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Administrative Justice in the Penitentiary: A Report on Inmate Grievance Procedures

Published online by Cambridge University Press:  20 November 2018

Samuel Jan Brakel
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Abstract

The majority of prisons today have an internal grievance mechanism that gives inmates an opportunity to air complaints and seek solutions to individual and institution-wide problems. This study reports on the way the mechanism functions at two Illinois state prisons—one minimum security and one maximum security. The main findings are: (1) that the mechanism is heavily and repetitively used by only a portion of the inmate population, (2) that the grievances filed range widely in type as well as in merit, although it is clear that there is much frivolous activity, (3) that inmates win only a small percentage of their cases, either at the first-instance level or on appeal, and (4) that among both line prison staff (at least at one of the prisons) and inmates there is considerable dissatisfaction with the process, although a minority of prisoners and the higher echelon prison administrators can be counted on for more favorable assessments. The article goes on to compare these findings with the generally articulated objectives of the grievance process and concludes with a series of suggestions that have been made for improving its workings.

Type
Research Article
Information
American Bar Foundation Research Journal , Volume 7 , Issue 1 , Winter 1982 , pp. 111 - 140
Copyright
Copyright © American Bar Foundation, 1982 

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References

1 American Bar Association Standards for Criminal Justice, Legal Status of Prisoners, Standard 23–7.1(b) (Fourth Tentative Draft, June 1980).Google Scholar

2 Civil Rights of Institutionalized Persons Act, Pub. L. No. 96–247, § 7, 94 Stat. 349, to be codified at 42 U.S.C. § 1997e. And 44 Fed. Reg. 62, 248 (Oct. 29, 1979); 46 Fed. Reg. 48, 181–89 (Oct. 1, 1981).Google Scholar

3 See ABA Standards, supra note 1, commentary to 23–7.1.Google Scholar

4 See the federal Act and regulations cited in note 2 supra. The main reason that state institutions would want the Department of Justice to approve their grievance procedures is that this opens up the “exhaustion” possibility in defending prisoner suits brought under 42 U.S.C. 1983. Section 7(a)(1) of Public Law 96–247 states that “the court shall, if the court believes that such a requirement would be appropriate and in the interests of justice, continue such [a 1983] case for a period of [sic] not to exceed ninety days in order to require exhaustion of such plain, speedy, and effective administrative remedies as are available.” Section 7(a)(2) goes on to specify that “[t]he exhaustion of administrative remedies under paragraph (1) may not be required unless the Attorney General has certified or the court has determined that such administrative remedies are in substantial compliance with the minimum acceptable standards promulgated under subsection (b).” Cases like Taylor v. Perini, 455 F. Supp. 1241 (N.D. Ohio 1978) go one step further in holding that grievance procedures are a necessary part of constitutionally adequate penal systems, whether federal, state, or local.Google Scholar

5 This statistic was cited so regularly by Stateville officials that I concluded they took a kind of pride in it. The warden and his assistants are young men (in their 30s) who emphasize their “accessibility” to inmates and their ability to communicate with and handle even the toughest of them. There is more than a hint of the macho style in the way top Stateville officials carry themselves and conduct their business. (By contrast, the Vienna approach is more subdued bureaucratic-coat-and-tie.) The Stateville warden, commenting on an earlier draft of this article, dismisses these impressions as “subjective editorializing.”.Google Scholar

6 A recent study by the John Howard Association (a prison reform group in Chicago), noting that between the end of 1978 and the beginning of 1980 there had been an 18 percent increase in the number of inmates “assigned to a program, job or some kind of organized activity,” also stressed that this still left 13 percent of the Stateville population “without any kind of activity.” This inactive remnant plus perhaps the quality of the assignments must be behind the association's general conclusion that “[m]eaningful rehabilitation programs are woefully inadequate at Stateville.” John Howard Association, Stateville Revisited: “Shakedown/Shakeup—One Year Later,” (Chicago: John Howard Association, February 25, 1980), pp. 6, 3. The lack of programming came up spontaneously in my interviews with both staff and inmates at Stateville, and even inmates at Vienna who had done stints at Stateville often volunteered how much easier one could do time productively at Vienna.Google Scholar

