Past governors' actions are enough to keep prison suit alive, attorneys argue

"Compromising" and "deceptive" policies initiated by Delaware's past two governors created an atmosphere in the state's prisons that led to the deadly siege at James T. Vaughn Correctional Center, argue attorneys representing the family of a correction officer killed on Feb. 1. 

Unfilled vacancies throughout the Delaware Department of Correction, a strategy that depended on overtime to cover vacant shifts, and ignoring the findings of an executive task force pointing to severe understaffing are among the practices followed under Govs. Ruth Ann Minner and Jack Markell that allowed for conditions resulting in Lt. Steven Floyd being killed, according to documents filed Monday in federal court. 

The documents were filed in response to lawyers representing the former governors and state officials who asked a federal judge last month to dismiss a civil lawsuit against their clients. In last month's filings, lawyers said the lawsuit should be dismissed because there is no constitutional right to workplace safety.

Attorneys representing Floyd's family and five correction officers taken hostage during the nearly 18-hour siege said that when the state signed a contract with the correction officers' union it bound itself to "provide sufficient staffing to ensure a safe and secure work environment."

"This answers the defense claim they had no duty to provide a safe workplace for [correction officers]," said Thomas S. Neuberger, one of the attorneys representing Floyd's family and five others.

While also blaming Minner, the lawsuit filed in April claimed much of the prison's personnel shortages occurred under Markell's watch.

Monday's filing claims Markell enacted a new policy that relied upon even more overtime than Minner had. He also enacted an official policy of not filling vacant DOC positions, including a specific order "that at least 90 vacant DOC positions must go unfilled at all times," most of which were at Vaughn. 

Monday's filing claims that in 2016, Markell released about 100 dangerous
violent offenders into Vaughn's general population, a majority of whom
were placed in Building C – the facility taken over by prisoners on Feb. 1. 

But due to understaffing problems created by his other policies, the DOC did not increase security staffing or any other security measures to compensate for the increase of inmates in Building C, according to the document that claims Markell had knowledge of the security crisis.  

"We've conclusively proven the guilt of Gov. Markell," Neuberger said. "The blood is on his hands for the torture and death of Lt. Floyd."

STORY: Delaware officials want prison death lawsuit to be dismissed

WHAT HAPPENED: What really caused Delaware's prisoners to revolt at Vaughn Correctional Center

The filing comes the same week Delaware Gov. John Carney is scheduled to receive an independent review team's final report on the Vaughn uprising. The report will be released publicly on Friday.

In a preliminary report released in June, reviewers described Vaughn as dangerously overcrowded, critically understaffed and poorly run and managed.

That wasn't the first time the prison has been scrutinized. 

In 2004, serial rapist Scott A. Miller abducted and raped a Vaughn prison counselor, Cassandra Arnold, which ended in the shooting death of Miller. A report spawned by that incident blamed the event on DOC's management and made 45 recommendations to improve the prison's safety.

Former U.S. Attorney Charles Oberly III, who spearheaded this most recent report with retired Judge William Chapman, said the following recommendations made in 2005 were not followed: Fixing blind spots not covered by prison cameras, analyzing alternative shift scenarios, creating a communication channel so the governor and state legislators would be aware of staffing shortages, and studying the radio communication network.

In June, Carney acknowledged ongoing problems with staff vacancies, communication issues and a culture in need of change at the Smyrna-area prison and released a plan to remedy issues that contributed to the deadly hostage situation.

This included hiring Claire DeMatteis, former senior counsel to then-U.S. Sen. Joe Biden, to spearhead reform at the DOC and produce public reports at six months and a year, with a focus on the implementation of recommendations made by the independent review team.

Carney and the unions that represent prison correction officers reached an agreement that would increase starting pay and lead to safer conditions inside prison walls. New Delaware correction officers will now earn $40,000, up from $35,179, in the next budget year and $43,000 the following year. 

Carney's attempts to improve the DOC did not go unnoticed in the legal documents filed Monday.

"He's done more in four or five months than these other people did in 16 years," Neuberger said. "And the Legislature jumped on it right away. Everybody jumped on it right away. Why couldn't Markell and Minner, especially after the Arnold incident, have jumped on it and taken care of it?"

Contact Esteban Parra at (302) 324-2299, eparra@delawareonline.com or Twitter @eparra3.