New England Journal on Criminal and Civil Confinement
Winter, 1998

*37 THE GANG CRACKDOWN IN “MASSACHUSETTS” PRISONS: ARBITRARY AND HARSH TREATMENT CAN ONLY MAKE MATTERS WORSE

Phillip Kassel [FNa1]

Copyright (c) 1998 by the New England Journal on Criminal and Civil Confinement; Phillip Kassel

        Under Massachusetts Department of Correction policy, prisoners thought to be associated with gangs are maintained in indefinite solitary confinement and are forbidden from minimum security and prerelease facilities. Approximately ninety percent of prisoners held in segregation are Latinos. If the literature and research about gangs and the efficacy of law enforcement and correctional responses are any guide, this policy is motivated by an inaccurate perception of the nature of gangs and will result in enhancement of gang cohesiveness and the allegiance of individual members to the group. Difficulties inherent in identifying gang members, arbitrary criteria, inadequate staff training, and the lack of procedural safeguards virtually ensure that many prisoners will be misidentified as gang members. Increased gang cohesiveness and mistreatment of alleged gang members will ironically result in heightened prison security problems and risks to public safety from released prisoners who were subjected to this policy. Prison security and public safety interests are better served by treating gang members fairly, based on their actual conduct in prison, and by providing education and training programs. Such programs compete with the gangs' promise of relief from prison tedium and offer “identity alternatives” to that of gang member. The gang policy is thus counterproductive*38 and reflects the failure of society to hold prison authorities accountable for the effect of their policies on communities.

I. INTRODUCTION

       Prison gangs present a unique and different problem for correctional administrators. . . . [Their] activities pose a substantial threat to the orderly operations of individual institutions and the total operation of the Department. Operating through force, intimidation, secrecy, extreme loyalty to fellow gang members and dedication to their individual gang by-laws, charters, manifesto's, etc., gangs' potential for destructive activity is well recognized nationwide by corrections officials. [FN1]

       Both the media and law enforcement officials often attribute more coherence and organization to street gangs and prison gangs than really exists. [FN2]

       In April 1995, citing the security threat posed by incarcerated street gang members, former Massachusetts Department of Correction (DOC) Commissioner Larry E. DuBois ordered the transfer of approximately 135 [FN3] prisoners so identified to Massachusetts Correctional Institution - Cedar Junction (MCI-CJ), [FN4] the state's maximum security prison. DuBois *39 announced that certain members of gangs, referred to as “security threat groups,” (STGs) [FN5] would thereafter be subject to “restrictive housing” at MCI-CJ and prohibited from transferring to an institution less restrictive than medium security. [FN6]

       Approximately ninety percent of the prisoners confined to MCI-CJ housing units reserved for alleged gang members are Latinos. [FN7] These prisoners are locked in their cells virtually all of the time and otherwise maintained in extremely harsh conditions. [FN8] They may reasonably have anticipated that during the period of their incarceration they would move from medium to minimum security and then pre-release facilities prior to consideration of parole and their ultimate discharge. [FN9]

       The legality of the DOC gang policy is more than open to question, [FN10] but this article will focus on public policy considerations. A description*40 of the policy and how it is applied will be followed by an analysis of its likely ramifications in light of research on gang structure and behavior.

       The conclusion set forth is that the DOC gang policy is not merely unfair, or even cruel, it is counterproductive. Labeling and mistreatment actually encourages prisoner self-identification as gang members. Practices which reinforce gang member commitment to the group enhance gang cohesiveness and criminal capacity, undermining both prison security and public safety. Fair disciplinary policies that focus on prisoner conduct, staff training, and educational opportunities which offer an alternative identity to that of gang member, are more effective strategies for preventing prison disturbances and promoting safer communities.

II. THE GANG POLICY IN OPERATION [FN11]

       The ostensible purpose of the DOC gang policy is to avoid prison disturbances fomented by gangs. [FN12] Despite this, no coherent statement of how the gang policy is designed to accomplish this end exists. It is nonetheless clear that the policy has the effect of incapacitating significant numbers of prisoners maintained in segregation. Further, the policy justifies the secure confinement of nearly 2000 prisoners considered to have gang ties. [FN13] Presumably, DOC officials believe that limiting *41 prisoners' access to general population and minimum security settings, in combination with gang de-programming efforts described below, will dampen gang influence in DOC prisons.

       Incapacitation in the MCI-CJ gang blocks is reserved, according to DOC policy, for gang “leaders” or participants in STG incidents. [FN14] The DOC has not defined these terms. The DOC staff person who supervises the gang cell blocks said that “maybe twenty-five” of the 152 prisoners then confined could be considered leaders. [FN15] Further, there are no formal criteria distinguishing “security threat group incidents” from routine prison occurrences. [FN16] Essentially, the gang unit manager stated that gang-related incidents are those which involve perceived gang members. [FN17]

       Alleged gang members are locked up with alleged cronies. Separate cell blocks are largely devoted to each of the three Latino gangs primarily targeted by the policy--La Familia, the Latin Kings, and ÑETA. [FN18]

       Conditions of confinement in the gang units are severe. [FN19] Prisoners are released from their cell merely one hour per day during four days *42 of every five day cycle. [FN20] On the fifth day they do not leave their cells at all. [FN21] Out-of-cell activities--showers, personal and legal telephone calls, medical care, and two brief non-contact visitation periods per week--are invariably scheduled during prisoners' one hour release time. Library access, institutional canteen purchases, and outside property receipts are extremely restricted. [FN22] Education, treatment and work opportunities are virtually non-existent. [FN23] Prisoners state that they are frequently physically abused and subjected to racial slurs and insipid ethnic barbs.

       Many prisoners have remained in the gang blocks at MCI-CJ since the DOC gang policy was initiated in Spring 1995. [FN24] The average incarceration in these blocks is nearly one year. [FN25] A significant number of prisoners report that confinement in the gang blocks brought on mental health problems for the first time, or exacerbated existing conditions. Prisoners often complain about insomnia, depression, nightmares, violent mood swings, anxiety attacks, claustrophobia, paranoia, hallucinations, and generalized feelings of nervousness, irritability and anger. One prisoner stated that, “ s hortly after being housed in lockdown conditions I began hearing imaginary voices. I also now suffer from hallucinations.” [FN26] Such reports are consistent with clinical studies attributing severe psychiatric consequences to prolonged solitary confinement. [FN27]

        *43 The DOC has “certified” twenty-three alleged prison gangs as STGs. [FN28] Prisoners are labelled gang-affiliated by prison intelligence officers who employ a worksheet which lists seventeen criteria for determining gang involvement, each of which is assigned a point value. [FN29] Prisoners may be labeled as “suspect/associates” or “members.” [FN30]

       A qualifying score is not difficult to achieve: prisoners bearing tattoos thought to signify gang membership and who socialize with “confirmed” members may be regarded as members themselves. [FN31] Prisoners identified by outside law enforcement, who have contact with friends or relatives of alleged gang members, or pictured in “Group Related Photos,” also score points. [FN32] Misconduct is not a prerequisite to being labeled as a gang member.

       Completed worksheets are forwarded to a DOC central office staff person who reviews the worksheet, confirms that relevant documentation is attached, and “validates” the identification. [FN33] Those who wish to contest membership determinations may request an informal interview with the DOC central office. [FN34] Prisoners receive no notice of the evidence against them prior to the interview and have no right of representation. [FN35] Of 110 prisoners who requested interviews prior to February 1997, 105 were thereafter confirmed as gang members. [FN36]

       Prisoners are also given an opportunity to sign a form “renouncing” their gang membership. [FN37] As of February 1997, 239 of 681 prisoners *44 identified as gang members indicated a willingness to renounce. [FN38] The DOC does not automatically accept renunciations. [FN39] The policy calls for prisoners to be monitored for a period of time, depending upon the length of their sentence. Only seventeen renunciations were accepted by February 1997. [FN40] Prisoners whose renunciations are “verified,” but are later “observed associating with any STG members or involved in any STG activities . . . , ” are thereafter considered STG members for the duration of their incarceration and irrevocably subject to gang policy deprivations. [FN41]

       It should not be surprising that many prisoners identified as gang members and confined to MCI-CJ or other segregation blocks are profoundly embittered. [FN42] Many report that they were not informed as to why the DOC considered them gang members, or were told simply that they were labeled by confidential informants or observed “associating” with “known gang members” by assisting with language translation or litigation. Some prisoners claim they were informed that a tattoo or possession of some insignia, such as a Black Panther Party poster, was the basis for their identification. Some state that their transfer to MCI-CJ was precipitated by misconduct, such as fighting, but deny that the incident was gang-related. [FN43]

