Beaten by Wackenhut
David Prater was beaten nearly to death in a privatized jail -- and the courts say there's nothing he can do about it
Dallas record producer David Prater, 46, says he had never been in trouble with the law before March 1997. While he was visiting Austin that month for the South by Southwest music festival, Prater was popped for a minor drug possession charge. In 1998, for a first-time offense of possession of cocaine, Prater was sentenced to a 250-day stint in the Travis County Community Justice Center on FM 969 in far East Austin. The center is a state jail, then administered by Travis County, and under a subcontract from the county it was being managed by the private prison giant, Wackenhut Corrections Corporation.
On Dec. 17, 1998, Prater had been incarcerated just 10 days when, he says, he made a simple yet naive request: He asked the gang members on his cell block if they could keep the noise down so he could sleep. "There is this weird thing that gangs do -- they scream as loud as they can. I won't do it for you, but I promise, it hurts -- and I mix rock concerts," he said. "It's painful. [One time I was] woken up at three, four in the morning and there was this kid yelling a foot away from my ear, as loud as he possibly could. So finally, I just went up to one of the guys and said, 'Could you ask some of these guys, please, because some of us have to sleep.'"
Instead of peace and quiet, Prater received a severe beating. According to Prater, 11 gang members attacked him, kicking him in the head and face and breaking his jaw in seven places, until the bones broke through the skin -- all while two guards stood by and watched. "I was in and out [of consciousness]," Prater recalls. "And when I woke up, that's when the nightmare started. I woke up in the middle of what they call the multipurpose room. No guards responded. Guards were there, but they didn't respond." (Wackenhut does not dispute that the beating took place, but Wackenhut attorney Gary Fuller says jail records reflect that Prater was the instigator and that he told the inmates who refused his request for quiet, "Well, fuck you then, see you in the multipurpose room.")
According to Prater, for the next three and a half months he lived a nightmare. His jaw was reconstructed with titanium plates and wired shut. He says he was kept in isolation and illegally transferred from Texas Department of Criminal Justice prison unit to prison unit without receiving proper medical attention. He was consistently denied pain medication, he says, and his family had to send him Ensure supplements because officials at the Wackenhut facility did not know how to liquefy food and instead fed him only chicken bouillon in hot water. "The whole time I was told that I had, basically, brought this whole situation down onto myself," he said, "and it was not their problem."
Finally, on April 1, 1999, Prater was released for time served. He concedes that he could have returned home to Dallas and let the matter drop, but says he couldn't do it. "I had to make it clear, the level of the threat that this type of environment poses to the citizens here, and of this state and this country," he said. "There are guys rotting in there."
So, Prater sued Wackenhut in federal court. His claim -- rejected thus far by both the district trial court and 5th U.S. Circuit Court of Appeals in New Orleans -- is factually simple but legally complex. Prater and his Austin attorney, Sidney Childress, allege that the Florida-based Wackenhut Corp. did not fulfill its responsibilities under the contract signed with Travis County for operations of the state jail facility. More specifically, the lawsuit charges, Wackenhut did not employ the number of guards it was required to hire to maintain a safe environment, nor did it provide any of the educational programming required to keep the inmates occupied, out of trouble, and potentially rehabilitated.
In essence, Prater v. Wackenhut argues that the inmates were the intended third-party beneficiaries of the contract Wackenhut signed and agreed to abide by for the 36 months the company ran the jail. (In late 1999, after public revelations that jail guards were having sex with inmates, the state resumed control of the facility and ended its contractual relationship with Wackenhut.) And because the prison was never run the way the county intended it to be, or the way Wackenhut said it would, Prater asserts in his lawsuit, an environment was created that made the savage beating possible.
