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A Viable ACA Litigation Strategy
On August 6, 1982, David Bazelon, Senior Circuit Judge for the U. S. Court of Appeals for the District of Columbia, resigned from the Board of Commissioners of the Commission on Accreditation for Corrections (American Correctional Association). In his Memorandum of Resignation, Judge Bazelon stated:
"I will soon complete two years of my 5year term in the Commission on Accreditation for Corrections. During my tenure, I have repeatedly called on the Commission to make some fundamental reforms in its fact finding procedures and in its relationship with the corrections community. The Commission has repeatedly refused to take the meaningful steps to guarantee its independence and to insure the integrity of its decisions. The Commission has therefore broken faith with the public and has betrayed the promise of accreditation."
In his Memorandum, Judge Bazelon stated that "the history of corrections in America, I believe, is best characterized as a conspiracy of silence between corrections officials and the public." He pointed out that the federal courts "have begun to back away from enforcing the eighth amendment's ban against cruel and inhumane prison conditions." In this climate, Judge Bazelon wrote, "the concept of accreditation is especially vital, for it offers one of the few hopes for rational and humane reform in corrections. 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."
Bazelon pointed out that when he was asked to join the Commission, he believed that its accreditation program "was fulfilling this noble promise," but that it was now apparent that it had no intention of fulfilling this promise. He explained that shortly after joining the Commission, he discovered that the American Correctional Association's (ACA) Statement of Principals' promise of "public participation" in the accreditation process has not been kept. "The public is systematically excluded from every stage of the Commission's work," he stated, providing details. He even quoted the ACA executive director at the time, Anthony Travisono, who warned his colleagues at its annual meeting in 1982 that "the Commission will fold in one year's time if this opening of the process is permitted to exist." Similarly, Commissioner B. James George warned that openness would be "sheer suicide" for the ACA. Judge Bazelon also cited Robert Fosen, the Commission's executive director, as arguing that if information about prison conditions is to be broadcast to the public, "all kinds of persons will be critical" and this "will simply upset . . . our integrity." Judge Bazelon correctly noted that the premise of these remarks -- "that either accreditation is run the way that prison officials want it to be run, or else -- is an insult to the public."
In addition to criticizing the ACA's systematic exclusion of the public's scru tiny and participation in the accreditation process, Judge Bazelon set forth detailed facts substantiating his claim that:
1.The Commission's audit techniques and deliberative procedures are inherently unreliable.
2.The Commission is unwilling to accommodate constructive criticism and the possibility of meaningful change.
3.The Commission's priorities are fundamentally flawed.
4. The Commission' has pervasive conflicts of interest with the facilities it is charged with monitoring.
5. The Commission has permitted the accreditation movement to be transformed into a propaganda vehicle for corrections authorities.
According to the facts set forth in Judge Bazelon's memorandum, there are no actual audits conducted by the ACA of the facilities it sells accreditation to (the sales of which are all achieved through taxpayers' money). The only evidence considered by the Commission is the self-evaluation of the applicant institutions and the report of an audit team that refuses to interview prisoners unless they are preselected by prison officials.
Moreover, the Commission has stated that its first priority is not to insure that its minimum standards of accreditation are complied with by the facilities it sells accreditation to, but to simply "encourage as many facilities to join the accreditation process as possible." The fact is, if the prison has the money, it will have the ACA's accreditation, regardless of how brutal the prison's conditions. Judge Bazelon noted that in the words of the Commission's own former chairman and treasurer, Gary Blake, "[if we did take a more active role in investigation], I think we could kiss the whole process of accreditation goodbye."
Judge Bazelon stated that time and time again he has seen or heard of instances in which corrections officials have used their accreditation by the ACA "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 the crisis in corrections with certificates of 'excellence.' They have used it, in short, for their own propaganda purposes."
