On August 16, 2013, U.S. District Court Judge David O. Carter, sitting by designation, unsealed a number of court documents related to a contempt motion seeking sanctions against Corrections Corporation of America (CCA), the nation’s largest for-profit prison company, for violating a settlement agreement in a lawsuit that alleged high levels of violence at the CCA-operated Idaho Correctional Center (ICC).

The unsealed documents revealed that current and former CCA employees had submitted sworn affidavits confirming CCA’s earlier acknowledgement that officials at ICC had falsified staffing records. The affidavits further indicated the understaffing may have far surpassed the company’s admission that ICC falsified almost 4,800 staff hours reported to state prison officials.

The district court had previously unsealed other documents related to the contempt motion on August 6, but the most recent unsealed records shed additional and unflattering light on CCA’s conduct relative to staffing discrepancies at ICC.

The underlying class-action lawsuit, litigated by the American Civil Liberties Union (ACLU), alleged excessive levels of violence at ICC that were in large part due to understaffing. In fact, a study conducted by Idaho prison officials in 2008 found that ICC had “four times more prisoner-on-prisoner assaults than Idaho’s other seven publicly-operated prisons combined.” [See: PLN, May 2013, p.22; Nov. 2011, p.10].

The case settled in September 2011, with the settlement providing that the federal court would resolve alleged violations of the agreement. As part of the settlement, CCA agreed to comply with the staffing pattern required pursuant to its contract with the Idaho Department of Correction (IDOC), and to add a minimum of three additional guards “to enhance the overall security of the facility.”

On June 11, 2013 the ACLU filed a motion for a show cause hearing, under seal, claiming that CCA was guilty of “significant and persistent” violations of the settlement by falsifying staffing records at ICC, and that the actual number of falsified hours may be as high as 20,000.

“We now know, however, that CCA reduced security staffing by thousands of hours and falsified its reports to hide these violations, all the while reaping undeserved profits by not providing the staff it was being paid to provide,” the motion stated.

The ACLU submitted affidavits from current CCA employees Susan Fry and Jaune Sonnier, and former CCA employee Annette Mullen.

Fry stated that “ICC is chronically and severely under-staffed,” and wrote that supervisors added “names to the staff roster ... to make it look like ICC is fully staff[ed] when, in fact, that isn’t true.” She also said, “Another method used by ICC to conceal understaffing is to hold a CO [correctional officer] for an extra four hours beyond his/her 12-hour shift, so that the CO works 16 hours, the maximum allowed. The CO will then leave the post 4 hours into the next 12-hour shift. ICC will not assign anyone to work the remaining 8 hours of that shift, but ICC will still list that post as having been covered the entire 12 hours.... A third method used by ICC to conceal understaffing is by assigning ‘ghost’ workers to a post. By this I mean that ICC will falsely state that someone has worked a post when administrators know it isn’t true.”

According to Fry, “this inadequate staffing is dangerous and places all prisoners and staff at risk of assault. There is a direct correlation at ICC between the number of staff who are present and the number of fights – and the severity of fights – that occur.” She further stated, “Due to 12-hour shifts and frequent use of overtime, many officers are exhausted. As a result, many officers make mistakes, are careless, and are inattentive.”

Mullen, who was employed at ICC from September 2008 through January 2013, wrote that “ICC was understaffed on a daily basis and falsified the staff roster every day to cover this up. ICC suffered from chronic understaffing the entire time I worked at ICC.” She added, “There was a direct correlation between the number of staff on duty and the number of assaults by inmates,” and as a result of the inadequate staffing, CCA employees “were forced to barter with gang members” to maintain control at the facility. “Lack of adequate staffing compromised the staff and inmate safety. Inmates at ICC would organize and plan assaults to occur when staffing was low,” she noted.

Sonnier, an addictions treatment counselor at ICC, wrote that “mass movements of prisoners at ICC are consistently understaffed” and stated, “My safety and the security of all prisoners has been severely compromised by this understaffing.”

Presumably, the Idaho Department of Correction was supposed to be monitoring CCA’s management of ICC through on-site contract monitors. In practice, however, it seems that the monitors weren’t doing much monitoring.

“It appears to me that the IDOC Compliance Monitors either are deliberately ignoring daily violations of staffing requirements, or their supervisors at IDOC are, because ICC violates staffing requirements daily that have to be apparent to the Monitors,” Fry said in her affidavit.

In its contempt motion, the ACLU noted that “This is not the first time that CCA has been found to understaff one of its prisons,” observing that government agencies in at least five states – California, New Mexico, Kentucky, Colorado and Tennessee – had concluded CCA facilities were understaffed.

