Threats from a possible federal takeover of New Jersey’s only women’s prison and inmate lawsuits are driving New Jersey’s efforts at reforming a culture that has allowed sexual assaults and harassment to continue unchecked for decades.
The coming reforms include body cameras for corrections officers, a system for monitoring officers’ behavior and an overhaul of policies, staffing and training as recommended by a consultant. But how effective they will be remains to be seen. Past efforts that included a zero-tolerance policy for sexual contact and officers’ training did not stop sexual assaults, which are just one glaring problem at the Edna Mahan Correctional Facility for Women.
Some of the coming reforms are also being touted as ways to improve the overall treatment of inmates and to prevent the improper use of force. Use of force by prison officers has been under intense scrutiny since a January incident where personnel violently extracted prisoners from their cells, seriously injuring at least two women. Ten corrections officers so far have been charged with assault or official misconduct and another 20 — including an administrator — are still suspended with pay.
Advocates are skeptical about the impact of coming reforms, saying none will work without a complete culture change and real accountability.
“It is a multi-leveled problem that no new building and more cameras will fully repair or undo, simply because the people putting the cameras in are also currently tasked with monitoring them and know where they are,” said Lydia Thornton, who was incarcerated at Mahan for four years. “The level of acceptance of the culture that the women are less is what needs to be changed.”
Federal monitors expected
Ultimately, lawmakers are hoping the presence of on-site federal monitors, expected to be part of the still-pending New Jersey Department of Corrections’ settlement with the U.S. Department of Justice, will help turn the tide and improve the climate at the Hunterdon County prison. Several have said they think that had monitors been at Mahan in January the physical assaults of inmates might not have happened.
But without settlement details, including whether a monitor will be based at Mahan or simply receive and review reports, advocates say they can’t be sure how effective federal oversight will be.
Lawmakers have asked why the state still has no final settlement agreement 13 months after the Department of Justice released its scathing report in April 2020. After a two-year investigation, the justice department said it found a “pattern” of sexual abuse of prisoners by Mahan staff that violated their civil rights. Marcus Hicks, the state corrections commissioner, initially told senators about a tentative settlement reached last September during a recent budget hearing.
Asked about the settlement last week during an Assembly budget hearing, Hicks said he doesn’t know what the holdup is but speculated it might have been delayed by the change in administration in Washington. Hicks said the settlement is awaiting final DOJ approval and he expects that to occur soon.
The DOJ report stated that the corrections department “fails to keep prisoners at Edna Mahan safe from sexual abuse by staff.” It cited the guilty pleas or convictions of six corrections officers and one civilian staffer related to more than 10 women between October 2016 and November 2019. It noted that DOC had made some changes in the lead-up to the issuance of the report, but that none of those had been enough.
‘Culture of acceptance’ of sexual abuse
“Edna Mahan suffers from a ‘culture of acceptance’ of sexual abuse, which has enabled abuse to persist despite years of notice and efforts towards change at the state level,” states the report, which includes 19 “minimum” remedial actions. “While NJDOC’s positive efforts and willingness to make changes at Edna Mahan are commendable, our investigation has revealed that many of the practices and attitudes that enabled the abuse to occur persist at Edna Mahan … The proposed and completed changes are unlikely to resolve problems of sexual abuse if facility staff and administrators are not involved in developing and implementing corrective action within Edna Mahan.”
In doing their work, federal investigators reviewed 70 reports of staff-on-prisoner sexual harassment and abuse over “several years.” And the DOJ report called substantiated incidents “varied and disturbing.”
That the DOJ was so strong in its condemnation of what has been happening at Mahan has been a welcome change for advocates who have seen previous attempts to hold the administration accountable fail.
For example, a 1999 federal lawsuit drew attention to the sexual assaults of inmates but did not stop the abuses after judges failed to sanction leadership of the DOC or Mahan. Two women sued in 1999 the then-state corrections commissioner, the Mahan superintendent and a corrections officer after being sexually assaulted between 1997 and 1999 by the officer. Their lawsuit recounts other incidents of sexual assault or improper sexual contact and states the Mahan administration knew of as many as 10 such incidents dating to 1990. But the case was dismissed.
Ruling on an appeal, a majority of federal appellate judges agreed with that dismissal, drawing a distinction between rape and other improper sexual contact incidents, which they termed “qualitatively dissimilar in nature” and found that, as a result, the administration could not be found liable for failing to protect inmates from a substantial risk of harm. They found it adequate that the DOC had a policy forbidding sexual contact between corrections officers and inmates, that prison administrators informed staff of the policy and also fired and referred for prosecution those who broke the rules.
Supervisor sentenced to 16 years in prison
DOJ’s 2020 report followed and may have been precipitated by a host of lawsuits. Significantly, a class-action suit filed in March 2018 seeking to represent current and recently released inmates listed 22 individual officers whose alleged actions over 23 years ran the gamut from sexual harassment to improper sexual acts with inmates to rape. One of those was then-shift supervisor Jason Mays, who was convicted of sexual assault in 2018 and sentenced to 16 years in prison. Allegations included that over a period of three months in 2016, Mays masturbated in front of prisoners and forced one to masturbate him.
