Grievance Process – or lack thereof

THIS BLOG WAS WRITTEN IN FEBRUARY, 2015.

            During the mid 1990’s President Bill Clinton, embroiled in his own sordid sexcapades that become known as the “Lewinsky scandal” signed into law the Prison Litigation Reform Act. The PLRA was an attempt by the majority House Republicans to reign in what they perceived as activist judges from coddling inmates and their complaints. Before enactment of the PLRA an aggrieved inmate could file for habeas relief (habeas corpus protection goes all the way back to the English common law and ensures that “the state” cannot arbitrarily hold a person in confinement without “due process of law” which in effect means an accused is entitled to be treated “fairly”).

            If an inmate’s rights were being violated, the inmate could hand write a petition to the Federal court and spell out the constitutional abridgement. Cases involving beatings by officers, torture, lengthy terms “in the hole” all routinely found their way to Federal Court. Each year tens of thousands of these petitions were filed in U.S. District Courts. And, there were frivolous cases filed. Inmates, with nothing but time on their hands, would file suit because bread wasn’t soft enough, or conjugal visits were not permitted.

            The PLRA was enacted to curb those alleged excesses (more significantly, the act also attempted to deprive death row inmates of appellate rights to review their capitol convictions). Under the PLRA, state were permitted to set up “administrative processes.” Inmates were required to comply with those processes before being able to file suit. Every state and the Federal Bureau of Prisons did such. And, an inmate’s ability to challenge unfair prison treatment immediately began to wither.

            Due process in prison is just a couple of words. The grievance process in effect at this facility is neither fair, nor objective. It fails the “smell” test.

            The facility has a grievance “ombudsman,” a person responsible for handling and investigating inmate complaints. The term “ombudsman” has a specific meaning. It means “a public official appointed to investigate citizen complaints.” By its very definition it implies objectivity and fairness. Nothing can be further from the truth with this facility’s grievance ombudsman.

            Most egregious of the defects is the fact that the staff person in charge of grievances isn’t objective. Her comments about grievances filed by inmates reflects her belief that inmates “don’t know as much” as she does. Case in point – I recently filed a grievance detailing an improper withholding of pay. I specifically “grieved” the housing/program director who attempted to (1) issue a backdated memo about “pay during lockdowns and holidays” and (2) prohibited the education unit from paying for tutoring work in the buildings during those periods while he continued to give full pay to his own workers.

            The grievance ombudsman sent my grievances go to my work supervisor (who wanted to pay me) because “inmates don’t dictate where grievances go, I do.” Here’s the funny thing. Without sounding too arrogant, I have more education, more legal knowledge, and more administrative experience than the facility Ombudsman. Contrary to her view, I know exactly who is responsible for my pay shortage and who created the policy. If the ombudsman was interested in the merits of the complaint, she would have read it and forwarded it to the housing/programs manager and asked (1) why did you “backdate” your policy and (2) why are education workers arbitrarily being denied pay when your workers aren’t? But she didn’t do that because what matters is that the facility wins.

            Daily I am confronted by fellow inmates who just don’t give a damn. The system is rigged, they will tell you. There is no such thing as justice in here. Officers write petty, bullshit charges, rules are arbitrarily enforced, legitimate grievances ignored. “You can’t fight them Larry; you can’t win. They’re in charge.” And I shake my head and try not to agree even though all I see every day is the sham process of discipline and grievances.

            I think of Atticus Finch and his impassioned defense of black share cropper Tom Robinson before an all-white Alabama jury in “To Kill A Mockingbird,”

            “We know all men are not created equal in the sense some people would have us believe. Some people are smarter than others, some people have more opportunity because they’re born with it … But there is one way in this country in which all men are created equal – there is one human institution that makes a pauper equal to a Rockefeller, the stupid man equal to an Einstein … that institution, gentlemen, is the law…”

            Perhaps it’s time for those in charge to remember those profound words. Even the incarcerated deserve fairness.

 

The Ombudsman Came Calling

We learned a little something about the power that can be exerted on DOC from outside this week.  We also learned that the new administration will push the envelope on rules, but will just as quickly cave when the heat is put on them.  That may not be good.  Consistency is necessary at a prison.

As I wrote a week or so ago, the new warden and his sidekick have instituted a significantly stricter set of rules for the compound.  Many bear absolutely no relationship to the goal sought to be achieved, namely provide a safer, more secure environment. The rules have, in fact, had the opposite result.  Morale of the officer corps is languishing.  Tempers and hostility from the inmates has dramatically increased. 

One area where the new administration sought to change the rules was with inmate visitation.  I can tell you first hand, nothing matters more to guys than visits.  Families stay connected through visits.  Children have time to see an incarcerated parent, play games, talk about school.  Visits from family and friends do more to keep inmates straight up in prison than any program designed.  The Governor recognizes the importance of visits in his re-entry initiative.  Family support, family involvement in this period of incarceration is crucial to the rehabilitation process.

Even knowing this, the new administration put in place draconian visitation room rules usually reserved for a level 5 (max security) institution.  The main rule change required inmates, after entering the visitation room, to remain seated through their visit.  No big deal right?  Except guys with young children can no longer walk around with their kids, helping their kids count out money or going with them to get puzzles or books.  A fair number of the visitors include older people who can’t maneuver around the room very easily.  Rather than be able to assist them, the inmate must sit there.

Add to that the prison assigned a notorious officer to work visitation last weekend.  Under two prior wardens, this officer was suspended for making rude and suggestive remarks to visitors.  He is known to bait inmates in the VI room and to be heavy handed and disrespectful.  One day he was in the college dorm while I was doing a seminar on grammar.  He pulled me aside and asked “why you wasting your time on these losers?  They’ll never amount to anything.  College is a big waste on them.”  So, I asked him how far he made it in college.  His response, “F--- you!”

Last weekend, a young guy named “G” was called to the VI room to visit with his mom.  She had arrived before him and gone to the vending machines.  Her hands were full and she was having difficulty breathing (asthma).  G entered the room, saw his mother having problems and walked over to the vending machines to help her.  Immediately, the officer approached and said “visits over.  You’re goin to the hole.”

By the next morning, twenty people who saw the exchange had called to Richmond, to the DOC Regional Director responsible for this prison, complaining about the visitation rules and the officer. By noon, G was released from the hole and the charge dropped.  The Regional Director called G’s mom and apologized for the heavy-handed behavior exhibited.  And the visitation rules?  They’ve been rescinded by order of the warden. 

The next day, a visitor appeared on the compound walking in the buildings, the law library, anywhere he wanted to go.  He’s the DOC’s inmate ombudsman.  His job is to address received complaints about conditions in the facilities (complaints lodged by the public; inmate complaints are addressed under the grievance procedure mandated by Federal law as a prerequisite to filing suit). 

The ombudsman was concerned about the small, stacked bunks put in by the warden, the failure of the institution to comply with a court-ordered settlement of Prison Legal News’ suit against DOC, and a host of other issues.  In other words, he was heading back to Richmond to report his concerns about the prison breaking their own rules and regulations.  The prison, it seems, is a lawbreaker.  Ironic, isn’t it? 

More rules are coming.  More tension to be created and these guys have only been here two months.  Richmond knows what’s happening.  How much leeway will these guys get?  Only the ombudsman may know for sure.  As the US Supreme Court correctly noted just a week earlier, the right to incarcerate does not give you blanket permission to do whatever you want to that incarcerated person.