Via Express Mail
The Honorable J. Fife Symington
Governor, State of Arizona
1700 West Washington
Phoenix, Arizona 85007
Re: CRIPA Investigation of Arizona Women's Prisons
Dear Governor Symington:
On February 8, 1995, we notified you of our intention to
investigate allegations of sexual abuse and violations of
privacy rights of female inmates confined in Arizona Department
of Corrections ("ADOC") facilities, pursuant to the Civil Rights
of Institutionalized Persons Act (CRIPA), 42 U.S.C. §§ 1997 et
seq. The purpose of this letter is to advise you of our
findings, supporting facts, and recommended remedial measures,
pursuant to 42 U.S.C. § 1997b(a)(1).
As a result of our investigation, we have concluded that
there exists at ADOC women's facilities an unconstitutional
pattern or practice of sexual misconduct and constitutionally
unacceptable invasions of privacy rights, and that ADOC officials
have not addressed these problems adequately. These conclusions,
and the more specific findings and recommendations set out below,
must be read in the context of ADOC's refusal to cooperate with
our investigation. Although ADOC has provided some relevant
data, our requests for other information have been denied or gone
unanswered. Most importantly, ADOC officials have refused to
grant us access to female inmates, correctional staff, or ADOC
women's facilities. Both the legislative history of CRIPA and
federal case law make it clear that the Attorney General may
consider state officials' failure to cooperate with an
investigation in her decision to bring suit under the Act.
United States v. Michigan, 868 F. Supp. 890, 896 (W.D. Mich.
Nevertheless, we offer our findings and recommendations in a
cooperative spirit. We hope that ADOC will be willing to discuss
these matters with us promptly and in appropriate detail, rather
than continuing its adversarial posture.
Our findings and recommended remedial measures are offered
in the context of the current state of the law regarding the
unconstitutionality of sexual misconduct against female inmates
and the analytical framework for assessing the constitutionality
of invasions of privacy rights of female inmates.
I. FINDINGS AND SUPPORTING FACTS
A. Physical Sexual Misconduct.
We have received significant evidence, some of it confirmed
by ADOC records, that during the past few years at least 14
female inmates have been subjected to sexual assaults and other
non-consensual sexual behavior by guards, including rape, sodomy,
touching and fondling, masturbation, urination, removal of
clothing, nude dancing, indecent exposure, and offensive sexual
We also have received significant evidence, some of it
confirmed by ADOC records, that during the past few years a
number of female inmates have engaged in supposedly "consensual"
sexual behavior with ADOC staff, sometimes in return for special
privileges not available to other inmates. In the context of a
prison environment, in which inmates necessarily surrender
virtually all self-control over every aspect of their lives and
are at the mercy of staff for their basic needs, there cannot be
any "consensual" sexual behavior between staff and inmates.
Moreover, a prison environment which fosters or tolerates
"consensual" sexual behavior between staff and inmates
significantly increases the probability of nonconsensual sexual
misconduct by staff.
In two letters dated September 22, 1995, and December 6,
1995, copies of which are attached, we provided Arizona state
officials with detailed information on sexual misconduct in ADOC
women's facilities. We received some of this information in the
form of 13 sworn "Jane Doe" affidavits of inmates whose
identities were confidential. In addition, detailed information
on some of the sexual misconduct summarized above is contained in
a document provided to us by ADOC (referred to by ADOC as the
"Matrix"), a copy of which is also attached.(1) ADOC officials
have conceded that ADOC settled one case in which a CSO was
accused of raping a female inmate; and we have received
information that contract employees have requested sexual favors
from female inmates in exchange for better job assignments.
The evidence outlined above, considered in light of the fact
that ADOC officials have refused to permit us to interview female
inmates, indicates that sexual misconduct is occurring in ADOC
women's facilities with constitutionally unacceptable frequency.
The sexual misconduct cases included in ADOC's own Matrix reflect
only those incidents that ADOC chose to investigate through its
Inspections and Investigations ("I & I") unit after the incidents
happened to come to ADOC's attention. ADOC has raised the
possibility that other complaints regarding sexual misconduct
were not investigated by I & I, but to date ADOC has not
responded to our request for information concerning that
possibility. The common-sense inference that the sexual
misconduct cases included in the ADOC Matrix constitute only a
portion of the actual number of such cases is supported by the
fact that our investigation uncovered numerous additional
allegations of sexual misconduct -- about which ADOC apparently
was not aware -- notwithstanding ADOC's refusal to permit us to
interview female inmates. We note also that a number of the
Jane Doe affidavits suggest that female inmates fear retaliation
if they report sexual misconduct to ADOC officials.(2)
B. Constitutionally Unacceptable Invasions of Privacy.
We have received significant information -- including five
of the Jane Doe affidavits and Case #22 in the ADOC Matrix -- that female inmates' privacy rights are violated by male correctional officers who, without good reason, engage in
frequent, prolonged, close-up and prurient viewing of female
inmates showering and using toilet facilities.
