Baltimore Behind Bars

from City Journal

Crime and corruption are nothing new in Baltimore, as any viewer of The Wire can attest. But even for Maryland’s largest city, the April 2013 federal indictment charging 25 people with drug dealing, prostitution, and violence was a shocker: all of the alleged crimes occurred inside the city’s biggest jail. Worse, 13 of the accused were guards, who conspired with a violent prison gang to smuggle in contraband, ranging from cell phones to prescription pain pills. Female correctional officers took payoffs to have sex with gang members, including the gang leader, Tavon White, who fathered children with four guards. “This is my jail,” White declared in a January 2013 call, secretly recorded by the FBI. “I am dead serious. I make every final call . . . and nothing go past me, everything come to me.”

The lurid details drew national attention, embarrassing Governor Martin O’Malley, a Democrat with presidential ambitions, and causing a shakeup in the state correctional bureaucracy. Yet within Maryland, what really provoked an uproar was the federal authorities’ assertion that a three-year-old state law known as the Correctional Officers Bill of Rights (COBR) was partly to blame for the scandal. According to the indictment, the law’s procedural protections for guards facing administrative discipline tied supervisors’ hands so tightly that punishment was only a “very remote” possibility. An accompanying FBI affidavit noted that “the internal review process set up by COBR” was “ineffective as a deterrent to [correctional officers] smuggling contraband or getting sexually involved with . . . gang members.”

O’Malley, lawmakers of both parties, and the correctional officers’ union—the American Federation of State, County and Municipal Employees (AFSCME)—had all backed COBR. In the wake of the scandal, all insisted that federal authorities’ harsh view of the law was unfounded. But the story of the law is, if anything, more damning than the feds could say directly.

COBR was a recipe for trouble from the start. It grew out of an AFSCME campaign to defend correctional officers in western Maryland who, prior to the Baltimore scandal, had been punished for gross misconduct—not for sleeping with inmates or bringing them illegal drugs but for savagely beating them. The union portrayed that appropriate crackdown as a typical vendetta by state prison officials against hardworking C.O.s. Maryland’s politicians, eager to please AFSCME in an election year—but indifferent or oblivious to the facts—went along. Far from a triumph for fairness and due process, COBR was a case study in the distortion of state government by public-sector union power.

On March 9, 2008, an ambulance arrived at Washington County Hospital in Hagerstown, Maryland, 75 miles west of Baltimore. The patient inside was Kenneth Davis, an inmate at the nearby medium-security state prison, Roxbury Correctional Institution (RCI).

Davis looked as though he’d tried to go a few rounds with Mike Tyson: his eyes were purple and swollen shut; red welts bulged from his forehead. Doctors diagnosed facial fractures, a broken rib, and multiple cuts and bruises. Davis spent four days in the hospital, during which time a visitor from the prison staff failed to recognize him because his face was so badly disfigured.

As subsequent state and federal investigations showed, Davis had been viciously pummeled by guards inside RCI. True, the inmate wasn’t blameless; he had punched and pushed a correctional officer on March 8. But the payback that the C.O.’s brethren dished out was excessive by any measure. Over the course of 24 hours, Davis endured four separate beatings by officers from three different shifts. At one point, the guards took turns punching and kicking him while he was on the floor of a cell, unable to defend himself.

Maryland’s attorney general, Douglas Gansler, eventually charged nine RCI officers with assaulting Davis. State prosecutors persuaded two of them to plead guilty and testify against the rest. But juries in Hagerstown, drawn from a region heavily populated by C.O.s, their friends, and their families, wouldn’t convict. The Justice Department’s Civil Rights Division took over the case and eventually convicted 13 RCI officers, most of whom pled guilty in a Baltimore federal court to federal civil rights or obstruction-of-justice charges.

But in March 2008, those events lay in the future, as the perpetrators of the attack on Davis hastily wiped blood from the floor of his cell, destroyed surveillance video, and agreed to a cover story.