In his pleadings to the court, Childress alleged that Wackenhut not only failed to provide the promised guards and services, but falsified records in order to claim it was fulfilling its contract in return for state remuneration. The state paid Wackenhut $32.17 per inmate per day, intended to cover the company's costs and, theoretically, provide its profits. Childress estimates that by failing to fulfill its obligations over three years, Wackenhut accepted at least $7 million in taxpayer money without delivering anything in return. "And I was being conservative, using the most conservative figures and rounding them up," he said. "We allege that when the [county] and this corporation made this contract, they intended that the monies spent were for the benefit of my client, through proper staffing and through rehabilitation [and] educational activities. And this corporation trashed that contract, and instead of putting the money into the prison, they put it into their bank account in Florida."
No Legal Standing
Wackenhut attorney Gary Fuller calls the allegations specious and inflammatory. "The evidence produced at trial did not prove or confirm that Wackenhut breached any contract, either with [Travis County] or with the Texas Department of Criminal Justice," he said. "They tried to paint Wackenhut as this evil, money-grubbing corporation that didn't care about the inmates or the employees. But the evidence belied that." Furthermore, Fuller said, he has the decisions of both the trial and appeals court to back him up. Prater "has absolutely no legal standing to make these claims. If anybody's got a bitch or complaint, it would be [Travis County] or TDCJ who would have the legal standing to make the claim," he said.
Indeed, whatever the merits of his factual claims, Prater's lawsuit has foundered primarily on the question of "legal standing." After a weeklong trial last year, U.S. District Court Judge William Wayne Justice declined to instruct the jury to consider Prater's claims of contractual fraud. Asked to determine only who was at fault for the beating and whether it constituted "cruel and unusual punishment," the jury answered that Wackenhut was 5% negligent, Prater 95%, and rejected the constitutional charge. Since Texas law requires a defendant to be more than 50% negligent for damages to be awarded, Prater received nothing.
To Fuller, that outcome and the judge's instruction confirmed that Prater's claim is legally untenable. Justice "basically agreed with us that there's no precedent or case law to support this contractual claim," Fuller said. Childress sees it differently. He argues that in the absence of clear legal precedent, Justice merely withheld the charge to provide Childress a stronger point of appeal. Childress took that appeal to the 5th Circuit, but in mid-June the court summarily dismissed Prater's claims. More damaging, the federal appeals court -- which has a strongly conservative reputation -- sanctioned both lawyer and client for what Fuller described as a "frivolous" appeal, requiring that the plaintiffs pay not only all court costs but Wackenhut's legal fees. The 5th Circuit "is very punitive," said Jim Harrington, director of the Texas Civil Rights Project. "The courts really have moved in the last 10 years to limit access to themselves, especially in prison cases."
Even before this defeat, Prater and his wife, Anetha, had been nearly wiped out by the legal battle with Wackenhut. Last year they filed for bankruptcy. Yet Prater says he does not regret taking on the corrections giant. Despite his legal defeat, he still believes his claim was sound and that Wackenhut should have to answer for what went wrong at the Community Justice Center. In Prater's opinion, "It's criminal. [It] is intentional fraud ... You can spin it whatever way you want, but the bottom line is, where is the money?" Ultimately, Prater and his attorney charge, their defeat does little to answer the lawsuit's central questions: Who is responsible for what happened inside the Wackenhut-managed jail, and could it happen again?
In 1993, a group of district attorneys (including Travis County DA Ronnie Earle) and other law enforcement agencies lobbied successfully before the Texas Legislature to add a new class of felon (fourth-degree) and a new class of prison (state jail facilities) to the Texas criminal justice system. The felonies range downward from criminally negligent homicide through criminal mischief to a gamut of low-level drug offenses. The theory was that since these generally nonviolent offenders would be jailed for shorter periods of time and then released into the community, their incarceration should be heavily focused on rehabilitation and education. Currently there are 17 state jail facilities and eight substance-abuse treatment facilities, run by the State Jail Division of the TDCJ, scattered across the state. While most are operated directly by the state, a handful are monitored by TDCJ but operated by private prison companies like Wackenhut. From March of 1997 to November of 1999, that was essentially the status of the Travis County Community Justice Center.
