Fear of Retaliation Discourages Prisoners From Filing Appeals
and Other Problems
When prisoners complain, even if it would be a legitimate grievance in a different forum, for the most part nobody listens or takes the complaints seriously. Instead a general character assassination is done on the complaining prisoner or prisoners in general. The real issue is thus avoided, or those aware of the complaint become convinced that this is not atypical of the harsh conditions and rough disciplinary treatment that are part of the price that convicted individuals must pay for their offenses against society. The courts generally follow this principle for convicted persons, however in facilities that detain both convicted and non-convicted persons, e.g., pre-trial detainees, they are nevertheless all generally treated the same. For both groups their grievances are mostly ignored.
Complaints are heard of draconian prison conditions, the prison industry has run amok, corrupt administrators, corrupt guards, to much influence is wielded by the guards' union, etc. But wait a minute, these complaints are coming from staff whistle blowers. When staff members make a complaint they become "whistle blowers," when a prisoner makes the same or similar complaints he is labeled a "sniveler" or a "whiner." The media won't touch a complaint from a prisoner, but they are having a field day with the recent whistle blower staff testimony following California State Senate hearings held on January 20 and 21, 2004. Stories of these whistle blowers being threatened and harassed, and even the story of a correctional captain committing suicide after being forced to alter incident video tapes to cover up prison staff misdeeds. Stories of staff whistle blowers now living in mortal fear of retaliation.
These stories are coming from prison staff whistle blowers who have complaints, free citizens who are trying to right the wrongs they have seen or of which they have direct knowledge. These are persons who should have credibility, persons who have no vested interest in exposing the wrongs, and therefore no motive to fabricate. And yet, they fear for their lives.
Now consider the plight of the prisoner who complains. If prison staff is in such fear for their lives, does no one consider the magnitude greater the level of such fear must be for a prisoner who wants to make a complaint. This fear of retaliation places what the courts call a "chilling effect" on the prisoner's willingness to exercise his right to file a grievance.
Statutory law and the courts consider it illegal to retaliate against a prisoner for using established grievance or appeal systems. However, retaliation is a way of life for some prison staff. (See FN. 1.) That is the unfortunate reality. Prisoners know this, and as a result are often in extreme fear of exercising their so called right to file a grievance. After all, if prison staff are so fearful that they must go into hiding for complaining, then what is the prisoner to do who has no where to go to hide. The prisoner who is totally under the control of those against whom he wishes to complain, is also at their total mercy.
One theory is that the prisoner's best--maybe only--protection is to file the formal appeal. To get it documented in the official system, that is if they can accomplish this feat without staff interference. Once officially logged in the records, this in itself then becomes a deterrent to staff that might otherwise be predisposed to retaliation. (See FN. 2.) This doesn't totally protect the prisoner, as some prison staff have become so corrupted by their power over the prisoners they believe they can act with impunity, but most guards so disposed tend to become indirect and subtle in their retaliation efforts. Nevertheless, most prisoners never overcome the very same fears recently expressed in the media by staff whistle blowers. Therefore, the vast majority of problems go unreported.
However, sometimes a prisoner cannot be intimidated and does file a grievance, but even before the merits of the complaint are reached, the character assassinations will begin in attempt to discredit the prisoner in hope that the true issue will become obfuscated and never reached. However, sometimes there is simply too much physical evidence supporting the prisoners' complaints, or too many prisoners are making the same complaint.
The First Amendment to the U.S. Constitution guarantees the right to petition government for redress of grievances, and most state constitutions have similar provisions. This clause includes for prisoners: the right of access to the courts (See FN. 3.); and, the right of access to the administrative appeals process (See FN. 4.), the second being a prerequisite of the first. (See. FN. 5.)
Since both state and federal courts now require exhaustion of administrative remedy prior to bringing any action in court involving a government agency, access to the Appeals System, Grievance System, or whatever its name for a particular system, is something necessary for a prisoner. The prisoner must not just complain, but must complain progressively through each and every level of that system to complete exhaustion. The rationale for this is simple enough: the administrative agency must first be given an opportunity to solve its own problems; and, the administrative record developed by the appeals process is invaluable to a reviewing court in understanding the issues in controversy, and often saves the court the time and expense of an evidentiary hearing.
