We're all so preoccupied with Covid19 and the resulting economic casualties that it is understandable if you missed the U.S. Justice Department report on Alabama's continuing prison disaster.
The DOJ handed the state a report that is the result of an investigation that has been underway since 2016!!
But Attorney General Marshall's reaction? He says the state was "ambushed" by the report (which again, has been underway for almost four years!!!) If that's an ambush, I'd suggest the deputies guarding the city walls have been asleep.
And where's the Governor on this? Sigh. Crickets.
Here are the immediate and long term actions the report calls for, and it gives the state 49 days to some up with an agreeable consent decree...a legally binding documents in which the state legally agrees to certain actions to correct the problems.
A.Immediate Measures
ADOC should:▪Install cameras in dormitories, housing areas, congregate use areas, hallways,and other areas where high numbers of use of force incidents are occurring.Cameras should be of sufficient number and appropriately placed to be able to capture all activity occurring in these locations.▪Install secure recording capacity and retain video for 30 days unless an incident has been detected in which case it shall be retained until the conclusion of investigation or any 22
resulting prosecution or litigation. Such video recordingsof incidents that are undergoing investigations shall only be discarded with written approval of I&I.▪Establish procedures to secure the recordings and limit access to video to the wardens, captains, and I&I.▪Establish a centralized tracking database related to uses of force so that ADOC can identify patterns of force or officers who are outliers in uses of force.▪Implement a grievance procedure so that prisoners can register formal complaints about uses offorce.▪Establish a centralized system—including a toll-free number—where prisoners, ADOC staff, ADOC contractors, and security staff can anonymously and confidentially report uses of excessive force.ADOC should adopt a policy requiring I&I to initiate a preliminary investigation—including collecting any documentary evidence—within three business daysof receiving an anonymous report that provides sufficient reason to believe that unjustified or excessive force has occurred. ▪Hire additional I&I investigators.▪Establish and implement a robust policy ensuring that prisoners’ movements are controlled.▪Ensure that theDeputy Commissioner of Operations and the Director of I&I meet with each warden to describe accountability measures for wardensregarding use of force at their respective prisons.▪Require that, when corrective action is taken in response to a use of force, the nature of the corrective action isaccurately and explicitly documented in a systemwide database.▪Require that a knowledgeable and competent person conduct regular reviewsor audits of institution-level excessive force investigations to determine if they are properly classified, investigated,and resolved. ▪Establish a procedure where use of force investigators or supervisors are required to document why each investigation is closed.▪Establish a procedure where I&I investigators or supervisors are required to document, with sufficient detail,when and why any use of force incident is referred back to a warden.▪Establish anauditing process where a centralized authority ensures that, where excessive force is identified, wardens are referring the matter to I&I, rather than solely addressing such incidents with corrective action.23▪Instruct all prisons to rescind any standard operating procedures or other policies related to uses of force that conflict with ADOC’s use of force regulation.Establish a centralized process where a prison’s standard operating procedures on uses of force are reviewed to ensure that facility policies are consistent with ADOC’s regulation and to prevent situations where a use of force is acceptable within some prisons but not in others.▪Modify its use of force or chemical agents regulations and procedures to:oSpecifically define the types of uses of force that must be referred to and investigated by I&I. The regulation should require that uses of force resulting in serious injuries be investigated by I&I. oEnsure that a single head wardenat each facility is responsible for determining whether to refer a use of force to I&I for further review.oExplicitly state that strikes or contact to the head constitute a form of lethal force that should only be used if a correctional officer has grounds to reasonably believe that the subject of the force poses an imminent danger of death or serious bodily injury to the officer or to another person.oRequire statements or interviews of any medical personnel who treat a prisoner following a use of force that results in a serious injury.oRequire that a medical assessment be timely conducted after a use of force on any staff and prisoners involved. That assessment should be recorded and retained for future review.▪Modify its I&I regulation and procedures to:oExplicitly establish that the standard of proof used in reviewing uses of force is a preponderance of the evidence, and define that standard.oRequire that all use of force investigations are completed, including referrals for consideration of criminal prosecution, even if a correctional officer no longer works at ADOC. oRequire that use of force investigations are not closed because an alleged victim refuses to cooperate or is unable to be located due to a releasefrom incarceration.▪Establish a procedure to ensure that an I&I supervisor routinely audits I&I investigative files to ensure that proper and required documentation is included.24B.Long-Term Measures ADOC should:▪Staff Alabama’s prisons consistent with the staffing orders entered by the district court in Braggs v. Dunn.▪Maintain and expand the use of video surveillance and recording cameras to improve coverage throughout ADOC facilities in order to monitor activity and determine what is occurring when force is used.▪Retaina reputable and experienced law enforcement investigator to train each captain,warden, and I&I investigator on how to conduct professional investigations into uses of force, including interviewing techniques (e.g., use of open-ended questions).Such training shall be refreshed and provided annually.