       Certain prisoners' claims of unfair labeling are supported by the official DOC record. [FN44] David St. Onge, a white prisoner from Springfield,*45 Massachusetts, who speaks Spanish and has Latino friends, attributes his confinement at MCI-CJ to the fact that he engaged in what the prison staff considered a “ritual handshake.” [FN45] His prison file indicates he was cited for a disciplinary infraction for this reason, and was punished with a suspended sentence of two weeks loss of canteen privileges. [FN46] St. Onge claims that he was never apprised of any other “evidence” supporting the DOC claim that he was a “leader” of the group La Familia. [FN47] His formal record discloses no basis for this conclusion. Such a story is typical. [FN48]

       There are only two routes out of the MCI-CJ gang blocks. A prisoner may choose to participate in anti-gang programming provided to a limited number of prisoners at MCI-CJ. [FN49] According to the DOC's description, this program “ t argets those beliefs (cognitions) that support criminal behavior . . .” and seeks to shift the thinking that supports these beliefs. [FN50] Prisoners who complete this program are transferred to Old Colony Correctional Center, the second most secure DOC prison, for an additional fifteen week course which “employs the same theoretical basis as the Criminal Sentiments program, reinforcing the skills initially obtained along with emphasis on anger management and relapse *46 prevention.” [FN51] In order to graduate from the Old Colony program, prisoners must renounce gang membership. [FN52] Many prisoners have refused to participate because they are unwilling to commit themselves to a course of treatment which ultimately requires that they renounce an affiliation they claim does not exist.

       The other way to get out of the MCI-CJ gang blocks is to complete a prison sentence and be discharged from custody. [FN53] Of the 194 prisoners released from restrictive confinement at MCI-CJ directly to the streets between April 1995 and January 1997, at least forty-eight were alleged gang members. [FN54]

III. POLICY IMPLICATIONS

       According to surveys of prison officials, the above described approach to prison gang management is commonplace. [FN55] “Special” housing*47 for gang members under lockdown conditions is in widespread use nationwide. [FN56] There has, however, “been absolutely no evaluation research whatsoever reported on the efficacy of any of these techniques or strategies” typically used by correctional administrators for dealing with prison gangs. [FN57] In the absence of valid studies of effectiveness, there seems to be no choice but to construct policy on the basis of what is known about gang structure, behavior, and the apparent impact of intervention strategies in use by law enforcement and correctional authorities.

       Gang researchers and commentators seem to agree that, “[t]he formulation of effective policy responses to gangs depends upon a reliable and valid foundation of knowledge of the 'gang problem'.” [FN58] Thoughtful and deliberate policy making in this area, however, is not typical. “Traditional strategies and techniques for dealing with prison gangs appear to represent a 'shoot from the hip' approach to ad hoc correctional management and decision making . . . .” [FN59] Such strategies are often counterproductive. [FN60]

       According to gang literature, three related tendencies embedded in law enforcement and correctional approaches to gang intervention contribute to counterproductive results. These are: (1) policies that proceed from an inaccurate view of what gangs are; (2) intervention strategies that enhance gang cohesiveness; and (3) misidentification of gang members. A fourth related factor, racial and cultural stereotyping, affects disciplinary and classification policies generally. There are abundant reasons to believe that these phenomena characterize the DOC gang policy and will produce unfortunate results both inside and outside of prison.

A. Gang Mythology

       “[W]ithout a precise and parsimonious understanding of what constitutes a gang and gang behavior, it is often difficult to separate fact from mythology.” [FN61] The statement of Commissioner DuBois quoted at *48 the outset of this article evokes imagery of tightly knit, clandestine organizations. “Soldiers” move quickly to effect leaders' plans to disrupt prison security. If the literature is any guide, it is more than likely that this imagery lacks foundation.

       According to leading gang researcher Malcolm W. Klein, law enforcement claims regarding gangs are typically overblown, projecting a “conspiracy-oriented mentality” which is “well beyond the capacity” of the gangs to which they refer. [FN62] Meritless assertions are often parroted uncritically by the press and even by gang researchers. [FN63] Exaggerated accounts of street gang control of drug trafficking, for example, have failed to withstand close scrutiny. [FN64]

       Prison authorities are not immune from this tendency. Commissioner DuBois, in the sworn affidavit quoted at the outset of this article, labeled three prison disturbances as “gang-related” in the absence of any definition of this term or any apparent evidence. [FN65] The Boston Globe reported, evidently in reliance on DOC sources, that 1500 “members” of 120 prison gangs were identified. [FN66] In formal responses to litigation discovery requests in Haverty v. DuBois, [FN67] however, the DOC stated that it notified or validated only 681 members of twenty-three “certified” gangs. [FN68]

        *49 The weight of literature on gang structure indicates that gangs do not meet the image of rigidly organized and hierarchal groups that Commissioner DuBois describes. [FN69] While there may be local variation, [FN70] in general:

        [T]here tends to be a rather low focus on group goals as such. Gangs are not committees, ball teams, task forces, production teams, or research teams. The members are drawn to one another to fulfill individual needs, many shared and some conflicting; they do not gather to achieve a common, agreed upon end. Thus, gang cohesiveness is rather tentative. [FN71]
        *50 Individual gang member commitment to the group varies significantly between “core” and “fringe” members, constituting “a rather amorphous collection of sub-groups, cliques, pairs, and loners.” [FN72] The National Institute for Corrections states that seventy-five to eighty-five percent of the total membership of a prison gang may be composed of “marginal members,” and that “a gang may not be as closely controlled by its leadership or as cohesive as it seems.” [FN73] “It is an almost impossible task ... to determine who the 'gang leaders' are, because leadership tends to be diffused over a number of members, even within each age level.” [FN74] Prison administrators, asked to respond frankly to a survey, described prison gangs as more disorganized than organized. [FN75]

       It appears unlikely that the street gangs which are now in DOC prisons, merely by virtue of their incarceration, have become more cohesive. Imprisoned street gang members are drawn from communities throughout the state of Massachusetts and confined in any of ten maximum or medium security institutions. [FN76] The DOC has almost complete authority to classify prisoners to these institutions in order to avoid concentrations of fellow street gang members. [FN77] Further, even when placed in the same prison, gang members may have little contact with each other due to internal housing assignments and institutional restrictions on prisoner movement. [FN78] The natural effect of incarceration, therefore, is to weaken street ties which were not strong to begin with.

       Gang literature demonstrates that an inaccurate “conspiracy” dominated view of gangs can generate ironic consequences. Exaggerated *51 views of gang cohesiveness and capacity motivate suppression measures which can convert myth into reality.

B. Suppression and Cohesiveness

       Gang cohesiveness typically “derives more from external than from internal sources.” [FN79] Approaching the gang as a cohesive group, when in reality it is not, tends to project on to it a structure that did not formerly exist. [FN80] In other words, gangs do not generally begin as cohesive units, but can be made that way.

       Malcolm Klein details numerous gang suppression programs and seriously questions their utility and effect, [FN81] concluding that most can be shown to cause an increase in gang cohesiveness. [FN82] Heavy-handed anti-gang measures solidify targeted individuals' self-identification as gang members. As gang expert C. Ronald Huff has stated, gang suppression:

        often backfires when marginal gang members and “wanna-bes” (those who may be considering gang membership or may just be “groupies” who hang around with the gang) are lumped together with leaders and hard-core followers . . . because these marginal members often react by saying, “Well, the police believe I'm in this gang and treat me as if I am, so I might as well be in it.” [FN83]
       Gangs “staffed” with more highly committed members are obviously more dangerous. Thus, prison authorities' “specific steps to alleviate disruptive group activities [may] only foster these groups, making them more powerful and adding credence to their cause.” [FN84]

       The literature supports what intuition suggests about the effect of the DOC's policy on gang cohesiveness. By imposing harsh, even tortuous, conditions, the DOC only heightens the need for a “sense of belonging,” which is what causes gang members to gravitate toward one another in the first place. [FN85] Prisoners labeled as gang members and locked in cell blocks with alleged peers will thus tend to band together.*52 [FN86] While opportunities for interaction are limited, gang-labeled prisoners commiserate during out-of-cell periods and communicate to some extent between cells while they are locked up. They are forced to rely on each other for human contact and support, since there is no other source. By putting alleged gang members in this position, the DOC encourages the gang identities of marginal, aspiring, and entirely misidentified prisoners alike.

