TWENTY-NINE YEARS OF DEDICATION TO PRISON REFORM
ARIZONA (1983- 2012)
The full list of activities Middle Ground has engaged in to defend the rights of prisoners and their
families since we formed in 1983 is too long to outline, but here are some highlights:
Middle Ground successfully defeated attempts to repeal the compassionate leave statute that permits
``home furloughs'' for prisoners. Because of DOC policy changes, this law has not been utilized
during the past several years, but the law has not been repealed. During one legislative session,
the repeal statute made it all the way out of the legislature and to the Governor's office for
signature. Middle Ground successfully convinced the Governor's office to veto the bill.
Provided assistance to pro per lawsuits against
the Department of Corrections for failure to deliver
incoming mail that did not have an ADOC prisoner number
on it. We convinced the District Court that it was the
DOC's responsibility to notify the sender of a phone
number where an inmate's DOC number and correct address
could be obtained. We originally lost the case in Federal
District Court; appealed to the Ninth Circuit, where
the case was remanded; and successfully won a Motion
for Summary Judgment in favor of the prisoners in the
District Court. Today, when a piece of mail is delivered
to the prison which does not contain the prisoner's
Inmate Number, the DOC is required to return it to the
sender and include a telephone number where the sender
can obtain the correct number, and they are supposed
to (but do not often actually do) notify the inmate
that a letter was return to a sender due to the lack
of a complete or accurate DOC prison inmate number.
Provided assistance in pro per lawsuit against
the DOC when they attempted to make major changes in
visitation policy, including conducting body cavity
searches on visitors, without first promulgating the
policy changes through the Administrative Procedures
Act (APA). Middle Ground succeeded in obtaining a preliminary
Injunction prohibiting implementation of the changes
and a final judgment requiring the DOC to conduct public
hearings for public input on major changes in visitation
policy. This requirement subsequently has been rendered
ineffective because the legislature now has exempted
the DOC from the APA.
Provided assistance in pro per lawsuit against
DOC regarding A.R.S. 31-228, which requires the DOC
to store property belonging to prisoners until they
are released and return it to them upon release. This
is known as the Blum decision. The DOC lost in Superior
Court, appealed the decision to the Court of Appeals,
and lost again. Blum still is the controlling Arizona
case on inmate property today. Attempts by DOC at the
legislature to repeal the law were defeated by opposition
from Middle Ground.
Provided assistance in pro per lawsuit against
the DOC when they attempted to require advance notice
and pre-approval of persons wanting to attend parole
board hearings conducted inside DOC facilities. The
Plaintiff (Donna Hamm) obtained a temporary injunction
pending the outcome of the lawsuit and won the declaratory
judgment at the conclusion of the case. As a result
of this lawsuit, the DOC was forced to sit down with
Middle Ground and with key legislators to re-write the
statute because of the court decision. It should be
noted that the Board supported Plaintiff's position
at all times, and were represented by a separate attorney.
Middle Ground was instrumental in stopping the DOC's practice of four-pointing inmates for up to 48
hours who were mentally ill or unruly (i.e., physically restraining an inmate by spread-eagling him
to a bed and attaching hand/leg cuffs to wrists and ankles). Middle Ground turned the information
over to The Arizona Republic and the subsequent front page story resulted in an oversight
investigation ordered by the Governor and conducted by officials of the Department of Health
Services. When the DOC was ordered to put into writing their policies governing the use of physical
restraints, they originally wrote them as ``Restricted'' policies. Middle Ground once again
intervened and the polices were made available to all.
Middle Ground obtained legislation which permits inmates to access portions of their AIMS file to
correct errors prior to any hearing before the Board or at least once a year. Middle Ground took on
this issue because many inmates improperly were being denied release based upon false or inaccurate
information provided by the DOC to the Board via AIMS Reports. Inmates often didn't even know the
negative information was in their file. During the 1999 legislative session, the DOC has succeeded
in altering the law, but only to the extent that inmates will not be able to obtain a hard copy of
their AIMS Report, but still will be permitted to view the report on a computer screen in their
counselor's office. This change came about purportedly for security/safety reasons.
In the aftermath of the Dude Fire, during which one DOC staff member and five prisoners were killed
and several other inmates were seriously injured, Middle Ground organized a fund-raising drive and
distributed money to the families of the deceased prisoners, advocated for compassionate leave
furloughs for the survivors (which were denied by Governor Mofford), and assisted various injured
parties to obtain attorneys. We also provided flowers for the surviving prisoners to place on the
casket of the staff member, who had died trying to help inmates.
Donna Hamm, in her capacity as
Director of Middle Ground, officially was an appointed member of the 1993 State Sentencing and Parity Review Committee,
which drafted legislation creating parity review (i.e., comparison between old code and new code
sentences). Among 18 members of the committee which was heavily stacked with law enforcement
personnel, Middle Ground was the only group to propose a review that would have included those
convicted of all crimes, including murder, and those sentenced pursuant to plea agreements.
During the 1990 legislative session, in which DOC advocated
for massive increases in construction budgets for new
beds, Middle Ground presented a major report, entitled
Prison Overcrowding: Manufactured Crisis?,
which exposed many of the DOC's self-generated and highly
questionable policies, practices and ``facts'' that
were being used to justify the request for thousands
of new beds.
