MIDDLE GROUND'S ADVOCACY
TWENTY-NINE YEARS OF DEDICATION TO PRISON REFORM
IN ARIZONA (1983- 2015)
The full list of activities of Middle Ground is too long to include everything, but here are some highlights:
Each and every day, we open mail from hundreds of prisoners in both state-operated and private prison beds in Arizona. In addition, we have mail from county jails throughout the state as well. We also receive 30-45 emails/day from prisoners' families who are seeking help on such issues as medical care, protective custody, visitation and marriage issues, unfair disciplinary proceedings, wrongful validation of prisoners as gang members, missing or stolen prisoner property, costs and fees associated with purchase of prison commissary items, costs of the inmate telephone system, and a myriad of other issues. We diligently attempt to assist each person to the best of our knowledge and ability.
During the 2016 legislative session, some so-called prisoner advocacy groups proposed and supported SB 1067, which would have allowed the DOC to re-incarcerate a released prisoner for up to 5 days in jail if he/she were determined to be violating the terms of community supervision. The bill proposed that the person not have access to a lawyer, a public hearing or advance notice of the "hearing." Only Middle Ground opposed this bill and we successfully defeated these provisions of it. The bill attempted to take the Board of Executive Clemency out of the decision-making process for revocation proceedings and this is strictly in violation of Arizona law.
During the same 2016 legislative session, the same alleged prisoner advocacy groups supported a so-called sentencing reform bill, touting it as a "65% sentencing bill." However, the group did not understand Arizona's criminal sentencing code math calculations. Instead of proposing 65% sentences for non-violent, but repetitive offenders, the bill's language actually proposed 75% sentences. In addition, and again due to lack of understanding of how community supervision time is allocated under our criminal code, the bill (SB 1068) proposed that VIOLENT offenders serve 41% less time on community supervision than NON-VIOLENT offenders! We were able to defeat this bill before it was even voted on in any committee. While we understand and appreciate the need for sentencing and criminal justice reform in Arizona, it is clear that the proposals for change must be authored by people who do, in fact, understand our criminal code.
On July 23, 2014, the Arizona Department of Corrections utterly "botched" the execution of death row inmate, Joseph Woods. He suffocated for approximately 2 hours --- ". . . trying to breathe like a fish out of water," as decribed by one reporter/witness. Director Charles Ryan has been tasked by the Governor to conduct an investigation (of his own department and procedures). Not surprisingly, Ryan has already issued a statement (less than 24 hours after the execution) stating that his department "didn't do anything wrong." The Governor herself, has issued a statement claiming, "It was a legal execution and the inmate didn't suffer." That ought to be one "unbiased" investigation whenever it is complete. In fact, why bother?We sent a letter to the Governor and to other legislative leaders, demanding an independent investigation. Finally, the Governor ordered the DOC to solicit proposals from experts to determine what went wrong with the Woods execution and how to "fix" it. We oppose capital punishment, so we prefer that the "fix" be elimination of the death penalty in Arizona. However, that is politically not feasible at this time. At least the Governor took our concerns seriously and has ordered not just an independent review, but has stopped all pending executions until this issue is resolved.
We have successfully challenged both the Department of Corrections and the Arizona Board of Executive Clemency regarding the length of time it was taking for both agencies to process their paperwork in order to schedule revocation hearings before the Board. Prior to our challenge, from the time of arrest to the time of hearing it often took 100 or more days. Now, both the DOC and the Board are complying more closely with case law which mandates that the hearing take place within a "reasonable" amount of time -- generally thought of to be 60 days.
Middle Ground is the only prisoner-rights' advocacy agency that regularly attends the monthly business meetings of the Board of Executive Clemency in order to keep abreast of changes within the agency and of policies which affect inmates, victims and the public. We frequently make presentations to the Board at such meetings and follow-up our comments with written correspondence to the Chairman. Our work has resulted in more fair, more orderly and more consistent hearings by board members, even when the board memberships changes from time to time.
Middle Ground successfully defeated attempts to repeal the compassionate leave statute that permits ``home furloughs'' for prisoners. Because of DOC policy changes and political ill-will at the legislature wherein legislators simply don't support home furloughs, this law has not been utilized for many years, but the law has not been repealed. During one legislative session, the repeal statute made it all the way out of the legislature and to the Governor's office (Mofford) for signature. Middle Ground successfully convinced the Governor's office to veto the bill. Some day, with a new DOC administration and with more forward-thinking legislators, home furloughs may be revivied!