C. Misidentification

       Correct identification of gang members is extremely difficult. In a case challenging the administrative segregation of alleged gang members, [FN87] a federal court monitor reported that:

        [it] is inherently virtually impossible to ascertain or discover [the gang members' identity] with precision. The gang's only tangible existence is in the minds of prisoners and prison officials. It is quite unlikely that any two individuals would independently list the same set of persons as members of the group.“ [FN88]
       The identification problem, as well as the distortion in perception described earlier, [FN89] contribute to a nationwide “misidentification” pattern. [FN90] Law enforcement data is generally mistrusted by gang researchers. [FN91] Different definitions of the term “gang-related” can account for variances of as much as 100% in the labeling of crimes, and thus criminals. [FN92] The increased use of interagency computerized databases for gang identification purposes only compounds the unfairness by broadly disseminating often inaccurate information. [FN93]

        *53 Given these problems, gang and correctional researchers George M. and Camille Graham Camp recommend that gang identification for intelligence gathering purposes be “based on sound demonstrative criteria.” [FN94] Additionally, a number of commentators and correctional authorities have stressed the importance of staff training in the area of gang member identification. [FN95]

       DOC criteria for identification of gang members are not “sound.” Listed indicators may “demonstrate” marginal or past gang affiliation, [FN96] or fail to suggest a reliable basis for the formulation of any conclusion about gang involvement. [FN97] In the insular prison society, some contact with prisoners considered gang members may be impossible to avoid. Further, the DOC places heavy reliance on what may be entirely inaccurate information from law enforcement sources. [FN98] Moreover, DOC staff responsible for initial gang identifications have received no formal training. [FN99]

        *54 Additionally, as noted above, prisoners accused of gang membership have little opportunity to defend themselves. The lack of procedural safeguards, key terms which remain undefined, policy implementation by untrained staff, and murky identification criteria which mostly have nothing to do with actual misconduct, inevitably result in arbitrariness in the designation of gang members and the imposition of punitive consequences.

D. Stereotyping

       It is not surprising that more than ninety percent of those prisoners who have borne the most severe consequence of the DOC's gang policy, solitary confinement, are Latinos, and nearly all are prisoners of color. [FN100] “Racial bias and other manifestations of the abuse of discretionary power are made possible when decision making occurs behind closed doors.” [FN101]

       There is substantial evidence that cultural stereotyping plays a significant role in harsh treatment of prisoners of color. [FN102] According to several studies, labeling of prisoners occurs due to racial bias in the enforcement of disciplinary rules and pervasive cultural stereotypes, which often affect the perceptions of correctional officers. [FN103] Additionally, “racial biases built into the official classification system reinforce the se perceptions . . . leading to additional biases in the way in which rules are enforced.” [FN104] Discriminatory treatment, in turn, effects a selffulfilling*55 prophecy, as prisoners tend to conform their conduct to the negative expectations of prison authorities. [FN105]

       Even assuming there is some basis for targeting Latin American street gangs, it seems likely that cultural stereotyping, unchecked by procedural safeguards, contributes significantly to the disproportionate targeting of Latinos. This tendency is most likely exacerbated by many Latinos' need or ability to communicate in a language understood by few correctional officers, [FN106] engendering what may be wholly unwarranted suspicion.

       Latinos, as members of the ethnic group which the DOC apparently considers most disruptive, are, thus, also the prisoners most likely to be misidentified. Unfairness toward them will tend to swell the ranks and enhance the cohesiveness of the gangs the DOC most fears.

IV. PRISON SECURITY AND PUBLIC SAFETY RAMIFICATIONS

       Motivated by an inaccurate perception of gangs and how they operate, the DOC has adopted a suppression policy which will enhance group cohesiveness and the identities of gang-affiliated prisoners. The policy will also promote new gang connections for prisoners who, due to the difficulties inherent in gang identification, inadequate procedures, and racial stereotyping, are misidentified.

       The DOC policy raises obvious moral and ethical questions. Our present focus, however, is on whether the gang policy makes sense from a law enforcement and correctional perspective. Even if the DOC is creating or enhancing gang identities, why does it matter? Alleged gang members maintained in solitary confinement, after all, are effectively disabled from committing acts of misconduct when locked in their cells.

       Increased gang cohesiveness in medium security prisons, where most prisoners are not locked up constantly, has serious implications for prison security. The great majority of the population of accused gang members are maintained in these facilities under the threat of transfer to solitary confinement upon the whim of administrators. They are also forbidden from minimum security and pre-release facilities as well as, effectively, parole. [FN107] These prisoners may rally in response to the perceived*56 injustice of their circumstances or to the transfer of fellow Latinos into lockdown conditions. [FN108] To the extent that genuine “leaders” are correctly identified and transferred, other prisoners will move to the fore. [FN109]

       The psychology of gangs is “oppositional.” [FN110] A gang members' sense of worth and group status is tied to repudiation of authority. Prisoners labeled as gang members and denied access to minimum security institutions, thus, may not be deterred by the threat of transfer to restrictive confinement from gang involvement and the concerted behavior the DOC so fears. “The operation of deterrence is greatly complicated when group pressures may not only inhibit the expression of the fear of sanctions but also in some instances convert stigmata into status symbols.” [FN111] Further, since only seventeen gang renunciations have been accepted, [FN112] and these prisoners can be restored to the gang rolls at any time, gang-affiliated prisoners in medium security have little positive incentive to refrain from gang involvement.

       Aside from prison concerns, the impact of reliance on long-term solitary confinement will be felt most profoundly on the streets and communities to which prisoners return. By February 1997, the DOC discharged 194 prisoners, many of them alleged gang members, directly from MCI-CJ segregation blocks to the streets. [FN113] In general, ninety-six percent of all prisoners return to society. [FN114] While there are no recidivism studies focusing on gang-affiliated prison releasees, [FN115] there is evidence that gang members may retain their gang identity upon release. [FN116]

        *57 Gang cohesiveness is definitively linked to criminality. “Most social science literature indicates that increasing group cohesiveness also increases group morale and productivity. One of the products of gangs is crime.” [FN117] To the extent that prisoners are released with enhanced gang identities from either MCI-CJ or medium security prisons, it is likely that they will commit crimes at higher rates than otherwise, and may even contribute to the “productivity” of the street gangs with which they associate upon their release. Thus, the DOC gang policy not only fails to enhance prison security, it also undermines public safety.

V. ALTERNATIVES

       Whether DOC claims regarding the security threat posed by gangs are credible, [FN118] it is worth considering a more effective approach to defusing gangs and preventing prison disturbances. There are actions the DOC can take that will enhance prison security and public safety.

       First, the DOC must consider its own role in creating the conditions which precipitate prison disturbances. The National Institute for Corrections (NIC), in a publication on management strategies for dealing with gangs and prison disturbances derived from a seminar involving prison administrators and security personnel, stated that ineffective management, inmate inactivity, inadequate inmate services, and facility problems were the primary causes of prison unrest. [FN119] Additionally, official *58 commissions of review that have studied major prison conflagrations have blamed trends in correctional practices chillingly similar to those long underway in Massachusetts. [FN120]

       The DOC is subject to criticism on each of the points listed by the NIC. [FN121] For present purposes, however, it is appropriate to focus on *59 two areas. The DOC interest in prison security and the public interest in safety would be well served if any gang problem were addressed by: (1) encouraging fair treatment, and (2) introducing meaningful programming options to suspected gang members.

A. Fair Treatment

       It should be clear from the foregoing that the DOC has hardly made the creation of safeguards against unfair treatment a policy priority. Commentators on effective gang measures, however, emphasize that, “policies that specify distinctions between gang and nongang behavior must be fair. They should meet legal requirements for nondiscriminatory and humane treatment of inmates.” [FN122] Implementation of this mandate could mean incorporating three principles.

