from the pages of../


Punish the Prisoners, and Their Visitors

By Christopher Tovar

 

While Republican presidential candidate Bob Dole has yet to formally name a running mate for the ‘96 presidential race, one remote possibility, Michigan Governor John Engler, has very high hopes. His budget cuts, emphasis on "family values" and toughness on crime have drawn praise from Newt Gingrich, who has called him a "true revolutionary." For some in the GOP, Engler epitomizes the Contract with America. For many people living in Michigan, especially relatives of the prison inmate population, he represents the Contract on America. On August 25, 1995, he unilaterally introduced stricter visitation rules for prisoners, limiting the number of people a prisoner may see and adding further restrictions based on age and familial relationship. The effect has been to curtail all Michigan inmates’ access to family and friends in the outside world.

For Governor Engler, problems with smuggling, an escape at Detroit's Ryan Regional Correctional Facility, and an isolated incident of child molestation at the prison in Muskegon prompted the emergency action to limit each inmate to ten pre-approved visitors in addition to attorneys, religious volunteers, and "immediate" family. According to the new rules, immediate family does not include aunts, uncles, cousins, nieces or nephews. Though inmates' children, step-children and grandchildren are not barred outright, the law does bar visits from other relatives under 18. For example, an inmate may not receive visits from a 16-year-old brother. And, even though certain categories of visitors are usually permitted, the wardens have unlimited discretion to strike any potential visitor from the list, including "immediate" family. Prison staff are also allowed under the new rules to track individuals who visit inmates in more than one prison in a given year. Someone with relatives in two different prisons would have to decide between the two or face closer personal surveillance by the Michigan Department of Corrections (MDOC) or the State Police. The rules do not make clear how and to what extent the surveillance measures will be implemented.

Engler’s amendment to the visitation rules illustrates his concept of government, and his attitude toward the people of Michigan. When he became governor in 1990, he strengthened Michigan’s executive branch by eliminating commissions reviewing the policies and operations of key state agencies such as the Department of Natural Resources and the Department of Corrections, and by taking over the job of appointing agency directors.

In the March, 1995, Michigan Bar Journal he describes the MDOC as one of the 18 state executive departments "in which the Governor's appointee can be expected to carry out the policies of the administration and exercise supervision over the department's administrative discretion in a manner that is consistent with the policies of the chief executive." He reasons that since the governor is really the one voters hold accountable each election year, he should be directly in charge of state agencies affecting their daily lives. Engler also assures his readers that accountability and responsibility go hand in hand in his administration. But, he has gone beyond his own rhetoric by violating Michigan's Administrative Procedures Act through changing prison visitation rules without first seeking approval from Michigan's Joint Committee on Administrative Rules (JCAR).

Engler's handling of prison visitation policy plainly illustrates his executive style and intentions. His words and actions show how he hopes to reorder government in his state, and his desire for more unilateral executive power.

Such sweeping actions invite closer scrutiny of the rare incidents of smuggling, prisoner escape, and child molestation used to justify them. MDOC Spokesman Warren Williams discussed the statistics on smuggling by visitors at prisons throughout Michigan's correctional system in The Jackson Citizen Patriot in June of last year. He said that in the first six months of 1995, 92 out of a half million, 1 in every 5,434 or .018% of all visitors smuggled contraband to inmates. This means that the other 99.982% of visitors in that six-month period caused no such trouble. The MDOC provides no statistics on suspected or proven smuggling of drugs or other contraband by guards into the system.

The Ryan prison escape could have readily been avoided had sufficient staff and equipment been in place to monitor that facility's perimeter. In the Detroit incident, a car openly approached the line of fences separating prisoners from a nearby rail depot, undetected by corrections personnel. A shotgun and wire cutters were thrown into the yard before the control center could react.

The incident of child molestation at Muskegon would never have taken place but for serious flaws in the exercise of simple and time-worn procedures. These failures border on conspiracy to facilitate the event. Governor Engler has curtailed prisoner visitation rights especially because of this incident. At Muskegon, on April 20, 1994, a 3-year-old girl was molested in a visitation room by inmate Lloyd Higdon, a convicted child killer, while guards looked on, knowing for over a month that Higdon had planned the crime. Ultimately, for the sake of what amounted to a sting operation, a little girl suffered what may be irreparable harm.

Lloyd Higdon was serving a term of Natural Life for the 1967 rape and murder of a 13-year-old girl and a consecutive sentence of 20-30 years as a habitual offender for molesting a small child at Jackson's Cotton Facility in 1989 when this event took place. In March, 1994, Higdon wrote a letter to a fellow inmate at Muskegon, Ricky Carpenter, outlining his plan to gain access to a child in a visitation room. His girlfriend, Yvonne McDowell, would have a friend, Sue Korkoskie, and her daughter, Jessica, accompany her on a visit in April. McDowell had been his accomplice in the incident at Jackson in 1989, but had not been imprisoned for her part in that crime. Higdon wanted Carpenter to aid Yvonne in distracting both prison staff and Ms. Korkoskie while he approached Jessica, whom he referred to as "the target." He named each person in his plan by first initial.

