have profited handsomely.
Calls to Privatize More Prisons
To replace Dora Schriro – the state's prison chief under former Governor Napolitano before they both left for positions with the U.S. Department of Homeland Security – Brewer appointed Charles Ryan, who had retired as the ADC’s director in 2003. Since his return, Ryan has parroted Brewer’s calls for expanding prison privatization in Arizona.
At the time of his reappointment, five of the state’s 15 prison complexes were already operated by private companies: two by Utah-based Management & Training Corporation (MTC), including a medium-security facility in Kingman, and three by Florida-based GEO Group, the nation’s second-largest for-profit prison firm. Collectively those complexes house over 6,000 prisoners, or 15% of the state’s prison population.
Around the same time, Corrections Corporation of America (CCA) and the American Legislative Exchange Council were collaborating with then-state Senator Russell Pearce to draft a xenophobic anti-immigration bill, SB1070, which was introduced in the state legislature in December 2009 and enacted into law the following year. [See: PLN, Nov. 2010, p.1].
SB1070 was expected to increase the number of people arrested due to immigration-related violations; this would potentially benefit CCA, which operates immigration detention facilities in Arizona.
Within Brewer’s first year in office, she and Ryan called for privatization of the state’s entire prison system. The legislature obliged but CCA, GEO Group and other for-profit prison companies shied away from wholesale privatization. [See: PLN, Sept. 2010, p.42]. Therefore, in January 2010, shortly after Senator Pearce introduced SB1070, Ryan proposed a more modest addition of 5,000 new private prison beds to be opened within three years. To justify the estimated $585 million cost, the ADC used a combination of deceptive data and the anticipated impact of SB1070 to project a need for an additional 8,500 prison beds by 2017.
Not only were the projections wrong, the department never bothered to compare the costs and quality of services of privately-operated prison complexes with those run by the ADC, in violation of state law. According to the Arizona Republic, “Arizona statutes require [the ADC] to carry out a biannual performance study for every contract. The study analyzes costs, the security and safety of each prison, how inmates are managed and controlled, inmate discipline, programs, health and food services, staff training, administration and other factors and then compares these factors to other facilities.”
The ADC had not conducted a private prison performance study since a state statute requiring such studies was enacted in 1987. Undeterred, prison officials proceeded with a request for proposals for 5,000 new private prison beds.
Deadly Private Prison Escape
Governor Brewer and ADC Director Ryan’s efforts to expand prison privatization in Arizona went mostly unchallenged until July 30, 2010, when prisoners John Charles McCluskey, Daniel Renwick and Tracy Province – with the help of McCluskey’s cousin, Casslyn Mae Welch – escaped from a medium-security prison in Kingman operated by MTC. Over the following three weeks the escapees kidnapped a pair of truck drivers, had a shootout with police and evaded authorities during a multistate manhunt throughout the western U.S.
While on the run, McCluskey murdered two retirees, Gary and Linda Haas, in the back of their camper off an old ranch road in New Mexico. He and Welch then doused the bodies with an accelerant and torched the camper.
Five days after the escape, a team of state investigators fanned out across the Kingman prison complex to determine how it happened. They discovered that MTC staff had ignored a malfunctioning alarm – which had been going off hundreds of times a day for over two years – that sounded when the escapees cut through a fence.
The ADC also discovered eight burned-out perimeter lights, more broken security equipment and, according to the Republic, “a lax, high-turnover culture in which MTC’s green, undertrained staff and rookie supervisors ignored alarms, left long gaps between patrols of the perimeter, left doors leading out of some buildings open and unwatched, didn’t alert the state or local police until hours after the escape, and failed in all manner of basic security practices.”
A report issued by state prison officials cited those and other problems at the MTC-run facility. [See: PLN, March 2011, p.24]. The ADC’s on-site monitor at Kingman, who was later fired, admitted that he had failed to address security problems and had never even read the state’s contract with MTC.
McCluskey, Province and Welch were ultimately captured and charged with the Haas’ murders (Renwick was arrested after he split from the group a few days after the escape). Province pleaded guilty and received five life sentences, Welch pleaded guilty and awaits sentencing, Renwick was sentenced to 60 years and capital murder charges against McCluskey remain pending.
Following the escape and nationwide manhunt, Ryan and the ADC did damage control and made cosmetic changes to prison security statewide. Ryan temporarily suspended all prisoner transfers to Kingman and moved 238 supposedly high-risk prisoners out of the facility, and the complex’s population dropped to 80% of capacity.
