A decade ago, the state began inserting liquidated damages clauses into the contracts it signed with the Corrections Corporation of America, the private prison operator that has annually housed hundreds of Hawaii prisoners at its facilities on the mainland.
The clauses allow the state to hold the Nashville, Tenn.-based company financially accountable if it fails to fulfill terms of the contracts, such as providing adequate staffing and access to substance abuse programs.
However, the state has never sought or obtained damages against CCA even though a number of inmates have been killed while incarcerated, which attorneys for some of the victims have attributed to a shortage of corrections staff, and female prisoners have accused guards of sexual abuse.
In 2009, the state brought home 168 female inmates housed at a CCA prison in Kentucky after Hawaii prisoners alleged they were sexually abused by guards and staff. An investigation by corrections officials found that Otter Creek prison failed to report to authorities several incidents of sexual misconduct between workers and inmates in past years, including instances that had led to the firing of employees.
Shelley Nobriga, the litigation coordinator for the Hawaii Department of Public Safety, said the state has never sought such damages because CCA has always complied with the contracts.
“There was never a situation to even discuss liquidated damages because they were always compliant,” she said, noting that the department checks quarterly to ensure that CCA is fulfilling contract terms.
Indeed, a review of 18 quarterly audit reports dating back five years shows that CCA’s Saguaro Correctional Center in Eloy, Ariz. — where all of Hawaii’s mainland prisoners are now housed — has never once been out of compliance with 267 different contract criteria. The audits, conducted by DPS contract monitors, review an extensive list of conditions relating to such things as security issues, use of force, grievance procedures, recreation, health care services, and access to supplies including underwear, soap and pillowcases.
While the DPS audits are spotless, some critics are skeptical of their accuracy given reported violence within the facility and question whether the state should be better utilizing one of the few methods it has to ensure safe conditions for Hawaii prisoners housed thousands of miles from home.
“If you look at CCA’s track record, you can see abuse after abuse after abuse,” said Alex Friedmann, associate director of the Human Rights Defense Center and an editor of Prison Legal News, noting gang-related deaths at Saguaro and problems with sexual abuse. “And fines and penalties are never levied, they are never imposed.”
Friedmann said that generally CCA personnel provide much of the information to state contract monitors, raising questions about the impartiality of the audits. And since states like Hawaii desperately need bed space, corrections officials try to avoid conflicts with the private prison operators.
“Typically there is a symbiotic relationship between the private prison company and the corrections agency they contract with — both need each other, so they tend to have conciliatory dealings with each other,” Friedmann said in an email. “This is despite the fact that the corrections agency is the steward of taxpayer funds and has a responsibility to ensure the private contractor adheres to the terms of the contract.”
Hawaii began shipping inmates to prisons on the mainland two decades ago in what was supposed to be a temporary measure to save money and relieve overcrowding in state prisons. However, about 1,400 inmates remain incarcerated at CCA’s Saguaro prison with no plans to bring them back.
The murder or abuse of a prisoner wouldn’t necessarily trigger the liquidated damages clauses in the contracts, but the circumstances surrounding recent prisoner deaths raise questions about whether the contract terms need to be tightened or oversight increased.
On the morning of Feb. 18, 2010, a correctional counselor at Saguaro found Bronson Nunuha, an inmate from Hawaii, dead in his cell. Other inmates had stabbed him about 140 times and carved a gang name into his body.
Nunuha was 26 and months away from release on a five-year sentence for burglary.
The American Civil Liberties Union of Hawaii, which sued CCA and the state on behalf of Nunuha’s estate, alleged that Nunuha’s death was the result of unsafe protocols at the facility and understaffing.
A corrections counselor had left some of the doors open to the cells in Nunuha’s housing unit during a morning period in which prisoners convene in a common area, according to the complaint filed in the lawsuit.
While the counselor was in her office, two other prisoners “punched, kicked and stomped” on Nunuha before stabbing him, according to the complaint.
“As he lay dying, other prisoners mopped up the bloody footprints leading away from the cell, while the (corrections counselor) remained distracted by a cluster of prisoners,” the complaint states. “The assailants showered, changed clothes and re-mingled with the other prisoners.”
The Hawaii ACLU alleged that Saguaro didn’t have enough guards and that the state had failed to enforce terms of its contracts that would protect Hawaii prisoners.
CCA and the state denied the allegations and the case was settled for an undisclosed amount.
Less than four months after Nunuha’s death, another Hawaii inmate, 23-year-old Clifford Medina, was strangled to death by his cellmate at Saguaro.
Last year, 21-year-old Johnathan Namauleg was also strangled by his cellmate at the Arizona facility. Namauleg was serving a five-year sentence for setting fire to the roof of the Hawaiian Canoe Club’s traditional hale on Maui. His cellmate, Jason McCormick, was serving a life sentence for strangling to death a guest lecturer at the University of Hawaii.
The Corrections Corporation of America has maintained that the safety of inmates is a top priority. The company lists “protection from personal abuse and injury, verbal abuse, corporal punishment, property damage and harassment” as a priority on its website.
“At CCA, we take very seriously our responsibility to respect and uphold the rights and welfare of inmates and detainees in our care,” the company writes.
Even if Hawaii were to seek damages from CCA, it’s not clear if this would have any significant financial impact on the company, which brought in $221 million in profits last year.
In 2014, CCA agreed to pay the state of Idaho $1 million over contractual disputes relating to low staffing levels. However, the company assured shareholders that neither that penalty nor other legal matters that the company was facing were expected to have a material effect on the company.
“CCA maintains insurance to cover many of these claims, which may mitigate the risk that any single claim would have a material effect on CCA’s consolidated financial position, results of operations, or cash flows, provided the claim is one for which coverage is available,” the company wrote in U.S. Securities and Exchange Commission filings.
Still, Sen. Will Espero (D, Ewa Beach-Iroquois Point) said it’s important that the state enforce damages if there is cause to do so.
“There is a reason why you put those clauses into contracts and if there are incidents or issues where we can ask for damages or refer to this clause, we certainly should because that is one of the ways that you hold contractors like CCA accountable and part of the checks and balances,” Espero said. “If we are not pursuing it just because people are lazy or they don’t want to do the extra work or they just don’t want to hurt the relationship with CCA, then that is wrong.”