Carpenter presented Higdon's letter to Sgt. Hamilton on April 3, 1994, a couple of weeks before the crime was to take place. The letter was then shown to Wardens Makel and Bradford, who instructed Sgt. Hamilton to give it to Inspector Moscarro the next day. The letter passed up the facility's chain to the highest in command, and back down again. Oddly, all staff who read and discussed it claim they did not read Higdon's file to corroborate Ricky Carpenter's story. On April 6, 1994, Inspector Moscarro confronted Higdon with a warning that he knew what Higdon was planning, but did not mention the letter or Carpenter's story.

On April 7, Deputy Warden Bradford issued a cryptic memorandum calling on staff to "monitor Higdon's behavior." Higdon would still be allowed to receive visitors, but a "flag" was placed on his visitation card. Visitation room staff, mostly trainees, were not briefed about the "flag" on Higdon's card. Those present at a meeting before the incident took place were instructed only that Higdon should be "watched more carefully."

On April 20, 1994, Yvonne McDowell arrived at Muskegon with Sue Korkoskie and her daughter to visit Ricky Carpenter. Higdon accompanied Carpenter to the visitation room. The desk officer noticed the "flag" on Higdon's card, and called the control center for more details on his record. The officers at the control center told the desk officer that they would contact Sgt. Hamilton, but failed to do so. At the same time, Sgt. Hamilton, standing in a yard adjacent to the visitation room, saw Higdon, Carpenter, and their visitors come outside. Carpenter gave Hamilton "a prearranged signal that something could take place."

Later, when the group returned to the visitation room, Sgt. Hamilton took a position in the control center to monitor Higdon by two-way mirror. Sue Korkoskie was talking with Ricky Carpenter and Yvonne McDowell when Higdon began to walk with Jessica to a vending machine out of sight of the mirrors.

At this point, Sgt. Ketchum, witnessing Higdon's actions from the control center, tried unsuccessfully to contact the warden and have the visit stopped. Another guard, Officer Elder, heard Sgt. Hamilton say to other staff over the radio, "Don't come in yet, it hasn't gone down." Only when Hamilton saw Higdon place his hand fully under Jessica's clothing and Jessica begin to resist him by kicking and flailing her arms did he stop the visit. Higdon was later charged with Conspiracy to Commit Criminal Sexual Conduct in the 2nd Degree, again as a habitual offender. Yvonne McDowell faces up to life in prison for her part in the molestation on April 20, 1994.

Muskegon County Prosecutor Tony Tague later writes in a press release about the incident that, "the tools [procedures and regulations] to manage this situation were available. They were just not utilized." He first condemns the lack of investigatory work by Inspector Moscarro and other top prison staff after Ricky Carpenter's tip. He then stresses the fact that no one confronted Higdon with the letter, and that while a memo about it circulated internally among top staff, no indication other than a vague warning was given to guards at the main desk in the visitation room, most of whom were trainees at the time.

In the outside world, law enforcement officers may act ahead of time to prevent the commission of a crime based on a strong perception that it is about to take place. Prison officials in the Michigan system have a very similar power and responsibility to act, based on probable cause. Officials at Muskegon neglected this right and duty. By state law, they could have prevented the incident by assigning Higdon to administrative segregation and then conducting a hearing.

Tague reports that when later asked by investigators what kind of potential incident would be grounds for canceling a meeting, for example, what weight would Muskegon staff place on a planned stabbing, Warden Makel replied, "We'd watch."

When investigators asked Makel whether he'd wait for the stabbing to occur before he intervened, he said, "Well, I certainly couldn't shut down the visiting room." Warden Makel reasoned that such action would prompt grievances and lawsuits on the part of other inmates' visitors.

Tague concludes that the MDOC officials did not act in time to stop Higdon's actions because of a mistaken sense that the Department's regulations tied their hands, and that preventive action would result in a legal backlash from inmates and others having nothing to do with Higdon's plot.

Tague's perspective on the way Muskegon staff handled the incident is that it "revealed a clear attitude among Department of Corrections officials that the perceived rights and privileges of convicted felons take priority over the safeguarding of the public." However, in his report he lists many "disturbing questions left unanswered," among them:

•Why weren't steps taken to protect an innocent child when DOC administrators had detailed evidence that a child was going to be molested behind prison walls in their facility?

•Why wasn't the detailed evidence of a conspiracy to commit a sexual assault turned over to the Michigan State Police for investigation and subsequent prosecution?

