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Archive for the ‘Markell’ Category

Dave Burris has published an interesting article in the current issue of Coastal Sussex Weekly Magazine, which was written by Michael Short.

The piece examines the profession of river pilot, and includes the pilots’ take on dredging.

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Attorney General Beau Biden watched the proceedings from the audience Tuesday, but did not argue the case.

By Lee Williams

(Note: this story can also be found in CRI’s Special Reports section.)

The State of Delaware asked District Court Judge Sue Robinson Tuesday for an injunction that would halt the Army Corps of Engineers’ controversial plan to deepen the Delaware River from 40 to 45 feet.

Delaware Deputy Attorney General Jennifer Oliva presented the state’s case before a packed courtroom, which included several longshoremen from the Port of Wilmington who had ball caps that said “Dredge Now!”

Oliva castigated the Corps of Engineers for its decision to move forward with the plan without obtaining Department of Natural Resources and Environmental Control (DNREC) permits, calling it a “surprise” and a “unilateral decision,” until Judge Robinson interrupted.

“I am taken aback by the State of Delaware’s constant use of ‘surprise’ and ‘unilateral decision,’” Robinson said. “The process has been going on for years, and it’s striking to me that the State of Delaware has sat on its hands for years. Am I supposed to set that aside and start my history in 2009?”

Congress authorized the dredging plan in 1992. The Corps first applied for state permits in 2001. Two years later, a DNREC hearing officer recommended rejecting the plan. It wasn’t until July 2009 that DNREC Secretary Colin O’Mara formally denied the Corps’ dredging proposal.

After the denial, the Corps took steps to move the plan forward until Attorney General Biden’s office filed suit to stop the plan. The State of New Jersey and five environmental groups quickly joined the suit.

“It is true that from 2003 until the secretary ruled recently in July, Delaware didn’t formally address the permits,” Oliva said.

This delay by the state was noted by Judge Robinson and Kent Hanson, a U.S. Justice Department attorney representing the Corps of Engineers.

“The Corps has never said that the hurdle to comply with state law is way too high,” Hanson said. “In this case it’s way too long.”

Robinson peppered Oliva with questions about the steps needed to implement the dredging plan.

“It’s obvious Congress wants this proposal to go forward, and whenever you dredge a riverbed you have consequences. The question is, what obstacles does the Corps need to get through to implement Congress’ directive?” the judge asked Oliva. “My real question is how do we move this project forward? What is left to be done?”

Oliva pointed out that both the federal Clean Water Act and the Clean Air Act require the Corps to coordinate with the states involved.

“The Corps hasn’t said one reason which precludes them from complying with state law,” Oliva said.

During his presentation, Hanson acknowledged the legal requirement to comply with state water quality regulations.

“But there is a ‘but’ which Delaware wants to leave out of the statute: unless the state action effects or impairs the Army’s authority to maintain navigation.”

Oliva added that the Corps’ responsibility to maintain a navigable waterway also did not apply, as the river hosts much traffic already, at the 40 feet depth.

“The Secretary of the Army has a duty to maintain navigation, not enhance,” Oliva said. “Navigation on this river up to the Port of Philadelphia is robust. They’ve bragged about it.”

Hanson said the Corps has the authority to move forward without the permits. However, he said, they will still seek DNREC permits, even though they do not feel bound to obtain them.

He chided the state for claiming the dredging would stir loose harmful contaminants without offering any proof.

“The evidence, in terms of data and expert testimony, is all on this side, and there will be no irreparable harm,” he said, adding that that the state’s claims had neither evidence nor causal links.

“It is a kind of fear mongering,” he said.

Oliva did not fully address the economic impact that could occur if the channel is not deepened, and larger vessels bypass the local ports in favor of those with deeper shipping channels.

Hanson said delaying or denying the proposal would produce harm.

“We’re not talking about economic harm to the government. We’re talking about economic harm to people,” he said. “In the public interest, we can’t ignore the environment, but we have to look at much more.”