This presumably would result in financial losses for MTC but the company threatened to sue, citing its contract that guaranteed a minimum 97% bed occupancy, and state officials ended up paying over $3 million to MTC for empty prison beds. The company continues to operate the Kingman facility.
“It’s disgusting but not surprising,” said Caroline Isaacs. “Arizona is strapped for cash, and we don’t have the political will or the legal muscle to go up against a corporation like that, so they can operate with something close to impunity.” She added, “We’re so desperate because of prison overcrowding. These companies have got the state over a barrel. When things go wrong, is [ADC Director] Ryan really going to cancel the contract? Probably not, and they know that.”
In 2011, once the escape had faded from the headlines, Brewer and Ryan reintroduced their plan to privatize an additional 5,000 prison beds – even though the ADC’s daily prisoner count had fallen in the previous year due to fewer felony arrests in Maricopa County (the state’s population center) and fewer probation violations statewide, among other factors.
ADC officials downplayed their blatantly exaggerated earlier prison population estimates and instead projected 3,800 more prisoners entering the state’s prison system by June 2015, though they failed to provide hard data to support those projections. The plan to privatize more prison beds was met with bipartisan, if not broad, criticism.
“The fact we’re moving forward with this outdated plan is mind-boggling to me,” said Democratic state Rep. Chad Campbell, Arizona’s House minority leader. “I don’t think there’s a need for it,” agreed state Rep. Cecil Ash, a Republican who had unsuccessfully pushed for sentencing reforms in the previous legislative session.
Regardless, Brewer and Ryan pressed ahead and four private prison companies responded to the ADC’s request for proposals.
In the summer of 2011, ADC officials and representatives from CCA, GEO Group, MTC and LaSalle Corrections – the companies bidding on the 5,000-bed contract – went on a tour around the state, holding town hall-style meetings in communities from Winslow to Eloy to Coolidge. At each meeting the companies deflected criticism about escapes and costs, focusing instead on the promise of jobs and trotting out business leaders and loyal employees.
“I work with wonderful people,” said Linda Gibson, an antique shop owner who is also employed by CCA, during a public meeting in Eloy, where CCA operates a facility that houses prisoners from other states. “We have a lot of single mothers who work at CCA, making good money, who have homes they wouldn’t have if it wasn’t for CCA.”
Some communities, however, rejected the private prison dog-and-pony show, with GEO Group’s proposal to build a facility in the City of Goodyear, outside Phoenix, running into a “buzz saw” of opposition according to the Arizona Republic. Mayor Thomas Schoaf of nearby Litchfield Park called the proposal “a slap in the face to our residents” and “a threat to the public welfare of our communities.”
Prisoners Driven to Suicide
Meanwhile, an April 2012 report from Amnesty International, titled “Cruel Isolation,” examined Arizona’s draconian Special Management Units at the Arizona State Prison Complex (ASPC) in Eyman and other maximum-security ADC facilities. Citing prisoner advocates, current and former prison staff and the ADC’s own written policies, the report found that the ADC, which houses over 2,900 prisoners in maximum-security facilities, was “in violation of international law.”
Amnesty concluded that “the cumulative effects of the conditions [in SMUs], particularly when imposed for a prolonged or indefinite period, constitutes cruel, inhuman, or degrading treatment.” Even those prisoners considered especially dangerous, Amnesty argued, should be treated “with humanity and respect for the inherent dignity of the human person,” pursuant to international standards related to the treatment of prisoners.
“Amnesty International recognizes that it may sometimes be necessary to segregate prisoners for disciplinary or security purposes. However, all measures must be consistent with international standards for humane treatment,” Amnesty stated. “Article 10 of the International Covenant on Civil and Political Rights, which the USA has ratified, provides that ‘all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person,’ a standard which the United Nations (UN) Human Rights Committee, the treaty monitoring body, has stressed is a ‘fundamental and universally applicable rule.’”
But according to Amnesty’s report, the ADC’s Special Management Units – intended for prisoners who pose the greatest physical threat to prison employees and the public – are too often filled with mentally ill, nonviolent and vulnerable offenders.
Most prisoners held in SMUs have little to no human interaction. With just one or two hours out of their windowless cells each day, they must choose to either bathe themselves or spend their limited out-of-cell time in a small cage with 20-foot walls and a sliver of sky, which the ADC contends is sufficient “outdoor recreation.” SMU prisoners cannot participate in work, rehabilitative or educational programs. If they protest their living conditions, guards ignore them or sometimes deliberately deny them food.