Travis County officials also acted as a contractual intermediary at TCCJC, assuming a contract from the state and then subcontracting the facility's operations. "The idea was that if the county had some control, then it would really make a difference in people's lives," said Dinah Dinwiddie, executive manager of the County's Justice and Public Safety Division. In 1994, via a competitive bidding system, Wackenhut won the county's subcontract. Former Precinct 1 County Commissioner Darwin McKee was the Travis County attorney who drafted the Wackenhut contract. According to McKee, Wackenhut agreed to run the facility as the county intended, with extensive rehab and education, and with offenders maintaining close ties to the community. Trial documents confirmed that under the contract, Wackenhut agreed to provide a full complement of 158 well-paid and well-trained guards.
It wasn't long after the jail opened, in March of 1997, says Dinwiddie, that county officials realized there were problems. In spite of the contract's terms, Wackenhut was not providing the required number of guards, and nowhere near the required level of educational programs. "It became apparent that they [were] not [complying]," Dinwiddie said. On Nov. 4, the county sent Wackenhut a notice of default, based in part on the "high turnover rate of corrections staff at the Facility." Yet according to county records, the situation never seemed to get any better. Dinwiddie's angry notes on several staff memos document county officials' growing frustrations. On a May 1999 memo that says staffing at the facility "remains a partial dilemma," Dinwiddie scrawled an arrowed clarification: "No, it's a friggin' dilemma." Beside another assertion -- Wackenhut "is apparently making a good-faith effort to resolve the staffing situation" -- Dinwiddie added sarcastically, "Really? And how do we come to that conclusion?"
"We finally got the idea that they were double-dipping," she said. Dinwiddie explained that where two guard positions were required, Wackenhut records would reflect that the two positions were filled, but "really it was one person working overtime, and they were counting it as two." The discrepancies in what Wackenhut said it would provide and what the company in fact did provide were also reflected in the education and rehabilitation programming, Dinwiddie told the Chronicle. "They never reached the level we anticipated," she said. Moreover, she said, Wackenhut provided figures on inmate participation in educational activities that staff concluded were inflated. "When we finally got the data, we could see [actual] success rates," she said, and county staff determined the true participation figures were nowhere near the 95% participation the corporation boasted.
Commissioner McKee believes Wackenhut's failures of contract compliance were not entirely the company's fault. "There was a legal argument that our contract asked them to be on the ground at a particular point in time," McKee said, but at that time, "there were no prisoners [yet sentenced to the facility]." So, if Wackenhut spent $1 million in costs to operate the prison but weren't yet receiving any prisoners (or state money), McKee argues, they had to do something to recoup their costs. Dinwiddie is skeptical of that defense. "I don't know if I'd go that far," she said. "They had a contractual obligation to provide the services. [And] they had excuse after excuse" as to why they didn't.
So what happened to the money the state paid Wackenhut to fulfill the terms of the contract, money that Dinwiddie and McKee agree wasn't consistently invested as promised in the jail or its programs? "Somewhere between just pocketing the money and 100% putting it where it was supposed to be, is what was happening," McKee said.
That financial discrepancy, Prater argues, made an enormous difference in the safety of the inmates and the structure of life at the prison. Had Wackenhut put the money where it was supposed to go, would Prater still have been severely injured? County officials can't answer that question, and admit that they weren't really aware of conditions inside the jail. "We had issues with them not having enough staff," Dinwiddie said. "But we ... weren't aware of anything that was going on in there."
Former TCCJC prison guard Kathryne Cool saw the jail a little closer up than county officials, and she does not mince words. "I'd say [Wackenhut] scammed us pretty well," she said. "'Screwed' is probably better." Cool says what was going on inside the jail wasn't pretty -- nor legal. Cool worked as a guard at the facility for nearly two years prior to March 15, 1999. On that day, she says, she was told she would be fired if she refused to work overtime. She refused, and that was that. In February 2000, Cool filed a discrimination lawsuit against Wackenhut claiming that after she had "document[ed] and report[ed] numerous instances of misconduct by other corrections officers," the jail became an exceedingly hostile workplace, and that she was harassed because of her race, sex, and age.
