CaesarRodney.org. Rogue Force. By Lee Williams

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1 CaesarRodney.org Rogue Force By Lee Williams GEORGETOWN Rogue prison guards at the Sussex Correctional Institution are beating and pepperspraying inmates without cause or provocation. Inmate abuse at the Sussex Correctional Institution (SCI) has earned the Georgetown prison a nefarious reputation, and has already spawned numerous lawsuits against the state the costs of which are ultimately borne by Delaware taxpayers. More inmate lawsuits are a strong possibility. More taxpayer-funded settlements are a certainty. David Sully, a Laurel small businessman, suffered a concussion and cuts that needed stitches to close after he was repeatedly punched in the head by guards during an overnight stay in June. What provoked the beatings? Sully asked to speak to a supervisor. He s not the first victim. In 2006, guards beat David Kalm for several hours and then shoved a broomstick down this throat tearing his windpipe in several places. Kalm s civil suit is pending. Most mistreatment goes unreported, at least officially. Reports of abuse at SCI come not only from inmates and their attorneys, but also from the guards themselves. David Sully was beaten by guards at SCI in June. As part of this special report, the Caesar Rodney Institute conducted dozens of interviews and reviewed more than two dozen depositions given under oath by prison guards and DOC officials. Attorneys suing the state for physical abuse, shoddy health care and other civil rights violations subpoenaed the guards testimony.

2 The depositions show the following: Guards at SCI say there is no basic rule that tells them when force is justified. There are no credible use-of-force investigations practiced at the facility. Instead, investigators rely on the reports from the guards involved in the incident. If the guard writes in his report that their use of force was justified, investigators find the force was justified. Guards say they are reluctant to turn in abusive colleagues for fear of violating an unwritten code, known as a blue wall of silence. Guards say they are free to use pepper spray on inmates who are simply yelling, banging on doors or failing to follow verbal instruction, rather than only when faced by a physical threat. One guard admits use-of-force cover-ups do occur. Guards admit their colleagues will seek revenge on inmates involved in altercations with other staff, usually in the form of pepper spray or beatings. A former SCI nurse says she observed wounds on inmates they claimed were inflicted by guards at least twice a month. No official comment Despite assurances by his spokesman that he would answer questions about abuse by his guards, Correction Commissioner Carl Danberg refused to comment for this series. Notwithstanding the commissioner s silence, news of the beatings at SCI has made its way outside the wire. Abuse happens so frequently down there it seems to be a standard practice among the guards, said Dover attorney Steve Hampton, who has filed more than a dozen lawsuits against the state for misdeeds at SCI and other prisons. There is an abusive atmosphere at SCI that permeates the whole place, Hampton told the Caesar Rodney Institute. They have a hands-off attitude about the number of use-of-force incidents. It just isn t important to them. Drewry Nash Fennell, executive director of the American Civil Liberties Union of Delaware, said the abuse at SCI has occurred for some time, and remains problematic. We have certainly had a number of complaints regarding treatment at SCI over the years, and they continue, Fennell said. No tracking by DOC As part of its investigation into abuse at SCI, the Caesar Rodney Institute made a request pursuant to the state s Freedom of Information Act (FOIA) for the number of uses of force by guards at all DOC facilities since 2008, and the number of times the department s internal investigators determined the force was justified. The response revealed that the DOC does not track the number of times its guards use force on prisoners at any facility. A letter from Danberg s spokesman John Painter states that the DOC is not required to comply with a FOIA request if the records sought by the Caesar Rodney Institute do not exist. With regard to the use of force reviews and findings you have requested, please be advised that there are no existing public records which relate the information within the parameters you have identified, Painter