Provided assistance to pro per lawsuits against the Department of Corrections for failure to deliver incoming mail that did not have an ADOC prisoner number on it. We convinced the District Court that it was the DOC's responsibility to notify the sender of a phone number where an inmate's DOC number and correct address could be obtained. We originally lost the case in Federal District Court; appealed to the Ninth Circuit, where the case was remanded; and successfully won a Motion for Summary Judgment in favor of the prisoners in the District Court. Today, when a piece of mail is delivered to the prison which does not contain the prisoner's Inmate Number, the DOC is required to return it to the sender and include a telephone number where the sender can obtain the correct number, and they are supposed to (but do not often actually do) notify the inmate that a letter was return to a sender due to the lack of a complete or accurate DOC prison inmate number.
Provided assistance in pro per lawsuit against the DOC when they attempted to make major changes in visitation policy, including conducting body cavity searches on visitors, without first promulgating the policy changes through the Administrative Procedures Act (APA). Middle Ground succeeded in obtaining a preliminary Injunction prohibiting implementation of the changes and a final judgment requiring the DOC to conduct public hearings for public input on major changes in visitation policy. This requirement subsequently has been rendered ineffective because the legislature now has exempted the DOC from the APA.
Provided assistance in pro per lawsuit against DOC regarding A.R.S. 31-228, which requires the DOC to store property belonging to prisoners until they are released and return it to them upon release. This is known as the Blum decision. The DOC lost in Superior Court, appealed the decision to the Court of Appeals, and lost again. Blum still is the controlling Arizona case on inmate property today. Attempts by DOC at the legislature to repeal the law were defeated by opposition from Middle Ground.
Provided assistance in pro per lawsuit against the DOC when they attempted to require advance notice and pre-approval of persons wanting to attend parole board hearings conducted inside DOC facilities. The Plaintiff (Donna Hamm) obtained a temporary injunction pending the outcome of the lawsuit and won the declaratory judgment at the conclusion of the case. As a result of this lawsuit, the DOC was forced to sit down with Middle Ground and with key legislators to re-write the statute because of the court decision. It should be noted that the Board supported Plaintiff's position at all times, and were represented by a separate attorney.
Middle Ground was instrumental in stopping the DOC's practice of four-pointing inmates for up to 48 hours who were mentally ill or unruly (i.e., physically restraining an inmate by spread-eagling him to a bed and attaching hand/leg cuffs to wrists and ankles). Middle Ground turned the information over to The Arizona Republic and the subsequent front page story resulted in an oversight investigation ordered by the Governor and conducted by officials of the Department of Health Services. When the DOC was ordered to put into writing their policies governing the use of physical restraints, they originally wrote them as ``Restricted'' policies. Middle Ground once again intervened and the polices were made available to all.
Middle Ground obtained legislation which permits inmates to access portions of their AIMS file to correct errors prior to any hearing before the Board or at least once a year. Middle Ground took on this issue because many inmates improperly were being denied release based upon false or inaccurate information provided by the DOC to the Board via AIMS Reports. Inmates often didn't even know the negative information was in their file. During the 1999 legislative session, the DOC has succeeded in altering the law, but only to the extent that inmates will not be able to obtain a hard copy of their AIMS Report, but still will be permitted to view the report on a computer screen in their counselor's office. This change came about purportedly for security/safety reasons.
In the aftermath of the Dude Fire, during which one DOC staff member and five prisoners were killed and several other inmates were seriously injured, Middle Ground organized a fund-raising drive and distributed money to the families of the deceased prisoners, advocated for compassionate leave furloughs for the survivors (which were denied by Governor Mofford), and assisted various injured parties to obtain attorneys. We also provided flowers for the surviving prisoners to place on the casket of the staff member, who had died trying to help inmates.
Donna Hamm, in her capacity as Director of Middle Ground, officially was an appointed member of the 1993 State Sentencing and Parity Review Committee, which drafted legislation creating parity review (i.e., comparison between old code and new code sentences). Among 18 members of the committee which was heavily stacked with law enforcement personnel, Middle Ground was the only group to propose a review that would have included those convicted of all crimes, including murder, and those sentenced pursuant to plea agreements.
During the 1990 legislative session, in which DOC advocated for massive increases in construction budgets for new beds, Middle Ground presented a major report, entitled Prison Overcrowding: Manufactured Crisis?, which exposed many of the DOC's self-generated and highly questionable policies, practices and ``facts'' that were being used to justify the request for thousands of new beds.
During the 1993 legislative revision to the criminal code, Middle Ground wrote, published, and distributed to all 90 legislators a major report entitled, ``Reclaiming The Vision'', which proposed innovative solutions to the problem of crime reduction/control in Arizona.