7 Precisely what the measure and effect of gang control might be in places like Stateville easily warrants separate study. I make two points for now. First, gang control is not wholly negative—it is often cited as an aide to maintaining general institutional control, and it eases the psychological burden of imprisonment for many inner-city inmates. Second, while the preceding observation is informally acknowledged, the official stand (as it must be) is that gang influence cannot be condoned, and the new disciplinary regulations put out by the Illinois Department of Corrections (AR 804) specifically make it an offense, with maximum punishment of 180 days in segregation and 180 days loss of good time, for an inmate to be “caught engaging or pressuring others to engage in gang activities or meeting, displaying, wearing or using gang insignia, or giving signs.” The intimidation and “pressuring” of nongang affiliates plus the organization of drug traffic and other illicit activities (and the violence that occasionally accompanies it) are among the negative facts associated with the infiltration of streetgangs into the prison. For some good insights on the role of streetgangs in the prison and a good study of the history of Stateville generally, see James B. Jacobs, Stateville: The Penitentiary in Mass Society (Chicago: University of Chicago Press, 1977).Google Scholar

8 My notes have two informants—one staff member and one inmate—mentioning this, and my recollection is that at least one other person gave this figure. The warden corrected this information: there were two homicides and one “overdose.”.Google Scholar

9 In an earlier draft I used the word beaten, but the warden felt this word wrongly denoted concerted, planned action. He said physical assault better characterized the random nature of the incident. The John Howard Association study cited above at note 6, pp. 15–16, reports 61 instances of “inmate or officer assaults” for 1978–79, and 51 for 1979–80. However, the 1979–80 incidents were in the aggregate far less serious: in only 2 was a weapon used (13 in the previous year); in 7 cases medical attention was needed (compared with 22 in the year before); and 40 were characterized as “verbal confrontations” (only 8 were of that relatively harmless nature in 1978–79).Google Scholar

10 Incidents between inmates are likely to be too infrequently reported for yearly figures to be meaningful. See John Howard Association report, supra note 6, at 15–16.Google Scholar

11 When a cell house is “locked up” it means there is no movement of prisoners from cell to cell or from the cell house to other parts of the prison. Lockup orders are given to contain explosive situations and to keep prisoners from discarding incriminating evidence or contraband. The Stateville warden points out that neither of the lockups in question lasted more than 12 hours. He also informed me that each cell house is subjected to a routine lockup each quarter (not exceeding three days) during which the place is searched for weapons, liquor, drugs, etc. (a “shakedown”).Google Scholar

12 While Stateville is a violent and unstable place, I do not mean to suggest that it is a total jungle. Reason does carry even if it does not always prevail. Rules and procedures do count. And the majority of inmates are manageable or manage themselves. I also do not mean to criticize the present administration. Conditions at Stateville are the result of years of unsuccessful policy and decision making at many levels and of larger forces than can be controlled currently by a few men or regulations. The element of inevitability in the situation is summed up in the warden's question: “When you concentrate 2,000 of the state's worst offenders in one institution, what can you expect?”.Google Scholar

