By Bonnie Weinstein
In May, 2000, the Ohio Department of Rehabilitation and Correction (DRC) hired Vincent M. Nathan to provide consultation and assistance in a review and revision of the Departments inmate grievance procedure.
Separate surveys were prepared for wardens and institutional inspectors throughout the DRC as well as for inmates and supervisors at seven selected institutions. Nathans research team also conducted an extensive analysis of a sample of grievances in order to provide an independent, objective evaluation of how the system is operating against which to measure the more subjective responses to structured surveys by various participants in the grievance process.
Nathan also reviewed letters he received from inmates, spoke casually with a few prisoners at several institutions, and interviewed two inmates at the Southern Ohio Correctional Facility whose letters hed received prior to visiting that facility. On Oct. 16 and 17, he conducted in-depth interviews with Chief Inspector Jorgensen-Martinez and the four assistant chief inspectors assigned to her office.
Nathan concluded that his report, Evaluation of the Inmate Grievance System, Ohio Department of Rehabilitation and Correction, dated Feb. 13, 2001, reflects important and credible input from inmates, the chief inspector and her staff, wardens, institutional inspectors, and institutional supervisory staff.
During fiscal year 2000 (July 1, 1999June 30, 2000) a total of 4585 inmates filed a total of 8580 grievances. Those filing grievances represented about 10% of the average daily prison population in Ohios 33 prisons. Use of the grievance procedure ranged from approximately 2% at low-security and pre-release facilities to 38% at the Ohio State Penitentiary. Of these grievances, 79% (6171) were found to be without merit.
Remember the scene in the film The Shawshank Redemption in which new inmates are introduced to prison life by watching an inmate who dared to complain being beaten to death by guards? That movie was filmed in the former Mansfield, Ohio prison.
While Nathans study found no evidence of state murder for filing a grievance, retaliation is the rule, not the exception. Nathan reported 87.2% of inmates surveyed agreed with the statement, I believe staff will retaliate or get back at me if I use the inmate grievance process. Of those whod actually used the grievance system, 91.9% agreed with this statement while 70% reported personally facing such retaliation.
Although retaliation is clearly illegal, it isnt just inmates who reported it; 48% of staff members acknowledged that retaliation occurs at least some of the time when inmates complain.
A June 17 Cleveland Plain Dealer article quoted CIIC Executive Director Davis: Theres a perception that you need to be either foolish or fearless to use the [grievance] system.
The Plain Dealer article described how such retaliation can go beyond that cited in Nathans report:
In prison, they call what happened to Alfred King a hit.
It was a cold evening in December, 1998, and King, convicted seven years earlier on weapons and assault charges, was headed into his cell for the night. Behind him slipped a burly fellow inmate at the Ross Correctional Institution in Chillicothe. The man pummeled King until he was able to break free and run screaming to a guard for help.
Kings assailant later told State Highway Patrol investigators that the attack was personal. King claimed otherwise.
King, a native of Columbus, said he was beaten on orders from a guard who was angry because a few days earlier the inmate had filed a grievance complaining about the handling of prisoners mail.
The Plain Dealer article also quotes Alice Lynd, an American Civil Liberties Union volunteer attorney, as warning prisoners that any grievance filed may be met with retaliation: Even if there is no physical or verbal abuse, easily fabricated disciplinary charges can land a prisoner in solitary confinement, affect the stipend he uses to buy soap, stamps and other amenities or even jeopardize his chances of winning parole.
Prison Chaplain Ted Koplan told an Akron meeting that so-called jail-house lawyers who assist other inmates with grievance procedure are routinely placed in disciplinary segregation or subjected to punitive transfers to other institutions.
These descriptions of possible consequences may help explain why the percentage of those filing grievances is so small at minimum-security institutions and pre-release centers. These inmates, seeing the light at the end of the tunnel, are unlikely to rock the boat and risk delaying their releases no matter how serious their legitimate complaint.
Retaliation isnt the only reason prisoners shy away from the grievance procedure. Another major problem is the confusing, often contradictory language of the regulations. Nathans report concludes:
In summary, the policies and rules governing the grievance system are unduly complicated; inmates receive little if any help from written materials they may receive in the form of How to Use the Grievance System and institutional handbooks; institutional inspectors often do not provide supplemental information during the orientation process; inmate responses to relevant questions on the inmate survey indicate that a substantial number of prisoners find elements of the system difficult to understand; the language used in policies, administrative rules, and other documents related to the grievance system is difficult for approximately half of the DRCs population to read with understanding; and a disproportionate number of inmates who have never used any part of the grievance procedure do not understand what the various parts of the system are.
