by Mark Wilson
An Oregon prison guard’s 37-year career came to an inglorious end when he was caught stealing $10,881 from the Department of Corrections by falsifying his time cards. After a failed attempt to dismiss the prosecution as being racially motivated, the guard pleaded guilty and paid back his ill-gotten gains.
Carlton Eugene Hayes, 65, began working as a guard at the Oregon State Penitentiary (OSP), the state’s only maximum-security prison, in 1982. He rose in rank to sergeant and most recently worked for the prison industry program, Oregon Correctional Enterprises (OCE), at a vehicle entry gate into the facility’s secure perimeter.
Hayes came under scrutiny after another prison employee complained about him leaving his post for long periods, forcing her to call other staff members to open the gate. “Hayes’ actions are immoral and unprofessional,” the whistleblower complained to her supervisor. “He is costing OCE a substantial amount of money.”
Substantial indeed. Surveillance video and Hayes’ time cards revealed that he stole $10,881 by claiming overtime pay of $75 an hour for 143 hours that he was away from his post during a seven-month period in 2017 and 2018. He admitted to detectives that while absent from his post without permission from 45 minutes to over two hours at a stretch, he occasionally went to the liquor store and drank alcohol “a couple times.”
Hayes was ultimately charged with seven felony counts of first-degree theft and seven counts of official misconduct. He was placed on unpaid administrative leave pending resolution of the criminal case.
While the charges were pending, Hayes filed suit in federal court, alleging employment discrimination. He claimed that as an African American, he was treated harsher than similarly situated white employees.
The state’s attorneys initially denied the allegations and moved to dismiss the suit. Yet in February 2019 they offered to settle, and Hayes accepted. While allowing entry of judgment in favor of Hayes and agreeing to pay him $251 plus his attorney’s fees and costs, prison officials denied any liability – as they typically do when settling lawsuits filed by prisoners, too.
Hayes played the race card in the criminal case as well, but it was not as effective in that forum. Criminal defense attorney Denny Maison moved to dismiss the charges, claiming selective prosecution because many of Hayes’ white colleagues were guilty of similar misconduct but not prosecuted.
“Indeed, the state’s own investigation provides evidence of discriminatory impact and supports an inference of discriminatory intent,” Maison noted. “Consequently, this case should be dismissed.”
Maison highlighted a 2011 case involving a white prison employee accused of over-charging about three hours of overtime for his drive to and from work. Prosecutors declined to charge that employee, citing “insufficient evidence for a conviction” and “an overburdened criminal justice system,” according to court records. Maison argued that this “demonstrated a discriminatory impact and illustrated a strong inference of discriminatory motive.”
Prosecutor Sean Kallery disagreed, explaining that Hayes’ misconduct was dramatically different from the employee who collected about $300 in unearned overtime. “His assertion that he has identified several similarly situated individuals who were not prosecuted in spite of similar conduct beggars the imagination,” Kallery argued. “Defendant has not identified a single individual whose conduct was similar to the defendant’s based on volume alone.”
While other guards who were interviewed by detectives said they could leave their post for a short time without approval, none admitted to being gone for more than 100 hours. “The defendant’s race alone does not give rise to a reasonable inference that prosecution is based on racial animus,” Kallery said. The trial court agreed and refused to dismiss the charges.
“The Oregon Department of Corrections (ODOC) maintains a stringent code of ethics which requires all employees to be honest, truthful, and obey the law,” said spokeswoman Jennifer Black, when announcing in July 2019 that Hayes had been terminated. “As a state agency, we take pride in being good stewards of the state’s resources and do not tolerate theft of any kind.”
Hayes entered into an August 29, 2019 plea agreement that required him to plead guilty to one count of first-degree theft and no contest to one count of official misconduct. All other charges were dismissed.
The theft conviction was dropped from a felony to a misdemeanor after Hayes paid restitution to OCE totaling $10,881. He was then sentenced to an 18-month term of probation and ordered to perform 40 hours of community service and participate in substance abuse treatment.
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