The prisoner's ombudsman: protecting constitutional rights and fostering justice in American corrections.

• Author: Heskamp, Brian D.

The Spirit of Christ, the Redeemer of the world, must breathe even where people are chained in prisons according to the logic of a still necessary human justice. Punishment cannot be reduced to mere retribution, much less take the form of social retaliation or a sort of institutional vengeance. Punishment and imprisonment have meaning if, while maintaining the demands of justice and discouraging crime, they serve the rehabilitation of the individual by offering those who have made a mistake an opportunity to reflect and to change their lives in order to be fully reintegrated into society. (1)

~Pope John Paul II

[N]ot to promote the interests of prisoners would be to make imprisonment a mere act of vengeance on the part of society, provoking only hatred in the prisoners themselves. (2)

~Pope John Paul II

INTRODUCTION

Twenty-one year old Timothy Joe Souders was serving a one-to-four-year term in a Michigan prison for resisting arrest, assault, and destruction of police property when events turned fatal. (3) Souders, medicated for manic depression and psychosis, exhibited some "unruly behavior" on August 2, 2006. (4) He was then placed and restrained in an all steel isolation cell the size of a walk-in closet. (5) Henry Franklin, a blind inmate who was locked up in a nearby cell, heard a dehydrated Souders choking and asking for water and attempted to get Souders help by kicking his own cell door and yelling to the guards. (6) He was told to "shut up and mind his own business." (7) Despite Franklin's efforts, Souders spent the last four days of his life in this steel cell: naked, bound to a steel bed by his hands and feet, lying in his own urine, with a heat index of 106 degrees Fahrenheit in the cell, and with neither physician nor psychiatric care. (8) Dr. Robert Cohen, the court-appointed prison monitor who uncovered Souders's death, wrote that the death was "a terrible, unnecessary tragedy." (9)

Interestingly, this fiasco spurred an effort by state lawmakers to bring back the Michigan Department of Corrections Ombudsman, (10) which was shut down in 2003 due to financial constraints. (11) This closing has resulted in an increased difficulty in remedying the various problems that exist within the Department of Corrections and the prisons it operates. (12) As Michigan Senate Judiciary Committee Chairman Alan Cropsey stated, "The process worked when we had the ombudsman and I've seen how hampered the legislature has been since we don't have [it]." (13)

Given the somewhat arcane nature of the ombudsman, it is useful to explain the concept at this point:

[H]e is an individual, generally elected or nominated by the legislature, who, upon receiving a complaint from a citizen alleging government abuse, investigates and intervenes on behalf of the citizen with the governmental authority concerned. He does not act in an adversary fashion as counsel for the complainant, but remains independent of both citizen and government as a mediator or intermediary. He endeavors to comprehend both sides of the dispute and bring about a satisfactory resolution of the citizen's complaint. If he finds that the complaint is well-founded but that the branch of government concerned refuses to remedy the situation, the Ombudsman is authorized to report the abuse directly and publicly to the legislative body that created his office. With the glare of publicity upon them, the legislators may then force a just and fair settlement of the complaint. (14) The application of the ombudsman concept to the several American penal systems is not a new idea. As early as 1972, American legal commentators advocated for the application of this concept to American corrections in order to protect the rights of federal and state prisoners. (15) Since that time, only a small number of states have adopted) these recommendations by establishing an ombudsman office for prisoner and prisoner families' complaints to increase the accountability of American corrections systems and provide a much-needed outlet for these grievances. (16) Many states have not even attempted to utilize the institution, and others have attempted unsuccessfully to pass legislation creating such an office. (17) This Note demonstrates that the ombudsman office has a substantial role to play in ensuring the adequate protection of prisoners' constitutional rights and in remedying the systemic problems (18) underlying individual violations.