NOTHING CHANGED
Nothing has changed since Judge Bazelon resigned from the ACA. In fact, prison conditions have deteriorated even more in the past decade. It was the Southern Ohio Correctional Facility's accreditation process beginning in 1990, for example, that allowed policies and conditions to become so brutal that the Easter 1993 uprising resulted in which 10 people were killed and 40 seriously injured. The ACA received complaint after complaint from prisoners and outside supporters regarding the prison's blatant disregard for the ACA Standards, and demanded an investigation into the brutal conditions. However, the ACA summarily dismissed these outcries, choosing instead to admonish those of us who cried out not to interfere with the accreditation process. Now, after the riot, the director of the Ohio prison system has been elected to serve as the ACA's executive director. Is this a conflict of interest, or what?
Many individuals and organizations are becoming increasingly upset with the American Correctional Association. One example of this was brilliantly highlighted in the winter 1992 edition of The National Prison Project Journal (of the ACLU), an article written by Betsy Bernat, the editorial assistant of the journal. In her article, she described the brutal beating of a prisoner in the Louisiana State Penitentiary by two prison guards while the prisoner was in handcuffs and leg irons and a lieutenant stood by and merely cautioned his comrades "not to have too much fun." In a pro se lawsuit, the U.S. Court of Appeals for the Fifth Circuit ruled that the prisoner had no viable claim under the 8th Amendment ban on cruel and unusual punishment, because a cracked dental plate, loosened teeth and a split upper lip didn't constitute a "significant injury." The prisoner's petition for writ of certiori was granted by the Supreme Court in April of 1991 (Hudson v McMillian), and Alvin J. Bronstein, the executive director of the National Prison Project, was appointed to represent the prisoner. In Betsy Bernat's article, she wrote, "Bronstein argued Hudson's case in the Supreme Court on November 13, 1991, maintaining that 'significant injury' should not be a requirement of an 8th Amendment claim. His argument was supported by an impressive group of amici (friends of the court). The office of the U.S. Solicitor General not only filed an amicus brief but also argued a portion of the case. Americans for Effective Law Enforcement, Human Rights Watch, and two prisoners' rights groups also filed as amici." Bemat pointed out that the beating of the prisoner was "in complete violation of the standards established by the [ACA]." Yet, when invited to join as an amicus on behalf of the prisoner, the ACA declined. ACA president Helen Corrothers wrote to Bronstein that the ACA Executive Committee rejected the two invitations to get involved because the Committee felt it was not "in the best interest of the ACA." Indeed not.
Bernet concluded her article by pointing out that Bronstein then wrote to all members of the ACA Standards Committee "I thought I should share with you the fact that, once again, the ACA leadership has demonstrated that ACA standards are not professional correctional standards. Rather, they are a collection of words and phrases relied on selectively by various ACA officials when it serves their interest (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."
PLAN OF ACTION
Sham indeed. I would call it embezzlement and fraud, and I say let's bring them to their knees. I think ACA accreditations could easily be destroyed within two years if we can pull together one prisoner or non-prisoner from each of the states who are willing to write a few letters and compile some information. Let's discuss strategy.
Every prison in this country that is accredited by the ACA is required to comply with ACA standards, but few, if any, are in full compliance, as the ACA well knows. The ACA has demonstrated time and time again that it will sell accreditation to any prison that doesn't meet its standards so long as the required fees are paid. The legal implications and ramifications of this sham are quite broad, ranging from criminal conspiracy, embezzlement and fraud to constitutional violations under the first, fourth, fifth, eight, ninth and fourteenth amendments of the U S Constitution and an endless variety of state laws. In my opinion, we can probably even be successful at getting some ACA officials convicted under the RICO ACT. But, of course, I can't do it by myself, and I won't pursue the matter any further if I don't hear from prisoners and/or non-prisoners in at least 10 states who are willing to work with me on this. I've got enough of my own troubles to worry about fighting for anyone who isn't willing to fight beside me.