Arizona's refusal to cooperate in our lawful federal
investigation of allegations of civil rights violations in ADOC
women's facilities allows us to draw adverse inferences from the
self-selected evidence that we have obtained from ADOC and from
the evidence derived from non-ADOC sources. That evidence, and
the adverse inferences derived from that evidence, indicate the
presence of constitutionally unacceptable invasions of privacy in
ADOC women's facilities.
C. ADOC Responses Regarding Sexual Misconduct
and Unlawful Violations of Privacy Rights.
Our investigation indicates that ADOC has responded to the
related problems of sexual misconduct and unlawful invasions of
privacy in a manner that has some positive aspects, but which is
not constitutionally adequate.
1. Screening of potential employees. At least on paper,
ADOC's system for evaluating and screening potential employees in
terms of their propensity for sexual misconduct appears to be
appropriate in substantial measure. However:
a. We do not have sufficient information to evaluate how well the screening process works in practice -- although in at least one instance, involving ADOC Matrix Case #36, it appears that ADOC ignored significant evidence that the employee may have had psychological problems relating to sex.
b. ADOC's policy of checking with criminal justice agencies in jurisdictions where an applicant has lived for the past five years (IMP 220.127.116.11.1.1) is insufficient; we would suggest that the check should cover at least the past ten years.
c. ADOC policy provides for checking with each applicant's references (IMP 18.104.22.168.1.4); we do not know what other efforts, if any, are made to identify and contact past employers.
d. We have no evidence that contract employees who work in ADOC facilities are subject to ADOC's pre-employment screening. We note also that pre-employment screening by itself is unlikely to weed out all candidates who might be tempted to engage in sexual misconduct.
2. Training. On paper, ADOC's training program with
respect to issues relating to sexual misconduct appears to be
adequate. However, it is unclear how much of that training
focuses on the supervision and searching of female inmates, and
we cannot confirm the adequacy of that training program without
speaking to correctional staff. Nor do we know whether contract
employees receive the same training as ADOC employees.
3. Initiation of investigations. We regard it as positive
that ADOC has initiated investigations in response to several
different sources, including inmate and staff allegations,
rumors, and anonymous written statements. However, as noted
previously, ADOC has not responded to our requests for
information on the frequency with which inmate grievances
regarding sexual misconduct have not been referred to I & I for
4. Thoroughness of investigations. Several of ADOC's
investigations into allegations of sexual misconduct were timely,
thorough, and well documented. However, other investigations
were not adequate (e.g., the investigation in ADOC Matrix Case # 36). Moreover, the routine use of male investigators to interview female victims is likely to impede the thoroughness and
accuracy of investigations of alleged sexual misconduct.
5. Sanctions. In some cases in which ADOC employees were
found to have engaged in sexual misconduct with female inmates,
ADOC has imposed adequate sanctions (i.e., dismissal).(3) In
other cases, however, employees have received little or no
discipline despite substantial evidence that they engaged in such
misconduct (see Matrix Cases 7, 15, 32, and 36). It is
problematic that ADOC policies (IMP 103.1.8) permit lenient
sanctions for sexual misconduct (even for second offenses). We
also are concerned that ADOC policy (IMP 22.214.171.124) permits the
rehiring or reinstatement of an employee who resigns in lieu of
dismissal after only two years; an employee who resigns in lieu
of dismissal after being accused of sexual misconduct should be
permanently disqualified from future employment with ADOC.
6. Efforts to determine the nature and extent of sexual
misconduct and unlawful invasions of privacy. At least until
very recently, ADOC simply had reacted to allegations of sexual
misconduct that came to its attention, with no affirmative effort
to determine the extent to which sexual abuse and harassment were
occurring in female facilities. In this regard, former Director
Lewis's recent appointment of a Task Force appeared to be a
potentially positive step. However, the information that
Mr. Lewis provided with his letter of December 4, 1995, to
Attorney General Reno indicates that the manner in which the Task
Force proceeded was seriously flawed in terms of investigating
the extent of sexual misconduct at ADOC women's facilities. Most
obviously, administering the inmate and staff surveys on a
non-confidential, face-to-face basis, apparently using ADOC staff
as interviewers, created inherent barriers to the communication
of information regarding sexual misconduct by ADOC employees.(4)
Given the sensitive nature of the inquiry and the likelihood that
female inmates will be fearful about the consequences of
reporting sexual misconduct by ADOC employees, an affirmative
investigation by an outside entity -- such as the Department of
Justice -- is necessary.
