Well...I got screwed. That shouldn't come as a surprise to me by now, but it amazes me just how inventive they can be when it comes to screwing inmates.
I was summoned back to the disciplinary office on the morning of January 9th; that was the first surprise because I was not on The List for such an event. In fact, I didn't know about it until the education officer caught me on my way into work and told me to go over there. So, I go, sans all of my materials, to discover the second surprise: instead of Lieutenant Filson awaiting me, it was Sergeant Torsky. I had already heard that this guy was a nightmare but there is nothing like having first-hand experience.
I began to guess that I was going to get the shaft when he asked about my witnesses, following my informal explanation of what transpired to precipitate the disciplinary action. Torsky refused to let me call my father as a witness despite the fact of him being the alleged victim of my misconduct. When I tried to call my next witness, Correctional Officer Williams, an female officer who was assigned to the visiting room on the date of my alleged misconduct, Torsky made a brief telephone call to the administration building and told me that she was not at work and not available as a witness. I tried to call my third witness, Correctional Officer Jeff Guerrero, who was assigned to the visiting room on the date when I was allegedly previously warned about my behavior by Correctional Officer J. Volden, but Torsky didn't even bother to pick up the receiver a second time; instead he told me to go wait outside.
When I was called back into the disciplinary office, it got worse. Torsky pretended that I was done calling my witnesses, promptly found me guilty of both general violations with which I had been charged and then sanctioned me to a loss of visitation privileges for a whopping 180 days! Perhaps the worst part of the whole ordeal was what Torsky put on the paperwork; he stated that when asked if I wanted to call a witness, I declined!
I've appealed, of course, via the administrative grievance process but I have no faith in the system. As some of my previous articles have indicated, the powers that be routinely fail to follow the regulations which they themselves write. I truly cannot understand why that is. Why bother to write regulations which are not enforced when correctional staff violate them. Why not just write regulations which strictly affect and govern inmates? And, it could be argued that AR 707 is the worst offender.
AR 707 is divided into two parts; the regulation itself and the Inmate Disciplinary Manual (IDM). The regulation prescribes department policy, the various violations and their categories and classes and what to do if an inmate is transferred to another facility while a disciplinary action is pending. The IDM is all about the process, up to and including appeals. As you will see, AR 707 and its IDM gut every procedural safeguard to ensure a fair process and give correctional staff huge loopholes to legitimatize their misconduct.
The IDM states that when a correctional employee believes that an inmate has violated the inmate disciplinary code, "the employee shall file a Notice of Charges...before the completion of his/her shift" IDM 2(A)(1) (emphasis added) The NOC, also known as Disciplinary Form 1, clearly displays the date on which the charges were written. Volden stated in the Report of Violation section of the NOC that he allegedly witness verbally abuse my father at 2:45pm on December 30, 2011 but the NOC shows that Volden didn't file the notice until December 31st, the following day, well after he completed the shift during which the alleged violation occurred.
The IDM also states that the Report of Violation "shall be a factual and professional description of the violation" and that "opinions and assumptions shall not be included" (IDM 2(A)(2) (emphasis added). Volden stated in the report that he witnessed me "in a loud voice verbally abuse" my dad but did not state what was actually said. Did I cuss at my father" Did I hurl insults at him or call him derogatory terms or names? What constitutes verbal abuse to the mind of Volden? These are the kinds of questions that the aforementioned provision of the IDM is designed to prevent. As it turned out, Torsky mentioned during my disciplinary hearing that the so-called "verbal abuse" was me telling my father, loudly and with repetition, (because he is 88 years of age and quite hard of hearing), that some of his choices and decision were indirect contributions to the events which led to my incarceration. Does that sound abusive to you? It certainly doesn't to me and definitely arouses Free Speech concerns; am I not allowed to disagree with my father in an institutional setting for fear of getting disciplined?
The IDM goes on to state that the Report of Violation "shall contain specific details of the violation, including...the facts surrounding the violation, in chronological order and the names of witnesses to the violation, if any" among other things. IDM 2(A)(3) (emphasis added) As was previously discussed, Volden provided very little if anything in the way of facts but he also neglected to list any witnesses to the report of violation and there apparently were some because Torsky told me so at my disciplinary hearing, although he neglected to provide their names so that they could be examined. Of course, this was news to me because other than Volden or Williams, I saw maybe one other correctional officer in the visiting room at the same time as those two throughout the entire visit. But even so, Volden was obligated to that put that information in his report.