Its no wonder many prisoners say they find the grievance procedure confusing. Whats surprising is that any feel they do understand the maze of regulations, exceptions, and contradictions. An example Lynd gave me: Except in an emergency situation, a prisoner must file an informal complaint with the supervisor responsible before filing a formal grievance. A Muslim prisoner who found the prison food unacceptable filed an informal complaint with the director of food services. His complaint was denied because it should have been filed with the person responsible for religious accommodations, not food services.
Lynd pointed to the catch 22 nature of the grievance procedure in regard to use of force against an inmate. If a use-of-force report has been written, this is not a subject for the grievance procedure. However, if no such report was written, the prisoner could grieve the instanceonly the prisoner may not be aware of whether a use-of-force report was filed and therefore doesnt know whether a grievance is permitted. The prisoner is also not informed of the outcome of any use-of-force investigation and has no right to appeal. But if he or she doesnt use the grievance procedure, the prisoner may be told all administrative remedies werent exhausted and therefore the inmate cant take the matter to court. Of course, by the time the inmate realizes this, the time limits for filing a grievance have probably passed.
Time limits provide another substantial obstacle for prisoners. Lynd offered me another example of the catch 22 a prisoner can fall into because of time limits. When an inmate complains of inappropriate supervision, this grievance is normally denied if only one or two instances are sighted. If, instead of filing the grievance citing one or two instances of inappropriate supervision, such as racist epithets, the prisoner waits to have a sufficient number to demonstrate a pattern, the grievance may be rejected as untimely.
Lynds previous examples show how easily a prisoner could guess wrong and miss a time limit. Nathans report cited time spent waiting for a response to an informal complaint, time lost in obtaining a formal grievance form from an institutional inspector, and delays in getting documents to and from the inmate through the DRCs internal mail system. Almost 5% of the grievances denied during the period Nathan studied were rejected as untimely. Of course, this doesnt include the grievances that were never filed because the inmate knew it was impossible to meet the time limits or didnt have the necessary postage to send the appeal off within five days.
Emergency grievances provide another possible time problem. If the inmate uses this procedure and the grievance is ruled not an emergency, its probably too late to follow the normal procedure. Nathans report found that despite the pressing nature of emergency grievances, they frequently did not receive the necessary expedited response. Institutional inspectors failed to acknowledge the emergency claim in 80.9% of cases.
The Plain Dealer article gave a vivid example of the consequences of such inaction: Steve Garrett, a former inmate and PAN-Ohio activist, cited the case of Alan Douglas Baker, a 43-year-old Ross inmate who filed a grievance claiming that a prison doctor had improperly cut him off from an important heart medication. Baker died of complications from the heart condition before his grievance could be heard, and the doctor he complained about is still on the corrections department payroll.
Failure to Address Issues
Inmates also expressed frustration over the failure to address the issues they raised. Nathan described the many informal complaints his research team reviewed with a response that they were looking into the complaint. Many of the institutional inspectors he interviewed complained of prison supervisors who failed to take the grievance procedure seriously and the lack of any disciplinary action against them.
The Plain Dealer article gave an example of the type of non-responsive denials that lead many inmates to dismiss the grievance procedure as a cruel hoax:
The ACLUs Lynd said one of the biggest frustrations for prisoners is when a complaint is rejected with little or no investigation. She cited the case of an Ohio State Penitentiary inmate who had been chained to a wall for more than an hourin addition to being shackled and handcuffedduring a hearing about whether he had broken a prison rule.
I felt like a Hebrew slave chained to that wall, the inmate wrote in his complaint. That type of treatment on prisoners is wrong. Can you have it stopped? Thank you for your time sir!!
The response: The procedure being used to provide an area for confidential meetings is not at this time being changed.
The average person might think that prison conditions must be intolerable if as many as 10% of the inmates in Ohio actually do file grievances, despite the procedural obstacles and the likelihood that their grievances will be denied while they face retaliation. But Nathan is optimistic. He feels that both inspectors and top prison management are committed to making the grievance system work (even if it is because of lawsuits) and that the willingness to admit problems is a positive sign.
Nathans report makes a number of recommendations to improve the grievance system, including removing confusing and contradictory language, providing better information on the grievance procedure to both inmates and prison staff, imposing discipline for retaliation, and increasing the resources available for inspectors.
Lynd emphasized that these are recommendations, not guaranteed changes. She also cited examples where the recommended language would still leave prisoners in limbo as to whether a grievance is in order.