One familiar with the history of prison reform might be tempted to dismiss this Note at the outset because "conventional wisdom" holds that the sweeping court orders leading to prison reform in the 1970s and early 1980s have adequately shored up the constitutional rights of prisoners and remedied the abuses existing within prison systems. (19) Although the scope of prison reform litigation has narrowed, tending to address only individual violations, it has done so not because systemic problems have ceased to exist; rather, it has narrowed because of the Prison Litigation Reform Act, (20) more stringent judicially imposed causation standards, (21) and decreased public funding for such litigation. (22) In fact, the relatively high volume of litigation revolving around individual prisoner rights violations and the grave injustices that sporadically occur prove that systemic problems remain in American penal systems. (23) Prisoner rights litigation has also become decreasingly effective at remedying the problems within prisons due to the aforementioned factors. (24) Consequently, additional safeguards such as the establishment of a corrections-specific ombudsman are now more necessary than ever.

Part I of this Note elucidates the nature of an ombudsman and presents an overview of the use of and failure to use the concept on the part of the states, concluding that ombudsmen are an affordable but underused possibility in American penal systems. Part II briefly addresses the various injustices currently occurring in American prisons, including overcrowding and "double-ceiling," prisonerprisoner rape, sexual abuse, guard brutality, inadequate health care, and the prevalence of HIV/AIDS. Part III examines how the law fails to adequately protect prisoners. It argues that the judicial standards under the Eighth and Fourteenth Amendments make it difficult for prisoners to succeed in court and prevent courts from addressing the systemic problems underlying violations that are found, and also describes how the recent Prison Litigation Reform Act and the Prison Rape Elimination Act of 2003 (25) affect prisoners. Part IV argues that the ombudsman has a substantial role to play in American corrections and is capable of fostering meaningful change by mitigating the injustices that plague prisoners within the American penal system.

1. THE NATURE AND SCOPE OF OMBUDSMAN USE IN AMERICAN CORRECTIONAL SYSTEMS

   The nature and scope of ombudsman use vary from state to state and within the Federal Bureau of Prisons. Among the several states, the use of the ombudsman concept can be discussed categorically. Some states have successfully established a corrections-specific ombudsman office; some states have established a general ombudsman office for all complaints against the State, including complaints against the Department of Corrections; other states have established and later closed their corrections-specific ombudsman offices; and finally, many states have not attempted to use the concept at all. The Federal Bureau of Prisons has an ombudsman program established for staff to resolve work-related concerns, but no such program exists for the prisoners themselves. (26)

   Approximately half of the states have attempted to establish an ombudsman office to no avail. (27) These states include Missouri and New Hampshire. The Missouri legislature has considered bills that would create a corrections-specific ombudsman on several occasions, but the office has never been established. (28) In 2002, for example, Representative Charles Troupe introduced House Bill 1305 in order to establish a Department of Corrections Ombudsman, but the Bill never made it out of committee. (29) New Hampshire has also recently introduced legislation to establish an Office of Corrections Ombudsman, (30) but the bill was placed in "interim study" by the close of the 2006 legislative session. (31) If the bill were finally to pass, the office would be responsible for "[r]eceiving, investigating, and referring complaints or problems received from inmates of the department of corrections, employees of the department of corrections, members of the general court, and the general public" at an estimated cost of $111,189 for fiscal year 2007. (32)

   Other states have established a corrections-specific ombudsman office, with mixed success. Georgia, for example, has effectively established such an office. (33) The ombudsman was established to uncover and reduce problems within the prison system and protect the rights of prisoners by gathering information regarding the various problems reported in the corrections system and acting as a bridge between citizens and the Department of Corrections. (34) The Georgia Office of the Ombudsman has fostered relief for prisoners and change within the prison system, set goals for enhancing public trust, increased the accountability of the Department of Corrections, and provided an objective view of challenges faced by the Department. (35) California, on the other hand, has an Ombudsman who works for the Director of the California Department of Corrections and Rehabilitation as an independent "special advisor," providing management advice, making policy and procedural recommendations, and serving as a "public relations expert." (36) Unfortunately, the California Office of the Ombudsman is not as effective as it should be due to the manner in which it is structured. The office is not fully independent since it works "for and reports to" the Director of Corrections rather than with...