       First, punish prisoners' conduct, not their status. The Camps, whose work relies entirely upon reporting by correctional authorities, concluded that “criminal behavior” should be the touchstone of anti-gang measures. [FN123] Another correctional expert, Sergeant William Riley, the disruptive groups information analyst at the Washington State Penitentiary in Walla Walla, Washington (home of the first documented prison gang), recommends that no action be taken against a prisoner for gang membership alone. [FN124] Punishing status, particularly since accurate gang *60 identifications are so difficult, can give rise to the justified perception of arbitrariness in prison management, contributing to instability. [FN125]

       Second, comply with existing regulations. As noted above, the DOC has, thus far, successfully eluded compliance with court-mandated regulations requiring that prisoners only be placed in segregation if a hearing tribunal determines that they are “a substantial threat” to institutional security. [FN126] According to the NIC, the cost of retaining complete discretion to treat prisoners brutally is high. [FN127] A genuine commitment to more secure prisons means establishing checks against abuses of authority. “Inmates must have a legitimate grievance mechanism that provides a fair review and redress of their complaints.” [FN128]

       Third, treat alleged gang members with respect. As noted above, segregated prisoners claim to be the persistent targets of racial epithets and abuse. [FN129] Unnecessary humiliation of alleged members is counterproductive. Police departments staffed by officers who consciously attempt to avoid demeaning gang members are more effective. [FN130] As one commentator characterized the advice of experienced police officers, “ y ou cannot be heavy handed, and you must not destroy face, or try to make object lessons of gang members. You must treat them like men.” [FN131]

       The DOC should send a message to staff that racism is unacceptable. Further, “[s]taff need to become knowledgeable of and sensitive to *61 the variety of cultural differences among gang inmates. Recruitment of a racially and ethnically diverse staff is essential.” [FN132]

B. Programming/Identity Alternatives

       Education, training and work opportunities have steadily diminished in DOC prisons in recent years. The DOC reduced programming expenditures between 1990 and 1996 from $585 to $350 per inmate, and spends only 1.2% of its budget on prisoner education. [FN133] Almost half the prisoners in DOC custody are functionally illiterate, [FN134] yet the DOC has “made no noticeable effort to upgrade the accessibility of books and other tools for learning.” [FN135] The decline in prison programming is particularly pronounced at MCI-CJ, where most of the population has no access to education, vocational programs or work opportunities. In a recently completed study which focused on the public safety impact of Massachusetts criminal justice practices, a public policy “think tank” concluded that Massachusetts should restore and expand the prison-based rehabilitation efforts that have established a proven track record of reducing future crime rates. [FN136]

       Rehabilitation efforts also enhance prison security. [FN137] A former California prison official believes that, since gangs provide relief from the boredom which characterizes prison life, effective gang control requires that prisoners be occupied more productively. “ W ithout full and genuine work and activity it is inconceivable that the gangs will attenuate in influence, numbers and violence.” [FN138]

       Further, it appears from the literature that enrolling gang members who typically suffer from a low sense of self esteem [FN139] in education *62 and training programs is a particularly effective means of inspiring fundamental personal transformations while enhancing prison security. “To provide identity alternatives to the gang is to provide an additional source of social control.” [FN140] “ A t the heart of gang affiliation is the deeper cluster of motives and experiences generally spelling out alienation. Alienation, anger and conflict tend to feed and reinforce gang membership.” [FN141] Reducing these feelings is “a logical method of countering” prison gangs. [FN142] Education and training addresses alienation by increasing a prisoner's ability to “control his or her own fate.” [FN143] This reduces prison violence. [FN144]

       The gang deprogramming provided by the DOC to some prisoners, even if greatly expanded in scope, cannot substitute for education and training. Some prisoners may not ultimately be coerced into shedding gang identities. Even those who appear to make progress in unlearning criminal tendencies [FN145] will need further assistance in order to complete any transformation. These prisoners will need an identity with which to replace the self concept tied to gangs and crime. According to the research, such an identity can emerge from meaningful education and training. [FN146] Without an “identity alternative,” behavioral changes accomplished by virtue of increased self-awareness realized by gang deprogramming are likely to be short-lived, particularly when prisoners return to medium security prisons which lack educational or training opportunities or return, unskilled, to the streets.

VI. CONCLUSION

       The analysis set forth in this article does not rely on doubt cast on the Commissioner of Correction's characterization of the operation of gangs in Massachusetts prisons. The greater the security threat posed by these groups, the more important it is that correctional authorities adopt effective approaches to dealing with them. Enhancing gang cohesiveness cannot serve any useful end under any interpretation of the facts.

        *63 Unfortunately, effective approaches to gang control and to the prevention of prison disturbances involve the very policies the DOC has abandoned in favor of more punitive measures. The only purpose clearly served by the gang policy is to justify maintaining nearly 2000 prisoners in secure settings.

       The DOC policy highlights just how badly the agency needs a strong dose of enlightened self interest. As a prison warden with successful experience in dealing with prison gangs concluded, “good security cannot be established without good treatment and good treatment cannot be maintained without good security.” [FN147] Conversely, it is the lesson of history that bad treatment can work out badly. [FN148]

       In law enforcement, the notion that police need to be more responsive to our communities is gaining acceptance. [FN149] Correctional authorities, however, are not typically charged with the duty to consider the ramifications of their decisions beyond prison walls. As long as the general public remains ignorant of its stake in how prisons are run, officials will continue to pursue policies without regard to the public interest.

[FNa1]. The author is a staff attorney with Massachusetts Correctional Legal Services (MCLS) and counsel to prisoners accused of gang membership and placed in solitary confinement in Massachusetts Correctional Institution--Cedar Junction (MCI-CJ) in Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County 1995). He is grateful for the research and technical assistance he received from MCLS' paralegal Rene Villegas, as well as law student interns Astrid afKlinteberg, Melanie Aswell, Sharon Remmer, and particularly Christian Dunham and Cyrelle Nasisi. This paper also benefitted greatly from the editorial advice of Barry Barkow, Iris Gomez, Carolyn Boyes-Watson, Amy Goldstein, Lisa Otero, Jose Queiros, and Jamie Suarez-Potts. Additionally, portions of the discussion at pp. 58-60 regarding programming in Department of Correction prisons were drawn from MASSACHUSETTS CORRECTIONAL LEGAL SERVICES, THE STATE OF CORRECTIONS IN MASSACHUSETTS: A WARNING (1997), and primarily drafted by MCLS Administrative Director Anne Braudy.

[FN1]. Affidavit of Larry E. DuBois, Commissioner, Massachusetts Department of Correction at 2, Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County 1995) [hereinafter Affidavit of DuBois]. This affidavit was submitted in response to prisoners' request for an order ending the lockdown of MCI-CJ that lasted from April through August 1995. Id.

[FN2]. MATTHEW SILBERMAN, A WORLD OF VIOLENCE, CORRECTIONS IN AMERICA 45 (1995).

[FN3]. The number of cells devoted to these prisoners swelled to 180, or four 45-cell blocks, and later returned to the number of initial transferees, 135, or three 45-cell blocks. See Affidavit of DuBois, supra note 1, at 5-6; Deposition of Mark J. Powers at 17, Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County 1995); Defendant Ronald Duval's Supplemental Answers to Plaintiffs' First Set of Interrogatories at 7, Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County 1995); MCI Walpole, Inmate/Block Room Listing (Jan. 23, 1997) (on file with author); Deposition of Christopher Crown at 25, Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County 1995) [Deposition of Crown].

[FN4]. See Memorandum from Larry E. DuBois, Commissioner, Department of Correction, to Inmate Population (Apr. 19, 1995) (on file with author); see also Affidavit of Dubois, supra note 1, at 6. The transfer of these prisoners occurred during a “lockdown” of MCI-CJ which began on April 3, 1995, when, in an incident deemed “gang-related,” a group of prisoners maintained in segregation attacked a prison guard with a sharpened broom handle. Interviews with prisoners, at MCI-CJ (Spring, 1995). brutally) suppressed, prisoners throughout the institution were maintained in virtual around-the-clock cell confinement for approximately four months. See id; see also Affidavit of Dubois, supra note 1, at 5. The lockdown ended only after prisoners filed suit. See Memorandum and Rulings at 1, Haverty v. Dubois, No. 95-3634 (Mass. Super. Ct. Suffolk County 1995).

[FN5]. See Commonwealth of Massachusetts, Department of Correction, Security Threat Group Management Procedural Statement F-1 (n.d.) (on file with author) [hereinafter Security Threat Group Management Procedural Statement]. This term is not entirely co-extensive with “gang.” Certain groups not typically referred to as “gangs” are deemed “security threat groups,” such as white supremacist groups. See id. In general, however, the term STG is euphemistic. Since the DOC policy particularly targets Latinos alleged to be affiliated with well known street gangs, the term “gang” will be used in this article. See infra text accompanying note 18.

[FN6]. See Memorandum from DuBois, supra note 4.

[FN7]. Based on documents obtained in formal discovery in Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County 1995) (on file with author).

[FN8]. See infra text accompanying notes 19-23.