It is little surprise then, but no less tragic, that Arizona’s prison suicide rate, according to a U.S. Bureau of Justice Statistics report released in December 2012, is higher than the national average. Meanwhile, Amnesty found that at least 14 of 43 suicides recorded in Arizona prisons between October 2005 and April 2011 – almost 33% – occurred in SMUs, even though those units housed less than 9% of the state’s total prison population.
“High rates of suicide in solitary units is a widespread problem; that’s why many states no longer house mentally ill inmates in solitary,” said Craig Haney, a psychologist at the University of California-Santa Cruz. “The severity of the conditions in those units ... most mentally healthy people who go in are adversely affected. People can become so despairing, so desperate that they take their own lives.”
According to the ADC’s critics, prisoner suicides are likely underreported. And of those that state prison officials publicly disclose, they do not specify whether a suicide occurred in an SMU or other solitary confinement unit.
A major deficiency in the SMUs is a lack of treatment for seriously mentally ill prisoners. Amnesty International found that “one prisoner diagnosed with [serious mental illness] spent two years in SMU without once seeing a psychiatrist despite his repeated requests and referrals by staff.” Another prisoner had completed a seven-day mental health treatment program, Amnesty reported, “after which he was returned to isolation in SMU where he hanged himself the following day.”
Approximately 10,000 state prisoners require ongoing mental health services, according to the ADC, including prisoners in SMUs and general population units.
As part of an investigative series into the state’s prison system, the Arizona Republic found there were 470 attempts of self-harm or suicide by ADC prisoners statewide over an 11-month period ending in May 2012.
In one earlier incident, Anthony Lester, 26, a mentally ill prisoner who had been diagnosed with schizophrenia, bled to death in his two-man cell at ASPC-Tucson in July 2010 after slashing his neck, wrist and groin with a razor blade. Prison staff stood by and watched him die without providing medical assistance. One of the guards, Orlando Pope, said he didn’t help because he had never been trained on how to apply pressure to a wound.
“When Tony was on his meds, he was our Tony,” said Lester’s aunt, Patti Jones. “If he’d had access to care, he would have lived.” Lester had been on suicide watch, but was removed two days before he killed himself. A guard had mistakenly given him shaving razors.
Just before the ADC provided suicide prevention training to 8,806 prison employees in March 2012, Lester’s family filed a wrongful death claim against the state, seeking $3 million. Pope and four other guards received unpaid suspensions for failing to properly respond while Lester was bleeding to death.
More recent suicides in Arizona state prisons – three in one month – include the May 10, 2013 suicide of death row prisoner Milo Stanley, 50, who hung himself; Paul Henderson, 22, who died from “an apparent suicide” on May 1, 2013; and prisoner Joaquin Tamayo, 41, serving a five-year sentence, who killed himself on April 22, 2013. All three deaths occurred at ASPC-Eyman. On February 12, 2013, ADC prisoner Christina Black, 52, serving a life sentence for murder, committed suicide at the Perryville prison complex in Goodyear.
Other Deaths Due to Violence, “Gratuitous Cruelty”
Suicides, whether in SMUs or other units, aren’t the only cause of unnecessary deaths in Arizona’s prison system. Other prisoners have overdosed on drugs, been killed by fellow prisoners or died because they received inadequate medical care.
“Arizona’s prison system has two death rows,” the Arizona Republic proclaimed in its investigative series. “One is made up of the 126 inmates officially sentenced to death ... [and] the other death row, the unofficial one, reaches into every prison in Arizona’s sprawling correctional system. No judge or jury condemned anyone in this group to death. They die as victims of prison violence, neglect and mistreatment.”
Between 2010 and mid-2012, 37 Arizona prisoners died on Arizona’s “other death row” – more than five times the number of condemned prisoners executed during the same time period, the Republic reported. The ADC conducts its own investigations into prisoners’ deaths rather than an outside agency, and typically releases scanty information.
According to Carl ToersBijns, a retired former ADC deputy warden who worked at ASPC-Eyman, the lack of full disclosure with respect to prisoners’ deaths is intentional.
“The cleanup starts the moment the incident is reported: eliminating flag words, eliminating individuals who may be relevant to the situation, cut back the witness list,” ToersBijns said. “By the time it’s finalized, the incident report is so clean and sterile you won’t know what happened because it’s already been filtered. The direction is given ... was it deliberate, accidental, suicide, homicide? They try to fix and create a summary for that report that they can defend.
