Betraying the Promise of Accreditation: Quis Custodiet Ipsos Custodes?
Widespread disdain for people held in prisons and jails, public apathy for humane conditions in detention facilities, tough-on-crime political rhetoric and the privatization of correctional services by for-profit companies have taken a collective toll on the quality of our nation’s criminal justice system. Outwardly, organizations like the American Correctional Association (ACA) and National Commission on Correctional Health Care (NCCHC) champion high standards for conditions of confinement and medical treatment for prisoners, respectively, and provide accreditation to facilities that meet those standards. Often, however, accreditation supplies little more than a thin veneer of respectability that glosses over constitutional violations and other abuses.
Read the ACA’s promotional materials and you will be convinced it is committed to policies and practices vital to ensuring the safe and humane operation of prisons, jails and other detention facilities. Yet study how the ACA actually operates and you’ll quickly see that in terms of purpose and effectiveness the entire accreditation process is a sham; the ACA lacks the power to affect, impose or enforce meaningful change in our nation’s corrections system. Both the ACA and NCCHC are also plagued by conflicts of interest, including the fact that they effectively sell accreditation to their correctional colleagues and promulgate their own voluntary standards with no oversight.
The ACA, self-described as the oldest and largest correctional association in the world, was founded in 1870. During its lengthy existence it has failed to make any meaningful inroads to assure the constitutional treatment of prisoners in the United States; rather, such efforts have mostly been achieved through hard-fought civil rights litigation opposed by corrections officials. In 2013, a federal court noted that ACA standards “... do not set the constitutional minimum for prison conditions.” See: Lemire v. Cal. Dep’t of Corr & Rehab., 726 F.3d 1062 (9th Cir. 2013). And in a 2014 ruling, the Ninth Circuit stated it was “unable to determine ... the significance of the ‘accreditation’ by the ACA” in a case involving a prisoner’s Eighth Amendment claim. See: Grenning v. Miller-Stout, 739 F.3d 1235 (9th Cir. 2014). [PLN, Oct. 2014, p.18].
If the ACA and NCCHC, both non-profit organizations, are the self-appointed guardians watching over conditions in prisons and jails and establishing correctional standards, that begs the question: Who is watching over them?
A Long History of Criticism
In August 1982, David L. Bazelon, Senior Circuit Judge for the U.S. Court of Appeals for the District of Columbia, resigned his position as an ACA board member. “The Commission has ... broken faith with the public and has betrayed the promise of accreditation,” he stated.
Bazelon’s resignation came after serving only two years of his five-year appointment. When he first joined the ACA’s board he believed he was embarking on a noble venture, and would be part of setting standards to eliminate constitutional violations in our nation’s prison system. He embraced the idea of bringing public participation into the accreditation process. But the jurist soon realized that the ACA had no intention of living up to the same high standards it espouses for the facilities it accredits.
According to Judge Bazelon, who died in 1993, “the real promise of accreditation is that the conspiracy of silence between corrections officials and the public can be replaced with a partnership for reform.” Instead, he found, “the public is systematically excluded from every stage of the Commission’s work.” He called the ACA a “propaganda vehicle for corrections authorities.”
In a lengthy article entitled “The Accreditation,” published in Corrections Magazine, the ACA’s own periodical, Bazelon accused the organization of multiple unethical practices. The ACA, he wrote, “has repeatedly refused to open the accreditation process to public scrutiny and participation; the commission’s audit techniques and deliberative procedures are inherently unreliable; the commission is unwilling to accommodate constructive criticism and the possibility of meaningful change; the commission’s priorities are fundamentally flawed; [and] the commission has pervasive conflicts of interest with the facilities it is charged with monitoring.” [See: PLN, April 1995, p.1].
Judge Bazelon’s rebuke affirmed the widely-recognized fact that the ACA conducts “paper audits” of the facilities it accredits. That is, it examines what policies a prison or jail has in place rather than their actual practices. Meeting the ACA’s accreditation standards is thus more a matter of ensuring a facility has proper paperwork than ensuring it has constitutional conditions.
“If a prison has a policy on paper that says officers cannot beat inmates with rubber truncheons, it can be accredited by the ACA even if officers at that facility are in fact beating inmates with truncheons on a regular basis,” said Ken Kopczynski, director of the Florida-based Private Corrections Institute.
Or as stated in a September 2003 report prepared for the National Institute of Justice by Abt Associates, a private research and consulting group: “Achieving ACA accreditation is not an outcomes-based performance goal. Rather, ACA standards primarily prescribe procedures. The great majority of ACA standards are written in this form: ‘The facility shall have written policies and procedures on....’ The standards emphasize the important benefits of procedural regularity and effective administrative control that flow from written procedures, and careful documentation of practices and events. But, for the most part, the standards prescribe neither the goals that ought to be achieved nor the indicators that would let officials know if they are making progress toward those goals over time.”
The ACA’s executive and accreditation staff are primarily composed of current and former corrections officials, who accredit facilities run by other corrections officials – an inherent conflict of interest.
There is very little transparency or public accountability; as private organizations, the ACA and NCCHC are not required to disclose their internal records to the public. They can withhold accreditation audit results and exclude members of the public from organizational meetings.
Further, the ACA basically sells its accreditation to prisons, jails and other detention facilities willing to pay the required fees, which range from $8,100 to $19,500 depending on the number of days and auditors involved, according to a 2014 rate sheet. To add insult to injury, accreditation fees are paid with public funds; i.e., taxpayer money.
“How can the commission in good conscience represent itself as ‘independent’ and ‘unbiased’ while being financially dependent on the objects of its scrutiny?” Judge Bazelon asked, rhetorically.