Despite this “wall of silence,” Gary Maynard, secretary of Maryland’s Department of Public Safety and Correctional Services, investigated the case and compiled what he called “very compelling evidence” of brutality. Within weeks, acting on the information, Maynard fired 18 RCI officers. “We cannot tolerate excessive force, just as we will not tolerate an officer being harmed,” declared Maynard, a seasoned correctional administrator who once ran Iowa’s prisons and whom O’Malley had brought in the previous year to help clean up Maryland’s troubled system.

AFSCME, however, rushed to the officers’ defense. With more than 30,000 members, AFSCME is Maryland’s largest and most powerful labor organization. It got started in Maryland in the early 1970s, first organizing state university workers and then branching out to other agencies. Its rise paralleled that of the left wing of the state Democratic Party. Once quite conservative, in keeping with the state’s historical Southern leanings, the party moved in a more liberal direction as power flowed to Baltimore’s African-Americans and to the upscale professionals, white and black, of the Washington suburbs. AFSCME backed liberal Democrat Parris Glendening’s 1994 campaign for governor; once in office, he reciprocated by helping state workers win collective bargaining rights (though the union didn’t get a mandatory dues law until 2009, under O’Malley).

Today, Maryland is nearly a one-party state. Democrats control the governor’s mansion; they outnumber Republicans by more than two-to-one in the House of Delegates (the state’s lower chamber) and three-to-one in the state senate. AFSCME, with its dues-fueled get-out-the-vote operation, is a pillar of the Democratic Party organization. And Maryland’s correctional officers have evolved into a crucial part of AFSCME, accounting for almost one-quarter of its total statewide membership.

Yet given their conservative cultural slant—many prisons are located in the state’s Republican-leaning western and southern sections—C.O.s aren’t an entirely comfortable fit for a “blue” union like AFSCME. Union leaders thus face extra pressure to deliver the goods to this constituency—and because the state’s fiscal woes had forced employees to accept pay freezes and furloughs, that pressure happened to be especially high at the time of the Kenneth Davis case. With pay increases hard to come by, standing up for accused C.O.s gave AFSCME an alternative way to prove its value, along with the value of its Democratic connections, to the rank and file.

Saying that it would appeal Maynard’s application of discipline in the Davis case, AFSCME blasted the state’s “cavalier conduct,” in the words of its spokesman, Joe Lawrence. “These mass firings, this conduct by the state, is not justified,” Lawrence said. “What we have seen so far of the state’s investigation is riddled with inconsistencies.”

Western Maryland politicians from both parties flocked to the AFSCME banner. About six weeks after the Davis incident, a Democratic state delegate, Kevin Kelly, promised to introduce a “bill of rights,” as he put it, for correctional officers in the next General Assembly session, beginning in January 2009. Kelly had met with C.O.s and AFSCME officials, who told him that Maynard had rushed to judgment, according to an Associated Press report.

But AFSCME and its supporters still had to wait for the results of the officers’ state-court assault trials in Hagerstown. After all, convictions on the brutality charges would undermine the union’s claims. In October 2009, though, a C.O.-friendly jury produced the last “not guilty” verdict, and AFSCME was free to push for the bill of rights. The timing favored the union: 2010 was an election year, and two key state politicians were facing reelection battles. The first was a Democrat, O’Malley, a longtime union ally needing its full support for his rematch with his Republican predecessor, Robert Ehrlich, Maryland’s governor from 2003 through 2007. The second was a Republican: state senator Donald Munson of Hagerstown, who faced a GOP primary challenge and was eager to go to bat for the correctional officers in his district.

Union lobbyists had no trouble persuading Munson to sponsor COBR, thus giving the bill a bipartisan veneer. Munson, who eventually lost his senate seat and is now on the Hagerstown city council, said that he was little more than a legislative conduit for the union officials, who actually drafted the bill. “I looked at it, read it, and thought it was fair,” he said. “Much of the work was done by lobbyists for the correctional officers. I was on the budget and tax committee . . . and simply didn’t have the time to put into it.”