During the 1993 legislative revision to the criminal
code, Middle Ground wrote, published, and distributed
to all 90 legislators a major report entitled, ``Reclaiming
The Vision'', which proposed innovative solutions
to the problem of crime reduction/control in Arizona.
Spearheaded a call for an investigation by the State Board of Medical Examiners (and for the
Director's resignation) with respect to the medical treatment afforded to prisoners throughout the
entire prison system. In addition, Middle Ground has been instrumental in obtaining needed medical
care for numerous individual prisoners across a period of many years. Further, Middle Ground
challenged the DOC's position of segregating prisoners who were HIV-Positive or who had full-blown
cases of AIDS. These prisoners were totally segregated, denied all programs, and essentially left to
rot until they died or were released. As a result of our advocacy, HIV-positive prisoners were
mainstreamed into general population, permitted to attend programs, and allowed to hold jobs within
the prison system.
When executions resumed in Arizona in 1992 (after an almost
30-year suspension), Middle Ground was the only organization for
the first several executions that advocated for abolishment of the death penalty and conducted
candlelight vigils at the prison. Additionally, Donna Hamm attended the gas chamber execution of Don Harding (at his request), and
wrote an extensive account of her experience that she provided to attorneys in subsequent death
penalty cases in California. She provided grief support to many other family members of those executed,
and again at the prisoner's request attended the lethal injection execution of Patrick Poland.
Donna Hamm has testified as a
mitigation witness at the sentencing phase of several murder trials, each of which resulted in the
defendant being sentenced to life in prison rather than to death.
Middle Ground has always taken a non-denominational position regarding the First Amendment Rights of
ALL persons of ANY faith. We have advocated for Native Americans, Jewish, Buddhist, Muslim,
Christian and all other faiths for such things as the right to read materials not posing a security
risk, the right to sweat at their lodges, to obtain religious symbols, to receive religious diets,
and to attend meetings and prayer groups.
Middle Ground is the only organization in the state of Arizona which demonstrated against the
exploitation of prisoners for political gain on chain gangs for males and females at both the state
prison and the county jails. In fact, Judge Hamm was illegally arrested when she advocated outside
the Tucson Prison Complex, She
was held in handcuffs in the back seat of a patrol car while police unsuccessfully searched for some
type of statute with which she could be charged. She was released without any charges being filed.
Middle Ground continues to protest chain gangs whenever we encounter them near the prisons.
In 1990, after 17 years of smooth operation, the DOC Director attempted to eliminate the Christmas
food package provision of the Hook Consent Decree (which permitted three 25-lb. packages of food to
be mailed or delivered to each prisoner at Christmas time). Middle Ground immediately rallied to
involve the lawyers who handled the original case that produced the Hook Consent Decree, and Middle
Ground assisted for seven years in holding off the elimination of this provision. Because food
packages are not a constitutional right, the Federal District Court ultimately ruled that the DOC
did not have to allow them. Without Middle Ground's intervention, the food packages would have been
eliminated in 1990.
Middle Ground strongly opposed the DOC's plan to eliminate the law libraries in all prisons except
Central Unit, where Gluth controls court access. When the libraries were eliminated as a result of
the DOC's interpretation of Lewis v. Casey ( Plaintiffs were
represented by the ACLU), we analyzed the proposed policy (now DO
902) and forwarded our concerns to Hon. Roger Strand of the District Court. One year after
implementation of DO 902, Middle Ground performed an investigation of the paralegal system that the
DOC substituted at the prisons and we exposed the fraudulent contact entered into between DOC and
paralegals who had falsified their credentials. DOC failed to check the credentials of these
paralegals prior to hiring them to provide potentially incorrect or misleading information to
thousands of Arizona's prisoners.
Middle Ground became aware of a discriminatory practice outlined in the visitation policy of the DOC
which prohibited hand holding between same-gender persons. When contacted by the Arizona Republic,
Middle Ground crystallized the DOC policy by stating in a published article, ``Director Stewart's
homophobic slip is showing.'' In addition, many times since 1983, Middle ground has confidentially
secured the safety and protection of gay and lesbian inmates throughout the prison system. Middle Ground is a member of national human rights organizations which
support the rights and protections of gay persons in all walks of life.
In order to advance the First Amendment Rights of prisoners, Middle Ground steadfastly has advocated
for prisoners' right to receive adult reading material, taking a reasonable position that female
correctional officers should not be subjected to an unnecessarily hostile work environment from open
displays of adult pictorial subject matter. We assisted attorneys advocating for prisoners at the
Maricopa County jail, through media presentations of their case and legal research on the issues.