His criticisms have proven prophetic: Decades later, little has changed. Consider, for example, a September 2015 meeting between the Tennessee State Employees Association (TSEA), the union that represents state employees – including prison workers – and the ACA. Re-accreditation of the state’s prisons and a “technical review” of issues involving violent incident reporting and staffing were the topics of discussion.
During the 45-minute meeting, ACA officials told union members that state prisons undergo re-accreditation audits every three years, and during the years when audits are not performed, the prisons “conduct annual self-reporting.”
TSEA officials asked the ACA representatives whether a $40,000 payment made by the Tennessee Department of Correction (TDOC) to the Correctional Accreditation Managers Association (CAMA) might affect their objectivity. The ACA members acknowledged that CAMA was an affiliate of the ACA, but claimed there was “no formal relationship” between the two groups.
Tennessee is one of only a few states in which the entire prison system is accredited by the ACA, and as a result the TDOC holds the American Correctional Association’s Golden Eagle Award. That honor is somewhat tarnished by the fact that for two of every three years that state prisons are accredited, they self-report data to maintain their accreditation; that the TDOC makes large payments to an ACA affiliate; and that despite the TDOC being fully accredited, when conducting its technical review the ACA found Tennessee prison officials were not correctly reporting violent incidents – something that presumably should have been discovered during the regular accreditation process but was not.
The ACA reportedly charged almost $8,000 to conduct the technical review of the TDOC, which state Rep. Mike Stewart criticized as “a rubber stamp for business as usual.” ACA executive director James A. Gondles, Jr., who participated in the technical review, was quoted as saying, “Our job is not to tear them apart; it’s to help them.”
The Flawed Accreditation Process
Judge Bazelon’s harsh critiques of the ACA have stood the test of time and are supported by overwhelming evidence; in spite of its lengthy existence, the ACA has had little if any positive impact on conditions in this country’s prisons and jails.
To achieve accreditation a facility has to comply with 100% of applicable mandatory standards and at least 90% of applicable non-mandatory standards. Under some circumstances the ACA may waive certain non-mandatory standards. There are different standards for different types of facilities, such as adult correctional facilities, jails, juvenile detention centers and boot camp programs. If a facility fails an accreditation audit it can reapply – if it pays another fee.
Sometimes, prisons and jails achieve ACA accreditation even when they have egregious conditions of confinement, high levels of violence, poor medical care and operational problems, as indicated by the examples cited below.
The ACA accredited the Southern Ohio Correctional Facility in Lucasville in 1990. Three years later a major uprising, brought about by deplorable conditions at the prison, resulted in the deaths of nine prisoners and one guard. Forty other people were seriously injured during the 11-day rebellion. [See: PLN, July 1997, p.19; Jan. 1995, pp.13,14]. The ACA had received reports prior to the riot that the facility was blatantly disregarding accreditation standards. But instead of investigating, ACA officials reportedly instructed whistleblowers not to interfere. Several years later the ACA appointed the director of Ohio’s prison system to serve as its president.
In 1992, the ACLU’s National Prison Project Journal published a detailed article about the brutal beating of Louisiana prisoner Keith Hudson while he was handcuffed and shackled. In his pro se lawsuit, Hudson alleged that he had suffered a cracked dental plate, loosened teeth and a split upper lip. Rather than intervening, a prison lieutenant told the guards who imposed the beating not to “have too much fun.”
Hudson received no relief from the state courts or the Fifth Circuit Court of Appeals, but the U.S. Supreme Court granted his petition for certiorari review. A number of organizations filed amicus briefs in support of Hudson’s claims – many of which were clear-cut violations of ACA standards. But when asked whether they would join in an amicus brief, the Executive Committee of the ACA declined – twice – because they felt it was not “in the best interest” of the organization.
Then-ACLU National Prison Project director Al Bronstein sharply rebuked ACA officials. “[O]nce again, the ACA leadership has demonstrated that ACA standards are not professional correctional standards,” he wrote. “Rather, they are a collection of words and phrases relied on by various ACA officials when it serves their interests (e.g. as a defense to a conditions lawsuit; as a means of getting funds from the legislature). The ACA Executive Committee action – non-action might be a better description – makes a sham of the whole standards and accreditation process.”
The Supreme Court held in Hudson’s appeal that the use of excessive force against a prisoner can constitute a violation of the Eighth Amendment even when serious injury does not result – a decision in which the ACA’s voice was conspicuously absent. See: Hudson v. McMillian, 503 U.S. 1 (1992).
In 2003, South Carolina decided to forgo ACA accreditation and implement its own “tougher” in-house prison inspections. By eliminating the ACA’s accreditation fees, the state saved $140,000. Then-DOC Director Jon Ozmint said the money would be better spent on prison maintenance. Whether the funds were used to improve the prisons or not, it is clear that as far as South Carolina was concerned, the loss of ACA accreditation was no real loss at all.
More recently, Kathy Black-Dennis, the ACA’s Director of Standards, Accreditation and Professional Development, was deposed in 2013 in a California class-action prison overcrowding case. See: Plata v. Brown, U.S.D.C. (N.D. Cal.), Case No. C01-1351-TEH [PLN, July 2011, p.1]. Under oath, she was asked to testify about a report she had co-authored. According to that report, “the standards promulgated by the ACA are used by lawyers, judges, county administrators, academia, and advocacy groups throughout the country as a tool to ensure the basic constitutional rights of the offender, while serving to protect staff and the public at large.”
When asked for specifics by Don Specter with the Prison Law Office, however, Black-Dennis was unable to name a single attorney or provide a single case citation that relied upon ACA standards to ensure the constitutional rights of prisoners were upheld.