•Why would top administrative officials send a memo to corrections officers instruction [sic] them to only observe but not take preventive measures?

•Why would officials from DOC sit and watch while a child was molested and not take steps to prevent it?

 

The above questions may seem very similar, but each is a distinct element, a link in a chain of events. The way the Muskegon staff handled each problem demonstrates a profound ignorance of the concept of probable cause. At each point, something could have been done within the existing rules to prevent Higdon's assault on Jessica Korkoskie.

It appears from his report that Tague is not fully convinced that the problem at Muskegon was one of staff members fearing prisoner grievances or lawsuits for canceling visits, but that there was something more sinister at work. While information on the incident released by the MDOC to the public does, to a great extent, suggest a sting operation, the trail of evidence stops at the offices of Wardens Bradford and Makel in Muskegon.

By early summer of 1995, Governor Engler submitted his proposed amendments to the prison visitation rules to the Joint Commission on Administrative Rules, which rejected them in two heated sessions of voting. After a third meeting was canceled August 2, 1995, Engler resubmitted the amended rules directly to Michigan Secretary of State Candice Miller. Engler's chief legal counsel at the time, Lucille Taylor, justified this action by saying in an August 10, 1995, press release that, "The safety of defenseless children and the staff at our correctional facilities must be our number one priority."

Governor Engler has seized upon the MDOC's incompetence in handling Lloyd Higdon and other problems within Michigan's prison system as an opportunity to cover up that agency's chronic mismanagement, and to enhance his reputation as a crime-fighter. The new visitation rules provide no remedy for what happened at Muskegon. Children are still allowed in visitation rooms to see parents, step-parents and grandparents, in the same rooms with other prisoners unrelated to them. Nothing has really changed, except that prisoners are allowed to see fewer people overall, and relatives under 18 who are not their children are barred. This mean-spirited solution in no way fits the problem, but serves as a smoke screen to cover up the MDOC's shortcomings in management. If Engler has assumed greater responsibility for running the MDOC, those shortcomings are his own.

By curtailing visitation rights, Governor Engler also demonstrates his belief that rehabilitation is no longer a priority. Instead, he favors harsher punishment. A 1977 report by Eva Lee Homers, "Intimate Family Ties: Desirable but Difficult," published in Federal Probation, determined that for prisoners, there is a "strong, independent positive relationship between maintaining frequent family contacts while in prison and success on parole." If Ms. Homers' findings are correct, then Engler's handling of this situation will further discourage the efforts of many Michigan prisoners to rehabilitate and eventually reenter society.

The protracted Republican campaign to put and keep more people in prison has strongly influenced American perceptions about the purpose of prison time. Prisons are no longer places meant to rehabilitate or change people, but places where they are punished, or simply warehoused. Engler’s action is reminiscent of the anti-crime hype peddled by George Bush in the 1988 presidential election, who used Willie Horton’s image to rouse American animus toward prisoners, and smear Michael Dukakis as Horton’s liberator. As George Bush wanted us to believe that every Massachusetts prisoner is a Willie Horton, John Engler would have us believe that every Michigan prisoner is a Lloyd Higdon. According to the MDOC’s 1994 statistical report on Michigan detention centers, its most recent publication, only 36.6% of incoming prisoners were convicted of assaultive crimes, approximately 25% of which involved criminal sexual conduct. 44.6% of all new inmates in 1994 were convicted of non-assaultive crimes, and 18.8% were in for drug offenses.

Aside from the fact that the new rules bear little relation to the realities of administrating Michigan’s prisons, the most disturbing implication is that Governor Engler would willfully carry this dehumanizing new regime of punishment to families and close friends of inmates throughout the state. Problems of smuggling are too small to justify age-based restrictions and surveillance of visitors. The escapes at Ryan were due to the MDOC's own mistakes. The molestation at Muskegon is the worst example of the agency's failure to do its job.

Governor Engler's rhetoric about family values, accountability in government and getting tough on Michigan's criminals is just that, rhetoric. His using the Muskegon incident as an excuse for cutting prisoners off from loved ones while building his own political image show what he really thinks of those he governs. The way he has hamstrung the state legislature by removing agency review commissions, first taking most oversight powers for himself, then neglecting state agencies, demonstrates his gluttony for power. The way he illegally overrode the Joint Committee on Administrative Rules shows the pervasive influence that gluttony has had on his role as governor of Michigan.

Bob Dole has put great emphasis on the concept of character throughout the race for the Republican nomination, holding himself up as an example over the likes of Steve Forbes and Pat Buchanan. Taking John Engler on as a running mate would undo most of his work convincing his colleagues in the Grand Old Party that he was the right choice as Republican nominee, and that he would be a president of character.

 

Chris Tovar is a recent graduate of the University of Michigan’s Law School. He is currently studying American history at the University of Texas at Austin.