IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF MICHIGAN, et al.,
Defendants.
Hon. John Corbett O'Meara, Hon. Marc L. Goldman
Civil Action No. 97-CV-71514
UNITED STATES' MEMORANDUM IN SUPPORT OF
STIPULATION TO DISMISS
The United States and Michigan have filed a joint Stipulation to Dismiss the case of United States v.Michigan, Civ. No. 97-CV-71514-DT, as the joint expert chosen by the
parties has found Michigan in substantial compliance with the parties' Settlement Agreement. The United States files this memorandum in support of the parties' request for dismissal.
Following an investigation initiated in 1994, the United
States filed suit in March 1997 under the Civil Rights of
Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997,
alleging, inter alia, that inmates in Michigan's women's prisons
were subject to sexual misconduct and invasions of privacy by
staff. After two years of litigation, including extensive
discovery, the parties executed a Settlement Agreement resolving
these matters in May 1999. On September 28, 1999, this Court
conditionally dismissed this matter pending Michigan's compliance
with the terms of the Settlement Agreement.
The Settlement Agreement provided that the parties' mutually
agreed upon expert, Mr. Patrick McManus, would assess Michigan's
compliance with the terms of the Agreement approximately three
and six months after the parties' execution of the Agreement.
Mr. McManus is experienced both in corrections and as an
independent evaluator of court-ordered changes. He was formerly
Secretary of Corrections for the State of Kansas and Assistant
Commissioner of Corrections in Minnesota, and has served as a
Special Master and Independent Court Monitor for many United
States courts since 1983. The Agreement provided that if Mr.
McManus found Michigan to be in substantial compliance with its
terms after the final compliance tour of the facilities, the
parties would file a stipulation seeking dismissal of this case.(1)
Mr. McManus toured Scott and Crane Correctional Facilities
on August 23-27, 1999 and December 7-10, 1999. During these
visits he spoke with staff and inmates, reviewed documents and
observed physical plant changes. He conducted additional
meetings with staff and reviews of documents in Lansing on
November 2-3, 1999. Attorneys for the United States and the
State of Michigan accompanied and participated with Mr. McManus
on these tours. In between these visits, the United States
reviewed and provided recommendations on draft policies,
procedures, training and education materials, reviewed other
compliance documents and remained in contact with representatives
of the State of Michigan. In his report, Mr. McManus finds
Michigan to be in substantial compliance with the Settlement
Agreement.(2) The following provides an overview of actions taken by Michigan that led to Mr. McManus' finding of substantial
compliance.
MDOC Policies and Procedures: MDOC implemented significant
new policies and procedures in the course of the compliance
period. MDOC issued two Director's Office Memoranda (DOM's)
incorporating provisions of the Settlement Agreement into policy.
In addition, MDOC issued a policy variance temporarily halting
pat searches by male officers through February 2000 (Michigan has
not yet announced its new plans regarding pat searches), amended
work rules to incorporate the Agreement's definitions in
prohibiting sexual misconduct, sexual harassment and
overfamiliarity, amended investigation policies and checklists to
incorporate more precise outcome definitions and require
completion of new tasks, and created a formal procedure for
conducting criminal and domestic violence checks of officers. At
the institutional level, wardens issued memoranda explaining how
the new knock and announce requirements were to be implemented,
outlining procedures for increased rounds of secluded areas and
controlled access to other areas, detailing how the limitations
on male officers being alone with female inmates would operate,
and incorporating some of these provisions, where appropriate,
into the education program's rules. Michigan incorporated many
of the suggestions offered by the United States.
Pre-Employment Screening: An important change in Michigan's
hiring procedure was the institution of more extensive pre-employment screening, including checks for domestic violence
history and five years of employment background. MDOC also
agreed to check current staff every five years for criminal and
domestic violence records. MDOC has implemented the required
enhancements of its screening of both new staff candidates and
continuing staff, and conducted screening of all existing staff
ahead of the required schedule.
Staff Training: During the summer, MDOC conducted a new
training for all staff introducing them to the Settlement
Agreement and highlighting prohibitions of sexual misconduct,
sexual harassment and overfamiliarity. During the compliance
period, staff were also trained in implementation of the knock
and announce policy and retrained in performing pat search and
clothed body searches.
