Disorder in the Court

This once was considered a crucial “go and sin no more” lawsuit to clean up Maricopa County jails. These days, it’s a “hurry up and wait” suit that has left jail conditions in limbo. Both sides of the case are anxious to get it over and done with, but for opposite reasons: One side says the court no longer needs to meddle in how the jails are run, the other side says court intervention is needed now more than ever.
Here’s betting you’ve never even heard of the case and don’t know it’s still around, languishing in federal court decades after it was filed.

Officially, it’s called Hart v. Hill. Jerry Hill was sheriff of Maricopa County in the 1970s, and he was in charge of the county jails when a pre-trial detainee named Damien Hart led a class-action lawsuit alleging that the jails were lousy.

The original suit claimed that inmates at the time – who were awaiting trial for alleged crimes and in jail because they were too poor to post bond – were denied their constitutional rights to medical care, a bed and blankets, a sanitary environment and physical exercise. This wasn’t a lawsuit about “country club prisons” or “coddling luxuries.” This lawsuit said prisoners should not have to eat next to an overflowing toilet or be denied medical care when they’re sick. We’re talking basic, human decency stuff.

County Legal Services filed the case in 1977, and it resulted in what many consider a “wonderful” ruling from Federal Judge Earl H. Carroll. He got both sides to agree to a “consent decree” that basically said the jails would stop doing nasty stuff and treat these guys right. In 1995, that ruling was amended, and both sides again agreed to this standard: Even in jail, people can’t be treated like animals.

But while Judge Carroll got everyone to agree that the sins of the past had to stop, he didn’t appoint someone to make sure the jails cleaned up their acts and kept them clean. It seems a strange oversight in retrospect: If the jails needed to be told to adhere to basic human rights in the first place, why would anyone think they would reform themselves overnight?

Besides, if you want to talk about a group of people who get little public sympathy – in fact, who receive downright hostility most of the time – it’s people behind bars, whether they’ve been convicted or not. In Arizona, the prevailing attitude seems to be that if you land in jail, for whatever reason, you deserve what you get. That attitude has made the current resident in the sheriff’s office, Joe Arpaio, one of the most popular politicians in state history.

Arpaio inherited the lawsuit when he took over the jail system 14 years ago and was the sitting sheriff when Judge Carroll issued his final ruling in 1995. Then, in 2001, under a new prison reform act, the sheriff asked the court to terminate the decree, saying he had cleaned up the jails, was protecting the constitutional rights of inmates and saw no reason for the court to hold a hammer over his head any longer.

In fact, the Prison Litigation Reform Act, which was marshalled through Congress by Senator Jon Kyl and signed into law by President Bill Clinton, has an important provision: Once a decree on jail conditions is two years old, it is automatically ripe for dismissal unless prisoners can show they are still being subjected to unconstitutional conditions.

Arpaio’s attorneys laid out their arguments for dismissal before Judge Carroll during two days of hearings in November 2003 and January 2004. They presented their side of the story, while attorneys representing inmates waited for their chance to present evidence to the contrary.

To this day, they’re still waiting. For some unknown reason, Judge Carroll hasn’t continued the evidentiary hearing to listen to the side that says things are far from OK in Maricopa County jails. Since the termination request was filed in 2001, everything has remained in limbo. And it will stay that way unless, or until, Judge Carroll acts, because unlike in state court, where you can request a change of judges, there’s no such provision for the “godlike” judges in federal court.

Calls to Judge Carroll’s office brought no answers to why this is happening or what he intends to do about it.

But while he sits on this case, two crucial things are happening:

• The demands of his decree are being held in abeyance – they are “stayed,” as the law puts it – meaning the jail system does not have to follow the decree.
• Inmates in the jail system are precluded from filing any other class-action lawsuit on jail conditions.

“This is one of the most important jail-condition cases in America; it is certainly the most important jail-condition case in Arizona,” says attorney Debra Hill of Osborn Maledon, which got involved in the case a couple years ago and has filed motions – which are pending – in an attempt to shake it free.

Hill says her firm got involved because it had heard so many horror stories about jail conditions from clients. “It would have been virtually impossible for us to say no when asked to help in the suit,” she adds.
She says the court needs to encourage better medical care, mental health care and solutions for the jail’s horrible living conditions.