The report that Black-Dennis co-authored had anticipated the successful accreditation of at least two California prisons, even though those facilities were in the midst of class-action lawsuits for inadequate medical care and overcrowded conditions. When asked whether ACA audits should contain information about legal actions against a prison for “conditions-related issues,” she stated, “Not necessarily, no.”
Additionally, as part of the accreditation process, ACA auditors often interview prisoners. When asked whether the auditors are supposed to include complaints made by prisoners in their report, she responded, “Not specifically, no.”
She also acknowledged that ACA standards related to the ratio of toilets and showers for prisoners, the amount of cell space per prisoner, the frequency for cell checks in segregation and the amount of exercise that prisoners receive are not mandatory standards – meaning they can be waived during the accreditation process.
Finally, Black-Dennis was asked point-blank, “So then it seems possible that a facility can be accredited by your organization yet be found unconstitutional by a court, right?” Her response was “Yes.”
That wasn’t surprising, as courts have long held that accreditation standards do not determine the minimum constitutional rights applicable to prisoners. The Fifth Circuit stated in Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) that it was “absurd to suggest that the federal courts should subvert their judgment as to alleged Eighth Amendment violations to the ACA whenever it has relevant standards.... While compliance with ACA’s standards may be a relevant consideration, it is not per se evidence of constitutionality.”
The U.S. Supreme Court addressed accreditation standards in Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979), finding that accreditation by organizations like the ACA does not determine constitutionality. The Court wrote: “[W]hile the recommendations of these various groups may be instructive in certain cases, they simply do not establish the constitutional minima; rather, they establish goals recommended by the organization in question.”
Accreditation is voluntary, as is compliance with the ACA’s self-promulgated standards; at least in theory, the obligation of corrections officials to respect prisoners’ constitutional rights is not voluntary. The only sanction the ACA has at its disposal for noncompliance is revoking accreditation – a rare occurrence that has no practical effect and simply returns a prison or jail to the status it had before being accredited.
Basically, as Judge Bazelon observed almost 35 years ago, the primary requirement for ACA accreditation is the facility’s ability and willingness to pay the accreditation fee.
The U.S. Department of Justice’s (DOJ) Civil Rights Division issued a letter in April 2008 that found the Worcester County Jail and House of Correction in Massachusetts had unconstitutional conditions of confinement. Specifically, the jail failed to protect detainees from harm, failed to protect them “from exposure to unsanitary and unsafe environmental conditions,” and did not provide detainees with adequate mental health care. County officials rejected the allegations, noting the facility was accredited by both the ACA and NCCHC – which, in light of the DOJ’s findings, indicates the inadequacy of accreditation. [See: PLN, Nov. 2008, p.24].
Accreditation and Private Prisons
The nation’s largest private prison company, Corrections Corporation of America (CCA), pays tens of thousands of dollars each year to accredit its for-profit facilities and regularly sponsors the ACA’s biannual conferences – including one being held in Boston in August 2016.
Additionally, CCA warden Cherry Lindamood is currently a member of the ACA’s Standards Committee; CCA executive vice president Harley Lappin previously chaired the Standards Committee while CCA regional director Kevin Myers served on the same Committee; and a former CCA program manager, Daron Hall, was the ACA’s president from 2011 to 2013. It’s no wonder that CCA has a very close relationship with the ACA, with most of its detention facilities (excluding community corrections centers) being accredited despite well-publicized scandals at the company’s prisons.
In 2009, five employees at CCA’s Otter Creek Correctional Center in Kentucky, including the chaplain, were charged with raping or sexually assaulting prisoners. [See: PLN, Sept. 2011, p.16; Oct. 2009, p.40]. While both Kentucky and Hawaii withdrew their female prisoners from Otter Creek, the ACA continued to accredit the facility until it closed in June 2012. Apparently, systemic sexual abuse did not constitute a serious enough violation to warrant revocation of the prison’s accreditation.
After Ohio sold the Lake Erie Correctional Institution to CCA in 2011 for $72.7 million, a September 2012 audit by the state’s Correctional Institution Inspection Committee (CIIC) found deficiencies that included non-compliance with dozens of security and safety standards – ranging from poor food quality and sanitation to inadequate medical staffing, emergency unpreparedness and unsafe storage of hazardous materials. There were reports of prisoners having to defecate in plastic bags and urinate in cups due to problems with the toilets, and prisoners being triple-bunked in segregation cells. [See: PLN, Nov. 2014, p.44].
The CIIC conducted a surprise inspection in January 2013 that found improvements but also cited high levels of violence. “Staff interviews, inmate focus groups, the inmate survey, and institutional data all indicate that personal safety is at risk at [Lake Erie],” state inspectors wrote. “Assaults, fights, disturbances, and uses of force have all increased in comparison to prior years. There is a high presence of gang activity and illegal substance use. Inmates reported frequent extortion and theft.” In spite of the deficiencies cited by the CIIC, that same month, in January 2013, the ACA accredited Lake Erie with a score of 99.06%.
The Idaho Correctional Center (ICC), the largest prison in the state with a notorious record of violence, was operated by CCA for over a decade until Idaho officials opted not to renew the company’s $29 million contract in June 2014. CCA faced multiple lawsuits, including a class-action suit in which it was held in contempt – with the contempt ruling affirmed by the Ninth Circuit in May 2016 – as well as an FBI investigation.
“The courts have once again found that CCA was in the wrong and must be held accountable,” said ACLU-Idaho legal director Richard Eppink following the Ninth Circuit’s decision.