Spearheaded a call for an investigation by the State Board of Medical Examiners (and for the Director's resignation) with respect to the medical treatment afforded to prisoners throughout the entire prison system. In addition, Middle Ground has been instrumental in obtaining needed medical care for numerous individual prisoners across a period of many years. Further, Middle Ground challenged the DOC's position of segregating prisoners who were HIV-Positive or who had full-blown cases of AIDS. These prisoners were totally segregated, denied all programs, and essentially left to rot until they died or were released. As a result of our advocacy, HIV-positive prisoners were mainstreamed into general population, permitted to attend programs, and allowed to hold jobs within the prison system.
When executions resumed in Arizona in 1992 (after an almost 30-year suspension), Middle Ground was the only organization for the first several executions that advocated for abolishment of the death penalty and conducted candlelight vigils at the prison. Additionally, Donna Hamm attended the gas chamber execution of Don Harding (at his request), and wrote an extensive account of her experience that she provided to attorneys in subsequent death penalty cases in California. She provided grief support to many other family members of those executed, and again at the prisoner's request attended the lethal injection execution of Patrick Poland. Donna Hamm has testified as a mitigation witness at the sentencing phase of several murder trials, each of which resulted in the defendant being sentenced to life in prison rather than to death.
Middle Ground has always taken a non-denominational position regarding the First Amendment Rights of ALL persons of ANY faith. We have advocated for Native Americans, Jewish, Buddhist, Muslim, Christian and all other faiths for such things as the right to read materials not posing a security risk, the right to sweat at their lodges, to obtain religious symbols, to receive religious diets, and to attend meetings and prayer groups.
Middle Ground is the only organization in the state of Arizona which demonstrated against the exploitation of prisoners for political gain on chain gangs for males and females at both the state prison and the county jails. In fact, Judge Hamm was illegally arrested when she advocated outside the Tucson Prison Complex, She was held in handcuffs in the back seat of a patrol car while police unsuccessfully searched for some type of statute with which she could be charged. She was released without any charges being filed. Middle Ground continues to protest chain gangs whenever we encounter them near the prisons.
In 1990, after 17 years of smooth operation, the DOC Director attempted to eliminate the Christmas food package provision of the Hook Consent Decree (which permitted three 25-lb. packages of food to be mailed or delivered to each prisoner at Christmas time). Middle Ground immediately rallied to involve the lawyers who handled the original case that produced the Hook Consent Decree, and Middle Ground assisted for seven years in holding off the elimination of this provision. Because food packages are not a constitutional right, the Federal District Court ultimately ruled that the DOC did not have to allow them. Without Middle Ground's intervention, the food packages would have been eliminated in 1990.
Middle Ground strongly opposed the DOC's plan to eliminate the law libraries in all prisons except Central Unit, where Gluth controls court access. When the libraries were eliminated as a result of the DOC's interpretation of Lewis v. Casey ( Plaintiffs were represented by the ACLU), we analyzed the proposed policy (now DO 902) and forwarded our concerns to Hon. Roger Strand of the District Court. One year after implementation of DO 902, Middle Ground performed an investigation of the paralegal system that the DOC substituted at the prisons and we exposed the fraudulent contact entered into between DOC and paralegals who had falsified their credentials. DOC failed to check the credentials of these paralegals prior to hiring them to provide potentially incorrect or misleading information to thousands of Arizona's prisoners.
Middle Ground became aware of a discriminatory practice outlined in the visitation policy of the DOC which prohibited hand holding between same-gender persons. When contacted by the Arizona Republic, Middle Ground crystallized the DOC policy by stating in a published article, ``Director Stewart's homophobic slip is showing.'' In addition, many times since 1983, Middle ground has confidentially secured the safety and protection of gay and lesbian inmates throughout the prison system. Middle Ground is a member of national human rights organizations which support the rights and protections of gay persons in all walks of life.
In order to advance the First Amendment Rights of prisoners, Middle Ground steadfastly has advocated for prisoners' right to receive adult reading material, taking a reasonable position that female correctional officers should not be subjected to an unnecessarily hostile work environment from open displays of adult pictorial subject matter. We assisted attorneys advocating for prisoners at the Maricopa County jail, through media presentations of their case and legal research on the issues. The case ultimately was decided in favor of the Sheriff at the U.S. Supreme Court. We strongly feel that the case was not adequately argued on the issue of ``least restrictive'' sanctions, as the matter of a hostile work environment could easily be dealt with if prisoners were permitted to receive adult reading material, but not permitted to display it in their cells. Additionally, sanctions imposed against an occasional prisoner who showed his reading materials to a female officer would readily resolve the problem of a ``hostile'' environment for that particular incident. Adult reading materials, with some limitations, are permitted within the state prison system, but not in the Maricopa County jails.
