July 5, 2010

Behind the Bars | Kentucky had gaps in monitoring troubled Otter Creek prison

By R. G. Dunlop rdunlop@courier-journal.com

WHEELWRIGHT, Ky. -- Kentucky's oversight of a privately run prison in Floyd County was so lax and uncoordinated during the time it housed female inmates that state monitors often failed to promptly recognize and report serious problems, including more than a dozen cases of inmates who complained they were sexually abused by male staff members.

And when the monitors did identify deficiencies at the Otter Creek Correctional Center, including substandard health care, state corrections officials never imposed financial penalties.

These and other problems regarding the management of Otter Creek emerged from hundreds of pages of documents, including copies of monitors' monthly reports and e-mail correspondence, that The Courier-Journal obtained under the Kentucky Open Records Act from the state Department of Corrections and the Nashville-based Corrections Corp. of America, the prison's operator.

CCA, the nation's largest private prison provider, housed more than 400 female inmates at Otter Creek until January, when the state decided to transfer them to a state-run prison in Western Kentucky. That came after eight substantiated incidents in which female inmates were sexually abused, resulting in charges against at least six staff members.

The state of Hawaii, which also had female inmates at Otter Creek, removed them last year, and the prison now houses 650 men.

In all, the Kentucky Department of Corrections and the state of Hawaii investigated sexual-abuse allegations involving at least 19 inmates. Yet Kentucky's monitoring reports had cited just one incident involving an inmate since September 2005.

In addition, a Department of Corrections investigation concluded last September that prison authorities had failed to investigate seven alleged incidents of sexual contact between staff and inmates since 2007 -- despite a federal law requiring that such investigations be conducted. In four of the seven incidents, the accused staff members later were fired.

Kentucky paid CCA $21 million during the past fiscal year to operate Otter Creek; the Marion Adjustment Center, which has roughly 800 Kentucky inmates; and the Lee Adjustment Center. The state recently moved its inmates out of Lee Adjustment in an effort to cut costs.

State regulations require a full-time state employee to monitor each private prison -- a presence considered vital to safeguarding inmates' rights and the public's investment.

But at Otter Creek, there was only an intermittent state presence during the more than four years, beginning in late 2005, when Kentucky housed women inmates there, according to records obtained by the newspaper.

Several authorities on corrections policy and prison management said the state should have had full-time monitors at Otter Creek. The monitors, they said, should have promptly identified serious violations, and state corrections officials should have aggressively addressed them.

"That's what they're there for, to uncover the stuff that's really bad," said Gerald Gaes, the former director of research for the federal Bureau of Prisons, who is now a private consultant.

The importance of state oversight was underscored by a report last October from the department's new full-time monitor at Otter Creek, who found that inmate morale there "appears to be on the rise due to DOC staff being on grounds to ensure policies and fair treatment for all."

The Department of Corrections' spotty track record at Otter Creek has led several legislators and others to question whether the state has the resources, or the commitment, to effectively oversee the CCA-run prisons.

"I would say they weren't doing their job" at Otter Creek, said Rep. Brent Yonts, D-Greenville, an attorney and a member of the House committee that oversees the corrections budget. He called private prisons "bad public policy and bad social policy."

Robert Lawson, a longtime law professor at the University of Kentucky and author of a recent report on the state's burgeoning prison population, said he questions the department's ability to provide adequate oversight of CCA-run prisons.

"All the things that have happened there (at Otter Creek) suggest that they don't," Lawson said. "... Will (state officials) take the actions they need to do? I'm not sure that they will."

Corrections Commissioner LaDonna Thompson acknowledged in an interview that she was dissatisfied with the quality of state oversight at Otter Creek, saying the monitors' monthly reports often were too general and that turnover among monitors was high.

"We went back and reviewed the entire situation, and we did see some gaps," including a lack of communication between state monitors and prison administrators, said Thompson, who has served as commissioner since February 2008. "And we have addressed those with our staff and also with the chain of command."

She also defended the state's decision not to fine CCA for contract violations.

"It had just not reached a level that we felt like it should result in a fine," she said.

The department declined to make any of its monitors at Otter Creek available for interviews.

CCA declined to allow its employees to be interviewed, including the current or former wardens at Otter Creek. Company spokesman Steve Owen invited the newspaper to submit written questions but then declined to answer them.

"We have made the decision to move forward and will continue to work closely with our government partner to ensure the facility is meeting or exceeding the high expectations of CCA and the DOC," Owen said in an e-mail.