CCA admitted that employees at ICC had fraudulently misreported staffing levels at the prison and falsified records. Due to the understaffing, the facility experienced more violent incidents than all other state prisons combined, according to a 2008 report by an Idaho DOC official, and was known as a “gladiator school.” One ICC prisoner was viciously beaten by another prisoner while CCA staff watched but failed to intervene; video of the incident was released to the public over the company’s objections. Another class-action lawsuit accused CCA guards of collaborating with gang members to maintain control at the facility. [See: PLN, Oct. 2013, p.28; May 2013, p.22; Feb. 2012, p.30].
Yet during the scandal, the CCA-operated prison was accredited by both the ACA and NCCHC.
When the ACA reviews facility records during the accreditation process, it assumes those records are accurate; however, that might not be the case. In December 2008, former CCA employee Donna Como testified at a county commission meeting in Nye County, Nevada that she had previously worked at CCA’s Southern Nevada Women’s Correctional Facility.
“I was the person who doctored the ACA accreditation reports for this company,” she stated, as part of her comments in opposition to the siting of a CCA-run prison in Nye County.
CCA is not the only private prison company to experience problems at accredited facilities. The Walnut Grove Youth Correctional Facility in Mississippi, operated first by Cornell Corrections, which was acquired by the GEO Group, and later by Management & Training Corp. (MTC), was accredited by the ACA even though the U.S. Department of Justice found “systemic, egregious practices” at the prison, including “brazen” sexual misconduct involving juvenile offenders that was “among the worst that we’ve seen in any facility anywhere in the nation.” High levels of violence and understaffing were cited, too.
A class-action lawsuit against Walnut Grove settled in 2012; U.S. District Court Judge Carlton Reeves wrote the facility had “allowed a cesspool of unconstitutional and inhuman acts and conditions to germinate, the sum of which places the offenders at substantial ongoing risk.” [See: PLN, Nov. 2013, p.30].
Yet one year later, while still in the process of complying with the settlement agreement, Walnut Grove scored a 100% on another ACA accreditation audit. Jody Owens, an attorney with the Southern Poverty Law Center, which was involved in the class-action suit challenging the abysmal and dangerous conditions at Walnut Grove, found it hard to believe the facility had achieved a perfect score.
Owens called ACA accreditation “a rubber-stamping process,” noting that many of the problems at the prison were “overlooked when these grades are passed out.” He concluded, “It makes you question the integrity of the process.”
Shortly after Walnut Grove passed its ACA accreditation audit with a 100% score, on December 31, 2013 a major disturbance broke out at the facility involving juvenile offenders in three units. Sixteen had to be treated at a local hospital for “wounds, lacerations and fractures.” Following that incident, seven guards resigned or were terminated – but at least the prison was accredited, indicating it met the ACA’s standards.
In February 2015, prisoners rioted and virtually destroyed a federal Bureau of Prisons (BOP) facility in Texas. Detainees at the Willacy County Correctional Center in Raymondville, 200 miles South of San Antonio, used pipes, mop and broom handles and other makeshift weapons during the uprising over conditions at the facility, including poor medical care.
Willacy was run by MTC, a for-profit prison firm with a long history of operational problems and deficiencies. The abysmal conditions and medical care that led to the riot were several years in the making.
Carl Takei, an ACLU staff attorney, visited the Willacy facility in 2013. He described how at that time prisoners were living in large bug-infested tents and forced to use toilets overflowing with raw sewage.
“Willacy is aptly a symbol of everything that is wrong with the criminalization of immigration and BOP’s use of privatization,” Takei stated. He called the riot “a predictable consequence of the Bureau of Prisons turning a blind eye to the abuse at Criminal Alien Requirement prisons.”
Criminal Alien Requirement (CAR) facilities, all privately operated, house federal prisoners who face deportation after serving their sentences. In June 2014, the ACLU issued a report that found a variety of problems at CAR prisons in Texas, including raw sewage, insect infestations and poor medical treatment at the Willacy County Correctional Center.
After the February 2015 riot brought inhumane conditions at Willacy to the public’s attention, MTC insisted that medical services at the prison were adequate, as they had been accredited by both the ACA and The Joint Commission – a non-profit organization that provides accreditation for health care programs.
Indeed, according to an MTC news release, the ACA gave Willacy “a score of 100 percent on mandatory standards and 99.6 percent on non-mandatory standards.” The warden at the time, Randy Treon, stated, “This recent audit by the ACA reaffirms our commitment of excellence to the community in which we live.” The prison’s pre-riot accreditation, however, was at odds with the poor conditions that reportedly led to the uprising.
As early as 2009, well before the riot, a nurse who worked at Willacy, Kathleen Baldoni, testified at a congressional briefing about conditions at the prison, including “extreme temperatures, inadequate nutrition, medical staffing shortages, and long delays for critically needed health care.” She added, “the level of human suffering was just unbelievable.” Further, a 2011 PBS documentary reported a “dozen allegations of sexual abuse” at Willacy.
Yet the facility was accredited by not one but two private accreditation organizations. MTC’s explanation for this apparent contradiction? The company claimed – based on its own investigation – that the riot had involved a small group of detainees who feared being deported, who allegedly told other prisoners to blame the disturbance on inadequate medical care. That conflicted with a BOP after-action report, which found the riot was “directly attributed to the perception of the inmate population regarding the delay of medical treatment.”
The Willacy facility is no longer accredited by the ACA – but only because it closed due to extensive damage caused by the riot, requiring over 2,800 prisoners to be transferred to other federal prisons.
Two major riots had occurred at another CAR facility, the GEO Group-operated Reeves County Detention Center in Texas. The uprisings, in December 2008 and January 2009, which involved prisoners setting fires and taking hostages, also were related to poor conditions and inadequate medical care. [See: PLN, Feb. 2010, p.22]. The Reeves County facility was accredited by the ACA in 2009.