Robinson will entertain additional written briefs for two weeks before ruling on the state’s request.

Contact investigative reporter Lee Williams at (302) 242-9272 or lee@caesarrodney.org

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

© Copyright Dec.8, 2009 by the Caesar Rodney Institute.

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Pressure is mounting on Gov. Jack Markell to find a way out of the dredging controversy, as observed today in a story by Philadelphia Inquirer staff writer Linda Lloyd.

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Proponents of the Army Corps of Engineer’s channel deepening project claim opposition by local politicians is self-serving, a betrayal of their constituents’ best interests, anti-business and anti-labor.

By Lee Williams

(Note: this story can also be found in CRI’s Special Report section.)

The Army Corps of Engineers has been dredging the Delaware River since the 1800s, when the river was 18-feet deep. The current 40-foot depth has been maintained regularly since World War II.

If Pennsylvania Governor Ed Rendell had his way, they’d be dredging the river deeper tomorrow, but a proposal by the Corps of Engineers to deepen parts of the shipping channel from 40 to 45 feet is in jeopardy.

After Delaware and New Jersey officials took legal action to halt the dredging project, five environmental groups similarly filed suit – lawsuits Rendell believes are frivolous.

“What makes these suits a hoax is that we do dredging every year,” Rendell told the Caesar Rodney Institute. “We do maintenance dredging. When we’re allowed a 40-foot depth, silt accumulates and you have to dredge.”

If parts of the 103-mile shipping channel are dredged to 45 feet, Rendell and many others believe the increase in traffic will create more jobs throughout the region, in addition to safeguarding the jobs already here.

“I am a strong advocate of dredging. It’s essential for us in the Port of Philadelphia, southern New Jersey and the Port of Wilmington to remain competitive,” Rendell said. “We need to dredge to at least 45 feet. If we do so, we could add 10,000 to 40,000 good-paying longshoreman jobs. To get 10,000 to 40,000 jobs, especially in this economy, is like manna from heaven.”

Delaware Gov. Jack Markell, Attorney General Beau Biden and New Jersey Gov. Jon Corzine don’t see the Corps’ plan as heaven sent. None were willing to be interviewed for this story.

Privately, Corzine has admitted his opposition to the dredging project would end after he won re-election, a campaign he ultimately lost.

According to a former government official, during a meeting in late September, Corzine said, “I don’t give a shit about this dredging project. We just have to get through November 3rd.”

Corzine’s critics have accused him of supporting dredging that benefits the northern ports in his state, while ignoring the interests of southern New Jersey ports.

Rendell has spoken to Markell and Corzine about the need to deepen the channel by five feet, and he has a plan to overcome their opposition.

“I told them we’re going to create an oversight committee to make sure the dredging goes without any environmental problems,” Rendell said, adding that the viability of ports up and down the river is at risk if the project is stopped.

Who stopped the project?

The suits by the environmental groups didn’t halt the dredging. The Corps $300 million plan was already on hold. It was stopped dead because of a report issued in 2003 by an anonymous hearing officer working for the Delaware Department of Natural Resources and Environmental Control (DNREC), who decided the Corps didn’t submit sufficient documentation, and that the plan changed during the intervening years, while DNREC sat on the paperwork.

“Studies, opinions and documentation required to corroborate requests to modify protective environmental windows are not part of the record,” the hearing officer wrote in his six-year-old report.

DNREC Secretary Collin O’Mara cited this hearing officer’s report in his July 23 denial letter, sent to Lt. Col. Thomas Tickner, the Corps’ Philadelphia District Commander.

“Given the Hearing Officer’s recommendations, the significant changes to the scale of the project, the outdated nature of the record, and the potential procedural flaws in making such an important decision based upon the existing record, I have no alternative than to deny the permits,” O’Mara said in the letter.

O’Mara too was not willing to be interviewed for this story.