[FN9]. Four such prisoners submitted affidavits in the related case of Gilchrist v. DuBois, No. 93-6300 (Mass. Super. Ct. Suffolk County 1995), claiming that nothing about their conduct in the prison system merited the harsh treatment afforded them at Cedar Junction after their transfer due to alleged gang involvement. See Affidavit of David St. Onge at 1, Affidavit of David Cosme at 1, Affidavit of Jose Abel Lopez at 1, Affidavit of Francis Melendez at 1-2, Gilchrist v. DuBois, No. 93-6300 (Mass. Super. Ct. Suffolk County 1995) (on file with author) [hereinafter Affidavit of St. Onge; Affidavit of Cosme; Affidavit of Lopez; Affidavit of Melendez]; See also infra note 44 and accompanying text.

[FN10]. See Gilchrist v. DuBois, No. 93-6300 (Mass. Super. Ct. Suffolk County Aug. 19, 1996) (Order on Petition for Contempt) (holding that prisoners in the Cedar Junction East Wing, including the gang blocks, were confined in violation of their due process rights under the Massachusetts and federal Constitutions and the Code of Massachusetts Regulations) [hereinafter Order on Petition for Contempt]. Judge Maria I. Lopez relied upon the case of Hoffer v. Fair, No. 85-71 (Mass. Mar. 3, 1988), which held that prisoners maintained in segregation in “Departmental Segregation Units” were entitled to an individualized determination, by an impartial administrative tribunal, that their conduct rendered them a “substantial threat” to institutional security. See id. at 17-19. Judge Lopez further found that prisoners in Cedar Junction's East Wing were held under conditions comparable to “Departmental Segregation Units” and that the DOC could not circumvent the regulations mandated by Hoffer merely by changing segregation unit names and locations. See id. at 19. Latino members of the plaintiff class in Haverty also allege that they are victims of illegal racial discrimination. See Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County 1995). This claim is pending in the trial court. See id.

[FN11]. Descriptions of how the DOC policy works in practice are taken from official documents and sworn testimony elicited during the Haverty litigation, unless otherwise indicated. Except for representations attributed to prisoners, there is no dispute between the parties to the Haverty case about the description of the gang policy set out in this section, including the description of conditions in the STG housing blocks at MCI-CJ.

[FN12]. See Affidavit of DuBois, supra note 1, at 2-3; See also Zachary R. Dowdy, Prisons Target Gang Violence, BOSTON GLOBE, Mar. 20, 1997, at B-1; Security Threat Group Management Procedural Statement, supra note 5, at F-1.

[FN13]. See Gangs & Members Basic List (Jan. 9, 1997), obtained from the DOC in formal discovery in Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County) (on file with author).

[FN14]. See Security Threat Group Management Procedural Statement, supra note 5, at 4.

[FN15]. Deposition of Crown, supra note 3, at 25.

[FN16]. See id. at 21-22.

[FN17]. See id. at 23. There was the following colloquy:
        Q: How would you distinguish a disruptive incident generally from a security threat group disruptive incident?
        A: I think--are you asking if there was a fight involving six inmates at one place and a fight involving six inmates in another and one could be security threat and one not?
        Q: Right.
        A: The one that could is the one involved with inmates that have already been identified as security threat group inmates most likely of the same group.
Id.
[FN18]. ÑETA is translated into English by admitted members as “Association Pro-Rights of the Convicts.” These prisoners adamantly maintain that ÑETA is not a gang, but a prisoner rights organization sanctioned by the Puerto Rican government. While it has not been possible to verify this assertion, it may be that there is some genuine distinction between the respective purposes which street gang members, and at least some prison gang members, have in mind in affiliating with this group. This information is based on extensive correspondence between the author and prisoners alleged to be members of ÑETA.

[FN19]. See Security Threat Group Management Procedural Statement, supra note 5, at 5-6.

[FN20]. See Deposition of Crown, supra note 3, at 31.

[FN21]. See id.

[FN22]. See THE COMMONWEALTH OF MASSACHUSETTS, MCI-CEDAR JUNCTION INMATE ORIENTATION HANDBOOK 34 (1995) [hereinafter HANDBOOK]; see also Deposition of Crown, supra note 3, at 43-44.

[FN23]. See Deposition of Crown, supra note 3, at 41. Only three “runners” are employed in each cell block. See id.

[FN24]. See MCI Walpole, Inmate Block/Room Listing (Jan. 23, 1997) (on file with author).

[FN25]. See id.

[FN26]. Affidavit of Cosme, supra note 9.

[FN27]. See Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 AM. J. PSYCHIATRY 1450 (1983). Dr. Grassian studied prisoners at MCI-CJ in the early 1980s. See id. at 1451. His work confirmed the identification of a “solitary confinement syndrome” in previous extensive research by nineteenth-century German clinicians. See id. at 1453. Grassian reported that the symptoms observed in the subjects of his study diminished rapidly upon the subjects release from solitary confinement. See id. More recently, in testimony on behalf of prisoners challenging conditions at California's prison at Pelican Bay, Grassian stated that solitary confinement “exacerbated . . . previously existing mental condition[s,]” or caused prisoners to develop symptoms of mental illness not previously apparent. See Amended Declaration of Dr. Stuart Grassian at 4, Madrid v. Gomez, No. C-90-3094 (N.D. Cal. 1990) (on file with author); see also Holly J. Burkhalter, Barbarism Behind Bars: Torture in U.S. Prisons, THE NATION, July 3, 1995, at 17.

[FN28]. See Memorandum from Donna M. Driscoll, Captain, Massachusetts Department of Corrections, to Mark W. Reilly, Deputy Chief (Jan. 15, 1997) (on file with author). The DOC has, thus far, refused to divulge the bases for these determinations. Among the 23 gangs is the “Black Panthers,” a group which most would consider of historical significance. See id.

[FN29]. See Security Threat Group Management Procedural Statement, supra note 5, at 2, A-1.

[FN30]. See id.

[FN31]. See id.

[FN32]. See id.

[FN33]. See id. at 2.

[FN34]. See id. at 3.

[FN35]. See Deposition of Mark W. Reilly at 62-66, Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County 1995) [hereinafter Deposition of Reilly]; see also Security Threat Group Management Procedural Statement, supra note 5, at 3-4.

[FN36]. See Defendants' Answers to Plaintiffs' Third Set of Interrogatories at 10, Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County) (on file with author).

[FN37]. See Security Threat Group Management Procedural Statement, supra note 5, at 7.

[FN38]. See Defendants Answers to Plaintiffs' Third Set of Interrogatories, at 10, Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County) (on file with author).

[FN39]. See Security Threat Group Management Procedural Statement, supra note 5, at 8.

[FN40]. See Defendants' Answers to Plaintiffs' Third Set of Interrogatories, at 10, Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County) (on file with author).

[FN41]. See Security Threat Group Management Procedural Statement, supra note 5, at 8.

[FN42]. The description of the prisoners' side of the story is based on an analysis of correspondence received by MCLS since the April 1995 lockdown at MCI-CJ and the initiation of the gang policy.

[FN43]. Broad based verification of prisoner claims, or the claims of the DOC about these prisoners, will not be possible until documentation supporting individual decisions to “certify” particular groups as STGs and to label particular prisoners as gang members is closely analyzed. This has not been possible to date due to the DOC's unwillingness to provide the documentation, despite a court order to the contrary in Haverty v. DuBois, No. 95-3634 (Mass. Supt. Ct. Suffolk County 1995).

[FN44]. Four prisoners filed affidavits in support of plaintiff Lonnie Gilchrist's petition for contempt in Gilchrist v. DuBois, No. 93-6300 (Suffolk Sup. Ct. Nov. 20, 1995). See Affidavit of St. Onge, Affidavit of Cosme, Affidavit of Lopez, and Affidavit of Melendez, supra note 9. Each claimed that he was subject to the same conditions and entitled to the same due process protections as plaintiff Gilchrist. See Order on Petition for Contempt, supra note 10, at 3. The court agreed, stating that the order previously issued on Gilchrist's behalf pertained to all persons similarly situated. See id.

[FN45]. See Affidavit of St. Onge, supra note 9.

[FN46]. See id.

[FN47]. See id.

[FN48]. Francis Melendez was transferred to MCI-CJ and locked in a gang block at MCI-CJ after he was identified as a “leader” of the Latin Kings, based on information received from a “confidential informant.” See Affidavit of Melendez, supra note 9. He testified:
        I am not a leader or even a member of the Latin Kings. The crime for which I am sentenced is not gang related. I have never received a disciplinary ticket for gang related activity. I have never been in a gang. I have friends who are in various gangs, but I made a decision not to join a gang.
See id. Classification reports issued prior to his transfer made no mention of any alleged gang involvement. See id. In fact, a majority of the classification board panel recommended his transfer to minimum security, but the superintendent rejected this recommendation. See id.
[FN49]. See Security Threat Group Management Procedural Statement, supra note 5, at 5. The MCI-CJ program is called the “Criminal Sentiments Program” and can accept a maximum of 18 prisoners. See Deposition of Crown, supra note 3, at 51.

