By Gregory A. Belzley and Camille A. Bathurst
We agree with the op-ed written by Gov. Matt Bevin and Secretary John Tilley that was printed in The Courier-Journal on July 2: Kentucky’s criminal justice system is in desperate need of reform. But that’s a broad, inchoate objective that will require that our leaders not just act tough but get smart on crime (and that voters listen), and cooperation and strategic risk-taking among the public and private sectors and all three branches of state government.
A simpler, more cost-effective objective would be to reform the Kentucky Department of Corrections, which is part of the executive branch and directly subject to the control of the governor and the secretary. As inmates’ rights lawyers, we currently are involved in a number of lawsuits against the KDOC that illustrate the variety of ways in which it corrodes the very foundation of what the governor and the secretary want to accomplish:
1. Inmate Education
One of our lawsuits against the KDOC is based upon a genuinely farsighted and constructive act of the Legislature that requires that inmates’ sentences be reduced by 90 days when they obtain a GED, or complete a college or technical course, or participate in programming that addresses behavioral issues such as substance abuse and anger management. Studies have repeatedly confirmed, and the KDOC has repeatedly certified, that inmate education promotes public safety and saves taxpayer dollars. But the court in our case has found that the KDOC’s administration of the law is such a mess that it violates the constitutional rights of participating inmates. We’ve seen first-hand how the KDOC’s mismanagement also discourages inmates from pursuing educational opportunities during their incarceration and frustrates those who do. And because the KDOC has failed to keep any reliable record of what inmates took what courses when, or whether they received the educational sentence credit to which they were legally entitled, there may well be inmates serving time in Kentucky prisons today who should have been released and back with their families a long time ago.
2. Constitutional Rights
The KDOC also has a “make me” attitude that is downright contemptuous of the clearly established law governing inmates’ rights. For instance, it’s well-settled that inmates are constitutionally entitled to a diet that meets the requirements of sincerely held religious beliefs. One of our clients is an Orthodox Jewish inmate who was a plaintiff in a lawsuit some years ago in which the court required that Kosher meals be provided to Jewish prisoners at the Kentucky State Reformatory. But when our client was transferred to the Kentucky State Penitentiary, he was denied Kosher food, and was told that the result of his lawsuit against the Reformatory didn’t apply to the Penitentiary. So, he had to sue again and fight for four years to remind the KDOC that the law should be respected at all its institutions, not just the ones that get sued. The KDOC only recently agreed to provide deaf inmates the accommodations for their disability that had been required by law since 1990, and that took still another lawsuit. The KDOC must learn the meaning of “clearly established law” and quit requiring inmates to file lawsuits in order to obtain constitutional protections to which they are already clearly entitled. How is the KDOC supposed to inculcate in the inmate population a respect for law when it apparently has so little respect for it itself?
3. Health and Safety
We have a number of personal injury cases pending against KDOC officials on behalf of inmates whose obviously serious medical needs were neglected, or who were seriously injured on the job due to a lack of training, or supervision, or protective equipment. One of our clients was almost disemboweled while cutting down a tree as part of a road crew, an extremely dangerous job for which he was paid just $10 a day and received no workers’ compensation protection. The KDOC is now taking the position that its officials have no insurance coverage for their negligence, and that the state will not cover the damages they caused. As a consequence, an inmate who suffers serious injuries due to the negligence of a KDOC official may have no remedy beyond trying to seize the defendant’s personal assets, and ends up being thrown back into society permanently disabled. Private citizens have to have insurance to drive a car, but not a state official who is responsible for the safety and welfare of hundreds of Kentuckians in a state prison.
4. Fear of Retaliation
Fear of retaliation continues to pervade inmate populations and discourages complaints that could identify legitimate problems that need solutions. The KDOC transfers jailhouse lawyers to other prisons to interfere with their efforts to effect reform at an institution, or just its compliance with clearly established law. In our educational credits litigation, we are currently trying to determine why all educational programming appears to have been cancelled at the one institution where the inmates who brought the suit happen to reside, but nowhere else. The word there is that “this is what happens when you sue,” and KDOC officials know full well the risks to which they are exposing our clients in the yard.
State and federal law requires that inmates file grievances and appeal responses with which they are dissatisfied before they can sue in court for personal injuries or a violation of their constitutional rights. But prison officials often fail to respond to grievances within the time required by their own internal policies (if they respond at all), leaving inmates unsure of what to do to preserve their claims. Even though an inmate is required by law to describe the facts underlying his grievance and specify the action he wants taken to address his complaints, we currently are representing an inmate whose grievance an institution refused to accept because it “sounded too demanding.”
6. Hiding Mistakes
The KDOC buries its mistakes. After a doctor at the Kentucky State Penitentiary said an inmate was “faking” the classic symptoms of a potentially lethal bowel obstruction, the inmate was allowed to fester in solitary until he died from gangrenous intestines. No one told his mother what had happened, but an anonymous tip sent her to a lawyer. In the lawsuit that followed, the KDOC’s own medical director absurdly opined that the Penitentiary’s doctor had satisfied the medical standard of care. The case eventually was settled, but nothing happened to the doctor. He wasn’t canned until his staff passively watched a mentally-ill inmate starve himself to death over a period of 30 days. The inmate was buried at the Penitentiary, and it’s not clear whether the KDOC made any effort to find or inform his family. Had inmates not notified persons outside the wire that something was going on, and had an investigative reporter not dug deeper and obtained an internal report concerning the inmate’s death, the incident likely would never have come to light.
7. Prisons in Disrepair
Many of Kentucky’s prisons are falling apart. We represent an inmate who still struggles with a neck injury he received when a large ceiling tile fell on his head – after years in which the warden had been repeatedly denied the funds necessary to repair the leaky roof that had inmates and staff alike dodging ceiling tiles all over the institution. Inmates struggle to stay warm in winter and to avoid overheating in the summer. Guards are subjected to the same conditions. KDOC’s guards are overworked, underpaid, undertrained, and required to work in an environment of broken furniture, leaky pipes, peeling paint and balky toilets that undermines the importance of the job we ask them to do. KDOC prisons have a certain “aroma” that you become familiar with over time.
So while we applaud Gov. Bevin’s formation of a “Criminal Justice Policy Assessment Council,” reforming the KDOC should be one of its priorities. And they should save some seats at the table for inmates who know the system, know the needs, and will keep the work of the Council focused. They’re the ones who are supposed to benefit from the Council’s work, and they’ll be the ones who will have to sell it to an inmate population that will be understandably skeptical. We can recommend a number of responsible, intelligent, articulate and highly motivated inmates who would welcome the opportunity and would make a significant contribution.
The KDOC’s lawyers know where to reach us.
About the authors: Gregory A. Belzley and Camille A. Bathurst are inmates’ rights attorneys; the husband and wife team are partners at Prospect-based firm BelzleyBathurst Attorneys.