Retired attorney Alice Bendheim, who was involved in the case early on when she was with the American Civil Liberties Union of Arizona, says she personally witnessed the harsh conditions during a jail tour in 2002 or 2003, and she says she’s dismayed that the case is stalled. “If ever a prison is running in an unconstitutional fashion, it’s Sheriff Joe’s jail,” she charges.

Osborn Maledon has asked the federal court to appoint experts to examine jail conditions and inspect the jails, force the county to hand over “discovery” documents it has refused to share and resume the half-complete evidentiary hearing from nearly five-and-a-half years ago.

On behalf of the sheriff’s office and Maricopa County, attorney Dennis Wilenchik maintains the charges of unconstitutional care are not only false but also “obsolete.” He has asked the court to deny the motions and terminate this lawsuit. “The current jail system bears little resemblance to the facilities at issue when this litigation began,” he says in response to the omnibus motion. He stresses that, since then, two new jails have opened – the Fourth Avenue Jail and Lower Buckeye Road Jail – and contends that those facilities eliminated many of the earlier problems.

As Wilenchik writes in an e-mail to PHOENIX magazine, “For approximately 30 years, the taxpayers of Maricopa County have been footing the bill for these proceedings. We anxiously await the next move of the Court, and we hope to expeditiously resolve this case so that the taxpayers of Maricopa County no longer have to incur any expenses related to this case.”

When it comes to the cost to Maricopa County taxpayers, Sheriff Joe Arpaio has been one expensive dude. Public records show that in his 14 years in office, jury awards and settlements against the sheriff’s office have totaled nearly $30 million.

And when it comes to pre-trial detainees – the focus of the federal lawsuit – the record is deadly.
Since the 1995 ruling by Judge Carroll, the sheriff’s office has lost three major “wrongful death” suits over newly arrested detainees who died in Arpaio’s jails:

• In 1999, the county settled for $8.25 million with the family of Scott Norberg, 33, who was arrested for trespassing while high on methamphetamines and later died in the jail’s restraint chair.
• In 2006, a jury awarded $9 million to the family of Charles Agster, a mentally disabled 33-year-old who was high on drugs and also died in a restraint chair. A federal judge later reduced that to $4.6 million.
• This June, $2 million was paid in a settlement to the family of Clint Yarbrough, a delusional 33-year-old with meth in his system who asked a Circle K clerk to call police because someone, he said, was trying to kill him. When police arrived, he scuffled with them and was tased several times before being brought to jail, where he died a few hours later in a restraint chair.

In direct response to these cases, the sheriff’s office discontinued use of the restraint chair in August 2006.
But two other “wrongful death” suits are still pending:

• Brian Crenshaw, a 40-year-old legally blind man, was arrested for shoplifting in 2003. His parents charge that a jailhouse beating and medical neglect killed him. Attorney William R. Jones Jr. is representing the sheriff’s office and contends that there was no beating or medical malpractice, and that Crenshaw injured himself when he fell off his top bunk. The Crenshaw trial is scheduled for January 2008.
• Deborah Braillard, a 46-year-old woman arrested for drug possession on New Year’s Eve 2005, allegedly died because she was denied insulin for her diabetes. Wilenchik is representing the sheriff’s office in this suit and counters that Braillard purposely withheld her condition in order to become sick and shorten her jail stay. The Braillard case is scheduled for trial in late 2008.

In the meantime, the sheriff has won one wrongful death case. In May, a Superior Court jury found the sheriff’s office was not liable in the death of an inmate who was fatally beaten in Tent City – a case almost identical to one that brought the wrath of the Arizona Court of Appeals down on Arpaio. (In 2002, the appeals court not only upheld a jury verdict of $440,000 in the beating death of Jeremy Flanders, but assessed punitive damages against the sheriff for $195,000, saying Arpaio was “callously indifferent” to the level of violence inside Tent City.)

In May, however, a jury decided that the sheriff’s office bore no responsibility for the death of Phillip Wilson, who died four months after a brutal beating in Tent City. No one was charged with the murder. Attorney Michael Manning, who represented Wilson, has appealed the verdict to the Ninth Circuit Court of Appeals.

Arpaio hailed the Wilson verdict as a “great victory.” If that attitude makes sense to you, you probably don’t care that the federal lawsuit has been stalled all these years. If it makes you sick to think that anyone would consider a man who was beaten to death to be an example of good stewardship, then you join me in praying that Judge Carroll gets off the dime.