Requirements to obtain and maintain accreditation by the ACA and/or NCCHC are often included in private prison contracts. For example, according to a June 15, 2016 email from CCA spokesman Steve Owen, “Of all the facilities for which CCA has operational responsibility, there are forty nine (49) that are contractually required to achieve and maintain ACA accreditation. Of those, forty seven (47) facilities, or 96 percent, are ACA accredited.” The other two, he said, are pending initial accreditation audits.
The value that such contractual provisions provide is questionable, though, given the examples cited above and the shortcomings of accreditation in general.
NCCHC Accreditation No Better
On June 4, 2008, Edward Harrison, president of the National Commission on Correctional Health Care, testified before the U.S. House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law on issues related to the provision of medical care to immigrant detainees.
According to Harrison, “CQI [Continuous Quality Improvement], one of our standards, dictates that facility staff actively seek out areas in need of improvement. The model embraces the discovery of problems as an opportunity to improve.”
In spite of its professed concern for the improvement of medical care, the NCCHC’s standards, like those of the ACA, lack legal or constitutional standing. In Belcher v. City of Foley, 30 F.3d 1390 (11th Cir. 1994), the mother of a deceased prisoner sued jail officials for deliberate indifference after her son committed suicide. She used the NCCHC’s “Standards for Health Services in Jails” to support her claim. The court held that “such non-legally enforceable standards are not the law and cannot clearly establish it.”
Similarly, a federal district court in Texas found NCCHC standards unavailing with respect to the constitutional requirements for prison health care. “Rather than analyze the actual quality of the medical care received by inmates, the NCCHC’s evaluation focuses on the written standards, policies, protocols, bureaucracy, and infrastructure that makes up the medical care system,” the court wrote. “Further undermining defendants’ attempt to use NCCHC accreditation as a proxy for a certification of the constitutionality of its medical care is the fact that at least two of the plaintiffs’ experts who testified about profound shortcomings in the quality of care in [Texas prisons] also work as NCCHC accreditors.... While NCCHC accreditation does bolster defendants’ claims that its medical care system is functioning constitutionally, the accreditation simply cannot be dispositive of such a conclusion.” See: Ruiz v. Johnson, 37 F.Supp.2d 855, 902, 924-25 (S.D. Tex. 1999), rev’d on other grounds, 243 F.3d 941 (5th Cir. 2001).
Like the ACA, the NCCHC warns prison officials of upcoming inspections but claims they also conduct unannounced reviews. Also like the ACA, the NCCHC has historically relied on self-reported information from the facilities it accredits. In 1996, for example, the NCCHC accredited Utah’s Draper and Gunnison prison hospitals based on a “sampling of medical records.” It concluded that “not a single case of rape or sexual abuse was found.”
According to Ross Anderson, an attorney in Salt Lake City, such pseudo-inspections are insufficient and serve to cover-up sexual assaults and sexual abuse. Public records supported his claim, revealing that about 10 sexual assaults a year are investigated at the Utah prisons. In 1996, Draper and Gunnison reported 15 sexual assault investigations involving prisoners.
Even prison medical officials found the NCCHC’s conclusions hard to believe. “I remember the claim of [no sexual assaults] being an issue – raising eyebrows in my own department,” said clinical service administrator Dale Schiapaanboord. [See: PLN, July 1998, p.14].
In fact, Utah prisoner Ricardo Rodriguez had been convicted that same year of forcible sexual assault and had 1 to 10 years added to his prison sentence for the attack. This information was conveniently withheld from the NCCHC during the self-reporting process.
Robert Jones was the prison medical director at the time of the accreditation; he was also part of the team that assisted in the NCCHC inspection. Jones said the oversight had probably resulted from the failure of prisoners to report the sexual assaults. According to Jones, “most [prisoners] fear the consequences of reporting.” However, his explanation was suspect given that public records contradicted his claims and he worked part-time for the NCCHC.
More recently, NCCHC accreditation failed to prevent the deaths of multiple prisoners at a jail in Tulsa, Oklahoma. Then-Tulsa County Sheriff Stanley Glanz was dismissive of the deaths, calling them “a part of life.” Meredith Baker, general counsel for the sheriff’s office, attempted to be more tactful by pointing out that medical care at the facility was accredited by the NCCHC. At least 17 prisoners died from 2009 to 2014, and six of those deaths resulted in lawsuits.
In 2011, surveillance video showed Tulsa jail prisoner Elliott Earl Williams, 37, lying on the floor in the facility’s medical unit for several hours without medical treatment before he died. [See: PLN, April 2015, p.46]. In another case, doctors refused to send a detainee to the hospital even though he was passing black urine. He later died.
One detainee told jail officials he suffered from paranoid schizophrenia and repeatedly asked for help. Three days later he was found dead after hanging himself in his cell.
The NCCHC noted deficiencies at the jail as early as 2007, including untimely mental health screenings, and placed the facility on probation in 2010. Yet the jail remained accredited and its probation was rescinded less than a year later – the same year three prisoners died. During the 2010 NCCHC audit, a nurse employed at the Tulsa jail, who was not named in news reports, said she was asked to “doctor medical charts by backdating undocumented information.”
The El Paso County jail in Colorado had just come off an NCCHC probationary period when John Sebastian was arrested in August 2012 and placed in a bare medical cell. Sebastian suffered from bipolar disorder and his doctor had recently changed his medication, leading him to become manic and disoriented. His aberrant behavior resulted in his arrest for aggravated robbery. A video obtained by his wife confirmed that Sebastian was restrained and denied food, water, a bed and access to a toilet for 23 hours; the only medical attention he received was when he was wrestled down by guards long enough for a nurse to take his vital signs. He was eventually taken to a hospital suffering from dehydration, covered in bruises and feces.