“A lot of drug overdoses are [reported as] suicides,” ToersBijns continued. “A lot of ‘natural deaths’ are people who have been suffering medical conditions but finally just expired. It’s not reflected on those reports and never will be reflected in the news reports. Only the ones who were there know what happened.”
But the Republic did manage to identify some of the causes of the 37 deaths, by filing public records requests. At least seven prisoners died after overdosing on heroin, for example.
“Nobody ever told me he could die in prison of illegal drugs,” stated Cynthia Krakoff, whose 36-year-old son, Carlo, died from a heroin overdose at a Tucson prison on July 31, 2011. “If they can’t clean up the prisons, they need to find a different way to treat the drug addicts.”
Unfortunately, substance abuse treatment programs in Arizona prisons are lacking. While around 75% of ADC prisoners report having drug and/or alcohol problems, only 1 in 13 of those prisoners received substance abuse treatment in fiscal year 2011.
Other deaths were due to homicides. Seven prisoners were killed by fellow prisoners between 2010 and mid-2012, including Eduardo Martinez, who was beaten to death by gang members at ASPC-Yuma in December 2011. He had been serving time for writing bad checks. Christian Frost, 38, was killed at ASPC-Tucson on February 22, 2013, while ASPC-Lewis prisoner John Jones, 63, was murdered on June 17, 2013. An investigation into Jones’ death by the ADC’s Criminal Investigation Unit is reportedly pending.
According to the Bureau of Justice Statistics, based on data from 2001-2010, Arizona has a prison homicide rate 25% higher than the national average.
With respect to deaths due to substandard medical care, on March 6, 2012 the ACLU – joined by the Berkeley, California-based Prison Law Office, the Arizona Center for Disability Law, and the law firms of Perkins Coie LLP and Jones Day – filed suit against the ADC for unconstitutionally denying prisoners adequate medical and mental health treatment. [See: PLN, Sept. 2012, p.34].
The federal lawsuit, which seeks declaratory and injunctive relief and calls for the state to improve prison healthcare and address conditions in SMUs, alleges that Arizona prisoners have suffered “serious, preventable injuries, disfigurements and death.”
The complaint cites a prisoner who was ignored for two years until he died due to liver cancer. A pregnant prisoner was told by prison staff that her medical symptoms were “all in your head”; she was then left alone in her cell, where she miscarried. One prisoner was punished for administering CPR to another prisoner suffering a heart attack while guards stood by and refused to summon medical assistance.
“In recent years,” the lawsuit claims, “Defendants ignored repeated warnings of the inadequacies of the healthcare system and of the dangerous conditions in their isolation units that they received from inmate grievances, reports from outside groups, and complaints from prison personnel, including their own staff.”
The lawsuit also describes a prisoner who was denied treatment for a cancerous growth on his penis over a two-year period. His penis was eventually amputated, but not before the cancer had spread to his stomach. Another prisoner had most of his lip and mouth removed after waiting seven months for medical care.
“In two decades of prison litigation, this is one of the most broken systems I’ve seen,” said ACLU National Prison Project director David Fathi. “The indifference to the needs of desperately ill people is shocking. And the gratuitous cruelty we see in Arizona’s SMUs is unlike anything we’ve ever seen in other states’ supermax prisons.”
On March 5, 2013, the district court granted the plaintiffs’ motion for class certification in the lawsuit. The court certified a class consisting of “All prisoners who are now, or will in the future be, subjected to the medical, mental health, and dental care policies and practices of the ADC,” and a subclass of “All prisoners who are now, or will in the future be, subjected by the ADC to isolation, defined as confinement in a cell for 22 hours or more each day” or confinement in specified maximum-security units, including SMUs.
The case remains pending. See: Parsons v. Ryan, U.S.D.C. (D. Ariz.), Case No. 2:12-cv-00601-PHX-NVW.
Privatizing the Healthcare Problem
Given the ADC's known deficiencies in providing adequate medical and mental health care to prisoners, and having been criticized by human rights groups, targeted by the news media and hit with a class-action lawsuit, one would expect the ADC to make efforts to at least modestly improve its dysfunctional medical system.
Instead, in April 2012, state prison officials awarded Wexford Health Sources – a for-profit company with a history of incompetence and medical neglect – a three-year, $349 million contract to provide healthcare to Arizona prisoners. The Wexford contract went into effect in June 2012. [See: PLN, May 2012, p.36].