His denial letter set off a chain reaction among politically ambitious state officials on both sides of the river.

On Oct. 30, Biden filed suit in federal court to stop the project, arguing the project infringed upon his state’s sovereign rights.

“The decision by the Army Corps of Engineers to begin deepening Delaware waters is a direct challenge to the territorial authority of the State of Delaware and violates federal and state law,” Biden is quoted as saying in a press release. “We will aggressively enforce our right to regulate and control any activity conducted on the Delaware River within Delaware’s boundaries. Instead of working with Delaware by addressing longstanding critical concerns about the impact of the proposed dredging project, the Corps decided to proceed to deepen Delaware waters without Delaware’s approval.”

Less than two weeks later, at Corzine’s direction, New Jersey Attorney General Anne Milgram – who was appointed in 2007 by Corzine – joined Biden’s suit, a move Biden trumpeted in yet another press release.

“New Jersey’s decision demonstrates its shared commitment with Delaware to protect the territorial integrity of our states and our natural resources,” Biden is quoted as saying in a Nov. 10 press release. “I applaud New Jersey’s swift action in this case…”

A week later, the environmental groups piled on.

Motives questioned

The actions of the two attorneys general produced consternation and a lot of head scratching at the Corps, who like Rendell pointed out there’s almost always maintenance dredging going on somewhere on the river, in order to maintain a navigable depth.

“There’s a lot about this project that’s unique for us,” said Ed Voigt, spokesman for the Corps’ Philadelphia District.

The Corps, he said, first applied for DNREC permits in 2001, so of course the plan morphed somewhat while the department took no action.

As to the five lawsuits, Voigt pointed to the Corp’s reams of environmental impact statements.

“There have been $8 million worth of environmental studies to date,” he said. “There have been samples looking at salinity, ground water impact, contaminant levels, impact on shellfish and endangered species.”

What did the studies determine?

“There is no significant impact,” he said. “It’s environmentally safe. The channel’s clean. It’s a very thorough battery of tests.”

Voigt said one on the “traps” people fall into when considering dredging is the mistaken belief that contaminants in the silt will be disturbed by the process and float downstream. This risk, he said, is negated by the Corps’ ongoing maintenance dredging.

“Because of the maintenance of the channel for the past 70 years, there’s a vacuuming effect, a skimmering effect,” he explained. “As contaminants are introduced into the channel, they come back out.”

The Corps has already made plans to dispose of the 16 million cubic yards of sand, clay and silt – known as spoils – that will be removed from the river bottom once the plan is approved.

They say 11.9 million cubic yards of spoils will be placed on federal land in New Jersey and Delaware. In the past, the Corps has allowed these spoils to be used for public works projects. Several years ago, the West Deptford Township used 150,000 cubic yards in its riverfront development project.

The remaining 4.1 million cubic yards, mostly sand from the Delaware Bay, is slated to be used for shore protection.

It’s about jobs

The Holt Logistics Corp. was founded in 1926 by Leo Holt, who started with a single truck – new technology for its time.

Holt raised his family in Philadelphia, making deliveries around the region with a small fleet of two trucks.

He lost everything during the Great Depression, by using the trucks as collateral in a loan he guaranteed for a friend. He managed to rebuild, and passed a successful trucking business to his two sons, Leo and Tom.

In 1967, the two brothers managed to buy a piece of an old shipyard, expanding the family business into the maritime industry.

Today, the founder’s grandson Leo A. Holt oversees a diversified business, with more than 1,500 people depending on him for their livelihood.

Holt believes the politicians who oppose dredging are not taking into account the best interests of their constituents. Unless the plan is implemented, Holt said the entire Delaware River estuary will be bypassed by vessels that require a deeper draft.

“There is so much these people have not answered in terms of their opposition,” he said. “If they do not take their hand off the throat of this, they run the risk of marginalizing their own populations. They are not only putting their hands on the throat of businesses, but their own people.”