[FN50]. Security Threat Group Management Procedural Statement, supra note 5, at 5.

[FN51]. Id. at 6. The DOC claims to have “graduated” 129 prisoners from their program as of February 1997, though at least five of these were returned to MCI-CJ. This figure is based on lists of graduates and returnees submitted by the DOC in response to formal discovery on February 21, 1997 in the case of Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County 1995) (on file with author). Evaluation of the quality of this programming is beyond the scope of this article. There is nothing in DOC literature about their gang policy, however, which establishes any necessary link between long-term solitary confinement and anti-gang programming. In other words, DOC does not claim that segregation in the MCI-CJ gang blocks is “treatment.” Indeed, if the conclusions expressed in this article are correct, segregation in the MCI-CJ gang blocks creates the need for gang deprogramming in many prisoners.

[FN52]. See Security Threat Group Management Procedural Statement, supra note 5, at 7.

[FN53]. See Deposition of Crown, supra note 3, at 55. According to the testimony of Christopher Crown, it is conceivable that a prisoner could be classified out of MCI-CJ due to a so-called “enemy situation.” See id. Since prisoners are rarely out of their cells, it seems unlikely that any difficulty in protecting a prisoner would necessitate transfer.

[FN54]. This is based on lists of prisoners released from MCI-CJ between April 21, 1995 and January 8, 1997, submitted by the DOC in response to formal discovery on February 4, 1997 in the case of Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County 1995) (on file with author). These prisoners were released from the cell blocks specifically reserved for gang members. Some unknown number of other gang-labelled prisoners may have been maintained in other restrictive blocks in which conditions are marginally less austere.

[FN55]. See AM. CORRECTIONAL ASS'N, GANGS IN CORRECTIONAL FACILITIES: A NATIONAL ASSESSMENT 17-20 (1993) [hereinafter AM. CORRECTIONAL ASS'N ASSESSMENT]; see also NIC INFORMATION CENTER, MANAGEMENT STRATEGIES IN DISTURBANCES AND WITH GANGS/DISRUPTIVE GROUPS 9-12 (1991) (on file with author) [hereinafter NIC Study].

[FN56]. See NIC Study, supra note 55, at 9-10.

[FN57]. GEORGE W. KNOX, AN INTRODUCTION TO GANGS 284 (1993). Work subsequent to this 1993 appraisal has not filled this void. See IRVING A. SPERGEL, THE YOUTH GANG PROBLEM, A COMMUNITY APPROACH 235-43 (1995).

[FN58]. See Scott Decker & Kimberly Kempf-Leonard, Constructing Gangs: The Social Definition of Youth Activities, 5 CRIM. JUST. POL'Y REV. 271 (1991), reprinted in THE MODERN GANG READER 14 (Malcolm W. Klein et al. eds., 1995).

[FN59]. KNOX, supra note 57, at 292.

[FN60]. See id.

[FN61]. Robert J. Bursik, Jr. & Harold G. Grasmick, Defining Gangs and Gang Behavior, in THE MODERN GANG READER, supra note 58, at 8, 9.

[FN62]. See MALCOLM W. KLEIN, THE AMERICAN STREET GANG, ITS NATURE, PREVALENCE AND CONTROL 86 (1995); see also id. at 40-43 and Chapter 4.

[FN63]. See id. at 120-23.

[FN64]. See id. at 86-135. Klein characterizes the alleged gang/crack connection as half “pure hype.” Id. at 40. He also criticizes the logic of some law enforcement authorities in attributing drug traffic to gangs as “quite astounding, twisted, and termed to guarantee by definition an intimate connection between gangs and drug sales.” Id.; see also Cheryl L. Maxson, Research in Brief: Street Gangs and Drug Sales in Two Suburban Cities, in THE MODERN GANG READER, supra note 58, at 228 (disputing claimed connections between gangs and drugs); Patrick J. Meehan & Patrick W. O'Carroll, Gangs, Drugs, and Homicide in Los Angeles, in THE MODERN GANG READER, supra note 58, at 236 (disputing the theory that a substantial proportion of homicides are related to gang involvement in drug dealing).

[FN65]. See Affidavit of DuBois, supra note 1, at 2. The author reviewed a significant volume of disciplinary records, issued as a result of one of these incidents, that make no reference to gang involvement. The DOC has not divulged any evidence of gang involvement in the other two incidents that purportedly played a role in motivating the DOC's gang policy. See supra note 43.

[FN66]. See Dowdy, supra note 12.

[FN67]. No. 95-3634 (Mass. Super. Ct. Suffolk County 1995).

[FN68]. See Defendants Answers to Plaintiffs' Third Set of Interrogatories, Haverty v. DuBois, No. 95-3634 at 10 (Mass. Super. Ct. Suffolk County) (on file with author).

[FN69]. See supra text accompanying note 1.

[FN70]. For example, Texas prison gangs are portrayed as having a high degree of organization and discipline by certain correctional authorities and researchers. See Robert S. Fong et al., Prison Gang Dynamics: A Look Inside the Texas Department of Correction, in CORRECTIONS, DILEMMAS AND DIRECTIONS 57 (Peter J. Benekos & Alida V. Merlo eds., 1992). The credibility of this work is open to question. Certain claims rely entirely on correctional surveys, namely, the assertion that prison gangs “are responsible for 50% or more of all prison violence and problems.” Id. at 71 (citation omitted). Fong fails to even discuss important definitional questions, such as how incidents of prison violence are deemed “gang-related,” and his central thesis--that prison violence and the proliferation of gangs may be attributed to judicial intervention and prison reform--seems fundamentally at odds with the analysis of other correctional authorities. See NIC STUDY, supra note 55, at 15. Furthermore, the description of prison gang rules is undermined by the author's own subsequent research. See Robert S. Fong et al., Blood In, Blood Out: The Rationale Behind Defecting from Prison Gangs, J. GANG RESEARCH, Summer 1995, at 45-51. This subsequent work describes how gang members leave the gang without apparent concern about negative consequences for such reasons as “loss of interest.” Id. at 48.
        Even if the Texas prison gang portrayal is accurate, it may not reveal much about what prison gangs are like in Massachusetts prisons. Texas gangs, according to the authors, are formed “indigenously.” See Salvador Buentello et al., Prison Gang Development: A Theoretical Model, PRISON J., Fall-Winter 1991, at 3, 5. There is no question that the Massachusetts gangs upon which the DOC has focused are street gangs “imported” into Massachusetts prisons. See Dowdy, supra note 12. Further, Texas prison gangs are clearly more entrenched and thus perhaps more cohesive. See GEORGE M. CAMP & CAMILLE GRAHAM CAMP, PRISON GANGS: THEIR EXTENT, NATURE AND IMPACT ON PRISONS 19-20 (1985). Texas reported 322 members of six gangs which began formation in 1975. See id. Massachusetts authorities reported three members of one gang and could not say when that gang began. See id. at 19. “Prison gangs were once considered weak or non-existent in the Massachusetts corrections system.” Dowdy, supra note 12. The present, therefore, is likely a propitious time to consider policies which will not cause gangs in Massachusetts prisons to follow the course of Texas gangs.

[FN71]. KLEIN, supra note 62, at 80-81. But see MARTIN SANCHEZ JANKOWSKI, ISLANDS IN THE STREET: GANGS AND AMERICAN URBAN SOCIETY (1991) (attributing greater cohesiveness to gangs than most researchers). Klein criticizes Jankowski's methodology and conclusions. See KLEIN, supra note 62, at 134-35.

[FN72]. KLEIN, supra note 62, at 61.

[FN73]. NIC STUDY, supra note 55, at 9.

[FN74]. KLEIN, supra note 62, at 62.

[FN75]. See CAMP & CAMP, supra note 70, at viii.

[FN76]. See Memorandum from Larry E. DuBois, Commissioner, Department of Correction, to Superintendents/Unit Directors 1 (Apr. 18, 1995) (stating Correctional Institutions/Security Levels) (on file with author). Compare JAMES B. JACOBS, STATEVILLE (1977). The author states that the great majority of Stateville prisoners are drawn from the streets of Chicago. See id. at 2.

[FN77]. See Hastings v. Commissioner of Correction, 424 Mass. 46, 49-50 (1997). This authority does not extend to placing prisoners in segregation conditions. See Gilchrist v. DuBois, No. 93-6300, 14 n.8 (Mass. Super. Ct. Suffolk County 1995).

