ANCHORAGE — The Alaska Department of Corrections should not have disciplined a Palmer inmate for allegedly having heroin, because, among other problems, a corrections officer accidentally took the baggie of drugs home before testing it the next day, according to a report from the state Office of the Ombudsman.
The ombudsman’s investigation report published Monday details the unnamed inmate’s case, which started with a search of his property at Palmer Correctional Center in September after he was transferred to solitary confinement for some reason in late August.
The inmate’s name is redacted in the report, and it is also unclear what crime he was convicted of to get imprisoned.
The Department of Corrections punished the man for the heroin in an administrative hearing with two months of segregation — prisoners call it “the hole,” the report notes — without proper evidence handling and hearing records, Ombudsman Linda Lord-Jenkins wrote in the report. Officials also denied his appeals later, Lord-Jenkins’ report states.
Corrections officials manage institutions across the state, including Fairbanks Correctional Center, and often handle prisoner infractions administratively in a process that has a lower standard than state criminal court.
Still, that disciplinary process, as applied in the recent Palmer case, broke the law, according to the ombudsman’s office, which was created by the Alaska Legislature in 1975 to investigate citizen complaints against state agencies and personnel.
Ombudsman investigations look into whether a complaint is justified, and reports include recommendations on how to fix the problem, frequently noting that the issue is “rectified” if the agency’s response is sufficient.
That was not the case with the ombudsman’s investigation report in the Palmer inmate’s complaint, which remains somewhat unresolved.
Lord-Jenkins described Corrections Commissioner Ronald Taylor’s responses to her recommendations as troubling and in disagreement with legal decisions on prison discipline by the highest courts in Alaska and the United States.
“The Ombudsman finds disturbing the Department’s disregard and even lack of familiarity with its own laws governing prison discipline, and with the nonchalance with which the Department continues to regard decisions of both the state and federal supreme courts.”
The Department of Corrections did not respond to an invitation to comment for this story.
According to the ombudsman’s 13-page report, this is what happened in the Palmer case:
A Palmer Correctional Center sergeant wrote in an incident report on Sept. 4 that, at about 4:30 p.m. that day, a property officer handed her an envelope with an unknown substance in it.
“It was the end of my shift and I glanced at it and put it in my cargo pocket,” the sergeant wrote.
Next, the sergeant wrote in the incident report that a Sept. 5 test showed it was heroin. The incident report, an evidence record and a photocopy of two, small plastic baggies next to a ruler were logged as evidence for a disciplinary hearing.
At the hearing, the inmate did not ask to have the report-writer present, he declined his right to have an attorney present, and he pleaded not guilty. Then he made a statement.
“Well, from what I read here in the writeup, she took it home,” he said, according to the ombudsman’s report. “We don’t know what it was that was in my property. I don’t know what it was that was in my property. Where is the chain of evidence at?”
Still, the disciplinary committee found him guilty and sentenced him to 60 days of punitive segregation, 60 days lost of possible commissary sales and 90 days lost from time he would have gotten off his total sentence for good behavior.
The inmate’s appeals were later denied, though the prison superintendent admitted in the denial that a staff member had failed to follow regulations.
An investigator in the ombudsman’s office confirmed the claim that the sergeant had taken the heroin home by contacting the state Division of Personnel and Labor Relations, which said that she had self-reported it.
“The division determined that the incident was a one-time mistake, and that there were no apparent issues regarding substance use or other misconduct on the sergeant’s part that required action by the division,’ the ombudsman’s report says.
But there were still three potential legal problems with all of this, Lord-Jenkins said.
Corrections officials had not maintained the chain of evidence custody, violating the inmate’s constitutional right to due process. And they broke their regulatory requirements by basing discipline on a report not written by the person with direct knowledge of finding the drugs. Furthermore, the disciplinary hearing committee failed to make a written finding of fact for why they decided to put the inmate “in the hole,” an error that runs contrary to opinions of the Alaska Supreme Court and the U.S. Supreme Court, the ombudsman’s report says, citing cases.
The ombudsman recommended vacating the finding of guilt in the disciplinary hearing. She Also recommended a finding of fact be written for any new hearing that might be held.
In a Nov. 17 response to the ombudsman’s office, Palmer Correctional Center Superintendent Tomi Anderson wrote to say the disciplinary committee would rehear the inmate’s case. When Lord-Jenkins wrote to ask Anderson to elaborate and provide audio recordings and documents from the second hearing “that would prove compliance with the law,” the report says, Commissioner Taylor wrote a response Dec. 23.
Taylor said the department had already agreed that the committee would rehear the disciplinary matter. The second allegation about who had written the incident report, which was “added to the complaint by your staff,” Taylor wrote, was a procedural technicality that was addressed upon rehearing the matter. Similarly, he wrote, the third issue on recording the proceedings had been fixed in the rehearing process.
“Prison disciplinary proceedings are generally informal, streamlined administrative proceedings and are not considered administrative appeals that are referred to the superior court,” Taylor wrote. “They are governed by a much lower standard of evidence. Thus I cannot accept your staff’s extensive recommendations that are followed in administrative appeals to alter our current disciplinary procedures.”
The ombudsman’s report says the justified allegations could not be considered rectified. The standards are not up to the ombudsman’s office, Lord-Jenkins wrote, they are conclusions about due process reached by the highest courts in the state and country.
“The acting commissioner’s characterization of a violation of the Fourteenth Amendment as a ‘procedural technicality’ that was ‘added to the complaint by your staff’ shows a disturbing nonchalance on the part of the agency,” Lord-Jenkin wrote. “The allegation was not surreptitiously added by a staff member; it is the Ombudsman’s own concern over constitutional violations of a kind that the United States Supreme Court has carefully considered and found to be intolerable in this country.”
The standard of proof for putting an Alaska inmate in solitary confinement must be at least as high as, for example, a hearing on how much child support someone has to pay, or the denial of a person’s Permanent Fund Dividend check, Lord-Jenkins wrote.
“Anyone who has served three months in jail, or spent two full months in solitary confinement in a 6-by-9-foot cell, would probably agree that a hearing on the matter merits as much process as a hearing on whether to deny a PFD,” Lord-Jenkins wrote.
Despite attempts Thursday and Friday to get comment from the Department of Corrections, including calls to the commissioner’s office and several calls and emails to the department’s public information officer, the corrections officials did not respond, except to acknowledge receiving the request and a link to the report Thursday morning.
Specifically, the Department of Corrections did not respond to a question about whether it had changed its policies following the investigation or whether the case would have any effect on other disciplinary hearings.
Staff writer Casey Grove is the News-Miner’s Anchorage reporter. Contact him at 770-0722 or follow on Twitter: @kcgrove.