If the plan is approved, the entire region will benefit.

“What we want to see is not just a port facility developed. We want to see distribution parks proximate to the port facilities, built in Delaware, Philadelphia and New Jersey,” he said. “That’s the front and the back of how the world evolves.”

Holt has already made commitments to expand his port facilities – commitments that are at risk if the river is not dredged.

“Our outlook is very simple. We just want to see more jobs, create more capital, put it back in our business, and reinvest in what we do,” Holt said.

Pennsylvania Rep. Bill Keller, D-Philadelphia, like Holt, questions the motivations of politicians who oppose the dredging plan.

Keller, a former longshoreman, said the issue is simple – it’s about creating more jobs.

“Some politicians have used this issue. They don’t know what they’re talking about. They may be able to win a local election by saying dredging is bad, but they’ll hurt the people who depend upon the river for a living,” Keller said. “It’s our job to create jobs. They say they’re for that, but their actions are different.”

Keller said more than 75,000 people currently depend on the port for their livelihood.

“If the politicians along the Delaware River don’t get their act together and get behind dredging, we’ll lose all those jobs and it will be our fault,” he said. “In Philadelphia, we can’t afford to lose those jobs. I don’t think the people of Wilmington can either.”

Gov. Minner’s role

Capt. Mike Linton, former president of the Delaware Bay Pilots Association, spent 48 years on the river.

He ferried former Delaware Gov. Ruth Ann Minner up and down the river, to familiarize the governor with the Corps’ proposal.

“She was on the river at least three times. She knew quite a bit about it. She was in favor of the plan,” Linton said.

Linton believes Minner should have signed-off on the Corps’ proposal, and told her DNREC secretary to issue the necessary permits, instead of allowing the plan to gather dust in DNREC’s in-box.

“I’m very baffled why she didn’t do it,” he said.

Minner did not return calls seeking comment for this story.

“If we don’t’ dredge, the traffic we have in Philadelphia, Camden and Wilmington will eventually go away,” Linton said.

The problem, he explained, is an aging fleet. The ships hauling the bulk of the fruit to local ports are in their “teens.” They’re designed to last approximately 20 years.

“The next generation of ships is being built to accommodate the Panama Canal,” he said. “They’re bigger. If we don’t get more water, what we have will wither on the vine and eventually go away.”

Linton and others say larger container ships will simply choose other ports with deeper access, such as Baltimore, Norfolk and Miami, which have a 50-foot depth, or New York, Charleston and northern New Jersey, which have dredged to 45-feet.

He and other dredging proponents point out that 1,000 trucks will be added to the region’s highways per day, if the channel is not deepened, which will increase pollution, traffic congestion and highway repair costs.

Green Concerns

Green Delaware is not one of the five environmental groups suing to stop the Corps’ dredging project.

Green Delaware Executive Director Alan Muller, who opposes additional dredging, says the controversy is cyclical.

“For decades, there’s been an ongoing squabble between environmentalists and other interests. It’s fair to say, so far, the anti-dredging interests have prevailed. That’s the big picture,” Muller said. “Over the years, there’s been a big push to say [dredging] is needed and wanted. Now, we’re going through another cycle. There’s nothing unusual about that.”

From an environmentalist’s perspective, Muller said, part of the issue is trust.

“The Corps, at least as far as the Philadelphia District is concerned, no one trusts them,” he said. “Everything they say seems to be automatically regarded as a lie.”

Muller said the “vacuuming effect” of constant dredging is itself problematic, and responsible for two types of pollutants.

“The technical lingo is ‘suspended in the water column,’ which means when you go along the bottom with the cutter, it loosens everything up. Some gets sucked up into the spoils area, the other heads down river,” he said. “The conflict is one: what is suspended in the water, and two: where do you put the spoils?”

Muller dismissed the idea proposed by some dredging proponents of dumping the spoils into old coal mines.