As to the disciplinary hearing process itself, the IDM states that if an "inmate pleads 'not guilty' [the inmate] shall be given a qualified opportunity to call witnesses" on behalf of the inmate IDM 2(B)(3)(e)(7) (emphasis added) I did in fact plead not guilty, so Torsky was obligated to let me call my witnesses. You already read what happened with that. Now, that isn't to say that my opportunity to call witnesses is absolute. Torsky was permitted to deny witnesses if he felt "that the testimony would be irrelevant, redundant, hazardous to the security of the institution/facility, or would in any way endanger the safety of any individual, including the witness" IDM 2(B)(3)(e)(7)(a). However the catch to that is that Torsky is required to document each such denial. Id. Torsky alternatively could have "stipulated as to the proffered testimony of any proposed witness of the inmate." IDM 2 (B)(3)(e)(7)(b) As you've read, Torsky didn't do any of that, going so far as to conceal his malfeasance by stating on Disciplinary Form III that I declined to call any witnesses.
A reasonable person would probably surmise that the use of mandatory language, such as the emphasized words in the quotations from the IDM, would indemnify an inmate against a disciplinary action when, as in my situation, those provisions are not followed. Sadly, that is not the case. To ensure that inmates cannot use the procedure to their benefit, the regulation has what I call "The Great Escape Clause": Reliance on any published standard, the use of mandatory language, if such exists, or the ...procedures related to the conduct of the disciplinary process, including but not limited to timeframes, witnesses, appeals is solely for the purpose of providing guidance for employees and shall not be considered representative of the manner in which the Department has chosen to exercise its discretion in such matter. A. The failure of the Department to follow any procedure shall not result in any mandatory outcome, e.g. dismissal of charges but shall be one of many factors to be considered in exercising discretion as to the outcome of any violation. AR 707.01(10) (emphasis added)
Essentially this provision guts every procedure and requirement set forth in the IDM and, at its root, grants correctional staff the power to do whatever they want as regards the disciplinary process. Why bother to use mandatory language, then, if the procedures and requirements are not mandatory?
It is even more shocking when one considers the meager evidentary standard necessary to find an inmate guilty of a disciplinary charge. "A finding of guilt must be based on some evidence, regardless of the amount." IDM 2(B)(3)(e)(11)(a). As Filson told me, which I believe was mentioned in my last article, what that really means is that if anybody, particularly a correctional employee, says that I did something to violate the disciplinary code, whether that statement is truthful or not, then I can be found guilty of that violation. Wouldn't it make sense and be prudent, then, to have mandatory procedural safeguards to offset such a low evidentary standard? clearly not to the powers that be, which leads me to believe that their aims are strictly oppression and punishment and that they desire to strip an inmate of everything they can get away with on a whim and a moment's notice.
As you can see form the foregoing excerpts from AR 707 and its IDM and from my present situation, if a correctional employee takes a dislike to an inmate for whatever reason, such as the case between Volden and I, the inmate is screwed. Oh, yes, an inmate has resources. They can appeal the outcome of the disciplinary process via the administrative grievance process but let's face it, how many wardens are going to overturn the decision of one of their upper-echelon employees - disciplinary hearings must be conducted by correctional officers holding a rank of Sergeant or higher- in favor of some inmate? And when the appeal fails, the only avenue remaining to an inmate is litigation and by the time that's done, whatever discipline to which the inmate was sanctioned has long been served and discharged, so what good does that do even in the unlikely scenario of the inmate prevailing in court? That is why I have no faith in the system.
How do I fight this? I truly am at a loss. Unless the warden overturns or reduces the sanction, I can't have visitors until July, and I'm pretty much resigned to that fact. What's worse is that every disciplinary charge which sticks goes on my prison record and that has a major impact on hearings before the parole board and on applications to the pardons board. Since the end of June 2011, I have been found guilty of three general violations and two minor violations, whereas prior to June 2011, I had been disciplinary free since October 2004. This is a disturbing trend which has a definite impact upon everything that I am trying to do to shorten my incarceration and get out of prison at the earliest possible time. I wish that I could say that it was entirely my fault but that would be just a lie. No, I have been victimized by two separate officers now, Sean Lagier at NSP and Volden here- and I'm starting to get scared, of the cops and of being forced to serve another 18 years before I can go home.
Perhaps the easiest solution would be to just lie down and take whatever they dish out. I sometimes wish that it was in me to do so. But, the truth is, that it's not. I was bullied throughout my middle school years and I recognize now that it had a profound impact on me. I can't abide it. I can't tolerate it. With perhaps a single exception, every single facet of my criminal history can be traced to incidents where I perceived that I was being bullied and/or assaulted. When I'm bullied, I fight back and I can't seem to not do that. And that's exactly what Lagier, Volden and Correctional officers J. Hill and Mendez have done-bullied me. They are bullies. And they have badges. And I'm getting scared of where that could lead.
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