The California Department of Corrections (CDC) has been plagued by serious allegations--some unproven and under investigation, others proven in the courts and personnel hearings--that its correctional personnel have used excessive force and, in some cases, deadly violence against inmates at state prisons at Corcoran and Pelican Bay. Some of these cases have led to court judgments and settlements which have collectively cost the state millions of dollars and led to ongoing investigations by law enforcement authorities. In one major legal case that is still pending, a federal court concluded that a weak system of investigation and discipline of CDC personnel was partly to blame for what it termed "a conspicuous pattern of excessive force" against inmates.
In this analysis, we provide an overview of the CDC's fragmented internal affairs operations and offer recommendations for improvement which we believe will reduce the state's current vulnerability to litigation and claims for damages in such cases.
For the last several years, the CDC has attempted to resolve a succession of highly publicized internal affairs cases alleging serious misconduct on the part of its personnel and, in particular, charges that correctional personnel at state prisons at Corcoran and Pelican Bay participated directly in the injury of inmates or allowed and even encouraged inmates to engage in violence against other inmates. Several cases are currently under investigation by state law enforcement agencies and the Federal Bureau of Investigation.
In a class-action lawsuit (Madrid v. Gomez) aimed at remedying a variety of problems at the Pelican Bay State Prison near Crescent City, a federal district court judge ruled that "a conspicuous pattern of excessive force" against inmates had occurred in part because of complaints that CDC personnel were not being held accountable for their misconduct. The court found that while the CDC's internal affairs investigations unit "goes through the necessary motions, it is invariably a counterfeit investigation with one outcome in mind: to avoid finding officer misconduct as often as possible." Some CDC labor representatives have voiced the opposite concern--that investigations against them have been poorly and unfairly conducted in order to ensure lower level personnel are subject to punishment but that superiors responsible for alleged wrongdoing are protected from disciplinary action.
In last year's Analysis, we called attention to the growing cost to defend the state correctional system against lawsuits filed by inmates and correctional personnel. Litigation and settlement costs were projected to reach $35 million in the current year, an increase of 14 percent in two years.
The CDC has taken some significant and positive steps to curtail litigation over cases involving excessive force and inmate injuries. For example, the CDC has clarified the policies governing the discharge of guns by correctional officers, begun videotaping confrontations that take place in cells between the officers and inmates, and taken disciplinary action against officers at both Corcoran and Pelican Bay whom internal investigations concluded were involved in misconduct. The Legislature has supported these efforts by granting the CDC funding requests for additional internal affairs personnel.
Nonetheless, the CDC has acknowledged that its internal affairs system for monitoring, investigating, and disciplining its personnel has been insufficient. In a recent request for more funding for its internal affairs investigations, the CDC stated that problems at the Pelican Bay and Corcoran prisons resulted partly because the department "failed to provide an adequate process for investigating allegations of inappropriate use of force by staff."
We believe further steps are warranted to reduce the state correctional system's vulnerability to lawsuits which may not be frivolous--in particular, sometimes-costly litigation over allegations of excessive force and wrongful death caused to inmates as a result of misconduct by correctional personnel. To the extent that the state can make changes in its correctional system that deter the types of incidents which prompted these lawsuits, the state could avoid hundreds of thousands and possibly millions of dollars in future expenditures for litigation and settlements. One area which we believe merits attention is the department's internal affairs operations.
The responsibility for investigating, monitoring and auditing an estimated 1,600 internal affairs cases per year is spread between three offices in Sacramento--two within the CDC and one within the Youth and Adult Correctional Agency (YACA)--and small independent investigative units in each of the state's 32 prisons. The offices and their internal affairs responsibilities include:
Based upon our discussions with the CDC and outside experts on internal affairs issues, we do not believe that the CDC has an effective and efficient program in place to deter personnel misconduct, to investigate misconduct when it does occur, or to discipline those who violate departmental personnel policies or the law. The CDC's internal affairs operations, in our view, are fragmented, duplicative, and ineffective.
Fragmentation and Duplication. The current system of internal affairs is fragmented resulting in no one office being clearly in charge, confusing the lines of authority and making it difficult to hold anyone accountable for the weaknesses inherent in the existing system. Moreover, each of the involved agencies has other assigned missions which compete with their internal affairs duties. In addition, the functions of the various investigative units sometimes duplicate each other. For example, the YACA Inspector General, the CDC Inspector General, and the Law Enforcement and Investigations Unit all review the quality of the internal affairs investigations conducted by Investigative Services Units at individual prisons.
As a result of the fragmentation of authority, the personnel policies, procedures, and standards followed in investigating internal affairs cases often differ from prison to prison. For example, some institutions grant automatic immunity against criminal prosecution to prison personnel who voluntarily agree to interviews about alleged wrongdoing, thereby creating a potential legal barrier to the prosecution of personnel suspected of criminal actions. We are advised that other institutions have followed differing investigative procedures.
Even where investigative procedures are clearly standardized, compliance with those procedures is sometimes lacking. Audits conducted by the YACA Inspector General have documented failures by CDC internal affairs investigators to follow proper investigative procedures--for example, failing to conduct complete investigations because not all potential corroborating witnesses were interviewed.