13 The literature on grievance procedures in prisons is still sparse. Here is a list of the writings that have come to my attention: Allen F. Breed, Instituting California's Ward Grievance Procedure: An Inside Perspective—I. Administering Justice: Implementation of the California Youth Authority's Grievance Procedure for Wards, 10 Loyola (L.A.) L. Rev. 113 (1976); David D. Dillingham & Michael K. Lewis, An Evaluation of an Inmate Grievance Procedure: Georgia State Prison, Reidsville, Georgia (Washington, D.C.: Center for Community Justice, 1980); David D. Dillingham & Linda R. Singer, Complaint Procedures in Prisons and Jails: An Examination of Recent Experience (Washington, D.C.: National Institute of Corrections, 1980) (as cited in Dillingham & Lewis supra); J. R. Hepburn, J. H. Lane, & M. L. Becker, To Do Justice: An Analysis of the Development of Inmate Grievance Resolution Procedures and a Final Report to the Center for Community Justice (1978) (as cited in Singer infra); Michael J. Keating, Jr., Improved Grievance Procedures: A Technical Assistance Manual, ed., B ARBARA R. Isard (Washington, D.C.: BASICS (Bar Association Support to Improve Correctional Services), A Service of the American Bar Association Commission on Correctional Facilities and Services, June 1976) [hereinafter referred to as ABA-BASICS 1976]; Joan Nuffield, Inmate Grievance Procedure Pilot Project (Saskatchewan Penitentiary): An Evaluation (Ottawa, Canada: Solicitor General, 1979) (as cited in Dillingham & Lewis supra); Felix G. Rivera, An Evaluation of the San Francisco County Jail Inmate Grievance System (Washington, D.C.: ABA-BASICS, 1977); Linda R. Singer, The Growth of Non-Judicial Dispute Resolution: Speculations on the Effects on Justice for the Poor and on the Role of Legal Services (Washington, D.C.: Legal Services Corporation, [1980]); Turner, William Bennett, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv. L. Rev. 610 (1979). The ABA-BASICS 1976 work contains a number of reprints worth citing: Virginia McArthur, Inmate Grievance Mechanisms: A Survey of 209 American Prisons, at 137 (reprinted from Federal Probation (December 1974)); George Nicolau, Grievance ARB itration in a Prison: The Holton Experiment, at 231 (reprinted from an unidentified issue of Resolution); Linda R. Singer & J. Michael Keating, Jr., Grievance Mechanisms in American Corrections: The State of the Art, at 226 (reprinted from an unidentified issue of Resolution); and Statistics Compiled on California Youth Authority Grievance Procedure by CYA Research Division, at 238. See also a short bibliography of some minor, earlier pieces on grievance and grievance-like mechanisms in the prison setting, at 158–59.Google Scholar

14 The federal Civil Rights of Institutionalized Act, supra note 2, and the ABA Standards, supra note 1, are the most conspicuous of these. The ABA Standards cite as “related standards” efforts in the same direction by the American Correctional Association (Standards for Adult Correctional Institutions (4th draft, April 1980) 4007.02, 4291.11), the National Advisory Commission on Criminal Justice Standards and Goals (Corrections 2.14), the National Conference of Commissioners on Uniform State Laws (Model Sentencing and Corrections Act (approved draft, August 1979) §§ 1–104, 4–301 to 4–307), and the National Sheriffs' Association (Inmates' Legal Rights, p. 37, and Jail Security, Classification, and Discipline, p. 62). The ABA Standards capture the major aspects found in the literature and the other standardizing efforts. They specify that an acceptable grievance procedure should have:. (i) provision for written responses to all grievances, including the reasons for the decision;. (ii) provision for response within a prescribed, reasonable time limit. A request that is not responded to or resolved within [thirty] working days should be deemed to have been denied;. (iii) special provision for responding to emergencies; (iv) provision for advisory review of grievances;. (v) provision for participation by staff and prisoners in the design of the grievance procedure; (vi) provision for access by all prisoners, with guarantees against reprisal;. (vii) applicability over a broad range of issues; and. (viii) means for resolving questions of jurisdiction.Google Scholar

15 Even at that, the volume of appeals from Stateville sometimes necessitates the ARB'S splitting up into two panels.Google Scholar

16 State of Illinois Department of Corrections, Adult Division, Administrative Regulation 845 (1977) [hereinafter referred to as Illinois D.O.C. AR 845].Google Scholar

17 The present Illinois regulations contain no special provisions for dealing with emergencies, as are found in the ABA and federal standards (see note 14 supra). Perhaps Illinois' direct review provision for 30-days-and-over good-time revocations comes close. Two other standard provisions missing from the Illinois regulations are the one for “participation by staff and prisonerh the design of the grievance procedure” and the one for general “advisory review of grievances.” (The federal standards call for an “advisory role for employees and inmates … in the formulation, implementation, and operation of the system”). Given the high turn-over among both prisoners and staff at most institutions, it is doubtful that participation in design is very meaningful or workable. As for the provisions for general “advisory review,” their meaning is not clear, though their implications are worrisome for prison administrators (see notes 38 and 42 and accompanying text infra). The Illinois' provision for binding review of local nB decisions by the Department (the ARB and the Department's director) is probably not a true counterpart, as it does not include the inmate participation contemplated in the national standards. The ABA provision guaranteeing protection against “reprisal” for use of the grievance procedure is found in the Illinois regulations in language that reads: “Under no circumstances may any disciplinary action be taken against a resident for using the procedures established herein” (D.O.C. AR 845 supra note 16, at 2). My interviews with inmates and staff showed that the prospect of reprisals is not real. The fact that no disciplinary action may be taken against inmates for using the procedures probably also precludes discipline for abusing them—a proposal to be considered later on.Google Scholar