This strategy will require that contacts from a significant number (12 is a good number-we could be known as the "dirty dozen"!) of states actively participate in the following:
1. Review the ACA standards and document non-compliance with the standards by at least one prison that is accredited by the ACA.
2. Correspond with appropriate ACA officials in order to establish the ACA's deliberate indifference to the prison's failure to comply with the standards.
3. Research applicable state laws that can be invoked under a federal court's pendant jurisdiction in a § 1983 action against the ACA.
4. Prepare and file litigation pro se along with a motion to proceed informa pauperis.
This should be about a one-to-two year process to effectively defeat dismissal or summary judgment so that further discovery may be obtained (under the Federal Rules of Civil Procedure), and you will be provided with expert advice and assistance with legal research and the preparation of correspondence, grievances and litigation. I discussed this strategy briefly with a number of people who attended the annual conference of the National Lawyers Guild a couple of months ago, and I think I can reasonably assert that there are lawyers who will assist with this project when a significant number of prisoners and their supporters have demonstrated a commitment to this strategy.
Conceivably, a number of lawsuits could be filed in one federal district court all on the same day. Participating lawyers could ask the court to consolidate the law suits into one ferocious class action for reasons of judicial economy (once class certification is granted, every prisoner in any prison in the country that is accredited by the ACA will become a plaintiff and will be notified according to law.) If this doesn't get America's attention, nothing will. But it will!
I have recently accepted the position of vice president for the Center for Advocacy of Human Rights (CAHR), and I am forming a prisoners' rights division with the CAHR. This division's sole purpose at this time is to proceed with the strategy outlined above. If you're interested in becoming active in this project, get in touch with me, and we'll get started. Any ideas from experienced prisoners' rights activists and lawyers (including good jailhouse lawyers) are welcome.
Because neither the CAHR nor I have any funds (donations for this project would be appreciated and are tax-deductible), please send a self-addressed stamped envelope when you write, or you probably won't get a response, 'cause we can't afford it. I look forward to hearing from you and working with you. Write to me NOW! , and let's kick butt!
In solidarity
Little Rock Reed
c/o CAHR
P.O. Box 880
Ranchos de Taos, NM 87557
"I will soon complete two years of my 5year term in the Commission on Accreditation for Corrections. During my tenure, I have repeatedly called on the Commission to make some fundamental reforms in its fact finding procedures and in its relationship with the corrections community. The Commission has repeatedly refused to take the meaningful steps to guarantee its independence and to insure the integrity of its decisions. The Commission has therefore broken faith with the public and has betrayed the promise of accreditation."
In his Memorandum, Judge Bazelon stated that "the history of corrections in America, I believe, is best characterized as a conspiracy of silence between corrections officials and the public." He pointed out that the federal courts "have begun to back away from enforcing the eighth amendment's ban against cruel and inhumane prison conditions." In this climate, Judge Bazelon wrote, "the concept of accreditation is especially vital, for it offers one of the few hopes for rational and humane reform in corrections. 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."
Bazelon pointed out that when he was asked to join the Commission, he believed that its accreditation program "was fulfilling this noble promise," but that it was now apparent that it had no intention of fulfilling this promise. He explained that shortly after joining the Commission, he discovered that the American Correctional Association's (ACA) Statement of Principals' promise of "public participation" in the accreditation process has not been kept. "The public is systematically excluded from every stage of the Commission's work," he stated, providing details. He even quoted the ACA executive director at the time, Anthony Travisono, who warned his colleagues at its annual meeting in 1982 that "the Commission will fold in one year's time if this opening of the process is permitted to exist." Similarly, Commissioner B. James George warned that openness would be "sheer suicide" for the ACA. Judge Bazelon also cited Robert Fosen, the Commission's executive director, as arguing that if information about prison conditions is to be broadcast to the public, "all kinds of persons will be critical" and this "will simply upset . . . our integrity." Judge Bazelon correctly noted that the premise of these remarks -- "that either accreditation is run the way that prison officials want it to be run, or else -- is an insult to the public."