Matters were more complex between AFSCME and the O’Malley administration. The union’s ostensible rationale for the bill of rights—that the state had railroaded C.O.s in the Davis case and in a series of similar incidents involving inmates at a facility in Cumberland—amounted to a rebuke of O’Malley’s own corrections chief, Maynard, who had meted out the discipline. O’Malley could not give the union what it wanted without undercutting Maynard. And Maynard was none too pleased by the COBR proposal, as three sources with knowledge of the bill’s drafting confirmed.

That’s not surprising: any veteran prison administrator would have instantly spotted the bill as an attack on management prerogatives. (Maynard declined to comment.) Prior to COBR, prison administrators had 30 days to investigate alleged disciplinary violations by C.O.s, determine guilt or innocence, and recommend punishment, up to and including firing. Correctional officers could appeal to an administrative law judge, whose ruling would be final. This was the process that enabled Maynard’s swift action in the Davis case. COBR, though, called for a new appeal board made up of three correctional officers, and they would have unreviewable power to overturn a prison administrator’s findings of guilt—as well as a more limited right to reduce punishment for those whose guilt they upheld.

Departing further from prior law, COBR required the state to keep paying accused officers throughout the appeal process—a strong incentive for officers to fight charges. The bill gave C.O.s the right to know the names of witnesses against them 20 days before an appeal board hearing, time that a crooked officer could use to organize witness intimidation. Given O’Malley’s obvious determination to back COBR, however, Maynard acquiesced, managing to negotiate one concession: extending the old law’s 30-day investigation period to 90 days, so that prison authorities would have more time to build a case. Ninety days was far less than the yearlong investigative period that state law prescribed for cases of alleged misconduct involving police officers. But it was something.

And prison administrators would need all the time they could get, since COBR layered on other new procedures that made investigations more costly and labor-intensive. Officers would get 24 hours’ notice before an interrogation—time to develop an alibi or coordinate testimony with others. They would not have to face interrogation unless and until a lawyer or union rep was available to accompany them. They would have to face only one interrogator at a time, who would be forbidden from “threatening” prosecution, transfer, dismissal, or disciplinary action.

With O’Malley and AFSCME in accord, the General Assembly took up COBR in early 2010, holding cursory committee hearings. Democratic committee chairmen in both houses had been told that the bill was the governor’s baby. “The governor’s office said, ‘Don’t worry, don’t make a fuss about it,’ ” a Democratic state senator said.

On March 23, 2010, the Senate Judicial Proceedings committee heard testimony for all of 30 minutes from an overwhelmingly pro-COBR witness list headed by Munson and AFSCME’s chief lobbyist. Though the lawmakers probably didn’t know it (because the witnesses spoke in vague terms), much of what they heard that day was a rehash of the union’s bogus complaints about how unfairly the state had treated officers accused of the Kenneth Davis assault and cover-up. Chris Duffy, a C.O. from Hagerstown, testified that officers needed a bill of rights to protect them against a repeat of the “incident” in Hagerstown “approximately 18 months ago,” in which many officers had been punished based on “limited evidence” and “nothing but mere hearsay.” C.O. Ron Lohr claimed that he’d “seen a lot of botched investigations and poor decision making by management in the disciplinary process.” His own son, also a C.O., had been “a victim of that flawed process,” he said. Lohr’s son Ryan would plead guilty in 2013 to federal obstruction-of-justice charges stemming from his role in the Davis case. In that plea, Ryan Lohr admitted that he had opened the door of Davis’s cell to let attackers in, and then helped clean up the crime scene and lied to state investigators.

Committee members occasionally lobbed softball questions that succeeded mainly in demonstrating their ignorance of the bill’s contents. They heard one dissenting voice: Tom Dewberry, the chief judge of Maryland’s administrative law courts. He warned that letting correctional officers appeal to a panel of their fellow C.O.s rather than to an impartial judge created an apparent conflict of interest, contrary to the purpose of an earlier reform law that had assigned state-employee disciplinary appeals to judges.