Less than four months later the company had made quite a first impression. On August 27, 2012, a vocational nurse employed by Wexford exposed more than 100 prisoners at ASPC-Lewis to hepatitis C by contaminating the prison’s insulin supply.
Nurse Nwadiuto Jane Nwaohia, who was already under investigation by Arizona’s Board of Nursing for undisclosed reasons, administered a routine dose of insulin to a diabetic prisoner who had hepatitis C, then inserted the same needle into another vial to draw more insulin for the same prisoner. The vial was placed among other vials of insulin in a medication refrigerator and used later that day to dispense insulin to 103 diabetic prisoners.
Medical staff quickly discovered the contamination and destroyed all the vials of insulin, and Nwaohia, according to a Wexford statement, was suspended for violating “basic infection-control protocols while administering medication that day.”
However, Wexford didn’t notify the state or Maricopa County officials until eight days after the incident.
“It’s extremely disturbing that something like this could happen. It calls for a thorough investigation to determine all of the surrounding causes of the mistake or the negligence,” said Don Specter, director of the Prison Law Office.
Wexford tried to deflect responsibility for the insulin contamination by blaming a local staffing agency for assigning Nwaohia to the prison complex. But Ken Kopczynski, executive director of the Private Corrections Working Group, which opposes prison privatization, criticized state officials who contracted prisoner healthcare to Wexford and then failed to maintain proper oversight.
“This is a problem with privatization,” Kopczynski noted. “[The ADC is] just accepting who Wexford will hire.”
State prison officials threatened to fine Wexford a paltry $10,000 after the hepatitis C contamination incident, which followed other disturbing incidents.
A prisoner at ASPC-Florence attempted to commit suicide on August 23, 2012 after not receiving his psychotropic medication for an entire month. According to the ADC, Wexford’s failure to provide the medication to the prisoner, who was found hanging from a sheet in his cell, was a “significant, non-compliance issue.”
Ten days earlier, ADC mental health contract monitor Ben Shaw had issued a memo that described significant shortages among Wexford’s mental health staff.
“Wexford’s current level of psychiatry staffing is grossly insufficient to meet [its] contractual requirement,” he wrote. “Further, this staffing level is so limited that patient safety and orderly operation of ADOC facilities may be significantly compromised.... Wexford currently has 14.85 psychiatry FTE’s [full time employees] allocated to address the clinical needs of 8,891 patients who are prescribed psychotropic medications. Wexford now employs a total of 5.95 FTE psychiatry providers (approximately 33% of their allocation) [with] 8.9 FTE’s vacant (leaving a vacancy rate of 66%).”
Also in August 2012, a Wexford nurse at the women’s prison in Perryville administered medication to a prisoner by having her “lick the powdered medication from her own hand” rather than putting the meds in a cup of water, in violation of policy. Further, a number of prisoners at the facility, the state learned, “may not have been receiving their medications as prescribed due to expired prescription[s] and inappropriate renewals or refills.”
On September 21, 2012 the ADC issued a “Written Cure Notification” to Wexford that detailed a litany of contract violations – including inadequate staffing levels, a decrease in routine institutional care, incorrect or incomplete medication prescriptions and refill procedures, inconsistent medical records documentation, lack of responsiveness to incident urgency and reporting requirements, and an unresponsive approach to prisoners’ grievances.
ADC officials ordered Wexford to fix the staffing problems, properly distribute and document medication for prisoners and communicate more effectively when problems arise. ADC Director Ryan later said in a written statement that Wexford was being afforded a chance to “improve communications and ensure [that] the healthcare needs of the inmates incarcerated by the State of Arizona are being met.”
Wexford, on the other hand, shifted blame back to the state. In a letter to Ryan the company stated the ADC “must recognize that the system that was in place” before Wexford’s contract began was “extremely weak.”
“This is more proof that privatization is not saving us money, not providing better services and is not any more efficient,” said Caroline Isaacs with the AFSC. “While the state clearly had its problems, just inserting another layer to the bureaucracy is no way to address the problems, and it complicates the matter.”
Doris Marie Provine, a justice studies professor at Arizona State University, noted that “When the state locks someone up, it assumes responsibility to provide safe and humane conditions of confinement. No amount of outsourcing will change that.”