Even jail medical workers criticized the way the jail’s medical department was run. Denise Bernier was head nurse at the facility from August 2011 to August 2013. “We were not in compliance with [accreditation] standards on a regular basis,” she stated. Sonja Clark, who oversaw mental health in 2012, added, “The place was dysfunctional; I’m surprised no one has died.”
The jail had been on probation with the NCCHC since 2011 and was the target of several lawsuits brought by the ACLU. Sgt. Greg White said that from 2012 to 2013, the sheriff’s department considered terminating its contract with a private medical firm, Correctional Health Care, after an NCCHC audit found their services to be deficient in eleven areas, including infirmary care and mental health screening. The probation was lifted after around 7 months.
Mark Silverstein, legal director for the ACLU of Colorado, noted the jail’s accreditation by the NCCHC did not mean it provided adequate medical care. “Once a jail is accredited, the accreditation agencies are viewed as notoriously lax,” he said. “There are jails that are accredited and are still providing constitutionally inadequate health care.”
At least Sebastian survived, unlike other prisoners denied medical care at NCCHC accredited facilities.
In January 2009, the NCCHC stripped its accreditation from all six jails in Maricopa County, Arizona. The organization had given Sheriff Joe Arpaio almost three years to correct problems identified in a 2005 inspection. Medical care, or the lack thereof, was provided by the county’s Correctional Health Services (CHS). Beyond problems with CHS, NCCHC officials accused Arpaio of “providing false information about compliance” with accreditation standards. Twice, a federal judge ruled that medical care in the county’s jails was unconstitutional. [See: PLN, Dec. 2009, p.16; May 2009, p.28].
Since the sheriff took office in 1993, Maricopa County has paid over $140 million in settlements, verdicts and legal fees in jail abuse, wrongful death and medical neglect and deliberate indifference lawsuits. Almost 160 prisoners died in custody from 1996 to 2015; almost a quarter were suicides, and in about half the cases the cause of death was unknown. [See: PLN, April 2016, p.22]. Some of the prisoners died due to grossly deficient medical care.
In one case, following the January 2005 death of prisoner Deborah Braillard, who was denied insulin despite being diabetic, the director of medical services for the sheriff’s office, Dr. Todd Wilcox, testified against jail staff and accused them of falsifying Braillard’s intake screening form. Wilcox said he quit due to the unwillingness of the county and sheriff’s office “to improve training, conditions and access to medical care for inmates and detainees.” A lawsuit filed by Braillard’s family resulted in a $3.25 million settlement in 2012.
Inexplicably, that same year the county again regained full NCCHC accreditation. The following year, on October 6, 2013, prisoner Felix Torres, 47, received a shot of a drug called Toradol from jail medical staff. Torres had a history of ulcers, and Toradol is contraindicated for people with that condition. According to a lawsuit filed by Torres’ family, the drug caused his ulcer “to develop and perforate.” He pleaded for medical care to no avail, and died in extreme pain.
In 2015 the Maricopa County jail system, still accredited by the NCCHC, received that organization’s R. Scott Chavez “Facility of the Year Award.”
Corizon: A Poor Endorsement for NCCHC
Corizon Health, one of the largest for-profit prison medical providers in the United States, is a perfect example of everything that’s wrong with the NCCHC’s accreditation process. While Corizon boasts about obtaining NCCHC accreditation at prisons and jails nationwide, B. Jaye Anno, a prison health expert and NCCHC co-founder, explained why that is misleading.
According to Anno, when considering a facility for accreditation the NCCHC only looks at whether a prison has the “infrastructure” to deliver proper health care. They do not evaluate whether or not adequate medical care is actually provided – which is analogous to the ACA’s paper audit process. This helps to explain the many examples of questionable prisoner deaths at facilities accredited by the NCCHC.
“It’s fair to say they look at minimum standards,” Anno stated.
PLN has previously reported on a litany of prisoner deaths in facilities where medical care was provided by Corizon, as well as lawsuits against the company and the non-renewal of contracts by state prison systems and jails due to poor performance. [See: PLN, Dec. 2015, p.22; Oct. 2015, p.20; March 2014, p.1].
In 2012, Dr. Don Bennett, executive director of the Correctional Medical Authority in Florida, stated, “In my opinion, NCCHC and ACA are not sufficient to measure true quality of prison health care. They are very good at ensuring that systems are operating, but if you are checking for quality, more resources would have to be provided.”
As a case in point, the Santa Rita jail in Alameda County, California has been accredited by the NCCHC for at least seven years. In 2015, the county and its medical provider, Corizon, settled a wrongful death lawsuit filed by the family of 50-year-old prisoner Martin Harrison, Sr. for $8.3 million. Upon being stopped for jaywalking in August 2010, police discovered Harrison had an outstanding warrant for failure to appear in court on a DUI charge. Despite suffering from severe alcohol withdrawal, Corizon staff cleared him for placement in general population. He began hallucinating and acting erratically, and was beaten and tased to death by ten deputies.
At the time of Harrison’s death, Corizon employed licensed vocational nurses to conduct jail intake screenings instead of more qualified (and expensive) registered nurses.
“Which, by state law, they’re not qualified to do that kind of work for the inmates,” said Michael Haddad, one of the attorneys representing Harrison’s family, referring to licensed vocational nurses. “So the inmates were getting unqualified people screening them and checking out their medical problems.”