It was an obvious point, but both parties in the General Assembly basically ignored it. COBR passed the House of Delegates 140–0 and the Senate 44–2. The governor signed the bill on May 4, 2010. A grinning O’Malley, surrounded at the signing ceremony by legislators, C.O.s, and union officials—but not by Gary Maynard—graced the front page of the fall 2010 issue of the AFSCME Corrections United newsletter. “Relentless lobbying by AFSCME C.O.s, the open support of the O’Malley administration and the hard work of key legislators . . . helped the legislation pass,” the newsletter crowed.

In September, AFSCME announced its endorsement of O’Malley at a rally in Baltimore. A union press release noted: “AFSCME members will be engaged in phone banks and vigorous get-out-the-vote efforts on behalf of the O’Malley-Brown campaign through Election Day.” O’Malley won reelection, with 56 percent of the vote.

Maryland’s politicians never debated—or even, seemingly, considered—COBR’s possible impact on investigations of corrupt fraternization with inmates despite the fact that Maryland lockups were already notorious for gang-related corruption, long before the Baltimore scandal broke. The Baltimore City Paper had published 14 articles on the subject, starting almost a year before the General Assembly took up COBR.

The lawmakers’ cluelessness is clear from their acceptance of a COBR provision that defined prison administrators’ power to impose “emergency” suspensions in “the best interest of the inmates, the public and the correctional facility.” That authority could come in handy if a C.O. were, say, caught having sex with an inmate or smuggling in debit cards and cell phones. Yet the provision required that such suspensions come with pay—a big disincentive to imposing them. According to the bill, officers could be suspended without pay only if they faced felony charges; and in Maryland, smuggling cell phones and other contraband into prison is a misdemeanor.

The new appeal process discouraged effective discipline as well. As FBI special agent Sarah Lewis put it in an affidavit, Baltimore jail officials saw no point in pursuing cases, given the risk that the COBR appeal board would later overturn punishments for brother officers. In fact, for two years, the board in Baltimore included 26-year-old Riccole Hall, a correctional officer at the jail whom the feds would later indict for drug dealing, bribery, and money laundering. Instead of trying to suspend or fire corrupt officers, Special Agent Lewis observed, jail administrators would transfer them, often to the nearby Baltimore City Booking and Intake Center. “That’s why I got moved over there,” a C.O. at the intake center casually told a coconspirator in a phone conversation recorded by the FBI. “I got moved over there basically because I’m dirty.”

After the General Assembly vote, City Paper’s reporter Van Smith (whose streetwise stories offer a trove of information about the scandal) approached Munson, COBR’s sponsor, for comment about the risk that COBR could hinder investigations of gang-related corruption. “I’ve never thought of this measure in that context,” the senator replied. “If it doesn’t work, we’ll fix it in the future.”

Though COBR may have enabled the smuggling, violence, and sex at Baltimore’s jail, as the FBI suggested, it did not cause them. Gangs and gang-related corruption are old problems in Baltimore, with origins deep within the city’s crime- and poverty-ridden social structure. Even the 150-year-old jail’s labyrinthine architecture promotes misconduct: it’s honeycombed with dark corners in which to hatch drug deals, consummate illicit trysts—or stab snitches.

Nor is the Maryland Correctional Officers Bill of Rights the most restrictive such set of regulations in the United States. That distinction probably belongs to the rules that the California Correctional Peace Officers Association has imposed, via collective bargaining and legislative lobbying, in the Golden State. In California, C.O. witnesses in disciplinary cases have the right to union representation during questioning—a “right” they decline to exercise only at the risk of finding themselves labeled “rats” by their union brothers, according to sociologist Joshua Page’s 2011 book about prisons and the correctional officers’ union in California, The Toughest Beat. The same union rep may attend interrogations of both witnesses and the accused, an obvious risk to the integrity of an investigation.

In essence, though, Maryland’s COBR and the California rules do the same thing: they give correctional officers’ unions extra influence over employee discipline, a process in which the unions have a special interest. They do this in deference to union political power—and despite the public’s interest in a process that is as impartial as possible. Public institutions function best with clear lines of authority. That goes double for inherently hierarchical ones like prisons and jails. Yet by their very nature, laws like COBR blur lines of authority.

