He recalled a time when, after sitting that way for hours, an older prisoner couldn’t hold it anymore and urinated in place. A guard told the inmate to go the bathroom and forced those behind to move up and sit in the puddle.
Dubbed “nuts to butts,” the control mechanism was employed more than once by the Los Lunas facility. Attorneys estimated 200 inmates had been affected by the policy when the complaint was filed in 2011, but it turned out there were nearly 500.
The practice was abandoned by the prison at some point after the filing of a civil rights lawsuit on behalf of prisoners in 2011. A Department of Corrections spokeswoman called it a “controlled seating” operation.
On Thursday, attorney Matthew Coyte, who represented inmates, told a federal judge that a prison expert hired by plaintiffs would have testified that the practice was so outrageous that it was unparalleled in the United States. Most prisons have policies saying inmates shouldn’t touch or be forced to touch each other, he said.
Chief U.S. District Judge Christina Armijo formally signed off on the settlement of the lawsuit, reached a year ago, after a hearing to determine if it was fair to the parties.
The $750,000 payment by the state includes legal fees to Coyte and attorney Jack Jacks, $10,000 to six class representatives and payments to others who submit claims. Payments calculated thus far range from $528 to $2,114, Coyte said.
“We haven’t been able to find some people,” he said.
Money allocated for those who can’t be found, or who don’t cash their checks within three months, will go back into the pot, and Coyte estimated most class members would receive more than $1,000.
Although the lawsuit initially sought a court injunction to halt the practice, it was dropped without the court having to weigh in, prompting Armijo to ask how it would be monitored.
Steve French, who defended Corrections in the lawsuit, told Armijo that the policy change was made by new Corrections chief Gregg Marcantel and that deputy wardens were made well aware of the change.
“We believe we will not see this application used again,” he said.
Coyte said he gets daily calls from inmates and believes someone would make him or another lawyer aware if the practice recurred.
The settlement avoids protracted litigation that could have resulted in a legal victory but nominal damages – meaning no payment for the plaintiffs – or a defense verdict that could be interpreted as tacit endorsement of an “abhorrent” practice, Coyte said in explaining reasons for the settlement.
Robert Salazar, a former inmate and a class representative, said after the hearing that his life now is focused on recovering from past abuse through counseling and treatment, including post-traumatic stress disorder that was exacerbated by “nuts to butts.” He said the prison had three instances of the practice on file, but that it occurred more than that.
“It was very degrading,” he said. “Nobody should have to put up with this.”
Salazar said the number of inmates varied according to the event, but as many as 288 were forced to line up in their shorts with their genitals touching the next inmate’s backside with no access to a bathroom. Armed guards, meanwhile, wore masks to conceal their identities.
“This is about accountability,” he said of the lawsuit and its resolution.
Coyte told the Journal in 2013 that Corrections officers initially denied that the incidents occurred.
“Everything they denied turned out to be true,” he said.