This is all well and good in theory. On their face, most administrative appeals systems would appear to provide users with their right to petition government for redress of grievances. If this were the utopian system it appears on its face, the typical appeal could and would progress through the system as designed. For example, the prison system in California is a $5.2 billion-a-year failure according to the State's November, 2003, Little Hoover Commission Report. This report was followed in with myriad finger pointing, including that testimony given in State Senate Hearings. (See FN. 6.) Where the system was so bad that staff could not complain without fearing for their safety, leaving no doubt that the situation for prisoners' complaints is therefore unworkable.
It must be explained that the fear of complaining only affects certain types of complaints: those that are direct staff misdeeds complaints; those that could effect the status quo; those that staff or officials tend to take personally, and the like. Complaints that, e.g.: involve finding lost property following a transfer; having Trust Account balances transferred to a new institution, or having a mistake corrected; time credit computation discrepancies or corrections; etc., these sort of complaints are usually dealt with as the system intended. The problems happen when power corrupt staff do not want to follow their own rules, yet expect the prisoners to follow the rules, but feel threatened by the prisoners' complaint.
The most common interference occurs by staff simply throwing prisoners' appeals away before they are logged, thus leaving no records. A variance of this occurs in the California system where the prisoner, with a few exceptions, is required to first attempt informal resolution before the appeal will be accepted into the formal system. Without a staff signature in the informal resolution area of the Form CDC-602, the prisoner cannot pursue the appeal. Because there is no official record of staff receiving appeals at the informal level, they routinely just throw them away.
There are numerous other procedural requirements the prisoners must fulfill before appeals are accepted, many of which are sometimes difficult if not impossible for some prisoners to meet, particularly illiterate prisoners who are approximately 50% of the prison population, leaving many gray areas and loop holes by which appeals are rejected by staff. Every administrative system has its own unique set of bureaucratic hurdles, and appeals systems are no different. While allegedly designed for simple problem resolution, most systems have evolved to the epitome of a cumbersome bureaucratic nightmare, and can only be successfully navigated by the very experienced.
This has resulted in inmates experienced in filing appeals performing this service for other inmates, and who are colloquially referred to as "Jail House Lawyers," "Appeal Writers," or "Writ Writers." When prison staff learns the identities of skilled and successful Jail House Lawyers, their life is made miserable through harassment and retaliation, and they all live in the same fear described by the staff whistle blowers. Nevertheless, if conditions become bad enough a human being will eventually fight for himself no matter what the consequences, and appeals get filed. Riots are the alternative.
Can the appeals system problems be fixed? Probably! However, in California there is no chance for the inmate appeals system to function properly until the entire prison system is purged of the problems causing staff to be in fear of their own safety from other staff should they complain. Otherwise, most other appeals system problems surround not having the appeal issues heard and decided by a fair and impartial person. This requires independent people running the appeals system--not insiders who are biased or beholding. To ignore prisoner grievances has historically been the harbinger of riots. Fixing the system would be far more cost effective to the taxpayers than will be the aftermath of riots and lawsuits.
Political Prisoner Tom Watson
FN. 1. See article "Retaliation in Prisons," by Tom Watson, available at: Link
FN. 5. See Ibid. See also, Title 42, United States Code, §1997e (a), the Prison Litigation Reform Act ("PLRA"), which makes exhaustion of administrative remedy mandatory prior to bringing an action pursuant to 42 U.S.C. §1983 in Federal court. (See Porter v. Nussle (2002) 122 S.Ct 983; Booth v. Churner (2001) 532 U.S. 731, 739, 121 S.Ct. 1819.) Most states' courts also have an exhaustion of administrative remedy doctrine or statute.
FN. 6. California Senate Hearings held January 20
and 21, 2004, at the State Capitol by Senators Jackie Speier and Gloria
Romero, to examine how the prison system polices itself. A great deal of
the testimony blamed the corrupting influence and power of the guards union,
the California Correctional Peace officer Association ("CCPOA"), for the
problems. Senator Romero, who was a longtime union member, said she understood
that union members try to wield influence, "But intimidation and influence
can cross the line to become thuggery," she told the CCPOA president.
Part 2: Alternative Methods and Problems, Bringing Complaints Through The Mens' Advisory Council
Tom Watson Writings - Index
Three Strikes Legal - Index