In addition to criticizing the ACA's systematic exclusion of the public's scru tiny and participation in the accreditation process, Judge Bazelon set forth detailed facts substantiating his claim that:
1.The Commission's audit techniques and deliberative procedures are inherently unreliable.
2.The Commission is unwilling to accommodate constructive criticism and the possibility of meaningful change.
3.The Commission's priorities are fundamentally flawed.
4. The Commission' has pervasive conflicts of interest with the facilities it is charged with monitoring.
5. The Commission has permitted the accreditation movement to be transformed into a propaganda vehicle for corrections authorities.
According to the facts set forth in Judge Bazelon's memorandum, there are no actual audits conducted by the ACA of the facilities it sells accreditation to (the sales of which are all achieved through taxpayers' money). The only evidence considered by the Commission is the self-evaluation of the applicant institutions and the report of an audit team that refuses to interview prisoners unless they are preselected by prison officials.
Moreover, the Commission has stated that its first priority is not to insure that its minimum standards of accreditation are complied with by the facilities it sells accreditation to, but to simply "encourage as many facilities to join the accreditation process as possible." The fact is, if the prison has the money, it will have the ACA's accreditation, regardless of how brutal the prison's conditions. Judge Bazelon noted that in the words of the Commission's own former chairman and treasurer, Gary Blake, "[if we did take a more active role in investigation], I think we could kiss the whole process of accreditation goodbye."
Judge Bazelon stated that time and time again he has seen or heard of instances in which corrections officials have used their accreditation by the ACA "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 the crisis in corrections with certificates of 'excellence.' They have used it, in short, for their own propaganda purposes."
NOTHING CHANGED
Nothing has changed since Judge Bazelon resigned from the ACA. In fact, prison conditions have deteriorated even more in the past decade. It was the Southern Ohio Correctional Facility's accreditation process beginning in 1990, for example, that allowed policies and conditions to become so brutal that the Easter 1993 uprising resulted in which 10 people were killed and 40 seriously injured. The ACA received complaint after complaint from prisoners and outside supporters regarding the prison's blatant disregard for the ACA Standards, and demanded an investigation into the brutal conditions. However, the ACA summarily dismissed these outcries, choosing instead to admonish those of us who cried out not to interfere with the accreditation process. Now, after the riot, the director of the Ohio prison system has been elected to serve as the ACA's executive director. Is this a conflict of interest, or what?
Many individuals and organizations are becoming increasingly upset with the American Correctional Association. One example of this was brilliantly highlighted in the winter 1992 edition of The National Prison Project Journal (of the ACLU), an article written by Betsy Bernat, the editorial assistant of the journal. In her article, she described the brutal beating of a prisoner in the Louisiana State Penitentiary by two prison guards while the prisoner was in handcuffs and leg irons and a lieutenant stood by and merely cautioned his comrades "not to have too much fun." In a pro se lawsuit, the U.S. Court of Appeals for the Fifth Circuit ruled that the prisoner had no viable claim under the 8th Amendment ban on cruel and unusual punishment, because a cracked dental plate, loosened teeth and a split upper lip didn't constitute a "significant injury." The prisoner's petition for writ of certiori was granted by the Supreme Court in April of 1991 (Hudson v McMillian), and Alvin J. Bronstein, the executive director of the National Prison Project, was appointed to represent the prisoner. In Betsy Bernat's article, she wrote, "Bronstein argued Hudson's case in the Supreme Court on November 13, 1991, maintaining that 'significant injury' should not be a requirement of an 8th Amendment claim. His argument was supported by an impressive group of amici (friends of the court). The office of the U.S. Solicitor General not only filed an amicus brief but also argued a portion of the case. Americans for Effective Law Enforcement, Human Rights Watch, and two prisoners' rights groups also filed as amici." Bemat pointed out that the beating of the prisoner was "in complete violation of the standards established by the [ACA]." Yet, when invited to join as an amicus on behalf of the prisoner, the ACA declined. ACA president Helen Corrothers wrote to Bronstein that the ACA Executive Committee rejected the two invitations to get involved because the Committee felt it was not "in the best interest of the ACA." Indeed not.