[FN78]. The DOC recently imposed a rule at the medium security prison at Gardner requiring that all movements within the prison occur during a limited number of 15 minute periods during the course of the day. Telephone Interview with unnamed prisoner, NCCI Gardner (June 24, 1997).

[FN79]. KLEIN, supra note 62, at 81 (citing Lewis Yablonsky, The Organization and Behavior of Violent Gangs (1960) (paper delivered at the American Academy for the Advancement of Science meetings in New York, Dec. 27, 1960)).

[FN80]. See id.

[FN81]. See id. at 159-86.

[FN82]. See id. at 7.

[FN83]. C. Ronald Huff, Denial, Overreaction, and Misidentification: A Postscript on Public Policy, in GANGS IN AMERICA 310, 313 (C. Ronald Huff ed., 1990).

[FN84]. Steve Daniels, Prison Gangs: Confronting the Threat, CORRECTIONS TODAY, Apr. 1987, at 66, 126.

[FN85]. See KLEIN, supra note 62, at 78.

[FN86]. See, e.g., ENCYCLOPEDIA OF AMERICAN PRISONS 218 (Marilyn D. McShane & Frank P. Williams III eds., 1996). Deprivations make confinement so difficult as to require a group rather than an individual adaptation. See id. at 359-60.

[FN87]. See Toussaint v. Rowland, 711 F. Supp. 536 (N.D. Cal. 1989).

[FN88]. Scott N. Tachiki, Comment, Indeterminate Sentences in Supermax Prisons Based upon Alleged Gang Affiliations: A Re-examination of Procedural Protection and a Proposal for Greater Procedural Requirements, 83 CAL. L. REV. 1115, 1142 (1995) (quoting Third Special Report of the Monitor at 22, Toussaint v. Rowland, 711 F. Supp. 536 (N.D. Cal. 1989).

[FN89]. See Huff, supra note 83, at 312. There is a tendency on the part of officials to “overreact.” See id; see also KLEIN, supra note 62, at 188-191. “The cops' narrow image of gangs is becoming predominant . . . .” Id. at 189.

[FN90]. See Huff, supra note 83, at 313.

[FN91]. See Robert J. Bursik, Jr. & Harold G. Grasmick, The Collection of Data for Gang Research, in THE MODERN GANG READER, supra note 58, at 154.

[FN92]. See Cheryl L. Maxson & Malcolm W. Klein, Street Gang Violence: Twice as Great, or Half as Great?, in THE MODERN GANG READER, supra note 58, at 24, 31.

[FN93]. See KLEIN, supra note 62, at 190-91. Klein proffers a critique of the Gang Reporting, Evaluating and Tracking (GREAT) system. See id. at 190.

[FN94]. Camille Graham Camp & George M. Camp, Management Strategies for Combatting Prison Gang Violence 19 (Sept. 1988) (unpublished case study, on file with author).

[FN95]. See KNOX, supra note 57, at 292; see also Victor E. Casillas, Identifying and Supervising Offenders Affiliated with Community Threat Groups, FED. PROBATION, June 1994, at 11, 18-19; AM. CORRECTIONAL ASS'N ASSESSMENT, supra note 55, at 55.

[FN96]. A tattoo, for example, may indicate only prior involvement or “wanna-be” status.

[FN97]. Criteria such as “Observed Association,” or “Contact with Known Associates,” for example, at most indicate that the prisoner knows a prisoner who may be a gang member or knows “associates” of suspected gang members. See Security Threat Management Procedural Statement, supra note 5, at A-2. Compare the selection criteria utilized by Randall G. Shelden, an Associate Professor in the Department of Criminal Justice at the University of Nevada-Las Vegas, in a study of the behavior of gang members in a prison setting. See Randall G. Shelden, A Comparison of Gang Members and Non-Gang Members in a Prison Setting, PRISON J., Fall-Winter 1991, at 50, 50. Shelden would not consider a prisoner a gang member for purposes of his study unless three or more of the following criteria were satisfied:
        1) in a court case it was proven or admitted by the offender that he was a gang member; 2) gang membership was admitted by the offender and noted in the pre-sentence report; 3) gang membership was confirmed through police reports; 4) the inmate has confirmed gang tattoos; 5) in the prison classification report gang membership was admitted by the offender; 6) an informal confidential file (based in part upon an informal snitch network) of gang members, suspected gang members, associates and “wanna-be's” [sic] is kept.
Id. at 51.
[FN98]. See Security Threat Group Management Procedural Statement, supra note 5, at A-1.

[FN99]. Based on responses to formal discovery in Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County 1995).

[FN100]. See MASSACHUSETTS DEPARTMENT OF CORRECTION, A STATISTICAL DESCRIPTION OF THE SENTENCED POPULATION OF MASSACHUSETTS CORRECTIONAL INSTITUTIONS ON JANUARY 1, 1995 17 (1996). For example, 20.1% of prisoners in DOC custody are considered Hispanic, see id. at 17 tbl.16, and 50.4% are members of minority groups. See id. Discovery responses in the Haverty case reflect that Latinos are disproportionately placed in the gang blocks at MCI-CJ, where they number approximately 90% of the total prisoners confined. Estimates of the percentage of Latinos among all prisoners labelled as gang members--and thus a comparison of Latino prisoners deemed gang-affiliated maintained in segregation relative to all gang-labelled prisoners--are difficult due to the uncertain ethnicity of particular groups alleged to contribute members to the prison population, for example, “Always Packing Boys” and “Dog Pound”. Nevertheless, it appears certain that a substantially higher percentage of Latinos are maintained in the gang blocks at MCI-CJ than gang-labelled prisoners of other ethnicities.

[FN101]. SILBERMAN, supra note 2, at 47.

[FN102]. See id. at 93-95.

[FN103]. See id. at 94.

[FN104]. Id.

[FN105]. See id. at 98.

[FN106]. The DOC has not responded to plaintiffs' request in Haverty v. DuBois, No. 95-3634 (Mass. Super. Ct. Suffolk County 1995), for statistical information on the racial composition of correctional staff. Latino prison guards, however, are rarely noted by visitors and, according to prisoners, are not placed in Latino gang cell blocks.

[FN107]. According to Massachusetts Parole Board data, prisoners are payroled far less often from medium (32%) and maximum (3%) security than from minimum (51%) security or pre-release (67%). See MASSACHUSETTS PAROLE BOARD, 1994 ANNUAL REPORT 17 (1994). Being designated as a gang-member cannot help a prisoners chances of being paroled. See MASS. REGS. CODE tit. 120, § 300.05(1)(i), (2) (1993).

[FN108]. See KNOX, supra note 57, at 285-86.

[FN109]. See AM. CORRECTIONAL ASS'N ASSESSMENT, supra note 55, at 2. “Locking up gang leaders or security threat group members in segregation units creates a void for new leaders to emerge and can lead to continuing disruption within the facility.” Id.

[FN110]. See KLEIN, supra note 62, at 186.

[FN111]. Id. (quoting FRANKLIN E. ZIMRING & GORDON J. HAWKINS, DETERRENCE: THE LEGAL THREAT IN CRIME CONTROL 217 (1973)).

[FN112]. See supra text accompanying note 40.

[FN113]. The number of prisoners who have spent time in solitary confinement and who, prior to release, moved on to engage in DOC gang deprogramming efforts directly from medium security, is unknown.

[FN114]. See KNOX, supra note 57, at 279.

[FN115]. See id.

[FN116]. See, e.g., CAMP & CAMP, supra note 70, at viii, ix; Salvador Buentello et al., Prison Gang Development: A Theoretical Model, PRISON J., Fall-Winter 1991, at 3, 8.

[FN117]. KLEIN, supra note 62, at 7. Klein reports on the link between cohesiveness and criminal activity. See generally id.

[FN118]. See infra note 43.

[FN119]. See NIC STUDY, supra note 55, at 13-14. Causes and subcauses identified are:
        • Ineffective Management:
        --Vague lines of responsibility;

        --Lack of visibility and accessibility of administrator;

        --Practices or policies seen as unfair or based on favoritism;

        --Staff perceived as not in control; and

        --Inconsistency in application of rules and guidelines.

        • Inmate Inactivity:
        --Lack of programs;

        --Lack of work opportunities; and

        --Idleness.

        • Inadequate Inmate Services:
        --Poor or insufficient medical care;

        --Poor food service; and

        --Overly restrictive visiting opportunities.