The case ultimately was decided in favor of the Sheriff at the U.S. Supreme Court. We strongly feel that the case was not adequately argued on the issue of
``least restrictive'' sanctions, as the matter of a hostile work environment could easily be dealt
with if prisoners were permitted to receive adult reading material, but not permitted to display it
in their cells. Additionally, sanctions imposed against an occasional prisoner who
showed his reading materials to a female officer would readily resolve
the problem of a ``hostile'' environment for that particular incident. Adult reading materials, with
some limitations, are permitted within the state prison system, but not in the Maricopa County
Over the years, James and Donna Hamm of Middle Ground
have assisted many
families in articulating the merits of individual cases
where protective segregation clearly and unmistakably
was required. Middle Ground began receiving frightening
testimonies from prisoners who had heard rumors that
the DOC was preparing to dramatically reduce the number
of prisoners classified to protective custody. After
receiving literally dozens of complaints, we packaged
and forwarded them to the FBI and the U.S. Attorney's
Office, requesting an investigation. At the same time,
we assisted inmates in filing for protective orders
in Federal District Court. The court subsequently appointed
several attorneys to litigate the case, headed by the
law firm of Osborn-Maledon. Over the course of the initial
litigation, James Hamm analyzed DOC personnel depositions,
complied synopses of AIMS Reports, and testified as
expert witnesses at the trial. Donna Hamn also
testified as a fact witness regarding the ease of obtaining
protective segregation public records information at
the DOC public records room. The Court ultimately
ruled in favor of the Plaintiffs, dramatically altering
the DOC's policies regarding protective custody prisoners.
Sadly, the DOC was highly motivated by the tragic murder
of Steve Benitez, which occurred because of the gross
negligence of classification staff.
Female prisoners are particularly vulnerable to male
prison staff, who sometimes view sexual relationships
with female prisoners as a ``perk'' of the job. Middle
Ground became aware of gross misconduct by male prison
staff (both uniformed and contract employees) with female
prisoners, and we contacted the media. After subsequent
media focus, many additional complaints came to our
attention. Utilizing the protections embodied in The
Civil Rights of Institutionalized Persons Act, we contacted
local private attorneys and the U.S. Department of Justice
and participated in initial meetings to discuss strategies
for an investigation into the DOC with respect to the
sexual harassment / sexual abuse of female inmates.
Although the DOC adamantly denied wrongdoing, they agreed
to implement significantly improved training for staff,
new screening procedures for employee hiring, and more
open procedures for reporting of incidents. However,
they refused to permit U.S. DOJ officials to speak with
female inmates. At Middle Ground's urging, the DOJ filed
a civil lawsuit, which was settled out of court in favor
of the Plaintiffs. We monitored the settlement provisions,
which are now completed and continue to treat each individual
issue with the serious attention it deserves.
Middle Ground was instrumental in filing litigation against Sheriff Joe Arpaio to challenge his use of live streaming video images of inmates in holding cells that were published on the World Wide Web. The lawsuit, Demery v. Arpaio, was ultimately settled in Plaintiff's favor, but not before the Sheriff challenged the rulings all the way to the U.S. Supreme Court. To date, he has not attempted to reinstate the web images of prisoners in holding cells, which included images of female inmates using toilet facilities.
Middle Ground is currently litigating two lawsuit which challenge a 2011 legislative action which imposed a $25 visitor background check fee and a 1% fee on all deposits made to prisoner spendable accounts. These lawsuits are Hamm v. Ryan and Arner v. Ryan, respectively. The $25 fee is not used to defray the cost of background checks. Instead, the entire fee is used for building renewal and maintenance. The DOC has over 1,500 buildings in its inventory, and visitors use only about 40-50 of those buildings for visitation for a few hours each week. Hamm v. Ryan is on appeal to the Arizona Court of Appeals. The 1% deposit fee is highly unjust because it affects those with higher deposits much more than those with smaller ones. None of the deposit fees are used to defray the cost of banking. Instead, 100% of the deposit fees are allocated to building maintenance and renewal. Prisoners who don't receive deposits are not charged the fee, even though they use the prison buildings. Both of these "fees" are actually illegal special taxes and are being challenged in the courts.
Middle Ground is working hard in 2012 to defeat an extremely onerous bill -- HB 2373 -- which, if passed into law, would eliminate 25 to Life as a sentencing option for first-degree murder for defendants over age 18 at time of offense. The criminal defense bar is -- astonishingly -- in support of this bill because they believe that fewer defendants will be sentenced to death if juries know that the only other sentence available is Natural Life in prison. However, the vast majority of first-degree murder cases are not "death qualified" cases, which means the only available sentencing option will be Natural Life. If passed, we believe the bill will results in hundreds of thousands of dollars in additional costs to the state for trials because defendants will have absolutely no incentive to accept a plea when the only sentence possible is Natural Life. Our work has been to tirelessly contact legislators and others to attempt to defeat this onerous piece of legislation.
of Middle Ground's mandate is public education about
the need for massive reform in the prison system. Throughout
the 29 years since Middle Ground's formation, we have
participated or cooperated in literally hundreds of
media stories, news conferences, training seminars,
presentations to college and university classes, national
prisoner rights conferences, and other forums to educate
the general public.
noted above, this is only a fraction of our activities
on behalf of prisoners and their families. We don't
have anywhere near enough space to mention more than
a small amount. We are the only organization in Arizona
with the sole purpose of advocating for the rights of
prisoners and their families, combined with the expertise
and knowledge for producing well-reasoned information
and opinions regarding prison reform issues.