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From: DONNA LEONE HAMM
Date: Fri, Jun 10, 2011 at 7:10 PM
Subject: FW: RE-WRITE needed: DO 911/Relevant portions of of SB 1621
Middle Grounders:
The information below is self-explanatory. No need to respond to this email; it is sent to you for information purposes only. Our preliminary legal research indicates that the new fee for visitor background checks (which DOC has now dubbed as a "visitor application fee" for what we believe are very specious reasons) is an unconstitutional "special tax." We are in the early stages of preparing a Complaint for Declaratory Judgment against Charles Ryan, DOC Director. We hope to have the lawsuit prepared, written and filed prior to the effective date of the new fees, July 20, 2011. However, there is no way that the lawsuit will be resolved by that time. The "relief" we will be seeking is (1) to have the court declare that the statute is unconstitutional and imposes a "special tax" on prison visitors; and, (2) that all fees thus far collected are to be refunded. The court will NOT grant us a preliminary injunction (prior to implementation of the policy/fee) because the imposition of the fee does not represent "irreparable harm," which is the standard of law that must be met.
Please carefully read the information below. As you can see, we have demanded that the DOC re-write DO 911, effective 7/20/11 because they aren't even following the law that is stated in the new statute. By naming the fee a "visitation application fee" instead of what the law calls it -- a BACKGROUND CHECK FEE -- we believe that the DOC is trying to avoid having to perform actual background checks on all visitors because it will overwhelm their resources. Keep in mind that NONE of the fee monies collected are allowed to be used by the DOC to off-set the actual costs (whatever they are) for background checks. Instead, 100% of the monies collected MUST go to the Building Renewal Fund (to repair roofs, fire safety systems, locks, etc.) Note: ALL taxpayers benefit from the alleged safety that is created for the state by locking up prisoners; prisoner families should not have to pay the costs of building maintenance of prison facilities on their own. That's what this law attempts to do.
Right now, we don't need Plaintiffs for the lawsuit, but if we do need volunteers, we will put out the word and obtain names.
Thanks for understanding that this email is being distributed to more than 2,000 people and we can't possibly respond to individual questions from each one of you. Feel free to pass this information along to at least ten (10) people. If they want to be included on our Middle Ground E-mail alert list, ask them to send us an email with the subject line marked: ADD To Email Alert List.
Donna Leone (Hamm)
Criminal Justice Consultant
Executive Director - Middle Ground Prison Reform
See: www.middlegroundprisonreform.org
MIDDLE GROUND HAS BEEN ARIZONA'S PREMIER CHAMPION OF THE RIGHTS OF THE INCARCERATED SINCE 1983
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From: middlegroundprisonreform@msn.com
To: cryan@azcorrections.gov; kklausner@azcorrections.gov
Subject: RE-WRITE needed: DO 911/Relevant portions of of SB 1621
Date: Fri, 10 Jun 2011 15:54:39 -0700
Mr. Ryan,
As we discussed, I am writing to provide you with concerns and objections to the implementation of SB 1621, specifically that part which provides for a fee for background checks for visitors, but which will actually be used (100%) to fund an Building Renewal Fund wholly operated by the DOC. I noted on the DOC website that you have already issued revised DO 911, effective 7/20/11, but for various reasons -- particularly because it is illegally written from the start -- it will have to be revised.
ARS 41-1604.3 states, ESTABLISH BY RULE A ONE-TIME FEE FOR CONDUCTING BACKGROUND CHECKS ON ANY PERSON WHO ENTERS A DEPARTMENT FACILITY TO VISIT A PRISONER. A FEE SHALL NOT BE CHARGED FOR A PERSON WHO IS UNDER EIGHTEEN YEARS OF AGE. THE DIRECTOR MAY ADOPT RULES THAT WAIVE ALL OR PART OF THE FEE. THE DIRECTOR SHALL DEPOSIT, PURSUANT TO SECTIONS 35-146 and 35-147, ANY MONIES COLLECTED PURSUANT TO THIS PARAGRAPH IN THE DEPARTMENT OF CORRECTIONS BUILDING REVEWAL FUND ESTABLISHED BY SECTION 41-797.