18 See note 13 supra.Google Scholar

19 Grievance records going back to the middle of 1979 and the Vienna warden's estimate of the number of grievances in the year or so preceding that date are the basis for this assessment.Google Scholar

20 The number of disciplinary tickets given by staff against inmates has a significant effect on the number of grievances filed (see discussion and tables on types of grievances ahead). Between 1979 and 1980, the number of tickets issued at Stateville rose by 100 percent, as the institution went through a period of deliberate tightening of the general discipline. The effect on the total number of grievances was partly offset, however, by decreases in complaints regarding payroll, transfer, medical attention, and the commissary. (See John Howard Association report, supra note 6, at 10 and 14.) The lowering of the grievance rate so far in 1981 is also strongly related to the disciplinary system, according to the chairman of Stateville's IIB. A new set of disciplinary regulations has been promulgated by the Department and inmates are said to have taken a momentary “wait and see” attitude before deciding how and where to challenge the new code.Google Scholar

21 A major characteristic of Stateville is its division into cell units that differ considerably from one another in atmosphere. The differences are readily apparent in the grievance statistics, not just in the area of discipline but the other categories as well. After Unit B-West, Unit E and then C are the most tense and contentious.Google Scholar

22 See note 25 and accompanying text infra.Google Scholar

23 See note 20 supra.Google Scholar

24 A few guards sound even less sympathetic than that. One said: “Even if they get a ticket they don't deserve, that's tough, they'll just have to take it. I always thought once you're in the pen, you lost your rights.” Most guards I interviewed, however, showed a more “liberal” view of inmates' rights. See section on “attitudes”infra.Google Scholar

25 One inmate said with great conviction that he grieved “everything,” implying that it was a matter of principle with him to make the institution go through the maximum amount of trouble if it wanted to take anything away from him. While not extensively followed, this “code” has a good number of adherents among the inmates.Google Scholar

26 One consequence of this fuzzy classification system is that it limits the utility of the records in case they should be reviewed to identify prevailing problems (see last paragraph of this section).Google Scholar

27 One of these reversals was in the case of an inmate who demanded meritorious good time for an “act of heroism” (his words) done at the institution where the inmate had served time before his transfer to Vienna. He had climbed the institution's water tower “at the risk of [his] life” to put up a light under emergency circumstances. The Vienna IIB held that since the inmate had done this act elsewhere he was not entitled to receive good time credit for it at Vienna. The warden overruled this decision, stating that, pending a report from the transfer institution confirming the story, the inmate would be entitled to the good time. Two other cases, counted together as one reversal, concerned factual disputes on which the warden compromised by reducing the punishment (handed out by the disciplinary (Adjustment) committee and affirmed by the grievance board) in half. One case concerned an inmate missing a head count; the other was about a small theft from the commissary. The inmates interpreted these compromise outcomes as victories, saying that it showed the warden believed their side of the story. Then there were also a couple of inmates who claimed to have been vindicated by the warden because the latter had promised to restore good time lost for relatively minor rule violations if the inmates went without major disciplinary infractions for the next six months. However, this element of leniency—an incentive for future good behavior—is built into the regulations and does not represent a reversal of the grievance board's decision or an indication that the warden thinks the inmate was in the right.Google Scholar

28 An interesting comparison is with the rates at which complaints about police use of excessive force are upheld by an internal body such as the Office of Professional Standards of the Chicago Police Department. The Chicago OPS is an internal agency in that it is under the authority of the Superintendent of Police; however, its staff is composed of civilians, not police officers. Over the six-year period from the beginning of its establishment (1974-79), the OPS investigated 10,631 complaints and found 9,860 (93 percent) for the officer and 771 (7 percent) adverse. William A. Geller & Kevin J. Karales, Split-Second Decisions: Shootings of and by Chicago Police 167–69 and table 37 (Chicago: Chicago Law Enforcement Study Group, 1981).Google Scholar