Scott Craddock, CCA’s assistant general counsel and ethics officer, submitted an affidavit in support of CCA’s response to the contempt motion. Craddock admitted that “the night shift rosters had been completed in a way that indicated full staffing even when there were not enough staff in the institution to fully cover all mandatory posts for the full night shift. For example, a staff member working the day shift would work over time and either begin the shift four hours early or stay four hours late, for a total of 16 hours.... The staff member’s name would be included on the night shift’s roster even though he or she only worked 4 hours of that shift.”

Regardless, CCA claimed in its response that the settlement agreement was not a consent decree and thus not enforceable by the court, and that the company therefore could not be held in contempt. “Although CCA readily admits that there was a technical breach of the Settlement Agreement, the breach was not willful or intentional, and certainly not orchestrated by CCA,” the company’s attorneys wrote. CCA further said it would be pointless to investigate other possible violations of the settlement that had occurred “in the past.”

The district court rejected CCA’s argument and granted the ACLU’s motion for discovery and motion for an order to show cause why CCA should not be held in contempt. “It is a mystery why CCA believes it does not have to fully account for past actions that violate the Settlement Agreement (and the Court’s Order incorporating that Agreement),” Judge Carter wrote. “CCA admits that employees falsified shift rosters, and states that their review of records ‘focused on staffing during the night shift...,’” not during other shifts at ICC.

The district court held a hearing on the ACLU’s contempt motion on August 8, 2013, and issued an interim order on September 13 that extended the terms of the settlement agreement for 15 days upon finding that CCA “persistently did not comply with the staffing requirements of their contract with IDOC.”

On September 16, 2013, the court entered an order holding CCA in civil contempt for breaching its settlement with the ACLU. “They did not take all reasonable steps to comply with the Settlement Agreement, they regularly fell short of their obligation to staff positions that are mandatory under their contract with the Idaho Department of Correction (IDOC). Even in the weeks prior to the hearings, CCA was still not filling all mandatory posts,” Judge Carter stated. “Defendants did not keep clear records, did not specifically inquire about compliance with staffing levels, and thus they did not take all reasonable steps to comply with the Settlement Agreement.”

The court found that “it is clear that the non-compliance was far worse than the report of about 4,800 hours would lead one to believe. That figure came from attorneys CCA hired to investigate, and who primarily examined staff rosters and timecard records for the night shift from April 2012 through October 2012. Testimony showed that there were significant day shift vacancies, which would not be included in the 4,800 figure. There is also no reason to believe the problem only began in April 2012 and was solved after October 2012. Indeed, even in the weeks prior to the contempt hearings, mandatory posts were still going unfilled – thus there remains persistent staffing pressure that is the backdrop to prison employees fabricating records. The difference today is that CCA may finally be presenting an accurate picture of its inability to fully staff its prison.”

“For CCA staff to lie on so basic a point – whether an officer is actually at a post – leaves the Court with serious concerns about compliance in other respects, such as whether every violent incident is reported,” Judge Carter added.

In terms of contempt sanctions, the district court extended CCA’s settlement agreement with the ACLU by two years, effectively doubling the term of the agreement, which requires continued compliance with staffing levels. The court also directed the parties to select an agreed-upon monitor to oversee CCA’s ongoing compliance with the settlement – or, if they cannot agree, the court will pick the monitor.

Additionally, the court imposed monetary fines for future understaffing at ICC as follows: “Any vacant mandatory post hours over 12 hours (the duration of one shift) in one month will lead to a fine of $100 per hour over that 12th hour. The Court’s decision is based on a principle of escalating sanctions if a lower amount does not work. If CCA continues to fall short of the staffing requirements, it should expect to see escalating fines in the future.”

Finally, the district court indicated it would award attorney fees and costs to the ACLU related to the “contempt motion and resulting discovery and hearings.” See: Kelly v. Wengler, U.S.D.C. (D. Idaho), Case No. 1:11-cv-00185-EJL.

At CCA’s annual shareholder meeting held on May 16, 2013, PLN managing editor Alex Friedmann, who also serves as president of the Private Corrections Institute (PCI), which opposes prison privatization, asked CCA officials whether the company had “audited, investigated or otherwise examined staffing reporting practices at its other 60-plus facilities, to ensure that similar problems do not exist at those facilities.” CCA claimed that no other staffing problems had been identified, though Friedmann said the fraudulent staffing at ICC most likely represented “the tip of the iceberg.”

Thus far, CCA has fired two employees in connection with the falsified staffing records at ICC – chief of security Shane Jepsen and assistant chief of security Daniel Melody. A criminal investigation by the Idaho State Police remains pending, as does an investigation by the IDOC.

Additional sources: PCI press release (Aug. 22, 2013); Associated Press

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