3 wrote. The Department is endeavoring to produce this information and may be able to provide it to you in the near future. One nationally known prison expert says any progressive correction department tracks use of force by facility, by shift, and more importantly, by individual officer. It s the only way to identify problem officers, who may be prone to excessive force. Texas attorney Steve J. Martin is an expert prison consultant and private practice attorney. Martin has inspected more than 500 prisons and jails in the United States, and currently serves as a federal prison monitor for three state prison systems and four metropolitan jails. Martin began his criminal justice career 32 years ago as a prison guard. Since then he has worked as a probation and parole officer and a prosecutor. Martin was appointed by a former Texas governor as general counsel of the state s prison system. He s also served on the state s sentencing commission, and on its council for mentally impaired offenders. That s a real problem, Martin said of the DOC s lack of tracking force used by its guards. While serving as a court-appointed prison monitor at a Florida facility, Martin worked with one of the facility s captains to track uses of force by the staff. We were able to focus on one particular shift and one particular lieutenant, he said. Someone was able to yank up that lieutenant and say what are you doing here? Tracking force by corrections staff one of the most basic management tools Martin said, allows you to localize your area of concern by location, by shift or by officer. Whatever you re mapping, it almost always tells you something. Rogue force defined Martin has seen prison systems where a whole facility has gone rogue which some say has occurred at SCI. If management says they re going to allow officers to engage in excessive force, that s a rogue operation, Martin said. Oftentimes when you have that you need a housecleaning. You need to rid yourself of persons that preside over that operation. Guards at the Sussex Correctional Institution are issued this use of force chart. They are told to consult the chart before using force on an inmate. Depending on how it s read, the chart apparently authorizes them to use some level of force at any time.

4 The depositions Working as a correctional officer in a prison in Delaware, or any other state, is one of the most difficult jobs in our system of government. Most guards are honest law-abiding people who strive to do their jobs in a humane manner, and that is true of most of the guard force working at SCI. According to the guards, Delaware Department of Correction (DOC) officials have done little to curb excessive use of force and other civil rights violations at the trouble-plagued facility. In a videotaped deposition taken by Hampton April 30, former-sci Warden Richard A. Kearney, Chief of Prisons since 2007, was asked whether guards would harm inmates who became involved in altercations with correctional officers. Was it a concern or a fear that other correctional officers might, for lack of a better term, exert some kind of payback or vengeance on the offending inmate? Kearney was asked. No, he replied. Has this ever occurred in the past? Hampton asked. It has occurred in the past, Kearney admitted. In your experience, was it generally the correctional officers who have been involved with the case themselves who acted inappropriately? Hampton asked. Yes sir, Kearney said. So, for example, you never heard any rumors that the night shift people would come around on the night shift and take care of those inmates who have hurt officers? Hampton asked the former warden. I ve heard the small talk, but I don t know of any actual occurrences, Kearney said. Did you take any steps as warden to make sure that correctional officers whether they were directly involved in the incident or simply knew about the incident did not seek personal revenge on the inmate? Hampton asked. No, Kearney said. Other staffers working at the prison took note of the assaults by guards. Sue Schappell worked as director of nursing at SCI in She heard accusations by inmates that guards beat and threatened them, although she never saw any abuse. There were rumors, she said in an August 2008 deposition. Asked if she ever saw any marks or injuries on the inmates injuries they blamed on the guards Schappell said, Sure. How often did you see that? the attorney asked.

5 Maybe once or twice a month, Schappell replied. No policy or guidelines According to the testimony of the guards, most cannot articulate when they are allowed to use force on an inmate. They re unable to cite a clear policy that outlines the department s use-of-force continuum. Experts say the department s use-of-force policy should be inculcated into every prison guard. Mark D. Schmidt illustrates the confusion in his deposition, which was taken by Hampton in April. Schmidt said guards are allowed to use force on an inmate who doesn t do what he s told. Experts say using force on passive resisters constitutes corporal punishment a practice banned by the Supreme Court, which has the potential to become a civil rights violation under the Eighth Amendment of the U.S. Constitution and Article I, Section II of Delaware s Constitution. If an order, for example, is to stand on the line and keep your toes on the line, and the inmate doesn t keep their toes on the line, are you allowed to use force in that situation? Hampton asked. Yes, Schmidt said. Are you allowed to use force if the inmate is talking loudly and won t be quiet? Hampton asked. If he s given an order to be quiet then yes, Schmidt said. What kind of force can you use? Hampton asked. We can use our Cap-Stun [pepper spray], Schmidt said. No investigations Schmidt and several guards at SCI admitted that after they use pepper spray, no one reviews or investigates whether they were authorized to use force, or whether they used too much force. When Cap-Stun [pepper spray] is used, as I understand it, there has to be some type of use-of-force review completed. Is that correct? Hampton asked. I don t know, Schmidt said. You don t know? Hampton asked. I ve never seen it, Schmidt said. Have you had to use Cap-Stun already in your career, Hampton asked. Yes, Schmidt said. After you used Cap-Stun [pepper spray], did anybody ever ask you questions about why you used it, or what brought about your need to use it? Hampton asked. No, Schmidt said. To your knowledge, did anybody ever review your actions to see if they were justified?