In the coming year, MDOC has committed to requiring all
staff to attend six hours of training on sexual harassment,
sexual misconduct, overfamiliarity and new policies, and will be
revising the 40-hour program it conducts on Critical Issues in
Managing Female Offenders. MDOC has committed to maintaining
current, complete training on these subjects in the future.
Michigan incorporated many of the suggestions offered by the
United States and preserved some suggestions for future program
revisions.
Inmate Education: A major component of the Settlement
Agreement was the education of inmates in identifying, preventing
and reporting improper staff behavior. MDOC created a new
brochure for inmates entitled "Appropriate and Inappropriate
Staff and Prisoner Interactions: A Guide to Sexual Misconduct
Prevention and Intervention." MDOC provided this booklet to
inmates and gathered them for oral presentation of the material
as well. MDOC also incorporated this material into the prisoner
orientation program to educate new inmates about this subject
matter as they enter the women's prison system.
MDOC also created posters placed around the institution
reminding staff, inmates and visitors that sexual misconduct and
harassment are prohibited and encouraging reporting of improper
conduct. Copies of the Settlement Agreement are available in the
law libraries at Scott and Crane.
Facilitation of Reporting: MDOC has hired a Special
Administrator, Ms. Nancy Zang, who has been instrumental in the
implementation of the Settlement Agreement. The Special
Administrator has made herself available to inmates, both
conducting random interviews and following up on correspondence
sent to her. She has attended meetings of the Warden's Forum,
the inmates' representative body at each facility, to share
information about developments, fine-tune the inmate education
program, and encourage inmates to report misconduct. The new
computer tracking system gathers sufficient information for the
Special Administrator to monitor complaints about misconduct and
take action where she deems it appropriate.
MDOC has promoted confidentiality in the reporting process
by communicating to staff and inmates through written and verbal
means the importance of maintaining confidentiality and the
willingness of MDOC to discipline those who compromise
confidentiality of investigations. MDOC has added to
investigators' instructions a requirement to advise all witnesses
about the importance of confidentiality during the course of
investigations.
In addition to maintaining its prohibition of retaliation
and reinforcing this policy through training, MDOC has created a
new committee at each facility that will examine grievances,
critical incident reports, misconduct tickets, kites and any
other available information and report to the warden if there is
evidence of retaliation.
Investigations: The Settlement Agreement aimed to improve
investigation of sexual misconduct allegations. Allegations of
sexual misconduct are investigated by staff in the Office of
Internal Affairs, a central MDOC office outside the facilities,
and occasionally by the institution-level Inspectors. These
investigators have all received three days of specialized sexual
misconduct investigation training, and have also completed Basic
Detective School, in which sexual misconduct investigations are
among the special issues addressed. Allegations that could
constitute criminal acts are referred to the Michigan State
Police as well.
Allegations of sexual harassment, overfamiliarity,
retaliation, and violations of knock and announce and one-on-one
prohibition policies are typically investigated by staff at the
facilities, with more serious incidents investigated by
Inspectors, and other incidents investigated by a variety of
supervisory staff. Only those staff members who have completed
MDOC's Sexual Harassment Investigator Training Program and
Critical Issues in Managing Female Offenders will be appointed to
investigate these grievances. MDOC has committed to completing a
new training program, Advanced Techniques for Investigating
Grievances of Women Prisoners, early in 2000.
MDOC has temporarily reassigned employees to posts without
inmate contact when they have been accused of sexual misconduct
and investigations are proceeding. Mr. McManus conducted reviews
of both open and closed investigations in determining that MDOC
was in substantial compliance with the many requirements of this
section.
Minimization of One-on-One Situations: MDOC policy now
prohibits male staff from being alone with female inmates except
in situations of emergency, medical care, counseling, questioning
during investigations, and reporting of confidential information.
Supervisors have analyzed individual circumstances and locations
at the facility to provide guidance to staff on implementing the
policy in specific situations.
Secluded Areas: MDOC has made a number of physical plant
changes both to limit access to some spaces and increase
observability in others. MDOC re-keyed or installed new locks,
the keys to which are now only available from a shift commander.