7. Failure to implement State's own policies. The
information that ADOC officials have provided to us does not
indicate that ADOC has made an adequate effort to reduce
opportunities for its employees to engage in sexual misconduct
with or unlawfully invade the legitimate privacy interests of
We wish to make two preliminary points about the
recommendations that follow. First, some of the recommendations
are necessarily general because the relevant details depend on
information that ADOC has refused to provide. Second, the
recommendations are not non-negotiable demands. As indicated
earlier, we hope that ADOC will be willing to discuss the
recommendations with us with the goal of avoiding litigation.
A. Overall Goals.
We recognize that as a practical matter, no measures can
completely eliminate the possibility that some ADOC employees
will engage in sexual misconduct with, or unlawfully invade the
privacy of, female inmates. However, the complete elimination of
such conduct should be ADOC's goal, and ADOC should take all
necessary and prudent measures to minimize sexual misconduct and
unlawful invasions of privacy in its women's facilities.
B. Screening of Employees.
1. Ensure that evaluation and screening of prospective
employees at least comply with existing ADOC policies.
2. Check with criminal justice agencies in all
jurisdictions in which each applicant has resided for at least the preceding ten years.
3. Include all former employers in the routine background
4. Develop procedures to ensure that ADOC responds
appropriately to evidence that a prospective or current
employee may have psychological problems relating to
sexual conduct. (This would be a suitable
responsibility for the Women's Facilities Administrator, discussed in Section II(H), below.)
5. Require that contract employees undergo the same
background check as regular employees.
At minimum, ADOC should:
1. Ensure that all employees who are assigned to female
facilities actually receive proper training on
staff-inmate relationships as well as the supervision
and searching of female inmates.
2. Ensure that contract employees who are assigned to work
in female facilities receive proper training on
inmate-staff relationships as regular employees.
D. Investigations of Allegations of Sexual Misconduct and
Unlawful Invasion of Privacy.
With respect to complaints or other allegations of sexual
misconduct or unlawful invasions of privacy:
1. ADOC should initiate investigations in response to
allegations in any form, and from any source.
2. ADOC should ensure that all investigations are prompt,
thorough, and well documented. All potential witnesses, including inmates, should be identified and interviewed.
3. Investigations should be conducted by outside
investigators, or by ADOC personnel who are not under
the command of facility administrators.
4. Female investigators should be available to interview
alleged female victims and any other female witnesses
who may be reluctant to discuss intimate details with
5. In each facility, one official should be designated to
review all allegations and investigations of sexual
misconduct and unlawful invasion of privacy. All such
allegations and investigations also should be reviewed
by the Women's Facilities Administrator (see Section
E. Sanctions for Sexual Misconduct and Unlawful Invasions
of Privacy: Referrals to Prosecutorial Authorities.
1. There should be a single sanction for employees
engaging in rape, sodomy, touching and fondling,
masturbation, urination, removal of clothing, nude
dancing, and indecent exposure: termination from
employment. The current system of sanctions permits
punishments that are too lax to deter future offenses.
2. ADOC should refer to prosecutorial authorities all
cases in which there is any credible evidence to
support the filing of criminal charges, even when ADOC
has concluded that, on balance, the evidence does not
prove the charge. Prosecutors, rather than ADOC
employees, should decide whether the evidence developed
by ADOC justifies the filing of criminal charges or
further criminal investigation.
3. An employee who resigns in lieu of dismissal after
being accused of sexual misconduct should be
permanently disqualified from future employment with
F. Efforts to Determine the Nature and Extent of Sexual
Misconduct and Unlawful Invasions of Privacy.
Given the problems inherent in any attempt by ADOC personnel
to determine the nature and extent of sexual misconduct and
unlawful invasions of privacy in ADOC's own women's facilities,
ADOC should arrange for an investigation of these issues by an
independent outside agency or expert.
G. Necessary Proactive Steps to Address Sexual Misconduct
and Unlawful Invasions of Privacy.