29 See Breed, supra note 13, at 147 (1976) and the reprinted C.Y.A. statistics from the ABA-BASICS manual, supra note 13. It is impossible to say from these sources whether the content of these grievances is substantially different from the kinds of matters brought at the two Illinois prisons in this study, let alone whether such differences in content could explain the radical difference in outcomes.Google Scholar

30 Dillingham and Lewis, supra note 13, analyzed “the first 171 grievances resolved in 1980” in the Georgia State Prison and found that 14 (8 percent) were “upheld,” 36 (21 percent) resulted in “some form of compromise,” and 121 (77 percent) were “denied.” The inference that the lesser disparities in outcomes between the Illinois experience and that in Georgia establish at least a roughly fixed pattern for adult institutions is upset by outcome statistics from the San Francisco County Jail study, supra note 13, at 8, which, with a 66 percent rate in favor of the inmates, is more like the (to me inexplicable) California Youth Authority results.Google Scholar

31 There are enough problems with staff morale as it is, particularly at the crowded maximum-security mega-prisons. Stateville experienced particular problems in this regard in 1978 when staff turnover for the year was reported to be 100 percent. For 1979 it was 40 percent (John Howard Association report, supra note 6, at 18). Stateville's present warden adds that on any given day, an average of 25 percent of his staff fails to report for work. Staff morale, attendance, and job stability at Vienna are much better.Google Scholar

32 Prison officials retort that inmates don't speak positively of anything. There is a good deal of truth in that. Still, it is possible to sift valid points made by inmates from their general bitterness and negativism. In every institution there are also a few inmates who, for one reason or another, come across with an exaggeratedly positive, proinstitution line.Google Scholar

33 Gresham M. Sykes suggests different reasons for the degree of sympathy for inmate “rights” displayed by the Stateville guards. He finds that guards at a difficult-to-manage, volatile institution such as Stateville are likely to be more compromised than at a place like Vienna, that they are likely to depend more on the inmates for control of the prison and to have struck power-sharing bargains with the inmates for any number of subsidiary purposes. Among the structural defects in the system of power, concludes Sykes, are “the strong pressures toward corruption of the guard in the form of friendship, reciprocity, and the transfer of duties into the hands of trusted inmates.” The Society of Captives: A Study of a Maximum Security Prison 52–58, 61 (Princeton, N.J.: Princeton University Press, 1958).Google Scholar

34 See generally Jacobs, supra note 7. Sykes, supra note 33, in his chapter on prison violence (ch. 6: Crisis and Equilibrium, at 109–29) theorizes that instances of major violence, such as riots, do not just happen any time more or less spontaneously. In his view, major violence is likely to occur only when prison officials make one of their periodic moves to reestablish control of the institution, which over time has been bargained away to the inmates. Such a crackdown takes power away from the prisoners who played a major part in running the institution and results in the rise to power of unstable inmates who do not put a premium on the smooth functioning of the prison. After the administration has reestablished a measure of control—with or without accompanying violence—a process of slippage begins again, and the cycle repeats itself. Sykes's theory is in contrast to the “powder keg” theory, articulated by most prison officials, including the warden at Stateville (see his comment supra at p. 114), that prisons can blow up any time.Google Scholar

35 I have not made a detailed historical study, but reports that touch on prison violence like the John Howard Association's, supra note 6, and Jacobs' study, supra note 7, indicate that other factors would overwhelm any attempt to discern the effect of the grievance process. The chairman of the ARB, who has a good overview, also disclaims any perceptible impact.Google Scholar

36 This finding from a New York study has some relevance: “fewer than half of the grievances filed … involved claims that conceivably could have been taken to court; far fewer actually would have been filed” (Hepburn, Lane, & Becker cited in Singer, supra note 13).Google Scholar

37 See Turner, 92 Harv. L. Rev. 610, 634–35:“Indeed, it is possible that the introduction of a grievance mechanism could increase the number of suits by educating prisoners to make formal complaints, guiding them to articulate inchoate grievances and insist on their adjudication.”.Google Scholar