The ADC apparently thought otherwise; after terminating its contract with Wexford in January 2013 due to “both parties encountering unforeseeable challenges,” state prison officials instead contracted with Corizon, another for-profit prison healthcare company with a history of abuses and neglect. Corizon began providing medical care to prisoners on March 4, 2013.
“Merely replacing one for-profit prison contractor with another will only prolong the crisis in Arizona’s prisons,” said Dan Pochoda, legal director of the ACLU of Arizona. “There is no reason to think that anything will change under Corizon, Inc.”
Shutting the Safety Valve of Justice
Unfortunately, Arizona prisoners with life-threatening medical conditions who apply for commutations of their sentences are largely out of luck, as Governor Brewer apparently doesn’t like making clemency decisions. Or perhaps she simply doesn’t like justifying them.
In April 2012, Brewer replaced three of the five members of Arizona’s Board of Executive Clemency – board chairman Duane Belcher; Marilyn Wilkens, who was appointed in 2010; and Ellen Stenson, appointed by former Governor Napolitano in 2007.
According to Belcher, Governor Brewer was displeased by the board’s 2009 majority recommendation to grant clemency to convicted murderer William Macumber, who had raised a strong claim of innocence. Wilkens also indicated that Brewer was dissatisfied with the way she had voted in a clemency case.
“It was expressed clearly that there was dissatisfaction with my vote on a particular issue, and that I had not voted the way they wished that I would have voted,” she said. According to one source, that case was most likely the clemency board’s January 26, 2012 unanimous recommendation to reduce 74-year-old Robert Flibotte’s 90-year sentence for possession of child porn to five years plus lifetime supervision.
Governor Brewer overruled both clemency recommendations.
The clemency board’s new members include Brian Livingston, a retired police officer and executive director of the Arizona Police Association; Melvin Thomas, a former Arizona warden who was employed by private prison firm GEO Group after working for the ADC for 21 years; and new board chairman Jesse Hernandez.
Hernandez had worked on some of Arizona’s more recent high-profile conservative political campaigns, including leading a Republican Latino group’s support for anti-immigrant legislation SB1070. Hernandez was also chairman of a group that tried to help state Senator Russell Pearce win his recall election in November 2011.
The replacement of the clemency board members didn’t go smoothly, however. An attorney for death row prisoner Samuel Lopez challenged Brewer’s appointment of the new board members in court, claiming the committee that had conducted interviews and made recommendations did not comply with the Open Meetings Law and other state statutes, and that the new members had not received required training before they began conducting hearings. Lopez’s attorney refused to participate in an initial clemency hearing, saying the board wasn’t authorized to act on clemency petitions. Lopez was executed on June 27, 2012.
Brewer’s three new clemency board members, as gatekeepers to the clemency process, will help determine whether prisoners’ commutation and pardon petitions are sent to her office for consideration.
“It’s clear to me now that they are trying in any way they can to manipulate the outcome of clemency hearings,” said Belcher. “If the cases don’t go before the governor, she doesn’t have to say yes or no.”
Not that prisoners seeking clemency have much of a chance anyway.
Between January 2009 and June 2013, Governor Brewer granted just 28 commutations due to prisoners’ life-threatening medical conditions and 6 for non-medical reasons. Her poor record on granting clemency petitions mirrors that of prior Arizona governors, but she is the first governor in at least 35 years to not issue a single pardon, denying all of the board’s pardon recommendations. She has never commuted a death sentence.
One noteworthy exception to Brewer’s stingy clemency policy was her decision to commute the life without parole sentence of ADC prisoner Betty Smithey in August 2012, resulting in Smithey’s immediate release after serving 49 years. [See: PLN, Dec. 2012, p.50].
In a state where the prison population has increased eight-fold over the past 30 years; where budget cuts have created a two-year backlog for the clemency board; and where more than 90% of Arizona’s 76,000 felony criminal cases each year are settled by plea bargains driven by harsh mandatory minimums, the clemency process is considered the criminal justice system’s safety valve.
Yet Brewer continues to deny most clemency applications, even those that apparently have merit. One particularly egregious case involved William Macumber, who was convicted of a double homicide in 1975 and sentenced to life.
Former state judge and public defender Thomas O’Toole told the clemency board in 2009 that another man, Ernest Valenzuela, had confessed the killings to him in 1967, but due to attorney-client privilege he didn’t disclose the confession until after his client died in a prison fight. “There is no doubt in my mind that Ernesto Valenzuela committed those crimes,” O’Toole said. However, the judge over Macumber’s criminal case refused to allow O’Toole to testify about his client’s confession, and the Arizona Supreme Court agreed that the trial court could assert attorney-client privilege on behalf of Valenzuela even though he was deceased.