“[The spoils] are the consistency of a can of black bean soup. No one wants to put that into rail cars and haul it to Scranton. What would the effect on the groundwater be?” he asked. “And it’s expensive.”

If the spoils were deposited above ground, he said, a good rain would allow contaminants to leech out and re-enter the groundwater.

“A lot of the environmentalists’ objections to this are philosophical,” he said. “They feel the river has been used as a channel for commerce ever since white people showed up. Now it’s time to pay a little attention to the river itself.”

Rep. Keller disagrees, and points to the Corps’ environmental impact studies.

“There are 12,000 pages of scientific data saying it’s fine. As a matter of fact, it’s better than fine,” he said. “This is about one thing – job creation.”

Contact investigative reporter Lee Williams at (302) 242-9272 or lee@caesarrodney.org

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

© Copyright Dec. 7, 2009 by the Caesar Rodney Institute.

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(Editor’s note: the following is a press release issued by Markell during his campaign for governor)

State Treasurer Jack Markell, the first statewide elected official to call for an investigation into the prison healthcare crisis, said July 30 that merely firing the contractor is not enough.

“It has been obvious, and today’s article in the News Journal just underscores, that CMS is failing, and as a result wasting millions of taxpayer dollars,” Markell said. “The real question is how are we going to address these problems? If the Minner-Carney administration couldn’t hold this vendor’s feet to the fire, then what is going to change when we hire another medical provider? How are we going to change the culture of failure that has pervaded our prison medical system?”

In response to an article in today’s News Journal that reported that serious problems persist despite significant taxpayer investment, Markell issued a statement outlining how his policy proposals can help solve the ongoing problems in the prison system.

“We can do better. The problems in our prisons are serious and well-documented. But for some reason we can’t seem to make the right changes. First and foremost we need to make sure we are respecting basic civil rights, but there’s another problem. We hire external contractors, and don’t hold them accountable. It’s as simple as this: We’re not getting what we pay for, and taxpayers are outraged. As governor, I will provide responsible fiscal leadership and ensure that taxpayers receive the best value for their dollar.”

Markell released his Fiscal Responsibility plan in May, and now he is showing how these plans can help fix the problems that continue to arise in Delaware’s prison system. Markell’s plan will create a culture of smarter planning and implement a statewide performance review to evaluate long-funded projects for their true effectiveness. Many other states have conducted comprehensive performance reviews within the past five years, and the ongoing savings generated from a performance audit like the one Markell calls for in Delaware average 2 to 3 percent of these states’ general fund budgets. ForDelaware, that would mean roughly $75 million in annual savings.

“I will make sure that the very first area of state government examined with this performance review will be the health care unit of the Department of Correction. This will be a strong proactive step. My administration will not be one that waits for problems to be covered in the news before looking for solutions.”

It’s clear that the central problem in the continued failure of Delaware’s corrections system to get out from under federal supervision is the continued unsatisfactory performance of the vendor, Correctional Medical Services (CMS), to which the Minner-Carney Administration has delegated responsibility for correctional health services, and the Administration’s inability to effectively manage the vendor.

There can be no more apt metaphor than the repeated criticism in the independent monitor’s report of the ’lack of stable and effective leadership.’

An active and engaged state Administration could be doing more to make sure that CMS – or any vendor – is meeting its legal and moral responsibilities.  At a minimum, the Administration should demand that CMS’s contract be amended to include financial consequences for CMS’s failure to meet measurable performance indicators – especially for providing health services within a specified timeframe from prisoner request.  Underperformance like that reported repeatedly by the independent monitor shouldn’t be allowed to continue without consequences:  There should be performance measures, constant monitoring by the state itself, and financial penalties – culminating in contract termination, if necessary – to enforce vendor performance.

“Last week, I toured the infirmary of the Howard Young Correctional Center,” Markell said.  “Prison staff are struggling to keep up with overtaxed, overcrowded facilities and they need the appropriate resources and tools to more effectively manage the contractor.”