MDOC now seals other areas such as classrooms every night with
specially numbered tabs that would reveal any entry into such
areas. Staff have rewired some offices and classrooms so that
they are now lit continuously. They have retrofitted other areas
with convex mirrors so that security officers conducting rounds
can see into far corners. MDOC has replaced many doors with
screens or cut windows in the doors. Management has given
guidance to supervisors to increase the frequency of their rounds
in some parts of the institutions.
Inmate Clothing: The Settlement Agreement required Michigan
to create a standard institutional dress code. Michigan has
chosen to institute a requirement that all inmates wear uniforms.
Random Interviews and Exit Interviews: The Special
Administrator and other senior staff have instituted a program of
random interviews of inmates to discuss the topics addressed in
the Settlement Agreement. Staff have also conducted exit
interviews. Staff have referred allegations of misconduct for
appropriate response.
Post-Investigation Management Review: The Sexual
Assault/Sexual Misconduct Review Committee has continued to meet
to review all sexual misconduct investigations and make
recommendations on findings. The committee has at times made
recommendations for improving investigations and providing
additional training to officers.
Files: MDOC has created a new computer system, the
Allegation, Investigation and Personnel Action System (AIPAS).
Staff have been trained in its various uses so that senior
administrators can track the course of complaints and
investigations, investigators can search for prior allegations
and reports of activity can be created. This system and the
Personnel Department's computer system will both be queried
before accepting rehires.
Staffing: MDOC commissioned a staffing study by Securicor,
which examined staffing options to increase the presence of
female officers in the housing units. MDOC has decided to
eliminate the presence of male officers in the housing units and
other selected areas.
Staff Discipline: During the settlement compliance period,
MDOC terminated or otherwise disciplined a number of officers
found to have violated policies covered by the Settlement
Agreement. Notations in officers' files show that those who were
fired or resigned in lieu of termination are ineligible for
rehire.
Inmate Psychological Services: Staff assigned to
investigate allegations of sexual misconduct and sexual
harassment now are instructed to offer psychological services to
those inmates covered by this provision. A form confirming the
offer of services has been created so that the offer and inmate's
decision whether to accept services can be verified.
Inmate Discipline: MDOC has standardized the definitions
for the outcomes of investigations and has added new outcome
options. MDOC has also instituted a process whereby senior
central office staff review and may supersede all recommendations
that misconduct tickets be written for making unfounded
allegations.
Knock and Announce Policies: An important feature of the
Settlement Agreement required implementation of a "knock and
Announce" policy to promote inmate privacy unless security
concerns dictate otherwise. MDOC has trained male officers to
announce their presence prior to entering areas where they may be
able to view inmates in a state of undress. Staff analyzed
circumstances in the various segregation wings of the facilities
to determine what privacy accommodations could be adopted
reasonably and safely in segregation.
Pat Down Searches: MDOC enacted a temporary halt to pat
searches by male officers at Scott and Crane, absent exigent
circumstances, until February 2000. During that time period,
staff were retrained in conducting pat searches and clothed body
searches, and management evaluated the five pat search per day
requirement. MDOC has not yet announced a determination as to
whether males will resume pat searches or whether the pat search
quota will be eliminated.
Screening of Inmates Regarding Past Histories: MDOC revised
its intake screening questions regarding physical and sexual
abuse history.
Quality Assurance: MDOC created quality assurance plans to
monitor its hiring process, staff training, inmate education and
investigations for ongoing compliance with the Settlement
Agreement.
Conclusion
For the foregoing reasons, the United States requests that
the Court grant the parties' stipulation to dismiss this case.
Respectfully submitted,
Saul Green
United States Attorney
Eastern District of Michigan
Bill Lann Lee
Acting Assistant Attorney General
Civil Rights Division
Steven H. Rosenbaum
Chief
Special Litigation Section
Mellie Nelson
Deputy Chief
Special Litigation Section
Shanetta Y. Brown Cutlar
Dana L. Shoenberg
Mark Masling
Trial Attorneys
Special Litigation Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66400
Washington, D.C. 20035-6400
(202) 514-0195
Attorneys for United States
Dated: March 7, 2000
1.The Settlement Agreement is attached as Exhibit 1 to this
memorandum. Section XV of the Settlement Agreement contains its
termination provisions.
2. Mr. McManus' report is attached as Exhibit 2.
Updated 2008-07-25