In 2009, based on O’Toole’s testimony and other evidence in the case – including evidence suggesting that Macumber had been framed by his ex-wife, who worked at the Maricopa County Sheriff’s Office – the clemency board recommended that his sentence be commuted.
The board, then chaired by Duane Belcher, found not only that Macumber had served an excessive amount of time in prison and was not a threat to society, but that his conviction was a miscarriage of justice, stating, “the evidence that now exists certainly casts serious doubt on Mr. Macumber’s conviction.”
Regardless, Governor Brewer denied the board’s recommendation without explanation.
“Sometimes the law has a disproportionate impact and may be too rigid. That’s what the pardon power is for,” said P.S. Ruckman, an Illinois political science professor who runs a blog about clemency and pardons. “Brewer has the power and discretion to have a larger sense of justice and to do something about it. That’s her duty.”
But with Brewer failing in that duty the Arizona courts stepped in, scheduling an evidentiary hearing after Macumber filed a petition for post-conviction relief. Prosecutors offered a plea deal rather than proceed with the hearing, and on November 7, 2012, Macumber, now 77 years old, pleaded no contest to second-degree murder and was released on time served – over Brewer’s public objection. He had spent 37 years in prison.
Private Prison Contract Awarded
The ADC's long-delayed performance study of the state’s private prisons was finally released in December 2011, and predictably found, in a self-serving manner, that the state’s private and publicly-operated prisons were comparable in both cost and quality of services. Yet according to the American Friends Service Committee, the ADC’s study included “very little methodological information or supporting data, suffers from inconsistent data collection procedures, and overlooks important measures of prison safety.”
The AFSC had filed a lawsuit challenging the state’s proposed 5,000-bed private prison contract on September 12, 2011, seeking an injunction prohibiting the ADC from awarding the contract, but the suit was dismissed due to lack of standing. The organization also filed an unsuccessful administrative challenge that served to delay the contracting process.
The ADC canceled its contract proposal for 5,000 new private prison beds in December 2011 and issued a revised proposal for 2,000 beds, which was later reduced to 1,000.
Never mind that Arizona’s prison population had declined over the previous year, which indicated that additional prison beds were not needed. Never mind that, according to the ADC’s own records, there were around 2,000 empty beds in the state’s prison system at the time the ADC was soliciting a contract for 1,000 more private prison beds.
And never mind that a September 2010 report by the Arizona State Auditor’s office, based on ADC data, noted that minimum- and medium-security private prisons in the state actually cost more to operate than government-run prisons, when comparable costs were taken into account. [See: PLN, July 2012, p.45].
In February 2012, the AFSC released a report titled “Private Prisons: The Public’s Problem,” which provided a quality assessment of privately-operated prisons in Arizona. The report found that the state did not need additional prison beds and was wasting money on prison privatization; that private prisons had “serious security flaws” and “serious staffing problems,” and did not measure recidivism rates; and that private prison companies were “buying influence” through lobbying and political campaign contributions, and were not accountable to Arizona taxpayers. Overall, the report revealed “widespread and persistent problems in private facilities around safety, lack of accountability, and cost.”
On August 31, 2012, the ADC announced that its 1,000-bed private prison contract, worth $21.5 million annually, had been awarded to Corrections Corporation of America. The contract, for an initial period of ten years with options for two 5-year renewals, includes a 90% bed occupancy guarantee.
In fairness, CCA had worked hard to win the contract. The company employed a cadre of lobbyists, including Paul Senseman, Governor Brewer’s one-time spokesman before leaving her administration in 2011, who worked for a lobbying firm hired by CCA, Policy Development Group. His wife, Kathryn Senseman, was also a CCA lobbyist. Additionally, CCA hired lobbying firm HighGround Public Affairs Consultants, a company founded by Chuck Coughlin, Brewer’s former campaign manager and policy advisor. [See: PLN, July 2012, p.45].
“If you place two of your lobbyists at the right and left hand of the governor of the state and she has final say and oversight of the Department of Corrections, I would say that’s a pretty smart business strategy,” said Caroline Isaacs.