Bernet concluded her article by pointing out that Bronstein then wrote to all members of the ACA Standards Committee "I thought I should share with you the fact that, once again, the ACA leadership has demonstrated that ACA standards are not professional correctional standards. Rather, they are a collection of words and phrases relied on selectively by various ACA officials when it serves their interest (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."
PLAN OF ACTION
Sham indeed. I would call it embezzlement and fraud, and I say let's bring them to their knees. I think ACA accreditations could easily be destroyed within two years if we can pull together one prisoner or non-prisoner from each of the states who are willing to write a few letters and compile some information. Let's discuss strategy.
Every prison in this country that is accredited by the ACA is required to comply with ACA standards, but few, if any, are in full compliance, as the ACA well knows. The ACA has demonstrated time and time again that it will sell accreditation to any prison that doesn't meet its standards so long as the required fees are paid. The legal implications and ramifications of this sham are quite broad, ranging from criminal conspiracy, embezzlement and fraud to constitutional violations under the first, fourth, fifth, eight, ninth and fourteenth amendments of the U S Constitution and an endless variety of state laws. In my opinion, we can probably even be successful at getting some ACA officials convicted under the RICO ACT. But, of course, I can't do it by myself, and I won't pursue the matter any further if I don't hear from prisoners and/or non-prisoners in at least 10 states who are willing to work with me on this. I've got enough of my own troubles to worry about fighting for anyone who isn't willing to fight beside me.
This strategy will require that contacts from a significant number (12 is a good number-we could be known as the "dirty dozen"!) of states actively participate in the following:
1. Review the ACA standards and document non-compliance with the standards by at least one prison that is accredited by the ACA.
2. Correspond with appropriate ACA officials in order to establish the ACA's deliberate indifference to the prison's failure to comply with the standards.
3. Research applicable state laws that can be invoked under a federal court's pendant jurisdiction in a § 1983 action against the ACA.
4. Prepare and file litigation pro se along with a motion to proceed informa pauperis.
This should be about a one-to-two year process to effectively defeat dismissal or summary judgment so that further discovery may be obtained (under the Federal Rules of Civil Procedure), and you will be provided with expert advice and assistance with legal research and the preparation of correspondence, grievances and litigation. I discussed this strategy briefly with a number of people who attended the annual conference of the National Lawyers Guild a couple of months ago, and I think I can reasonably assert that there are lawyers who will assist with this project when a significant number of prisoners and their supporters have demonstrated a commitment to this strategy.
Conceivably, a number of lawsuits could be filed in one federal district court all on the same day. Participating lawyers could ask the court to consolidate the law suits into one ferocious class action for reasons of judicial economy (once class certification is granted, every prisoner in any prison in the country that is accredited by the ACA will become a plaintiff and will be notified according to law.) If this doesn't get America's attention, nothing will. But it will!
I have recently accepted the position of vice president for the Center for Advocacy of Human Rights (CAHR), and I am forming a prisoners' rights division with the CAHR. This division's sole purpose at this time is to proceed with the strategy outlined above. If you're interested in becoming active in this project, get in touch with me, and we'll get started. Any ideas from experienced prisoners' rights activists and lawyers (including good jailhouse lawyers) are welcome.
Because neither the CAHR nor I have any funds (donations for this project would be appreciated and are tax-deductible), please send a self-addressed stamped envelope when you write, or you probably won't get a response, 'cause we can't afford it. I look forward to hearing from you and working with you. Write to me NOW! , and let's kick butt!
In solidarity
Little Rock Reed
c/o CAHR
P.O. Box 880
Ranchos de Taos, NM 87557
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