Some Maryland officials told me privately that the Baltimore jail’s supervisors only griped to the FBI about COBR to escape blame for their failure to maintain discipline. No doubt there is some truth to this. But it’s a strange defense of COBR, which gave the jailers an excuse in the first place. Without it, their accountability would be clearer.

The O’Malley administration tried to rebut criticism of COBR with statistics, noting that the number of Maryland C.O.s fired or forced to resign for corruption, fraternization, or contraband possession actually went up from 17 in 2011, COBR’s first year, to 33 in 2013. The administration, though, provided no data on these dismissals as a percentage of cases—or on how many more disciplinary actions might have proved successful if Maryland still operated under pre-COBR rules.

Nor do these numbers explain why O’Malley was in such a hurry to pass COBR. A former prosecutor and mayor of Baltimore, the governor has a better street-level understanding of law enforcement and corrections than most politicians do. In his first term, he made shaping up Maryland’s prisons a priority; among his first acts was to close the outmoded, violence-plagued House of Corrections in the town of Jessup. Indeed, O’Malley can claim credit for accepting the federal probe that ultimately rolled up the Baltimore jail gang.

All the more reason to be mystified that the governor danced so readily to AFSCME’s tune on COBR, implicitly undercutting his own corrections chief in the process—unless you consider the union’s political clout.

After the Baltimore jail scandal broke, O’Malley asked for a special commission of the General Assembly to consider reforms. The group’s report, issued last December, called for new training and technology to fight smuggling, as well as one adjustment to COBR: allowing prison administrators to suspend C.O.s accused of smuggling contraband without pay, even if that violation is not a felony. For his part, O’Malley embraced many of the recommendations; as of this writing, an O’Malley-backed bill that would allow the suspension without pay of suspected contraband smugglers is moving through the legislature.

Members of the reform commission said that AFSCME’s lobbying initially blocked consideration of a more substantial reform: extending the period during which a C.O. may be suspended pending investigation from 90 days to a year, as in investigations of police officers. The commission was supposed to debate that proposal at its final public meeting in December 2013, but members backed down under AFSCME pressure. The union packed the hearing with correctional officers dressed in bright green T-shirts bearing the union logo. State delegate John Cluster, a Republican, said that he approached another lawmaker after the meeting, asking his colleague why he’d abandoned his support for the reform: “AFSCME got to me,” the legislator replied.

In the end, the O’Malley administration backed a milder reform bill, which is probably on its way to passage. The 90-day limit on disciplinary investigations would remain—but it would not apply in cases of alleged C.O. criminal conduct, as long as it occurred during the course of an officer’s duties, took place within a prison or jail, or involved an inmate. This was a clear improvement over the previous status quo under COBR and would have helped confront much of the alleged wrongdoing in Baltimore. But it still gives Maryland prison supervisors less time to investigate C.O. infractions than police supervisors have to investigate those committed by cops. And it does not reach criminal activity by officers off-site or off-duty, which is where and when a lot of the gang-related activities by the Baltimore C.O.s took place.

Nevertheless, the bill had one thing going for it: AFSCME’s acquiescence. Embarrassed by the Baltimore disaster, the union had apparently “seen the handwriting on the wall,” as one state official said, and accepted the need to compromise. (The union declined my request for comment.)

Keeping watch over often-violent offenders is a hard job. Most correctional officers perform it honestly. They deserve decent pay and fair treatment. AFSCME has a point when it says that C.O.s face the risk of false accusations from the people they supervise—who are, by definition, criminals. The law should account for that risk, consistent with the rights of inmates and the interests of the general public. But legislating that balance is a delicate business, in which no special interest should exercise privileged influence over the people’s representatives. Undue influence is what AFSCME exercised in the passage of COBR—with the help of union political machinery, funded through dues deducted from tax-funded payrolls.

As Maryland’s elected officials revisit the COBR statute that they so hastily adopted four years ago, much more is at stake than who runs the state’s prisons. The real issue is who runs Maryland.