According to the AFSC, CCA had also made at least $35,000 in campaign contributions to Arizona candidates during the 2010 election cycle and donated $10,000 to Brewer’s “Yes on 100” sales tax initiative. CCA’s other political connections included former Arizona U.S. Senator Dennis DeConcini, who serves on CCA’s board of directors; additionally, Governor Brewer had appointed former CCA employee and lobbyist Mark Brnovich as chairman of the state’s Commission on Privatization and Efficiency.
CCA will open the first 500 contract beds at its prison complex in Eloy by January 2014, and the remaining 500 beds should be on line a year later. All of the beds are for medium-security prisoners.
The contract also gives CCA an option to operate another 1,000 prison beds after 2015 provided that there is an increase in the state’s medium-security prison population, which – based on the ADC’s classification system – can be easily manipulated by arbitrarily increasing scores on prisoners’ security-risk assessments.
State Rep. Chad Campbell joined a group of Democrats, clergy members and civil rights organizations in asking Governor Brewer to rescind the state’s private prison contract. Of course she declined.
“The bottom line is we need to protect safety while protecting taxpayer dollars,” said Rep. Campbell, “and expansion of private prisons does neither.”
The AFSC was more blunt, concluding in its February 2012 report that either “our state leaders are so ideologically wedded to the idea of privatization that they are unable or unwilling to face reality,” or that “they are beholden to the for-profit prison industry and that this industry has such unmitigated power in Arizona that it has simply hijacked the democratic process.”
Governor Brewer and ADC Director Ryan’s negative influence on Arizona’s prison system will persist long after they depart from office unless criminal justice advocates, human rights groups and Arizona voters take action.
There have been some glimmers of hope, including an unprecedented recall campaign against former state Senator Russell Pearce, the author of SB1070, who was removed from office in November 2011. SB1070 was largely struck down by the federal courts after the U.S. Justice Department sued the state of Arizona, although the bill’s “show me your papers” provision, which allows law enforcement officers to question people about their citizenship status based on reasonable suspicion, was upheld by the U.S. Supreme Court on June 25, 2012. See: Arizona v. United States, 132 S.Ct. 2492 (2012).
Also, in November 2012 the ADC released video of the events surrounding the 2010 suicide of Anthony Lester at ASPC-Tucson, resulting in public outrage. Prison officials had fought for two years against the release of the video, which showed multiple guards standing around for 23 minutes, doing nothing to help Lester as he bled to death. Channel 12 News KPNX had to file suit in state court to obtain the video footage; the court found the ADC had wrongly refused a reporter’s request for the video and ordered the ADC to pay $26,000 in attorney’s fees to the news station.
After seeing the video, state Rep. Chad Campbell called for Ryan’s resignation as ADC director. Predictably, that hasn’t happened.
The class-action lawsuit filed by the ACLU and Prison Law Office over inadequate medical treatment in Arizona’s prison system remains pending and hopefully will result in improved medical and mental health care, although the state still contracts with Corizon.
Neither Brewer nor Ryan is expected to be out of a job until at least January 2015, when Arizona’s next governor is inaugurated. At least until then, the state’s prison system will continue to suffer under their leadership.
More prisoners will needlessly die due to suicide, violence and medical neglect. The state’s prison system will expand its use of solitary confinement. Private prison companies will continue to profit at the expense of taxpayers. And prisoners’ clemency petitions will be largely ignored by the clemency board’s new members appointed by Governor Brewer.
All of this should matter to Arizonans.
“This matters,” according to a June 9, 2012 Arizona Republic editorial, “because tax dollars should buy secure prisons. It matters because inmates who survive a brutal system are unlikely to become good neighbors when they return to our communities. It matters because assuring the basic needs and safety of prisoners says a great deal more about us than it does about them.”
It matters, but apparently not to most Arizona lawmakers who presumably have the power to improve the state’s prison system.
Sources: Arizona Republic; “Cruel Isolation: Amnesty International’s Concerns About Conditions in Arizona Maximum Security Prison,” Amnesty International (April 2012); Center for Media and Democracy; www.prwatch.org; Rolling Stone; www.azfamily.com; http://tucsoncitizen.com; www.kpho.com; Phoenix New Times; Huffington Post; www.afsc.org; http://arizonaprisonwatch.blogspot.com; www.thinkprogress.org; www.pardonpower.com; www.businessinsider.com; http://azcapitoltimes.com; www.azcorrections.gov; www.kgun9.com
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Related legal case
Parsons v. Ryan
|Cite||U.S.D.C. (D. Ariz.), Case No. 2:12-cv-00601-PHX-NVW|