There are a number of steps that ADOC should take to
minimize the opportunities for sexual misconduct and unlawful
invasions of privacy, including the following:
1. ADOC should devise measures to minimize the possibility
of sexual misconduct in situations in which a single
employee (male or female) is alone with one or two
female inmates in locations where sexual misconduct
could go undetected. Those measures should include the
assignment of CSOs and other staff who have received
proper training in staff-inmate relationships and the
supervision and searching of female inmates, and might
include the use of surveillance cameras in selected
2. ADOC should increase the presence of supervisory staff
in living and work areas; and the supervisory staff
should actively engage inmates and lower level staff in
conversation about conditions of confinement, including
sexual misconduct. A more active role for supervisory
staff would send the message that inmate-staff
relations are being monitored closely, and it would
provide more meaningful opportunities for inmates and
lower level staff to approach supervisors with comments
3. Because inmates housed in mental health units are most
vulnerable to sexual misconduct, ADOC should assign to
those units CSOs and other staff who have received
proper training regarding staff-inmate relationships
and the supervision and searching of mentally ill
female inmates. ADOC also should take special care in
mental health units to avoid staffing patterns and
procedures that place staff in one-on-one situations
with female inmates.
4. ADOC should promulgate and enforce rules that require
female inmates to wear appropriate clothing at all
times. Such rules would reduce both the opportunities
for male staff to engage in voyeurism and the
inadvertent or intentional incitement of sexual
5. ADOC should take appropriate steps to protect female
inmates from unlawful invasions of their privacy
rights. Such steps should include the assignment of
CSOs and other staff who have received proper training
in staff-inmate relationships and the supervision and
searching of female inmates, and might include the
installation of visual barriers in showering and toilet
areas that protect privacy without unduly interfering
with legitimate security interests.
H. Women's Facilities Administrator.
ADOC's female facilities are adjuncts to predominantly male
prisons, and there are no wardens for female units (only deputy
wardens). Moreover, all of the ADOC wardens except one
(Meg Savage) are male; and Ms. Savage's experience is with male
facilities. Thus, the unique issues raised by incarcerated
females are likely to be underappreciated and dealt with on a
facility-by-facility, rather than system-wide, basis. We note
that one respondent to the Task Force Survey indicated that ADOC
training was characterized by a negative attitude toward working
One way to mitigate these problems without restructuring the
entire Department would be to create a new position in ADOC's
Central Office, the "Women's Facilities Administrator," whose
sole responsibility would be to serve as a liaison between the
women's facilities and ADOC's Director and Deputy Director. This
addition to ADOC's organizational structure -- which preferably
should be filled by someone with experience at male and female
correctional facilities -- would add "organizational sensitivity"
with regard to issues concerning female inmates, and it would
provide a basis for instituting appropriate policy changes
throughout the system.
Pursuant to CRIPA, the Attorney General may institute a
lawsuit to correct deficiencies of the sort identified in this
letter 49 days after the appropriate state officials have been
notified of those deficiencies. 42 U.S.C. § 1997b(a)(1). We
continue to hope, however, that litigation will not be necessary.
We therefore urge ADOC officials promptly to provide us with
access to persons, facilities, and information that so far has
been withheld, and to discuss with us the issues raised in this
Deval L. Patrick, Assistant Attorney General, Civil Rights Division
cc: The Honorable Grant Woods, Attorney General, State of Arizona
Mr. Terry L. Stewart, Director, Arizona Department of Corrections
Mr. Hal Cardin, Warden
Ms. Denise Andre, Deputy Warden, Arizona Center for Women
Mr. Dale Copeland, Warden
Ms. Judy Drigo, Deputy Warden, ASPC-Perryville
Mr. Sam Sublett, Warden
Ms. Mary Vermeer, Deputy Warden, ASPC-Tuscon
Mr. Hal Cardin, Warden
Mr. Blaine Marshall, Associate Deputy Warden, ASPC-Alhambra
Janet Napolitano, Esquire, United States Attorney, District of Arizona
1. ADOC has provided us with self-selected documents relating to
the incidents covered by the Matrix.
2. The Task Force Survey results also indicate that a
substantial number of female inmates are reluctant to report
problems to ADOC staff.
3. We note with favor that ADOC has referred some sexual abuse
incidents to prosecutorial authorities.
4. Notwithstanding the problems in the Task Force surveys, those
surveys did disclose additional information regarding such
matters as the inadequacy of staff training, female prisoners'
reluctance to report sexual misconduct, and the concerns of a
portion of the inmate population with unlawful invasions of
privacy by male staff members.