Ineffective System. Part of the reason these problems may be occurring is that some CDC staff lack the professional expertise to conduct appropriate internal affairs investigations. Internal affairs investigators generally receive their training on the job from other CDC investigators and are not required to have specialized training and certification qualifying them to handle such cases before they are appointed to internal affairs duties. The CDC has rarely brought in experienced outside experts, such as the state Department of Justice (DOJ), for assistance, even in the most serious cases involving potential charges of criminal activity. (The CDC recently did ask for the assistance of the DOJ to investigate alleged misconduct at Corcoran.)
Another factor that contributes to the ineffectiveness of the system is the complex legal process involved in prosecuting serious cases of alleged wrongdoing by prison staff. In particular, state correctional agencies must rely upon county district attorneys and county grand juries where the individual prisons are located to pursue internal affairs cases which involve allegations of criminal wrongdoing, creating a potential procedural barrier to the prosecution of prison personnel believed to have broken the law. This is because a district attorney sets the agenda for and length of time that a county grand jury is in session; thus, state prosecutors may have no recourse but to wait, possibly for months, for an opportunity to move forward with an internal affairs case involving alleged criminal activity. As a consequence, prosecutors and investigators of internal affairs cases are deprived of a powerful investigation tool--the option of bringing uncooperative or reluctant witnesses before a grand jury to compel truthful testimony under penalty of perjury.
Rapid Growth in Personnel. Some critics of the existing internal affairs system note that the problems are aggravated by larger personnel issues. For example, because the prison system has grown so rapidly in recent years, many mid-level correctional managers--correctional sergeants and lieutenants--have been promoted quickly through the ranks, gaining relatively little managerial experience. These inexperienced managers may not be adequately trained to supervise the personnel assigned to them and to deter employee misconduct. This situation has made some prisons more vulnerable to personnel misconduct.
Similarly, the CDC has failed to prevent personnel problems before they occur. One approach would be to prevent the hiring of personnel who lack the temperament and psychological stability needed to work in a high-pressure prison environment. Few applicants for correctional officer positions undergo psychological evaluation, despite a legal requirement that all persons hired as peace officers--including state correctional officers--be subject to evaluation by a licensed psychologist with at least five years' experience in the diagnosis and treatment of emotional and mental disorders.
We recommend the Legislature take a series of steps to improve the internal affairs investigation process in the CDC, including (1) reorganizing and centralizing internal affairs investigations of correctional personnel under the YACA, (2) directing the DOJ to investigate the most serious cases, (3) maintaining personnel disciplinary authority with the CDC, and (4) improving investigation and prosecution training procedures, as well as correctional personnel training. In order to accomplish these changes we recommend the enactment of legislation and the adoption of supplemental report language.
The CDC's internal affairs operations have become fragmented primarily because responsibilities and resources were added to the various offices incrementally over many years. Until recently, no effort has been made to design a coherent system for handling such matters, even though effective supervision and discipline of personnel is a key to success in any large organization.
Given the proven cases of serious wrongdoing by CDC personnel and the growing cost of correctional litigation, we believe it is time that the internal affairs program be revamped, through administrative changes and legislation, to address its recurrent problems.
Our proposal is based on three key principles:
Accordingly, we propose a number of specific changes that are outlined in Figure 4 and discussed in more detail below.
We propose to consolidate existing internal affairs resources under the YACA Inspector General, who would take charge of the investigation of allegations of wrongdoing by CDC personnel. This involves shifting positions and dollars away from the Law Enforcement and Investigations Unit, the Investigative Services Units at each of the prisons, and a separate Office of Inspector General that exists within CDC, and moving those resources to the YACA Office of Inspector General.
The role of the Inspector General would thus fundamentally change: Instead of just auditing and monitoring how internal affairs investigations were conducted, the Inspector General would become the central, independent agency in charge of conducting such inquiries. As such, it would centralize the personnel devoted to internal affairs investigations and standardize investigative procedures. We believe such an approach would result in an internal affairs system that is more consistent in its investigation of complaints and more fair in its treatment of personnel.
|Recommendations for Reforming
Internal Affairs Investigations
|Office||Current Status||LAO Proposal|
|Law Enforcement and Investigations Unit (CDC
|Directly investigates most serious cases. Supervises and audits less serious cases investigated by Investigative Services Units at each prison.||No role in internal affairs cases. Would retain unrelated responsibilities to act as CDC liaison to outside law enforcement and gather intelligence on prison gangs.|
Services Unit (each prison)
|Estimated $3 million to $4.6 million.