As part of the settlement, Corizon agreed to change that practice in Alameda County and other jails in California where the company provides medical care. [See: PLN, March 2015, p.54]. While the litigation was pending, Dr. Harold W. Orr, Jr., employed by Corizon, testified about NCCHC accreditation.
When asked to address the effectiveness of being accredited by the NCCHC, he replied, “Well, let me say it like this. What I think I was trying to tell you is that you could not be NCCHC-certified and still provide excellent care to your inmates. Accreditation is a process when they come in and audit you, but you may never choose to be audited and provide excellent care to inmates.”
He was then asked, “And the reverse is true as well, isn’t it, Dr. Orr. That somebody can be NCCHC certified, accredited, and provide bad care?”
“I suspect that could probably happen,” he responded.
In fact it does happen. In February 2014, the NCCHC re-accredited the Harris County Jail, the “largest mental health in-patient treatment center in Texas,” praising the facility for its high standard of care.
“I salute our entire medical staff for setting a national example for inmate health care as well as meeting all national standards,” Sheriff Adrian Garcia said at the time.
However, according to a 2015 investigation by the Houston Chronicle, there have been 75 prisoner deaths at the jail from 2009 to 2015. In 19 of those cases, the cause of death was either a treatable or preventable condition, but medical staff failed to provide adequate care. [See: PLN, July 2015, p.44; Jan. 2010, p.14; Sept. 2007, p.9].
“How the third-largest jail in the United States gets away with violating inmates’ constitutional right to adequate health care is beyond belief,” said attorney Randall Kallinen on behalf of the family of Patrick Green, who died from bacterial meningitis while held at the Harris County Jail in March 2015.
During his tenure as a court-appointed monitor of the Pierce County Jail in Tacoma, Washington, Dr. Joseph Goldenson said NCCHC standards “...represent a ‘well thought out and systematic approach to the difficulties of providing a quality system of health in corrections [and] as a method of organizing the reports.” But he added that NCCHC accreditation fell short of providing any enforceable constitutional standard of medical care.
The Pierce County Jail had been under federal oversight since 1996 due to a class-action lawsuit. Originally, the facility had “expressed a desire to use the National Commission on Correctional Health Care (NCCHC) standards as their guidelines and final goalpost for their health care system,” said Goldenson. But a decade later, between 2006 and 2008, at least eight deaths were the direct result of deficient medical care at the jail, and Goldenson found 18 areas in which the facility was out of compliance with NCCHC standards. The county then argued that the standards were only guidelines, not requirements. [See: PLN, Sept. 2010, p.38].
And in February 2016, the family of Chatham County, Georgia jail detainee Matthew Clinton Loflin, 32, filed a wrongful death suit in federal court. Their complaint alleges that Corizon Health staff failed to provide treatment for Loflin’s symptoms of congestive heart failure, including shortness of breath, pain and passing out, and refused to send him to a hospital until an outside cardiologist ordered that he be taken to an emergency room.
“Matthew Loflin died because defendants were deliberately indifferent to his serious medical need,” the lawsuit stated. “Corizon, by and through its agents, chose to protect its own profits rather than preserve Mr. Loflin’s life.”
At the time of Loflin’s death in April 2014, the Chatham County jail was accredited by the NCCHC. Three months later, Corizon’s medical program at the facility was also accredited by the Medical Association of Georgia. The wrongful death suit filed by Loflin’s family remains pending. See: Maley v. Corizon Health, U.S.D.C. (S.D. Ga.), Case No. 4:16-cv-00060-WTM-GRS.
Conclusion: Corruption and Cash
One prisoners’ rights group, Citizens United for Rehabilitation of Errants (CURE), has sent a representative to ACA meetings for years, to propose standards and provide input. CURE’s representative, Dianne Tramutola-Lawson, has attended the ACA’s Standards and Accreditation Committee meetings and is a member of the organization’s Delegate Assembly. In an interview with Prison Legal News, she explained it was important to have a seat at the table, and that to her knowledge CURE was the only prisoners’ rights group that attends ACA meetings. CURE has advocated for ACA standards for lower prison phone rates and temperature control in prisoners’ living areas (such as air conditioning during hot weather), and opposes video visitation that results in an end to in-person visits.
A seat at the table to seek accountability is certainly a noble goal, but likely a frustrating and fruitless one given the many shortcomings of the ACA’s accreditation process – as well as outright corruption.
In the latter regard, ACA president Christopher B. Epps resigned in November 2014, just before he was indicted by federal prosecutors on 40 counts of bribery, money laundering, conspiracy and tax-related charges. At the same time he also served as commissioner of the Mississippi Department of Corrections and president of the Association of State Correctional Administrators (ASCA). In 2011 he received the ASCA’s award for Outstanding Corrections Commissioner in the Nation.
Epps is accused of accepting over $1.4 million from Cecil B. McCrory, a former Mississippi state lawmaker and corrections consultant used by private prison firms GEO Group and MTC, and from Sam Waggoner, a consultant for prison phone provider Global Tel*Link (none of the companies has been charged). In exchange, according to prosecutors, he steered hundreds of millions of dollars in DOC contracts to the companies associated with McCrory and Waggoner.
Initially released on $25,000 bond, Epps pleaded guilty in February 2015 to charges of filing a false tax return and conspiracy to launder money. He forfeited two houses and two Mercedes, and federal investigators seized nearly $70,000 in cash from a safe at his home. McCrory and Waggoner also pleaded guilty, and in February 2016 another consultant, Robert Simmons, was indicted for bribing Epps. Thus far none of the defendants in the bribery scandal have been sentenced; in April 2016, McCrory told the federal court he wanted to withdraw his guilty plea. Prosecutors have indicated that more indictments are possible.