Over the years, James and Donna Hamm of Middle Ground have assisted many families in articulating the merits of individual cases where protective segregation clearly and unmistakably was required. Middle Ground began receiving frightening testimonies from prisoners who had heard rumors that the DOC was preparing to dramatically reduce the number of prisoners classified to protective custody. After receiving literally dozens of complaints, we packaged and forwarded them to the FBI and the U.S. Attorney's Office, requesting an investigation. At the same time, we assisted inmates in filing for protective orders in Federal District Court. The court subsequently appointed several attorneys to litigate the case, headed by the law firm of Osborn-Maledon. Over the course of the initial litigation, James Hamm analyzed DOC personnel depositions, complied synopses of AIMS Reports, and testified as expert witnesses at the trial. Donna Hamn also testified as a fact witness regarding the ease of obtaining protective segregation public records information at the DOC public records room. The Court ultimately ruled in favor of the Plaintiffs, dramatically altering the DOC's policies regarding protective custody prisoners. Sadly, the DOC was highly motivated by the tragic murder of Steve Benitez, which occurred because of the gross negligence of classification staff.
Female prisoners are particularly vulnerable to male prison staff, who sometimes view sexual relationships with female prisoners as a ``perk'' of the job. Middle Ground became aware of gross misconduct by male prison staff (both uniformed and contract employees) with female prisoners, and we contacted the media. After subsequent media focus, many additional complaints came to our attention. Utilizing the protections embodied in The Civil Rights of Institutionalized Persons Act, we contacted local private attorneys and the U.S. Department of Justice and participated in initial meetings to discuss strategies for an investigation into the DOC with respect to the sexual harassment / sexual abuse of female inmates. Although the DOC adamantly denied wrongdoing, they agreed to implement significantly improved training for staff, new screening procedures for employee hiring, and more open procedures for reporting of incidents. However, they refused to permit U.S. DOJ officials to speak with female inmates. At Middle Ground's urging, the DOJ filed a civil lawsuit, which was settled out of court in favor of the Plaintiffs. We monitored the settlement provisions, which are now completed and continue to treat each individual issue with the serious attention it deserves.
Middle Ground was instrumental in filing litigation against Sheriff Joe Arpaio to challenge his use of live streaming video images of inmates in holding cells that were published on the World Wide Web. The lawsuit, Demery v. Arpaio, was ultimately settled in Plaintiff's favor, but not before the Sheriff challenged the rulings all the way to the U.S. Supreme Court. To date, he has not attempted to reinstate the web images of prisoners in holding cells, which included images of female inmates using toilet facilities.
Middle Ground litigated a challenge to a 2011 legislative action which imposed a $25 visitor background check fee and a 1% fee on all deposits made to prisoner spendable accounts. These lawsuits are Hamm v. Ryan and Arner v. Ryan, respectively. The $25 fee is not used to defray the cost of background checks. Instead, the entire fee is used for building renewal and maintenance. The DOC has over 1,500 buildings in its inventory, and visitors use only about 40-50 of those buildings for visitation for a few hours each week. Hamm v. Ryan was upheld on appeal to the Arizona Supreme Court and the $25 fee for visitors will remain in effect. The 1% deposit fee is highly unjust because it affects those with higher deposits much more than those with smaller ones. None of the deposit fees are used to defray the cost of banking. Instead, 100% of the deposit fees are allocated to building maintenance and renewal. Prisoners who don't receive deposits are not charged the fee, even though they use the prison buildings. Both of these "fees" are actually illegal special taxes and are being challenged in the courts. Arner v. Ryan is still pending in the Arizona Court of Appeals.
Middle Ground worked hard in 2012 to defeat an extremely onerous bill -- HB 2373 -- whichf passed into law and eliminated eliminate 25 to Life as a sentencing option for first-degree murder for defendants over age 18 at time of offense. The criminal defense bar was -- astonishingly -- silent on this bill OR, WORSE, in support of this bill because they believed that fewer defendants would be sentenced to death if juries knew that the only other sentence available is Natural Life in prison. However, the vast majority of first-degree murder cases are not "death qualified" cases, which means the only available sentencing option will be Natural Life. Since this law went into effect in 2012, there is absolutely no incentive for a defendant to accept a plea to first degree murder when the only sentence possible is Natural Life. We believe that more trials will take place OR that more cases will be pled down to second degree murder.
Part of Middle Ground's mandate is public education about the need for massive reform in the prison system. Throughout the more than 3 decades since Middle Ground's formation, we have participated or cooperated in literally hundreds of media stories, news conferences, training seminars, presentations to college and university classes, national and international prisoner rights conferences, and other forums to educate the general public.
As noted above, this is only a fraction of our activities on behalf of prisoners and their families. We don't have anywhere near enough space to mention more than a small amount. We are the only organization in Arizona with the sole purpose of advocating for the rights of prisoners and their families, combined with the expertise and knowledge for producing well-reasoned information and opinions regarding prison reform issues.