Please note the underlined portions of the above paragraph. The recently revised Visitation policy, effective July 20, 2011, and known as DO 911, states at 1.2, Visitation Application Fee, A one'time, non-refundable, $25.00 application fee must be paid at the time the application is submitted for all adult visitors. . . . All fees collected shall be applied to the Building Renewal Fund.
Mr. Ryan, there is no such thing in Arizona law which authorizes a "Visitation Application Fee." As noted above, the fee is imposed for "conducting background checks." This is an important distinction and must be rectified.
Although I, myself, am a potential visitor to the prison facilities throughout the state, I decied to poll our Middle Ground email "alert" list (which consists of about 2,000 valid addresses) to see what thoughts and concerns others have about this background check fee. In no order of importance and in no order of frequency of an item being mentioned, those concerns -- along with those specifically identified by Middle Ground -- are listed below.
As I previously mentioned to you, this list of concerns -- even if taken into account by the Department in re-writing the policy which will govern this fee -- in no way constitutes an endorsement or support of the fee. We are adamantly opposed to any fee imposed on potential visitors and believe it to be an unconstitutional special tax.
1. The amount of the fee is of grave concern. DPS charges only $5 for a background check for any person who properly identifies him/herself. The $25 fee as identified in DO 911 is exhorbitant.
2. Visitors have indicated they will expect to be provided a written or digital receipt for paying the fee or fees. There is no indication of providing this reasonable information to anyone who pays money to the Department contained within DO 911. This is critical since any subsequent re-incarceration of a released inmate is not supposed to result in another fee for his previously-paid visitors. The Department may lose a computer record which confirms receipt of the previous payment. A written receipt to the person who pays the fee is expected and required.
4. Since visitors are required to pay for a background check (and not, as the Department has disingenuously renamed it, a "Visitor application fee") , they will expect to receive a copy of the results of the background check. The background checks are confidential, but not to the party on whom the check is being performed (see DPS rules and statutory authorities). This document will have to be mailed by the Department to an address provided by the applicant. Persons who pay for a product or "service" provided by the State are entitled to receive the product they paid for. The statute authorizes a fee for a background check only. There is no statutory fee authorized for a "visitor application."
5. On the date the fee provision goes into effect, will all persons currently approved as visitors be denied visitation until they pay the fee and have a new background check performed? There are already extraordinary delays in clearing visitors through background checks (although the process itself only takes a few minutes, according to DPS). Will all visitors to the Arizona DOC have to have their visitation suspended until a new check is finalized?
6. Will additional staff be hired to timely process all the new and/or updated background checks that will need to be performed?
7. If a person visits more than one inmate (multiple family members incarcerated), is there still a one-time background check fee?
8. How was the $25 fee arrived at by DOC? DPS charges only $5 for a background check fee.
9. Why are there no exemptions (except for lawyers and their agents) for the background check fee? What about truly indigent persons?
10. Once a previous visitor turns age 18, will they have to pay the background check fee upon turning 18 even if they are already visiting as a child?
11. What reports does the Department intend to prepare and distribute which reflects how the collected monies are being spent (on building renewal)?
12. If someone lives in an out-of-state location and has no intention (or means) of visiting, will they still have to pay the fee to become a telephone contact for the prisoner? (The statute says only visitors over the age of 18 will pay the background check fee).
13. How long must a potential visitor wait to be advised whether the application has been approved or not? Will approvals be significantly delayed as a result of all the new background checks that must be performed to comply with this statute?
14. The DOC receipt sent to the applicant must include assurances that the privacy of the applicant is strictly protected and that the information is not sold to any other agency, company or used for any other purpose that a background check for visitation approval.
Please advise what you intend to do to address the above reasonable concerns, as well as to revise DO 911 to correctly identify the reason for the fee (background check).
Donna Leone (Hamm)
Criminal Justice Consultant
Executive Director - Middle Ground Prison Reform
See: www.middlegroundprisonreform.org
MIDDLE GROUND HAS BEEN ARIZONA'S PREMIER CHAMPION OF THE RIGHTS OF THE INCARCERATED SINCE 1983
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