'Scammed and Screwed'
Wackenhut settled with Cool for an undisclosed sum, but she testified about jail conditions during Prater's trial last summer. Cool believes what happened to Prater was a direct result of the Wackenhut's managerial negligence. As one of the jail's grievance officers, she said, she was privy to the circumstances surrounding Prater's beating -- as well as other, similar infractions. ("We had the most grievances," out of all the state jail facilities, Cool told the Chronicle, "and I probably wrote up more officers than inmates.")
In a January 1999 memo to her supervisor at the jail, introduced into evidence at trial, Cool suggested that Prater's beating had been a racially motivated attempted murder that should've been referred to the district attorney's office. Apparently, it never was. Cool says that Prater's version of the events -- that the beating occurred while two guards stood by and watched -- was accurate. She added that such incidents weren't uncommon. "I was one of the few morons who would actually walk in there and break it up," she said.
Cool testified there were numerous other violations -- many of which stemmed from the fact that Wackenhut never hired enough guards. So few, she said, that sometimes there was only one guard overseeing as many as 178 inmates. Many of the problems inside the jail, she added, were the direct result of the kind of employees Wackenhut did hire. In the contract, Wackenhut pledged that the company would pay a competitive wage, but county officials admit it never did so: Average pay was about $6.50 an hour. "Most of the officers there," said Cool, "were useless."
Moreover, the former officer said, many guards were either relatives of inmates or even fellow gang members. The effects, she said, were obvious. Among the litany of infractions Cool says she witnessed: officers asleep on duty, officers leaving loaded weapons and keys to secured areas within the reach of inmates, inmates allowed out of cells and into officer areas, male inmates allowed into female dorm areas while the women were undressed, guards intoxicated while on duty and trafficking drugs, and guards denying inmates access to prescribed medicines.
In court, "I told them how the place was," Cool said. "Wackenhut alleged I was just a disgruntled employee. I'm not."
What do Cool's charges have to do with David Prater, and what can he do about them? In the view of Wackenhut attorney Gary Fuller, the answers are "nothing" and "nothing" -- and, Fuller adds, the courts agreed. "The court dismissed this out of hand," Fuller said. "If the court were to recognize this type of action ... any convict in the state of Texas could sue their jailer for any contractual claim," he said. "It would open up a veritable floodgate of lawsuits." For example, if a jail operator had promised to provide each inmate with a new pair of athletic shoes, he said, and then one inmate didn't receive them, under Prater's claim the inmate would be able to sue his jailer. Prater's attorney Sidney Childress dismisses this argument: If the prison operators adhere to the terms of the contract, he says, then the inmates would have no grounds for lawsuits.
But in any case, Fuller said, "Prater had no legal standing to bring these claims." Only the state or the county -- the signatories to the contract with Wackenhut -- would have that right, and neither has ever brought suit. Indeed, although county officials agree, albeit reluctantly, that Wackenhut failed to comply with the contract's terms, neither the state nor county has taken any legal action against Wackenhut.
Nathan Quarterman, director of TDCJ's State Jail Division, and Dennis Miller, TDCJ's western regional state jail supervisor, said the state did closely monitor the TCCJC situation and did, in fact, withhold money from Wackenhut for contractual violations. "There were some times we didn't pay them," Quarterman said. "And those monies went back into the general revenues." Miller agreed that the state did withhold some monies, but said he could not remember how much or at what point. And both officials said that Wackenhut's problems at the TCCJC, especially in hiring enough guards, were due in part to the competitive nature of Travis County's economy in the late Nineties. "It was tough back then," Quarterman said. "I think that was their demise, they couldn't compete in this city." He said potential TCCJC guards would rather go somewhere like Dell, where they could make more money.