Meanwhile, the ACA replaced Epps with Mary L. Livers, deputy secretary of the Louisiana Office of Juvenile Justice, who now serves as the organization’s president.
Most prisoners at facilities that have undergone ACA audits are aware of the frenzied efforts by corrections officials to clean up, slap on a fresh coat of paint and get unorganized records in order – sometimes by fabricating them. As stated by Judge Bazelon when he resigned from the ACA’s board, “Prison officials are informed of impending [ACA] visits months in advance, thereby enabling them to put on a ‘one-day shine’ for auditors.”
In spite of the fact that the NCCHC and ACA have proven to be paper tigers with respect to improving conditions in prisons and jails – given the voluntary nature of their accreditation standards, which have no legal weight relative to constitutional requirements – both are doing fairly well financially.
Former NCCHC president Edward Harrison pointed out that the organization has no membership and does not collect dues. Yet in its 2014 Form 990 for non-profits, the NCCHC reported gross revenue of $4 million. Of that amount, just over $2 million was paid out in salaries and benefits plus $1.7 million for other expenses, leaving a net profit of approximately $256,000. About half the total revenue – $2 million – came from accreditation contracts with government agencies and professional certifications. NCCHC president and CEO Thomas L. Joseph received $156,899 in compensation in 2014; that represented around half his salary, as he didn’t join the organization until June of that year.
The 2013 Form 990 for the ACA, the most recent available, showed gross revenue of $9 million. The organization paid $3.17 million in salaries and benefits, and $4.8 million for other expenses. The ACA’s net profit for 2013 was just under $1 million; it received more than half its revenue ($4.6 million) from accreditation contracts. ACA executive director James A. Gondles, Jr. received a salary of $302,527 in 2013 plus $77,787 in “other compensation.”
At least one other group provides accreditation for medical care in detention facilities. Founded in 1951, The Joint Commission, a non-profit, states its mission is “...to continuously improve health care for the public, in collaboration with other stakeholders, by evaluating health care organizations and inspiring them to excel in providing safe and effective care of the highest quality and value.”
While most of its clients are hospitals and other medical centers, The Joint Commission has accredited healthcare programs in 90 prisons and around 50 jails nationwide – including the CCA-run Adams County Correctional Center in Mississippi, a CAR facility where a major riot broke out in May 2012 that resulted in 20 people being injured and the murder of CCA guard Catlin Hugh Carithers.
One of several complaints that led to the uprising was inadequate medical services. The facility was accredited by The Joint Commission in November 2010 for ambulatory care – two months before CCA was cited for the death of a prisoner who did not receive “appropriate and timely” treatment – and accredited on January 19, 2012 for behavioral health care – the latter just four months before the uprising. The prison was also accredited by the ACA at the time. [See: PLN, June 2014, p.48].
Although The Joint Commission has the benefit of not being composed of or unduly influenced by corrections officials, and makes its accreditation information and reports publicly available, it still apparently suffers from some of the same deficiencies as accreditation from the ACA and NCCHC.
“Time and time again I have seen or heard of instances in which corrections officials have used the [ACA] commission for their own needs,” observed Judge Bazelon, as reported by the New York Times in 1982. “They have used it to deflect public criticism and scrutiny of their management, to boost their standing with governors and legislators, to ward off judges and lawsuits and to pat themselves on the back. They have used it to paper over crises in corrections with certificates of ‘excellence.’ They have used it, in short, for their own propaganda needs.”
Not much has changed over the years.
“Holding correctional facilities accountable to specified standards is a worthy goal,” said Ken Kopczynski with the Private Corrections Institute, in a January 31, 2014 press release. “However, the ACA’s accreditation process is lacking in that regard; the organization has an inherent conflict of interest in accrediting correctional facilities when ACA officials who are current and former corrections employees evaluate other corrections officials. The ACA is also dependent on the fees it charges for accreditation, there is no independent oversight of the ACA, it sets its own standards for correctional facilities and it’s influenced by the private prison industry, which is more concerned with profit than public safety.”
Accreditation by the ACA and NCCHC is often described as the “gold standard” for corrections agencies. Yet based on the inherent limitations of accreditation, and the conflicts of interest and paper audit, fee-based business model of those two organizations, it might more accurately be referred to as fool’s gold.
Sources: ACA Form 990 (2013); NCCHC Form 990 (2014); House Subcommittee testimony of NCCHC President Edward Harrison (June 4, 2008); “The Accreditation” by Judge David L. Bazelon, Corrections Magazine (Dec. 1982); NCCHC revocation letter to Sheriff Joe Arpaio (Sept. 25, 2008); http://fusion.net; www.clarionledger.com; www.aca.org; www.oaoa.com; www.jointcommission.org; www.tulsaworld.com; www.yourhoustonnews.com; www.chron.com; www.azcentral.com; www.ncchc.org; www.abc15.com; www.phoenixnewtimes.com; www.hesperiastar.com; http://truth-out.org; www.tseaonline.org; www.expressnews.com; www.grassrootsleadership.org; http://archive.pahrumpvalleytimes.com; www.vice.com; www.mtctrains.com; www.texasobserver.org; www.prisonpolicy.org; www.abc7news.com; www.sfgate.com; www.fox5atlanta.com; www.corizonhealth.com; www.maricopa.gov; www.cca.com; www.aclu.org; www.clevescene.com; New York Times; PCI press release; www.qualitycheck.org; www.thenation.com
Quis Custodiet Ipsos Custodes: Latin, from the Roman poet Juvenal: “Who watches the watchmen?” (also sometimes translated as “Who will guard the guards themselves?”)