by Matt Clarke

In February 2021, the California Office of the Inspector General (OIG) issued its finding that a $10 million effort by the state prison system—to address deficiencies that OIG previously uncovered in reporting staff misconduct—had “failed” and that the process “remains broken.”

The report documents the latest round in a bureaucratic tug of war that began on January 24, 2019, when stare inspectors reported that the the California Corrections and Rehabilitation (CDCR) was unfairly mishandling prisoner allegations of staff misconduct at Salinas Valley State Prison (SVSP). Rather than use independent investigators, prison officials employed co-workers of the accused staff members who were biased against finding misconduct.

To address the problem, OIG suggested reforms, including appointing investigators of staff misconduct allegations from outside of the prison’s command structure.

CDCR then requested additional annual funding of $9.8 million to pay for a new Allegation Inquiry Management Section (AIMS) to be established under the department’s Office of Internal Affairs (OIA). The funding was approved starting in fiscal year 2019-2020.

AIMS has 47 positions, including 36 investigators, six supervisors, three office technicians, an analyst, and a chief deputy administrator. CDCR told the legislature it projected AIMS would handle around 5,690 staff misconduct grievances per year—a caseload of 13 per investigator per month.

In March 2020, the agency introduced a new regulatory framework for processing allegations of staff misconduct with the intent of moving the primary responsibility for performing inquiries to AIMS, which was fully staffed and operational by April 2020, one month later.

But OIG found the new framework was hopelessly flawed by ambiguous terms, subjective decisions, and multiple points at which prison administrators could divert the inquiry from AIMS back to its own chain of command.

For example, AIMS investigators are required to cease their work as soon as there is sufficient evidence to form a reasonable suspicion that staff misconduct has occurred. Because of these flaws, few grievances were sent to AIMS and those which were investigated rarely had complete investigations.

The lengthy title of OIG’s latest report tells it all: “[CDCR’s] Recent Steps Meant to Improve the Handling of Incarcerated Persons’ Allegations of Staff Misconduct Failed to Achieve Two Fundamental Objectives: Independence and Fairness; Despite Revising Its Regulatory Framework and Being Awarded Approximately $10 Million of Annual Funding, Its Process Remains Broken.”

At the front end of the process, a prison’s “grievance coordinator” is required to determine whether complaints contain allegations of staff misconduct and separate them from other, routine grievances.

The grievance coordinator then forwards those complaints to the prison’s warden, who can override the determination of a staff misconduct allegation and return the complaint to the grievance coordinator to be processed locally as a routine grievance.

But if the warden agrees with the grievance coordinator’s assessment that the complaint in fact contains allegations of staff misconduct, it is forwarded to AIMS for an inquiry. The warden also has the option, should he or she have a reasonable belief the allegations are true without any inquiry, to forward it directly to OIA’s Central Intake Unit for a full investigation and possible disciplinary action or criminal charges.

However, none of the decisions by the warden is subject to oversight, giving wardens an opportunity to divert allegations of staff misconduct away from AIMS.

Other issues CDCR’s framework does not permit AIMS to investigate include:

• staff-reported excessive use of force without serious bodily injury;

• sexual misconduct or harassment against prisoners;

• due process violations during the disciplinary process;

• false rule violation reports; and

• ADA violations

During the five-month period from April 1, 2020, through August 31, 2020, CDCR grievance coordinators determined that 2,339 prisoner complaints contained allegations of staff misconduct. Wardens overruled them 1,798 times, sending only 541 (23%) to AIMS.

Worse still, AIMS rejected 113 of the grievances, accepting only 428. And that is a rate of fewer than three grievances per investigator per month—less than one-fifth of their projected caseload.

OIG found few cases where grievance coordinators had failed at their job. The majority of complaints labeled as involving staff misconduct should have been investigated by AIMS. But even the few inquiries AIMS undertook were cut short as soon as the investigator believed sufficient evidence existed to form a reasonable belief that any misconduct had occurred, even if some of a complaint’s allegations had not been investigated at all and some witnesses had not yet been interviewed.

The report on the incomplete investigation (called an “inquiry” in AIMS parlance) was then returned to the warden who decided whether to forward it to OIA’s Central Intake Unit, where investigators were constrained from looking into any allegations not already investigated in the inquiry. Those allegations AIMS did not address then fell through the cracks and were never looked into at all.

There were also many technical requirements that might result in a refusal by AIMS to process a grievance. The most common: the grievance had not been filed within 30 days of the incident that resulted in the complaint. But OIG found there was no statutory basis for most of the grievance rejections—including those in which the grievance was filed out-of-time.

Of the SVSP grievances examined prior to January 2019, no staff misconduct was found in 97% of cases—an extraordinarily high rate, OIG determined, which strongly indicated that they were not being processed fairly and led to its reform suggestions. But now, with the new AIMS system in place, the overall rate for all CDCR facilities is even higher—no staff misconduct is found in 98% of the cases. Thus, California has been spending about $10 million a year to fund a process that is even less fair.

“The lack of independence we highlighted two years ago still persists,” wrote California Inspector General Roy Wesley in a letter to Gov. Gavin Newsome (D) and state lawmakers to outline the report’s findings.

It confirms what we have been arguing, which is the department’s investigation and discipline system is broken and biased,” said Gray Grunfeld, an attorney who represents disabled California prisoners in a federal class-action lawsuit. “They keep a lot of the allegations of staff misconduct at the prison, where they are investigated by their friends.”

“I think they’re spot on. The regulations from my perspective are relatively useless,” said David Specter, director of the nonprofit Prison Law Office. “The regulations aren’t even designed to figure out whether they have serious health and safety risks or other serious problems.”  

Sources: oig.ca.gov, ktla.com

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