The Administration could take numerous additional steps to ensure that the State meets its legal and constitutional obligations.  We must ensure that decisions about health care, especially the need for urgent care, are made by health care professionals only.  We should establish an independent state unit to regularly review health care services provided for quality of care and adequacy, instead of just leaving it to the federal government, the independent monitor, and the news media to keep an eye on whether a vital state function is being adequately carried out.  We need to improve recruitment, training and retention of health care professionals, working with local hospitals to provide Continuing Medical Education, and we must make translation services available to assist all prisoners who do not speak English.

What we don’t need is another commission, task force, or study group to figure out a new Administration position sometime next year. We don’t need four more years of incremental improvement, at best, like the last four. As in so many other areas of state government, it’s time for a change.”

Markell has other plans to ease the burden on the prison system, which will reduce the cost to taxpayers for prison health care in the long run. To put youths on a path toward success instead of a trajectory toward a jail cell, Markell’s Plan to Strengthen Communities directs state law-enforcement agencies to extensively analyze juvenile-arrest data. More than 7,700 juveniles are arrested each year in our state. In many instances, with appropriate intervention and follow-up, we can ensure that the youth stays clear of trouble in the future.

Markell also will work with the state’s drug courts to assess whether additional resources could expand treatment services and other oversight and monitoring to a greater number of offenders.  The drug courts divert offenders from the prison system and get them the help they need to turn their lives around.

And because the vast majority of inmates are released, Markell will allocate as much as $1 million to help the Department of Correction improve its inmate re-entry services. The expanded re-entry programs will develop individual plans for each offender that identify potential difficulties and agencies and organizations that can provide assistance.

“We have to start planning for inmates’ releases the day they enter our correction system,” Markell said. “Everyone is better off when ex-offenders become productive, law-abiding members of society. But that cannot happen if they do not receive adequate health care in our prisons.”

-30-

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(Editor’s note: this story may also be viewed on CRI’s Special Reports page)


AG’s attempt to stifle Free Speech will only delay needed prison reforms, says family of

inmate who died in state custody of ‘gross medical neglect.’

By Lee Williams

As Attorney General Beau Biden was being welcomed home Wednesday from a one-year tour in Iraq at a ceremony in Dover, his office was busy working damage control, trying to contain the ever-widening prison scandal and silence its critics.

Dover attorney Steve Hampton is one of the few private lawyers willing to take inmate cases, or talk about problems within the state’s prisons.

Hampton has tirelessly striven to educate the public about the Department of Correction’s shoddy medical care, for which Delaware taxpayers spend $39 million per year.

“It’s not only a matter of public policy, it’s a matter of life and death,” he said.

Hampton successfully sued the Department of Correction (DOC) for the death of Anthony Pierce, a 22-year-old inmate at the Sussex Correctional Institution who became known as “the brother with two heads” because of a massive brain tumor growing on his head. The tumor, which went untreated by the prison medical staff, eventually killed Pierce in 2002.

Hampton has shared his expertise in interviews with the Caesar Rodney Institute, The News Journal, as well as local television and radio stations.

Now, Attorney General Biden’s office wants to silence Hampton – through unprecedented legal maneuvering – and contain one of the DOC’s most-respected and most-vocal critics.

“Really, what they are trying to do, they don’t want me talking about this any more,” he said.

Grave public concern

In September 2008, Hampton filed suit against the DOC on behalf of David Kalm, a former inmate of the Sussex Correctional Institution (SCI).

In the complaint, Kalm alleged he was repeatedly assaulted by guards at SCI. During one of the assaults, Kalm claims a guard shoved a nightstick or similar other object, down his throat, causing tears in his trachea.

Hampton deposed several guards as part of the Kalm case. The depositions were recorded and transcribed.