But state officials' apologies for Wackenhut ring hollow. A review of state records supplied to the courts did not show any documentation that the state ever withheld Wackenhut's per diem payments. And according to a 1999 report in the Austin American-Statesman, Wackenhut racked up $625,000 in state fines over the three years they operated the jail -- yet there is no documentation in the court files that the sum was either withheld by the state or paid by Wackenhut.
To Childress, the failure of state and county officials to follow through with their duty to keep Wackenhut in line caused harm, not only to Prater, but also to every taxpayer -- "to the tune of at least $7 million," he said. "I don't know what, if anything, we could do now, except look for some grounds on which to appeal to the U.S. Supreme Court." He concedes such an appeal is unlikely.
Edith Flynn, a professor at Northeastern University's College of Criminal Justice in Boston and a persistent critic of prison privatization, says she is not surprised at what happened in the TCCJC under Wackenhut's control, nor by what followed in the courts. "What you're finding [in the Prater case] is pretty much what happens elsewhere," Flynn said. "It is routine for the private companies to oversell and underdeliver." (See "Records of Dishonesty," below.) The responsibilities to monitor conditions inside privately run jails and to ensure that contract conditions are met fall squarely on the shoulders of state officials, she said, but both are too often unfulfilled. "They don't have the resources," she said. "It's a historical malaise that they spend what [money] they do have for the contracts, and then there's not enough left over to do any checking up. But the agencies that deal with offenders should be responsible to the public."
Moreover, Flynn points out, giant prison corporations like Wackenhut have plenty of cash to prolong and endure lengthy legal battles, so that they become nearly untouchable. "And they go on the attack with all critics," Flynn said, "and have done so historically -- because all criticism does is affect the bottom line."
Wackenhut Corrections Corporation does indeed have plenty of resources. According to its most recent Securities and Exchange Commission filings for the first quarter of 2002, Wackenhut boasted $140.2 million in revenues, up 4% over the same quarter last year. The company's 2002 first quarter net income was up 97%, to $5.2 million from $2.6 million last year. As of the end of 2001, WCC was managing 61 contracts worldwide, comprising 22% of the total U.S. private corrections market and 56% of the international market, totaling 43,000 inmate beds in North America, Australia, Great Britain, and South Africa -- where the company recently opened a 3,024-bed maximum security prison. In the U.S., Wackenhut manages facilities in 14 states, including 12 in Texas -- though Travis County's Community Justice Center is no longer one of them.
Just months after Prater was released from the jail, the facility's private activities became very public. In mid-1999, two sisters incarcerated at the center alleged that one had been raped and repeatedly beaten by a guard, and that her sister then became the focus of guard retaliation. The allegations sparked a state investigation of the facility's operations. By the end of the year, the state had taken over the jail's operations -- the first time the state had ever taken control of a privately run facility -- and Travis County formally canceled its $12 million per year contract with Wackenhut.
In the aftermath, a total of 14 former guards were indicted for sexually assaulting 16 different female inmates (one alleged she was raped just two months after the facility opened). By mid-2001, six of those guards had been convicted (four by plea, two by jury verdict), on lesser charges of improperly engaging in sexual activities. One case was dismissed, one guard was found not guilty, and according to the Travis County DA's office, the other six cases are still pending.
Kathryne Cool, David Prater, and Sidney Childress argue that Wackenhut's ouster from Travis County reinforces their claims that the prison was run poorly from day one, and that the company was not only abusing prisoners but also bilking Texas taxpayers. Prater is understandably frustrated by his quixotic attempt to take on Wackenhut, and can only hope that his experience, in jail and afterward, can at least serve as a warning to the politicians and public enamored of the continuing privatization of public services. "What I am trying to say to you is, it happened, I am not embellishing it," Prater said. "All you have to do is use your common sense to realize that if even 10% of what I am saying is true, that's too much. And what if 99% of what I am saying is true?"