Oliver Barry, one of the attorneys who handled the class-action suit, said it began with a phone call in 2016 from one of those assaulted by Mays. The attorneys contacted the Hunterdon County prosecutor’s office, which began a criminal investigation.
“Things really started sprawling from there,” Barry said. “We were eventually contacted by additional individuals who were victims of Mr. Mays and started to learn about additional officers … and before long there were well over a dozen survivors of this kind of abuse.”
Barry described “a toxic atmosphere that really just permeates the entire prison … It went back several decades and it ran the gamut from just language or the way that they treated people or withheld their privileges all the way to brutal sexual assaults.”
The class-action complaint noted that the corrections department commissioned an audit in June 2014 to determine Mahan’s compliance with the federal Prison Rape Elimination Act (PREA), enacted in 2003 to address sexual misconduct in confinement. That audit, by the National PREA Resource Center, gave Mahan a perfect score for meeting standards based on a site visit.
“The numerous programs, policies, manuals, training, testing and audits purportedly employed by EMCFW to combat, or at least in some small measure control, the pervasive atmosphere of brutal sexual assault and harassment at EMCFW have been, at worst, a contrived farce, and, at best, completely ineffectual,” states the complaint filed in the class-action suit. “Female inmates live under the constant terror and intimidation of being forced to endure sexual discrimination, harassment and abuse at the hands of supervisors acting with complete impunity.”
DOC accused of perpetuating ‘the hostile environment’
That suit alleged that administrators at Mahan “underreported incidents and allegations of sexual assault” and that the DOC “participated in, condoned, ratified, perpetuated, aided and abetted in creating and maintaining the hostile environment” there, violating the state’s anti-discrimination law.
On the eve of Commissioner Hicks’ April 8 appearance before a joint Assembly committee to discuss the January assaults, the DOJ report and other issues at Mahan, the corrections department issued a news release indicating it had settled 22 complaints against DOC — including the class-action suit — for $20.8 million. The news release called the amount “unprecedented.” The money covers damages and attorneys’ fees for 22 current and former inmates who were victims of sexual misconduct between 2014 and the present, as well as potentially thousands more who were impacted by the verbal or physical abuse or harassment who have yet to come forward. Had the state not settled the suit, it could have dragged on for years.
While some New Jersey lawmakers complained about the cost to settle the lawsuit, legal settlements regarding prison treatment are not uncommon. The best-known class-action case involving female inmates was in Michigan, where a number of women won a $100 million settlement in 2009 after more than a decade of legal wrangling.
The New Jersey settlement includes a mandate that Mahan corrections officers wear body cameras. Barry said that while a financial penalty can be an incentive for reforms, the cameras were a priority for ensuring change occurs.
“Money is important, but injunctive relief, policy changes, were always a primary goal, and particularly body cameras,” he said. “Even with better administrative oversight and with policy changes, training changes, it’s hard to flip the switch and have overnight culture, sea changes … It’s really monumental that they’re going to be putting body cameras on these individuals.”
In response to questions about its budget from the nonpartisan Office of Legislative Services, DOC wrote that it received $250,000 from the justice department to buy 200 body cameras to use as a test program at Mahan and Northern State Prison. As to how many officers are wearing cameras, the DOC wrote that it is “a small amount” and that it plans to assess how these work and decide how many additional cameras will be deployed. To outfit all officers at all state prisons would cost $26 million over a five-year period.
“We are testing a few devices in critical areas to ensure the cameras do not overwhelm our technological infrastructure as it comes online and will continue to deploy additional cameras incrementally,” said Liz Velez, a DOC spokeswoman.
But body cameras are not a panacea and their use needs to be well-thought out and regulated.
“Body worn cameras are not automatically tools of transparency, but they are automatically tools of surveillance,” said the Rev. J. Amos Caley, prison and drug policy director with Salvation and Social Justice and one of six legislative appointees to what is to be a nine-member advisory board to the corrections ombudsman. “This is where people live. This is where people shower. This is where people are strip-searched.”
Safety measures delayed by pandemic
In total, the DOC outlined in its response to questions from the nonpartisan Office of Legislative Services $7.9 million in new spending to “enhance the security of inmates.” The main expense is $6.2 million for cameras throughout the facility. While there have been cameras at some locations, there are blind spots. The new cameras are supposed to reduce the number of blind spots. They were to have been installed by now, but work was delayed by the coronavirus pandemic. All are expected to be in place by September.
During the May 3 hearing before the Assembly Budget Committee, Hicks highlighted other actions his department is taking. For instance, he said he hired an assistant commissioner of women’s services, who is expected to start work Monday at a salary of $138,000. Hicks said she will spend most of her time on-site at Mahan and oversee all the reforms there, including whatever recommendations come from a $1.3 million contract with the Moss Group, a Washington-based corrections consultant with a special emphasis on “sexual safety.”