▪In consultation with a reputable and experienced law enforcement investigator, draft and disseminate a manual on how to conduct institution-level use of force investigations.▪Establish a use of force quality improvement committee to identify trends and interventions, make recommendations for further investigation or corrective action, and monitor the implementation of recommendations and corrective action.ADOC’s quality improvement system should include an early intervention component to alert administrators of potential problems with staff. The purpose of the early intervention system is to identify and address patterns of behavior or allegations that may indicate persistent policy violations, misconduct, or criminal activity. ▪Require that the quality improvement committee conduct systemic reviews of use of force at least quarterly, in order to identify patterns or trends. ADOC should incorporate such information into quality management practices and take necessary corrective actions. ▪Modify its use of force or chemical agents regulations and procedures to:oRequire that supervisors be informed immediately after a use of force.oInclude a force continuum that emphasizes de-escalation as a first resort and clarifies that forceis to be used only after all other reasonable efforts to resolve a situation have failed.oRequire that chemical agent use is authorized only when (1)a prisoner is armed and/or self-barricaded; or (2) a prisoner cannot be approached without danger to self or others and it is determined that a delay in bringing the situation under control would constitute a serious hazard to the prisoner or others, or would result in a major disturbance or serious property damage.25oRequire that, where practical, physical force shall not be used until the following conditions have been met:▪A warning or command has been given, and, if practical, repeated;▪The prisoner has had time to comply with the warning or command; and▪It appears that the prisoner is going to continue to resist the order or the staff’s effort to control the situation.oIncorporate additional non-force alternatives, including crisis intervention methods and specific defusing techniques.oContain explicit prohibitions on the following:▪The use of force to retaliate against a prisoner;▪The use of force in response to a prisoner’s verbal insults, taunting threats, or swearing;▪The use of force ona prisoner who is under control;▪The use of unjustifiably painful escort or restraint techniques;▪Causing or facilitating prisoner-on-prisoner violence; and▪Pressuring or coercing prisoners, staff, or non-ADOC staff to not report use of force.oContain an explicit requirement stating that “all force shall cease when control of the prisoner has been established.”▪Ensure that ADOC policy and all facility standard operating procedures:oProhibit the use of force as a response to prisoners’ failure to follow instructions, verbal insults, or non-threatening behavior when there is no immediate threat to the safety or security of the institution, prisoners, staff or visitors;oProhibit the use of force against a prisoner after the prisoner has ceased to resist and is under control;oProhibit the use of force as punishment or retaliation;andoEnsure that officers use only the level of force commensurateand proportionate with the justification for the use of force, and prioritize de-escalation techniques and tactics.26▪Consistent with Garrity v. New Jersey, and applicable law, require that any officers who used or witnessed force submit a report or statement immediately after an incident occurs and before leaving for the day. ADOC should take measures to ensure that no statements are prepared in consultation with anyone else.▪Require that all incident reports describe any use of force, including what precipitated the event, the level of resistance encountered, and any attempts at de-escalation.▪Ensure that use of force investigations include timely, thorough, and documented interviews of all relevant staff and prisoners who were involved in or who witnessed the incident in question, to the extent practicable. ▪Ensure that use of force investigations include all supporting evidence, including logs, witness and participant statements, references to policies and procedures relevant to the incident, physical evidence, body charts, photographs, and video or audio recordings. ▪Ensure that use of force investigations at the facility level thoroughly document the basis for the investigator’s recommended finding, based upon application of a preponderance of the evidence standard.▪Discipline any correctional officer found to have:engaged in excessive force;failed to report or report accurately the use of force;retaliated against a prisoner or other staff member for reporting the use of force;or interfered or failed to cooperate with an internal investigation regarding the use of force.▪Maintain a computerized use of force tracking system and compile summary reports on at least a monthly basis. The summary reports shall be used to identify trends such as rates of use of force in general, as well as by prison, unit, shift, time of day, prisoner, and staff member. The system shall also note incidents referred to I&I or any other entity for investigation. The system shall be used to identify officers engaged in multiple uses of force within areasonable time frame for whom an evaluative meeting with their warden shall be required.VI.CONCLUSION The Department has reasonable cause to believe that ADOC violates the constitutional rights of prisoners housed in Alabama’s prisons by failing to protect them from uses of excessive force by staff. We are obligated to advise you that 49 days after issuance of this letter, the Attorney General may initiate a lawsuit pursuant to CRIPA to correct deficiencies identified in this letter if State officials have not satisfactorily addressed our concerns. 42 U.S.C. § 1997b(a)(1). The Attorney General may also move to intervene in related private suits 15 days after issuance of 27
this letter. 42 U.S.C. § 1997c(b)(1)(A).
Please also note that this Notice is a public document. It will be posted on the Civil Rights Division’s website
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