        • Facility Problems:
        --Unsafe, unsanitary conditions;

        --Crowded conditions; and

        --Outdated or poorly maintained facilities.

Id.
[FN120]. In two infamous examples--the New York State Prison at Attica in 1971 and the New Mexico State Penitentiary in 1980--riots were attributed in large part to correctional policies emphasizing segregation, deprivation, and inactivity. The McKay Commission stated that before the Attica riot, educational and recreational programs were non existent or in such short supply that the principle occupation of prisoners was idleness. See ATTICA, THE OFFICIAL REPORT OF THE NEW YORK STATE SPECIAL COMMISSION ON ATTICA 16-45 (1972) [hereinafter ATTICA]. “If inmates were rehabilitated, it was not because of Attica but in spite of it.” Id. at 21.
        The New Mexico Attorney General concluded that conditions leading to a serious prison riot in 1980 were created by the replacement of positive incentive controls with harsher treatment, citing a reduction in prison and community-based programs, the arbitrary and excessive use of segregation, tighter restrictions on inmates, and sharp limits on contact with persons outside the prison. See STATE OF NEW MEXICO OFFICE OF THE ATTORNEY GENERAL, REPORT OF THE ATTORNEY GENERAL ON THE FEBRUARY 2 AND 3, 1980 RIOT AT THE PENITENTIARY OF NEW MEXICO, PART II, THE LAST TEN YEARS, CONDITIONS LEADING TO THE RIOT, CONCLUSIONS AND RECOMMENDATIONS 26-27 (1980) [hereinafter NEW MEXICO]. When these policies were instituted, the level of violence in prison increased almost immediately. See id. at 28-29. Thus, “prison programs cannot be viewed as mere window dressing.” Id. at 34.

[FN121]. The point of this article is to demonstrate that gang policy is ill considered and indicative of “ineffective management.” This policy, as well as severe restrictions on telephone use, prisoner mail policies, and new limitations on purchase and retention of property, is widely perceived, by prisoners who correspond with Massachusetts Correctional Legal Services, as cruel, petty, and vindictive. There is also a high volume of complaints about the provision of food and medical care. Both were challenged recently in a case which considered the needs of prisoners with medical conditions requiring special diets, such as diabetes and heart disease, and resulted in a comprehensive settlement that has yet to be implemented. See Connors v. DuBois, No. 95-5522 (Mass. Super. Ct. Suffolk County 1995). Harassment of prison visitors prompted the formation of a group of mothers, and proposed legislation requiring standardized statewide visitation regulations. See Michele R. McPhee, A Voice for Mothers of Inmates, BOSTON GLOBE, May 19, 1996, at City 11. Finally, DOC prisons, by officials' own admissions, are overcrowded, particularly in high security prisons where populations are as high as 208% of design capacity while minimum security beds remain vacant. See MASSACHUSETTS DEPARTMENT OF CORRECTION, QUARTERLY REPORT ON THE STATUS OF PRISON OVERCROWDING, FIRST QUARTER OF 1997 3 (1997); see also Memorandum of Decision and Order on Plaintiffs' Motion for Class Certification and Plaintiffs' Motion for Preliminary Injunction, Cohen v. DiPaolo, No. 93-7314 at 17-18 (Mass. Super. Ct. Suffolk County 1993). See generally Michael W. Forcier, Testing the Implementation of a Point-Based Classification System: A Comparison of DOC Initial Classifications with the NIC Model Systems Approach, Massachusetts Department of Correction (Sept. 1989) (reporting that half of all prisoners are confined in prisons that are more secure than necessary) (unpublished report, on file with author). Implementation of an “objective” point-based classification system subsequent to this study has not corrected the problem, in part, at least, because prison placements warranted by classification scores are overridden by prison administrators in 32.3% of male cases and 46.6% of female cases. See Memorandum from Michael Forcier, to Diane Silva, Director of Classification (June 9, 1997) (on file with author); Memorandum from Michael Forcier, to Diane Silva, Director of Classification (July, 22, 1997) (on file with author); Memorandum from Michael Forcier, to Diane Silva (July 16, 1997) (on file with author).

[FN122]. OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, GANG SUPPRESSION AND INTERVENTION: COMMUNITY MODELS 14 (1994) (on file with author) [hereinafter GANG SUPPRESSION AND INTERVENTION].

[FN123]. See Camp & Camp, supra note 94, at 53.

[FN124]. See Sgt. William Riley, Taking a Two-pronged Approach to Managing Washington's Gangs, CORRECTIONS TODAY, July 1992, at 68; see also Julie Gannon Shoop, Image of Fear: Minority Teens Allege Bias in “Gang Profiling,” TRIAL, Oct. 1994, at 12, 16.

[FN125]. See generally NIC STUDY, supra note 55. According to the NIC, policies which create the perception of unfairness contribute to ineffective management. See id. 5-6.

[FN126]. See supra note 10 and accompanying text.

[FN127]. See NIC STUDY, supra note 55, at 43-46; see also John P. Conrad, Who's in Charge? The Control of Gang Violence in California Prisons, presented to The American Justice Institute (Nov. 3-4, 1977) (on file with author). Conrad, a former California correctional administrator, reported: “I have welcomed the tardy recognition that due process of law is necessary, desirable, and possible in our prisons.” Id. at 210.

[FN128]. Michael P. Lane, Inmate Gangs, CORRECTIONS TODAY, July 1989, at 98, 128. Mr. Lane is the Director of the Illinois Department of Corrections. See id.

[FN129]. See supra p. 42.

[FN130]. See David Freed, Policing Gangs: Case of Contrasting Styles, L.A. TIMES, Jan. 19, 1986, at pt. 2, 1, reprinted in THE MODERN GANG READER, supra note 58, at 288. Freed contrasts the gang suppression styles of the Los Angeles Police Department and Los Angeles Sheriff's Department. See id. The latter agency is credited with a far more effective and productive approach to law enforcement vis à vis gangs. See id.; see also KLEIN, supra note 62, at 159-86 (concurring with this opinion).

[FN131]. EDWIN J. DELATTRE, CHARACTER AND COPS: ETHICS IN POLICING 263 (2d ed. 1994).

[FN132]. See GANG SUPPRESSION AND INTERVENTION, supra note 122, at 15.

[FN133]. See Zachary R. Dowdy, Volunteers Teach, Preach Within Mass. Prison Walls, BOSTON GLOBE, Nov. 19, 1996, at A1.

[FN134]. See MASSACHUSETTS INSTITUTE FOR A NEW COMMONWEALTH, CRIMINAL JUSTICE IN MASSACHUSETTS: PUTTING CRIME CONTROL FIRST 7 (1996).

[FN135]. Id. at 30. The DOC has, by contrast, been “aggressive about down-grading athletic facilities.” Id.

[FN136]. See id. at 33. Studies show that completion of adult basic education and G.E.D. programs by prisoners is positively correlated with lower rates of recidivism. See id. For example, in a Wisconsin study, 38% of all released prisoners returned to prison within four years. See Anne Morrison Piehl, Learning While Doing Time 14 (Apr. 1994) (unpublished manuscript, on file with author). Prisoners who complete education programs are 5.5% less likely to return to prison and have higher rates of employment. See id. at 20.

[FN137]. See ATTICA supra note 120; NEW MEXICO, supra note 120.

[FN138]. Conrad, supra note 127, at 208.

[FN139]. See supra note 10 and accompanying text. Gang membership is often motivated by the need to gain a sense of belonging. See Daniels, supra note 84, at 126.

[FN140]. KNOX, supra note 57, at 282.

[FN141]. Id.

[FN142]. Id.

[FN143]. See generally Matthew Silberman, Resource Mobilization and the Reduction of Prison Violence, Presented at the Annual Meetings of the Am. Sociological Ass'n (Aug. 1994) (on file with author).

[FN144]. See id.

[FN145]. See Dowdy, supra note 12.

[FN146]. See supra p. 61.

[FN147]. SPERGEL, supra note 57, at 240. (citation omitted)

[FN148]. See supra note 120 and accompanying text.

[FN149]. See, e.g., Patricia Smith, It's the Kid Who Decides, BOSTON GLOBE, Feb. 21, 1997, at B1; Charles A. Radin, Tough Talk on Penalties Irks Some; President Says Little About Prevention, Groups Say, BOSTON GLOBE, Feb. 20, 1997, at A12.See generally ROBERT TROJANOWICZ & BONNIE BUCQUEROUX, COMMUNITY POLICING: A CONTEMPORARY PERSPECTIVE (1990).
 
24 New Eng. J. on Crim. & Civ. Confinement 37

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