6 Not to my knowledge, Schmidt said. Did anybody ever tell you that they made a finding that your actions were not justified? Hampton asked. No, Schmidt said. Were you aware of any of the officers with whom you ve ever worked personally being told that their use of force was not justified in any particular situation? No, Schmidt said. James Hollis, a correctional lieutenant at SCI confirmed Schmidt s statements about a lack of use-of-force investigations, during his April 22 deposition. If an incident involving Cap-Stun and violence with an inmate occurs during a shift for which you re the lieutenant, did you have any obligation to review the documents regarding that incident to get an idea of what happened? he was asked. No, Hollis said. Pepper spray and cover-ups Joseph Isaacs Jr. spent 23 of his 25 years in the Department of Correction working at SCI. He recently retired as a correction lieutenant. Isaacs declined to comment to the Caesar Rodney Institute, deferring questions to DOC spokesman John Painter. Painter too was not willing to discuss abuses at SCI. Isaacs admitted that SCI has garnered a reputation as a place that goes through a lot of cans of Cap- Stun. Are you aware sir, is SCI a facility that is known for using pepper spray? Hampton asked. Yes, Isaacs said. Yes? Hampton asked. We do use it, yes sir, Isaacs said. Are you known for using it? Hampton said. Yes sir, Isaacs said.

7 Isaacs deposition, taken in July, contradicts those of his guards. He stated he has conducted more than 30 use-of-force reviews, which were all based on the reports written by his guards. His findings were always the same. Have you ever found that the use of force was not justified, when you did your use of force review? Hampton asked. I never have. No sir, Isaacs admitted. The Blue Wall Isaacs admitted he made a statement to the department s internal affairs investigator Michael J. Tigue about the Blue Wall, an unofficial policy in which guards will cover up the misdeeds of other guards, rather than report them to a supervisor. Did you tell Mr. Tigue something to the effect that people do things and cover excuse my language their shit that should not be covered up? Hampton asked. Yes, I do recall telling him that, Isaacs said. In his deposition, Isaacs quibbled about what he meant, stating this was only his opinion, which forced Hampton to seek clarification. In your years of experience, have you felt there have been times when people were not completely forthcoming about what happened in particular incidents and try to protect one another? Yes. Yes, that s possible, Isaacs said. Rose Resh worked as a guard at SCI for two years until she was fired in 2007 for receiving items from an inmate s family. Resh too had heard the rumors about abuse at SCI. In your experience as a correctional officer, did you know of any occasion in which officers would tend to get, for lack of a better term, revenge on an inmate who had injured a fellow officer? she was asked. Again, there s I have never physically watched anything like that, Resh said. I have never seen anything like that, but everybody s got stories. Resh had seen the effects imposed by the Blue Wall on the guard force. In your years as a correctional officer, were you ever aware of any incident in which one correctional officer reported another for improper or excessive force? she was asked. I m sure I knew one or two, but not you know what I mean. That wouldn t be something that you would discuss, Resh said. I understand if you don t know about it, you don t, but were you ever aware of one officer reporting another officer for excessive force? Hampton asked. Said Resh, Not that I remember. No.

8 Contact investigative reporter Lee Williams at (302) or The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government. Copyright 2009 by the Caesar Rodney Institute