Estimated 60 to 90 staff.
|Investigates less serious internal affairs cases.||No role in internal affairs cases. Would retain unrelated responsibilities to investigate wrongdoings by prison inmates.|
|Conducts quarterly reviews to monitor CDC compliance with court orders to remedy excessive use of force at Pelican Bay prison.||No role in internal affairs cases. Office would be abolished.|
General (YACA headquarters)
|Conducts audits of investigative processes of Investigative Services Units and recommends changes in procedures.||New central agency with responsibility for all internal affairs cases; could at its discretion refer some very serious cases to the Department of Justice Bureau of Investigation.|
Some staff and funding would be left behind with the CDC offices that gave up their internal affairs duties to continue the other vital functions they were assigned that are unrelated to internal affairs, such as investigations of wrongdoing by prison inmates, anti-gang intelligence work, and liaison work with outside law enforcement agencies. One agency--the CDC Office of Inspector General--would be disbanded. Its limited responsibilities for financial audits of certain prisons would be shifted to the Department of Finance, and its role in review of inmate medical programs would be shifted to the CDC's Evaluation and Compliance Division using resources redirected from the CDC's Health Care Services Division.
While the YACA Inspector General would be in charge of investigating most internal affairs cases, he should be authorized, pursuant to specified statutory criteria, to refer those cases involving the most serious charges of criminal activity to the state DOJ Bureau of Investigation. This would ensure that DOJ investigators with the most expertise would handle the most serious cases. In addition, having the DOJ investigate serious cases would ensure the independence of an investigation, and that independence may also help deter inappropriate conduct.
The bureau, which is currently engaged in an investigation of alleged illegal activities by CDC personnel at Corcoran, already provides similar services for local law enforcement agencies which lack the resources and expertise to conduct their own internal affairs investigations. If the bureau found evidence of criminal wrongdoing, it would be empowered to prosecute such a case under the authority of the Attorney General. If the bureau determined that no laws were broken, but that CDC personnel rules were violated by a CDC employee, it would report its findings to the YACA Inspector General.
We propose that the bureau be reimbursed for the cost of such investigations by the YACA Inspector General, and that funding be provided annually through the YACA budget for this purpose. We also recommend that the types of cases subject to referral to the bureau be specified clearly in statute. For example, the Legislature may wish to allow the YACA Inspector General to refer to the bureau any case involving a potential felony that could result in a state prison sentence. In the alternative, the Legislature may wish to require referral of all cases involving allegations of serious and violent felonies.
The YACA Inspector General's Office should be authorized to recommend appropriate disciplinary action when it has determined that wrongdoing has occurred. However, we recommend that the authority to actually discipline correctional personnel in response to investigative findings rest with the CDC Director and CDC wardens and not with the YACA Inspector General. In our view, this approach best assures that CDC personnel are held accountable to CDC supervisors. Granti %
We also recommend that the YACA Inspector General be empowered to initiate investigations on his own authority, regardless of whether a warden has sought one.
We recommend that all internal affairs investigators assigned to the YACA Inspector General be required to receive appropriate and comprehensive training, such as that provided by the Commission on Peace Officer Standards and Training (POST), qualifying them for internal affairs duties. This training would ensure competent and consistent investigations and bring the YACA investigators up to the standards of other law enforcement internal affairs units. This requirement should be phased in by a date to be determined by the YACA Inspector General so that ongoing investigations would not be disrupted by a shortage of investigators with the needed certification.
We recommend that the Legislature enact a statute granting the Attorney General the power to request that the presiding superior court judge in a county convene a grand jury to examine allegations of criminal wrongdoing by state employees within that county's jurisdiction. We believe the establishment of such a procedure would avoid needless delays in processing a case in the event that local prosecutors have already convened a grand jury. Such a statutory change would also provide internal affairs investigators with a powerful investigatory tool to compel truthful testimony about alleged wrongdoing before a grand jury.
Because the state prison population is projected to grow steadily for at least the next decade, the number of correctional officers and other CDC personnel will have to grow to keep pace. The CDC will probably have little choice but to continue its practice of rapidly promoting many correctional officers to mid-level management positions as the prison system expands. Given this situation, we believe the CDC should provide additional training for correctional officers who move up the ranks to sergeant and lieutenant positions to ensure they have the skills to ensure appropriate employee discipline and to deter employee misconduct.
We also recommend that, beginning with the 1998-99 fiscal year, the CDC require standard psychological screening of all applicants for correctional officer positions. It is likely that screening all applicants will result in the selection of more qualified and professional correctional officers who are less likely to become the subject of internal affairs investigations.
We believe most of the resources needed to implement these changes can be obtained by redirecting funding and personnel already provided to the Richard McGee Academy and the Selections and Standards Branch of CDC. It appears likely that once the CDC builds a sufficient pool of trained cadets in the budget year it will not need as much money to select and train academy cadets after 1997-98. At that point, some CDC resources could be redirected to expand training of mid-level managers and to expand psychological screening of correctional officer candidates.
Alternative Models for Reform.While we have outlined our concept for reorganization of CDC internal affairs operations, there are alternative models for reform that the Legislature may wish to consider.
For example, the Legislature may wish to create an independent commission with authority over internal affairs and other operations, such as has been proposed in SB 93 (Ayala). Under the proposal, a five-member Commission on State Prison and Institutional Security would be established with broad authority to order changes in security policies, including the conduct of internal affairs operations. The YACA Inspector General would provide the staff for the commission. We are advised that the CDC is also drafting its own proposal for consolidating internal affairs operations within the CDC rather than with the YACA Inspector General, as we have proposed.
Benefits of LAO Proposal. We believe the proposal we have outlined above provides several potential benefits: