Inmates learn the role use of force plays in the management of Red Onion as soon as they arrive:
When I was taken out of the transport van I had two stun guns placed against my body and was told that if I didnt do what I was told, I would be shot from one of the gun posts located throughout Red Onion. I was told by [a lieutenant], We will kill you here, so dont mess up.
To date, nobody has been killed at Red Onion. But Red Onion is a facility that appears to be managed by reliance on the continual threat and actual use of physical force, including firearms, electronic stun devices, chemical sprays and restraints. From the information available to us, it seems that physical force is used unnecessarily and excessively at Red Onion. Inmates claim that they are shot at, shocked with electronic stun devices, beaten, and strapped down for trivial nonviolent actions, e.g., moving slowly on the yard, yelling in the cells, refusing to return a paper cup. Instances of use of force at Red Onion do not appear to reflect a realistic evaluation of the actual need for a particular level of force. One inmate described to Human Rights Watch the prevailing ethos at Red Onion in the following terms: You will do as you are told, when you are told, how you are told, forever as long as you are told or you will be shocked, shot, beaten or otherwise maimed, injured or killed, do you understand, Boy?
Some of these use of force incidents occur under the pretext of addressing legitimate security concerns but appear, in fact, to be calculated efforts to punish or deter misconductneither of which is a permissible reason for using force.45 Similarly, we have been told of instances in which an application of force is initiated for legitimate reasons but then escalates to a level that is out of proportion to the objective risks presented by the inmate.46
The use of physical force to control prisoners is an inevitable part of prison administration. Sound and widely accepted corrections principles sanctioned by law, however, mandate that force be used only when necessary, andonly to the degree necessary, to bring an inmate or inmates under control or to restore order to a facility.47 The goal should be to minimize harm to inmates and staff by using the least amount of force that will be effective. Lethal force, in particularly, should not be used except as a last resort, when less life-threatening alternatives do not or cannot be expected to succeed and when there is an immediate threat of death or great bodily injury or dangerous escape.
A well-run prison with adequate numbers of trained and properly supervised staff and adequate policies should not have to resort to physical force as frequently as appears to be the case at Red Onion. The DOC has not released the number and kinds of use of force incidents that have occurred at Red Onion since it opened. It also refused to provide Human Rights Watch with a copy of its use of force policies. We thus do not know whether staff at Red Onion are following or ignoring DOC policies when they use force as the primary means of addressing inmate misconduct. Statements by DOC spokesmen suggest the DOC believes that at Red Onion breaking the rulesany ruleis sufficient justification for use of force, including use of firearms.48 Such a discredited philosophy has no place in modern corrections.
Most states prohibit firearms within prison facilities, even within super-maximum security prisons. As one noted corrections expert has stated, While firearms are appropriate and necessary in the perimeter towers to deter escape, firearms are neither appropriate nor necessary within the prison yard, and are especially inappropriate within...housing units...[T]he use of firearms within prison walls increases, rather than decreases, the risk of serious injury or death to both inmates and staff....49 Mainstream American corrections has rejected the use of firearms within prison walls because they are almost always unnecessarystaff rarely need firearms to restore order, even when confronting prisoners who are fighting. It is also extremely difficult to shoot accurately at moving inmates, particularly under intense or traumatic circumstances.
Virginia is one of three states in the nation in which firearms are routinely carried or deployed within the prison perimeter.50 At Red Onion, officers carry shotguns in the control rooms within the housing units and in gunports overlooking the recreation yard. The first shot is supposed to be a warning shot and is a blank. Live rounds are then utilized. Red Onion officers fire rubber pellet stingers, rounds which are considered non-lethal although they can inflict injury, particularly if fired at close range or to the head. Inmates have claimedbut we have not been able to confirmthat the officers are also equipped with No. 8 birdshot.51 Shotguns firing birdshot are considered lethal weapons, even though birdshot is typically only lethal if fired at close range.
According to the press, Red Onion officers fired their weapons 63 times in the nine months since the facility opened.52 Ten inmates have been injured. As of December, the rate of gunfire was five times that of the rest of the states prisons combined.53 The DOC claims most of the shots were warning shots. Reports from inmates and family members indicate that the level of gunfire may have slowed down after widespread negative publicity in December 199854 but that the frequency has picked up again. In March there were several incidents in which weapons were fired.
Anytime a firearm is discharged in the direction of a human being the potential for injury or death is unleashed. Because of the danger, use of force policies normally require that all reasonable means of apprehension and control should be exhausted before even non-lethal weapons are discharged. At Red Onion, however, officers discharge weapons in fairly routine non-threatening situations. The use of force policy appears to be: if an inmate disobeys an order, a warning shot is fired. If the inmate continues to disobey, the inmate is fired at.
Inmates believe they may be shot for talking over the wall that separates one recreation yard from another, for crossing the red line that is used to mark areas of permissible inmate presence, for leaning against a wall, for not moving quickly enough.55 Whether true or not, this belief is fostered by staff. An attorney who visited a client at Red Onion recounted the following to Human Rights Watch : When I was being escorted through the yard, the counselor noted some red lines painted on the concrete and told me that, if any inmate crosses a red line, he is shot. She said that as matter of factly as it she were telling me that they have lunch at noon.
The DOC has acknowledged described three instances in which staff fired shotguns at inmates during March 1999. According to press accounts based on DOC information, on March 5, three inmates were fighting in a recreation yard; they ignored an order to stop and ignored a warning round and further verbal warnings. The gun post officer then fired a total of seven rounds at the inmates lower extremities. On March 17, an officer fired at the lower extremities of two inmates who were fighting in the segregation recreation yard who had ignored verbal warnings and a warning shot. March 25, 1999 two inmates were fighting in the recreation yard. After they ignored verbal warnings and a warning shot, an officer fired a stinger round at their lower extremities. The inmates then stopped fighting but refused to follow an order to lie on the ground. The officer then fired another stinger round. One inmate had superficial wounds; the other inmate had pellets lodged in his face and had to be sent to a medical center.56
What is remarkable about each of these incidents is the lack of any apparent justification for firing at the inmates or for failing to use lesser means of force to resolve the situation. Fights between unarmed inmates are commonplace, everyday occurrences in prisons; across the country such fights are usually quickly resolved through the simple intervention of unarmed staff. In the March 25 incident, the shots were fired not only to secure an end tothe fight but to make inmates who were no longer fighting lie down on the ground. Staff in the yard could have intervened at that point (if not earlier) and obviated the need for additional use of firearms. The incidents also show how easily injury can result from the inaccurate shots that are almost inevitable in a volatile situation.
We quote below from letters inmates have sent us describing incidents which firearms were used at Red Onion.57 In each case, there is no apparent justification for the force that was used.
· I witnessed another shooting incident...where the officer fired shots because inmates didnt go to their rooms fast enough to suit the officer. During this incident after firing the shotgun the staff then came in and picked at random people to lock up for no reason. They proceeded to handcuff and shackle these inmates, bodily carried them out by their arms and legs, took them to the pod next door, threw them in the floor face first and beat, kicked and shocked these inmates with stun guns.58
· Today, another incident happened where there was again no probable cause to shoot their guns...D6-pod was outside for recreation and playing basketball, the inmates were struggling for the ball and one fell to the ground and all of a sudden [the officer who was in the kitchen tower] shot his gun and stated they were fighting. There were no punches thrown nor was there any inmate harmed and/or bruised. Also the guard in D0-1 tower shot his gun just for the sake of shooting.
· The entire D-6 pod was outside for recreation and [the officer] was stationed in D&C unit tower, he called completion of recreational period, in the process of inmates moving toward the unit, there were four and five inmates slowly moving from the card tables, but they were off the white concrete platform and on the grass moving to building D. All of a sudden [the officer] shot the gun and then [an officer in another tower] sticks his gun out and shoots, therefore two-three shots was fired simply because inmate were not walking fast enough to their bldg.
· I and another inmate were on rec yard A-2&3 when an inmate on rec yard A-4, 5, 6 told us of an assault that was about to happen against another inmate. About fifteen minutes later we hear the assault/fight start. After ninety seconds to two minutes we hear a gun fired. As you know the first shot is supposed to be a warning shot. After the first shot no others are fired. We then heard officers enter the yard and handcuffs clicking as the three inmates are removed. When my rec time was over I was escorted back to my cell by [an officer]. The [officer] told me they knew about the possibility of the assault before hand and gave me an account of how it unfolded. He told me that they waited to fire the gun until one of the inmates was down and not able to fight anymore.
· While there I was shot at, or lets say a shot was fired because I was gathering my deck of playing cards. Instead of the 8:00 pm lock down it was called at 7:30 catching us off guard.
· [An inmate] was jogging around the yard, he was wearing closed headphones with walkman listening to a cassette while jogging. The order to move to the opposite side of the yard did not come over any loud speaker or megaphone deviceit was a shouted order from a gun port. The man never heard the order. The first shot knocked him down. He jumped up not knowing why he was shot and was shot again. No ones life was in danger. No staff or prisoner was threatened by this man. In less than one minute he would have been on the other side of the yard where other prisoners would have gotten his attention. The man was jogging in a circle.Had he stopped, turned around, and jogged in the opposite direction he would not have gotten to the other side of the yard any faster!59
Inmates have also told Human Rights Watch about the following instances when weapons have been used unnecessarily:
· An inmate was shot for refusing to allow himself to be cuffed and taken from the shower. His ten minutes allotted shower time had expired but he had not finished showering. He finished before the order to shoot was given, but it was too late.
· An inmate had an asthma attack in the mess hall. His roommate bent over to help him. An officer started holleringalthough it was hard to understand his wordsand fired his gun a couple of times. Everyone lay down. The roommate was subsequently beaten and the asthmatic inmate kicked by officers.
· An inmate was in the recreation yard doing exercises. When the officers called the end of recreation, the inmate was not finished his jumping jacks and did not want to stop. Officers fired at him, although he was not hit.
· On the way to the shower a new arrival stopped to talk with an inmate in his cell. The officer told him to move on. He apparently did not move, or did not move fast enough, and he was shot at.
· An inmate waiting for the doors of his cell to be opened got some tobacco from another inmate nearby. An officer fired his weapon at him.
· Two inmates were fighting in their cell. An officer shot at the door to stop them.
Misuse of Electronic Stun Devices and Other Abuses
Uniformed staff at Red Onion carry electronic stun devices that give painful electric shocks either when pressed to the body ( the Ultron II) or, in the case of tasers, through fired darts.60 Inmates have asserted to HRW that they have been subjected to taser shocks when fully restrained and for a wide range of minor misconduct that poses no physical threat, e.g. verbal insolence. As alleged, the incidents suggest that electronic stun devices are being used as punishment, rather than for legitimate control purposes.
· One inmate told HRW that immediately upon arrival at Red Onion in September 1998, he and other inmates were told to strip and permit a visual body search, including by spreading their buttocks. Female staff were presentindeed one was taking a video of the proceedingsand the inmate was reluctant to do as ordered in front of them. A captain shot him with the taser in the presence of the warden, associate warden and a major. After the inmate had been tasered, the major screamed in his ear, Boy, youre at Red Onion now and then told the other officers to get that nigger out of here. The inmate filed a grievance because he feltcorrectlythat he should not have had to submit to a visual body search strip in front of female staff.
The inmates grievance was denied. The warden acknowledged that a taser had been used because the inmate hesitated to strip and thus was failing to obey instructions. The denial was upheld by the regional director without comment based on the information provided. There was no effort to suggest that application of physical force was warranted by any possibility of danger or that non-physical efforts to persuade the inmate had been attempted and failed.61 The use of the taser appears more likely to have been a deliberate and malicious excessive use of force calculated to intimidate new arrivals to the facility.62
In denying the inmates grievance, Warden George Deeds stated that post orders at Red Onion permit females to work at any postin this case, assignment to the video camera. It is widely recognized, however, that cross-gender strip searches violate inmates individual dignity and right to privacy. The wardens policy at Red Onion ignores basic correctional principles and international standards prohibiting cross-gender strip searches unless in an emergency.63
Other examples of the use of electronic stun devices that inmates have recounted to Human Rights Watch include:
· One man was shot with a taser while in his cell for refusing to return a paper cup when ordered to do so. Restraints were then placed on his arms and legs, securing and immobilizing him on his bed. (The use of four-point restraints is discussed below.)
· An inmate with a reputation for pissing people off was in his cell when he told an officer that he wanted to have sex with her. The officer tasered him through the food slot.
· An inmate was tasered because he had his arm hanging through the food slot and did not remove it fast enough when told to do so.
· An inmate was kicking on his cell door because he wanted to make a phone call. An officer came and told him to be quiet. The inmate said, Bring it on. Officers suited up for a cell extraction came to the cell front and told the inmate to cuff up. The inmate complied. After he was handcuffed, and while still in his cell, one of the officers then told him to step back away from the door and shot him with a taser.
· An inmate in segregation was kicking on his cell door and yelling. A sergeant told him that if he didnt stop kicking theyd fix it so he couldnt kick no more. The inmate kicked and yelled a bit more and then stopped. A team of officers suited up for a cell extraction came to his cell door and asked if he would cuff up. When he refused, the officers sprayed him with mace and tasered him. They then entered his cell and restrained him. The inmate claims that after he was on the ground, handcuffed and not resisting, he was shocked twicemore. He was then placed in a shower, which is the proper procedure after use of a chemical weapon subsequently put in a strip cell with no mattress for twenty-four hours.
In this incident, the taser was used as part of a cell extraction, a use of force procedure in which a team of officers forcibly restrain an inmate and remove him from his cell. Staff at Red Onionas at any prisonare entitled to let inmates know that rules cannot be ignored without consequence and to enforce prison rules through disciplinary procedures. Cell extractions are security measures, not disciplinary mechanisms, and they should be used only because of an imminent serious risk to the safety and security of the institution. When cell extractions are used to respond to relatively minor infractions that do not present imminent security risksas would appear in the incident described abovestaff are simply inflicting physical punishment under the guise of a security operation.
We have received a few complaints of beatings at Red Onion. One case was brought to our attention by several inmates: an elderly inmate reportedly threw a balled-up piece of paper at one of the sergeants, striking him on his pants leg. That officer and several others rushed into the inmates cell and beat him so badly that he had to stay at a hospital for a couple of days. Upon his return he was placed in restraints.64
Verbal threats are reportedly commonplace at Red Onion. For example, an inmate wrote to HRW that in January, some inmates were verbally disrespecting the nurse and she finally yelled loudly, Shut the fuck up. Several minutes later four officers came to the inmates cell, told him to cuff up, and then entered his cell. They pushed him down onto his bed, and one of the officers stated that if I bothered the nurse again he will come back and break every bone in my body and if I think he was lying look into his eyes because he would eat my eyeballs out of their socket.
Inmates also claim Red Onion staff abuse restraint equipment and strip cells, using them maliciously as punishment even though such use is prohibited. Four- and five-point65 restraints immobilize an inmate on a bed. They should only be used in extreme circumstanceswhen an inmate left unrestrained poses a serious risk of injury to himself or to others and when other types of restraints are ineffectiveand for no more time than is absolutely necessary.66 Inmates assert, however, that staff at Red Onion place men in restraints as retaliation for misbehavior, e.g. throwing juice on an officer. [E]veryone here knows its for punishment. They also assert that inmates are kept in restraints for arbitrary time periodseight hours, seventy-two hoursregardless of the inmates condition or the need for such control. Inmates have similarly complained that strip cells containing no furnishings, bedding or equipment are used as punishment. The degrading nature of unnecessary strip cell confinement is heightened by officers refusal to provide toilet paper when needed.
When an HRW attorney met with inmates at Red Onion, the inmates had to wear 50,000-volt stun belts even though they were shackled and handcuffed. They were told that if they stood up the belts would be activated by a remote transmitter. Prison staff felt the belts were necessary because the HRW representative was meeting with inmates in a room without presence of officers and with no physical barrier between her and the inmates. Given the restraints on the inmates and the presence of guards immediately outside the room who were watching the meeting through a window in the door, the use of stun belts seems excessive. One inmate believed they were used deliberatelyto intimidate inmates who were speaking with HRW. An inmate who had wanted to meet with HRW did not because he was too upset by the prospect of wearing the stun belt.45 Corporal punishment is prohibited by the U.S. constitution and international human rights treaties. As a noted expert on prisons and use of force has noted, however, Physical force applied under the guise of a necessary security control tactic can beand isemployed to circumvent the constitutional prohibition on such physical punishments. Steve Martin, Sanctioned Violence in American Prisons, a chapter in the forthcoming John May, ed., Building Violence: How Americas Rush to Incarcerate Creates More Violence (Sage Publications). 46 One inmate speculated that much of the abuse of force is due to inexperienced officers. As he wrote to Human Rights Watch: These one-stripe officers havent the experience with prisoners, and problem solving is nonexistent. These guys are young and think they have a free hand in the use of force because superiors will back them up. They are looking for action and disregard any communication skills they may have learned. I have noticed that older one-stripers get more respect from inmates because they are not as cocky as the younger one-stripers and dont act as if they have to prove they are bad-asses. I often think that the younger c/os [officers] come off as trying to be a bad ass because of fear. They have been told were the meanest that Virginia has to offer and they are scared. 47 e.g., Standard Minimum Rules, Article 54 (1), Officers who have recourse to force must use no more than is strictly necessary. 48 Frank Green, 7 Fighting Inmates Fired On; Most Wounds at Red Onion Minor, The Richmond Times Dispatch, April 7, 1999.
49 Declaration of Charles Fenton provided in Madrid v. Gomez. Fenton is a retired federal warden and frequent expert witness for departments of corrections defending against prison conditions lawsuits. In Madrid v. Gomez, however, he was an expert for plaintiffs.
50 California and Nevada are the other two. Firearms were introduced into Virginias prisons by Director Angelone, who before coming to Virginia had been head of the Nevada Department of Corrections.
51 The DOC has not responded to our April 9 inquiry regarding the alleged use of birdshot.
52 Craig Timberg, At Va.s Toughest Prison, Tight Controls, The Washington Post, April 18, 1999. See also, Frank Green, 7 Fighting Inmates Fired On, The Richmond Times Dispatch, April 7, 1999.
53 Frank Green, Inmates, Critics Question Firearm Use at Red Onion Supermax Prison, The Richmond Times Dispatch, December 24, 1998.
54 One inmate told Human Rights Watch: When the place first opened, they were shooting a lot of inmates for petty reasons or no reasons at all and beating up inmates right when they arrived. But there was some bad media coverage on this place so now its pretty quiet here.
55 One inmate wrote to HRW, I have witnessed them shooting guns for no reason other than someone did not respond to an order quickly enough to suit them. In two months, in my pod alone...they have fired the gun three timesnot one of those instances being to prevent or stop an assault.
56 Frank Green, 7 Fighting Inmates Fired On. Inmates have also written to HRW describing these incidents.
57 We have quoted verbatim the language used by the inmates, but have deleted names and corrected misspelling.
59 DOCs version of incident reported by Frank Green, Inmates, Critics Question Firearm Use at Red Onion Supermax, The Richmond Times Dispatch, December 24, 1998. The inmate who described the incident to Human Rights Watch noted that the press was unable to obtain a complete understanding of what happened because the DOC would not let them interview the inmates involved.
60 A taser is an electrical gun that shoots darts up to a range of 15 feet. The darts can deliver up to 50,000 volts and temporarily incapacitate the victim. The extremely painful shock from a taser has been been described as resembling being hit on the back with a four-by-four by Arnold Schwarzenegger. Madrid v. Gomez, 889 F. Supp. at 1175.
61 Copies of the inmates grievance and official responses are on file at Human Rights Watch.
62 Other inmates also described to HRW the treatment they received upon immediate arrival at Red Onion, including being yelled at, threatened, and shoved, all in an atmosphere calculated to impress upon them that they were at Red Onion now.
63 American Correctional Association (ACA), 1998 Standards Supplement, (ACA: Laurel, MD, 1998), Standard 3-4186, p. 29. General Comment 16 to Article 7, Compilation of General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Document HRI/GEN/Rev.1, July 29, 1994. (So far as personal and body searches are concerned, effective measures should ensure that such searches are carried out in a manner consistent with the dignity of the person who is being searched. Persons being subjected to body searches by State officials, or medical personnel acting at the request of the State, should only be examined by persons of the same sex.) Most courts have recognized that inmates should be protected from unwarranted intrusions on their privacy by guards of the opposite sex. See, generally, Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, (New York: Human Rights Watch, 1996), pp. 28-30 and passim.
64 Some of the inmates identified the precipitating event differently, e.g. that the beating followed the inmates refusal to return a cup from his food tray.
65 Four-point: arms and legs are secured. The fifth restraint used at Red Onion is a chest strap.
66 See Standard 3-4183-1 in ACA, 1998 Standards Supplement. ACA, 1996 Standards Supplement, (ACA: Lanham, MD, 1996).