The state attorney general’s office originally retained the Moss Group last November and updated its agreement in early March as part of the DOJ settlement process. The two-year agreement states the Moss Group’s major efforts “will be characterized by building on sexual safety practices, PREA (federal Prison Rape Elimination Act) Compliance and best practices in the management of women offenders,” as well addressing “culture and leadership practices that sustain systemic change,” all as they pertain to the settlement.
The consultant expects to recommend changes in several areas, including strategic planning, policy development, PREA investigations, staffing and training. Each area will include performance measures to demonstrate how Mahan is meeting objectives surrounding sexual, emotional and physical safety. The consultant also will review and provide guidance on new or revised policies and procedures governing the use of force, LGBT and gender non-conforming inmates and anti-fraternization, among other topics, with a focus on ensuring that inmates “are protected from harm due to sexual abuse and sexual harassment.”
The consultants have begun work, Velez said.
“Currently, they’re in the critical initial review stage, which includes meeting with inmate groups, staff, senior-level management at Edna Mahan Correctional Facility for Women, and the executive team at Central Office Headquarters,” she wrote in an email response to questions about the contract. “I do not have a timeline for when the initial review stage will be complete and when we expect the first recommendations. The Department expects that the Moss Group will not just be providing one set of recommendations but ongoing guidance over the next two years that supports sustainable changes at Edna.”
Thornton, the former Mahan inmate, is not impressed with this effort.
“Please be aware that what Hicks is trying to sell is to keep his job, and the cost of hiring the Moss Group to do damage control could and should have been put into further education and preparation for the ladies (and the men) to return to their families,” she said. “The people inside need programs and education, not more ‘studies.’”
Lawmakers called on commissioner to resign
Earlier this year, the state Senate unanimously passed a resolution calling for Hicks to resign or be replaced. A bipartisan Assembly resolution seeks to impeach him. Despite his recent announcements of reforms, several legislators continue to seek Hicks’ removal.
The Moss contract also specifies that the consultant will help with the implementation of a risk management system to track sexual abuse or harassment, unprofessional staff conduct and use of force. Hicks had discussed the use of an early warning system to track staff behavior last month and the department officially announced its implementation on Tuesday, although it said the system is “in the early stages of implementation.”
DOC is about three years behind in implementing its early warning system. Attorney General Gurbir Grewal issued a directive in March 2018, one of his first as the state’s chief law enforcement officer, mandating all police departments and prosecutors to implement such a system within 60 days.
The contract with Moss specified that some of the consultant’s work, including a written staffing plan, is to be submitted to the federal monitor.
Tess Borden, an attorney with ACLU-NJ, said that while the sum of reforms sounds promising, the proof will be in how seriously these are carried out.
“All of these changes have the potential to be impactful, but it will depend on the details of implementation and a commitment to creating a culture of accountability for officer abuse more generally,” she said.
Need for independent prisoner advocate?
Another necessary piece is an aggressive outside advocate that prisoners can contact with complaints and be assured these will be pursued, advocates and former incarcerated women said. A recent state law provides for this kind of position, but lawyers, legislators and advocates say that’s not how the state’s corrections ombudsman’s office has been acting in recent years.
The DOJ report criticized the ombudsman’s office for not always keeping reports of sexual abuse anonymous and not following up when a woman said she was suffering retaliation for reporting her abuse by a corrections officer. Advocates told the Assembly hearing that the ombudsman’s office often was unresponsive to complaints.
At least some lawmakers agree and are asking for the speedy hiring of a new ombudsman and don’t want to wait until the man currently in charge of that office, Dan DiBenedetti, leaves. He announced his retirement the day after last month’s Assembly hearing, during which lawmakers expressed surprise and dismay over his apparent lack of personal attention to issues at Mahan. One asked DiBenedetti, “Where have you been?”
“He (DiBenedetti) won’t step down until August 1. Considering that he resigned, probably based on the pressure of not having done his job correctly, why do we have to wait over 100 days for someone else who can do the job?” asked Assemblywoman Nancy Munoz (R-Union) during last Monday’s budget hearing.
Thornton said an active advocate for the incarcerated is vital to ending abuse and harassment.
“A real ombudsman for all the people incarcerated, who is not from within corrections, but instead has the ability and desire to actually investigate reports, is imperative.”
Martin Schrama, another lawyer representing the inmates, said the settlement with the state should continue to help prisoners, and perhaps others, for years.
“New Jersey always led the nation with its law against discrimination and its policies,” he said. “I think applying that to female incarcerated individuals, making these changes, bringing them under the ambit of law and moving forward in this matter will have broad, sweeping changes not only for them but maybe in other aspects of not only incarcerated individuals but other individuals in New Jersey.”