On July 10, DRC Director Reginald Wilkinson issued detailed responses to each of the recommendations in Nathans report. Although he agrees there is a need to clarify language and increase education, there is one ominous omission that promises that the grievance procedure is destined to remain a cruel hoax.
Nathans Recommendation Four is that the DRC should begin to impose the most serious disciplinary consequences for acts of retaliation by staff against inmates as a result of the latters use of any aspect of the grievance process. All staff training should emphasize strongly the utility of the grievance system, the DRCs commitment to that system and the consequences that will flow from acts of retaliation. Institutional inspectors and supervisors should be held responsible for enforcing the non-retaliation policy, and investigators should pursue allegations of retaliation with special care and vigor.
Wilkinsons response downplays the issue of retaliationthe biggest obstacle to the grievance procedure. While the Nathan study recommends the most serious disciplinary consequences, Wilkinsons response calls for education on possible consequences for retaliating. While the Nathan report stresses that annual staff training include this information, Wilkinsons response questions adding another requirement to this training. The response makes no mention of the recommendation to hold supervisors responsible for compliance by their subordinates or to provide for vigorous investigation of alleged violations, and thus offers little hope for substantive change.
Another ominous sign was the Ohio General Assemblys decision to cut the six-person CIIC staff from the state budget. This so-called watch-dog committee no longer has the teeth to fulfill its mandate. In an article in the August issue of Impact, inmate John Perotti explains:
The incidents that gave rise to the CIIC included attempts at murder for hire by staff against certain prisoners, misappropriation of funds by prison officials, and even cattle rustling at Lebanon prison by a guard captain.
As a result, the DRC has always complained of the activities of the CIIC and called its members advocates of, or coddlers of, prisoners. The committee was a thorn in the departments side. The job of the CIIC was to make sure the DRC and all its employees followed the rules and regulations, and to expose corruption by DRC officials. So this would be a committee the DRC would definitely want dissolved!
But as a convict, I have seen the efforts and intervention of the CIIC save lives and make conditions more tolerable for prisoners and prison officials alike. The efforts of the CIIC literally saved my life on two occasions. Once was when the guards beat me severely. Once was when after a major heart attack a prison official refused me treatment. So I, for one, will sorely miss this watchdog committee. So will the hundreds of illiterate and mentally ill, disenfranchised prisoners victimized by the system.
On Friday, Aug. 17, the DRC held hearings in Columbus on proposed revisions to the grievance procedure. The American Friends Service Committee (AFSC) organized meetings around the state to prepare for these hearings.
On Aug. 13, Alice Chen, Ohio Criminal Justice Associate from the AFSCs Dayton office, made a presentation in Akron. After describing the many pitfalls of the current system, she explained that the proposed new rules are actually even worse since they delete potential remedies and remove many of the sections which provided for some accountability. Chen said when these weaknesses are pointed out at the state hearings, theyll be put back in the rules with the DRC acting as if this is a concession to prisoner advocates while its actually simply restoring provisions that currently exist.
Those attending the Akron meeting included prison ministers and relatives of inmates. From first-hand experience, they detailed horrendous conditions in Ohio prisons which the grievance procedure fails to resolve. They told of inmates denied access to needed medical care. They told of prisons doing nothing to prevent the spread of contagious diseases. They told of a mold condition which persisted for years in the infirmary at Orient prison (only addressed when a guard became ill). A plumbing problem in this same building caused waste from a toilet to leak onto inmates passing below (again, not corrected until it affected a non-inmate).
Chen explained that the cut in funding for the CIIC removed all oversight from the grievance procedure. She said both a citizen advisory board and a prisoner advisory board are needed. There was such a prisoner advisory board in the 1970s, but it was abolished, supposedly as a cost-cutting measure.
As the Akron meeting ended, one audience member commented that this had been a real eye-openerthat the U.S. speaks of human rights abuses in Chinese prisons while inmates are dying from similar abuses in Ohio prisons.
Since the DRC will have the final say on the new rules, some questioned the usefulness of attending these hearings. Chen explained that since reporters would be there, these hearings can be used to begin to educate the public on the conditions in Ohios prisons and the futility of the existing grievance procedure. She felt this could be a step in building the social movement necessary to bring about meaningful changes.
As expected, no meaningful changes came from the Aug. 17 hearing. A prison administrator brought his fourth-grade son to prove how easy the new rules are to read and understandas if the only problem with the existing grievance procedure is prisoners inability to understand it.