Oversight gaps last weeks

The newspaper's review of the monitoring records found significant gaps in oversight.

In 2008, for example, the prison went without full-time supervision for nearly three months when the monitor assigned to Otter Creek was placed on administrative leave for five weeks and then suspended for six weeks for misconduct.

Another monitor was fired in May 2009 during her probationary period for unspecified reasons that the department said were related to her job performance. She produced no report for April 2009 and wasn't replaced for nearly three months.

At other times, gaps in full-time monitoring ranged from a month to more than 10 weeks.

When no full-time, permanent monitor was available at Otter Creek, oversight often was provided by a department employee who also was responsible for monitoring another private prison 100 miles away.

Allegations of substandard health care at Otter Creek also received short shrift from the state's monitors, their own reports show.

Several health-care providers quit working at Otter Creek because of what they described as chronically unacceptable conditions, but the monitors' reports contain only a few references to inmates' complaints about substandard medical care. None of them mention the complaints of the providers who quit.

Dr. Mark Hovee, a clinical psychologist who worked at Otter Creek for six years until he resigned in October 2007, said in a court deposition last year and in a recent interview that lax state oversight was a significant problem.

Hovee said he was never asked to talk to a state monitor at length and at times didn't know who the monitor was.

"Neither prison officials nor the Kentucky Department of Corrections ever showed an interest in talking to mental-health people" at Otter Creek, Hovee said.

The Department of Corrections declined to respond to Hovee's concerns.

State fails to fine CCA for violations

The department's monitors did periodically identify concerns about prison conditions, such as inadequate maintenance that allowed human waste to back up through shower drains; chronically understaffed special-response teams; the failure by prison staff to safeguard inmates' property; and vacant positions that often went unfilled for months longer than the 60-day limit specified in the state's contract with CCA.

Among the staffing vacancies noted was the lack of special-response team members who handle hostage-taking and serious inmate disorders. Some reports listed vacancies that went unfilled for up to a year or more.

A recent report by the state Legislative Research Commission noted that the average staff vacancy rate at Otter Creek during the 2009 fiscal year was more than double that at the Kentucky Correctional Institution for Women at Pewee Valley, the only state-run prison for women.

Despite the shortcomings identified by the monitors, the corrections department never attempted to fine CCA for any of them, even though it could have sought penalties of up to $5,000 per day for contract violations. That sanction was imposed only once -- a $5,000 fine when CCA failed to promptly notify the state of a mentally ill inmate's death two years ago.

The state also didn't penalize the company when the warden's secretary fatally shot herself in January 2008 with a handgun she smuggled into the prison, a "critical breach of security," the department later admitted.

By contrast, the Idaho Department of Correction fined CCA more than $68,200 in June after the company violated its contract by failing to have qualified drug and alcohol counselors at the Idaho Correctional Center, which is state-owned but run by CCA.

Gaes and Michele Deitch, an attorney who teaches criminal justice and juvenile-justice policy at the University of Texas, said Kentucky was remiss in not imposing financial sanctions on CCA for chronic violations at Otter Creek.

"If they don't enforce the requirement, what's the point?" Deitch said. "Chronic vacancies raise concerns, not only about safety but also about programming and the implications for inmates' rehabilitation and their ability to successfully re-enter society."

Gaes said it's "not cynical to conclude" that continual unfilled vacancies may represent a conscious effort by CCA to save money through lower labor costs.

CCA denies on its website that private prisons cut corners to cuts costs, including labor, which typically comprises 60 percent or more of a prison's total budget.

Commissioner Thompson said that corrections work is stressful and that turnover and vacancies also are issues at state-run prisons.

She and Justice Secretary J. Michael Brown described the state's relationship with the company as a "partnership" that places a premium on collaboration and persuasion.

Thompson said the state is "trying to work with (CCA) to try to get (problems) resolved."

But Yonts and others said corrections officials' reasoning is flawed.

"It's not a marriage," he said. "We're in a supervisory role, not a partnership."

Reporter R.G. Dunlop can be reached at (502) 582-4227.

Additional Facts CCA BY THE NUMBERS Founded: Nashville, January 1983 Operations: Manages 65 facilities, 44 of them company-owned, in 20 states, mostly in the South, and District of Columbia Capacity: Nearly 87,000 beds Occupancy: About 78,500, making it nation's largest private-prison operator Employees: About 17,000 Total assets: Nearly $3 billion Total revenue: $414.9 million for the first quarter of 2010 Total net income: $34.9 million