38 So far neither the present federal standards nor the ABA standards appear to be too onerous (see notes 1, 2, 14, and 17 supra), being broadly worded and allowing for a good deal of flexibility. Language on inmate participation has caused the most concern among prison administrators, a concern that has been somewhat allayed by the Department of Justice's explanations that the standards call only for advisory participation that, moveover, may be limited to grievances on policy issues (as opposed to individual or personal matters or others that may affect the security of the institution and the participants). See the Summary of Changes/Comments in the federal standards at 46 Fed. Reg. 48,182-84 (Oct. 1, 1981).Google Scholar

39 With money it may well be possible to recruit ex-convicts, who know prison life and whose employment prospects elsewhere are poor. A question is whether the knowledge and perspective of the ex-convict are what one wants for the grievance board job.Google Scholar

40 Another objection, from the point of view of prison administrators, is that assigning an inmate to such a role is undesirable in that it may strengthen informal leadership positions among inmates—the “barn boss” concept. Such informal authority (often connected with position within the street gangs) can be and is used for illicit purposes. No prison administration should want to contribute to furthering such arrangements.Google Scholar

41 From the inmates' perspective, the issue is overwhelmingly one of fairness versus bias. Occasionally I heard complaints about lack of competence or dedication (“these guys don't even know the rules” or “they don't do the work”), but these were exceptions. Since neither the “rules” nor the disputes tend to be particularly complicated (and those that are can always be appealed), and since a large proportion of grievances are essentially questions about the facts and the credibility of the witnesses or about the propriety of a certain measure of punishment, 1 think the inmates are right in seeing the main issue as one of fairness.Google Scholar

42 The reason is that even the advisory function confers special power and position, albeit less than in the case of the full voting role. (See note 40 supra.) Perhaps the observer role can be construed as one further step down, but I doubt if the distinction between observer and advisor makes a difference in practice. The distinction between an inmate role in dealing with policy issues and one extending to personal matters does matter, though it may be difficult in some practical instances to determine which is what. (See Summary of Changes/Comments, 46 Fed. Reg. 48, 182–84.).Google Scholar

43 The John Howard Association report, supra note 6, at 20 recommends that “positions on the prison's grievance and disciplinary committee should be rotated regularly among the staff.”.Google Scholar

44 The same goes for the Springfield ARB. In addition, the ARB has been criticized for failure to effectively communicate its decisions and policies to the local boards—a charge that deserves at least to be looked into.Google Scholar

45 Commentary to § 40.7(c) of the federal standards shows that such suggestions have been explicitly made to the Department of Justice. The Department's reaction is that use of the words “investigation and consideration” in § 40.7(c) (actually in a different context) is sufficient and makes further exhortation superfluous. (See 46 Fed. Reg. 48,184, 48,187.).Google Scholar

46 Six months, if accurate and not justified in a written extension agreement with the inmate, would exceed the federal limit, which allows for 90 days from the initiation of the grievance process to its final decision. 46 Fed. Reg. 48, 187, § 40.7(e).Google Scholar

47 Guards already complain about the fact that they cannot take an inmate to segregation on their own authority but must get the approval of a ranking officer—a captain—first. Speedy (or “emergency”) processing of grievances concerning segregation would, however, be desirable. See note 17 supra.Google Scholar

48 As discussed in note 17, supra, the present wording of Illinois D.O.C. AR 845 probably prohibits the imposition of penalties for misuse of the process.Google Scholar

49 Provided that it is possible for the inmate to file after this period for incidents that occurred during the period. Otherwise guards would have a license to harass while the inmate was under the prohibition.Google Scholar

50 It may be pointed out that indigent people have over the years not had to pay the price for use of the legal system or for professional representation connected with it. On the other hand, questions are raised today in the highest political circles whether the poor are “entitled” to such cost-free use of the legal system and whether this is fair or desirable.Google Scholar

51 The latest version of the federal standards indeed encourages an attempt at informal resolution before the filing of a formal grievance (46 Fed. Reg. 48, 187, § 40.7(a)).Google Scholar