Hampton questioned the guards about the alleged assaults, but also about their training. Their answers revealed that the DOC is breaking its promise to the federal government, in which it agreed to provide specific training to the guard force, as part of the federal Memorandum of Agreement between the DOC and the U.S. Department of Justice. The DOC chose to sign the agreement in 2005 rather than risk litigation in federal court, after Justice Department investigators determined poor medical care in Delaware’s prisons was violating the inmates’ civil rights.

The Caesar Rodney Institute used several depositions from the Kalm case in preparing its recent special report “Rogue Force,” after Gov. Jack Markell and Correction Commissioner Carl Danberg refused to comment.

The series revealed ongoing problems with prison medical care, and physical abuse by a handful of guards at SCI – problems that were exacerbated by the DOC’s poor training.

The series also quoted Hampton.

“There is an abusive atmosphere at SCI that permeates the whole place,” Hampton told the Caesar Rodney Institute for the series. “They have a hands-off attitude about the number of use-of-force incidents. It just isn’t important to them.”

Deputy Attorney General Michael McTaggart represents two of the guards who were sued by Kalm. Both testified under oath they did not use improper force with the inmate.

McTaggart read the Rogue Force series. On Tuesday, he filed a broad motion for confidentiality, which would preclude Hampton from talking and place restrictions on all of the documents involved in the case.

In his motion, McTaggart suggests Hampton’s statements may harm his clients and “are intended to and likely to have the effect of influencing the pool of potential jurors in this case. Such future statements by plaintiff’s counsel will make it unlikely that defendants will be able to obtain an unbiased jury pool in this case.”

In a written response, Hampton points out the systemic lack of training, and other matters of public import, which were revealed by the guards under oath.

“The testimony of the COs, former warden and former commissioner establish that the percentage of correctional staff fully current in such training is, and always has been, 0%. This is not an issue that can be suppressed by a confidentiality order,” he wrote.

Neither McTaggart nor Biden were willing to be interviewed for this story.

Hampton says the Attorney General’s Office is more concerned about the embarrassing information being made public than they are about the jury pool being influenced. He wonders who is really behind the legal maneuvering.

“They’re trying to suppress information about how poorly the DOC is doing. It’s been an embarrassment to them, and they don’t want to be embarrassed,” Hampton said. “This is a matter of public policy. We have public officials entrusted with the public trust to run prisons and they’re not doing it. Inmates are being badly injured and are dying. This is a matter of grave public concern.”

Judge William Witham Jr., Resident Judge of the Superior Court of Kent County, said attorneys are not hindered from discussing public policy in a general sense.

“It’s one thing to talk about a matter of public issue when you’re an attorney. It’s entirely something different when you’re a judge,” he said. “However, for the most part, I don’t know of too many restrictions on attorneys to prevent them from talking about public policy issues. And I don’t know who could envision what’s happening in our prison system is anything other than a public policy issue.”

Child rapist released

Judge Witham is all too familiar with the medical care provided in Delaware’s prisons. However, as a sitting judge, he declined to offer an opinion about the department’s medical capabilities.

Instead, he cited his 2003 decision in the case: The State of Delaware v. Kenneth P. DeRoche.

DeRoche was sentenced to eight years for raping a child. Witham ordered that he be released five year early and placed on home confinement, because of the DOC’s medical vendor was not treating his heart ailment properly. At the time, inmate medical care was provided by First Correctional Medical (FCM), an Arizona-based firm that was replaced in 2005 by the current medical vendor, Correctional Medical Services (CMS).

After the prison medical staff failed to provide his heart medication regularly, DeRoche’s blood pressure skyrocketed and he suffered a heart attack. DeRoche appealed to Witham, his sentencing judge, who held two hearings into his complaints, and issued several orders to FCM, orders that he said were ignored.

In his decision, Witham found DeRoche to be credible, and he castigated FCM and the DOC for poor care.

“The court takes seriously these types of issues,” Witham said Wednesday. “I do understand the working conditions the DOC operates under, the education and training issues. The onslaught of people incarcerated plays a factor as well. Put it all in the mix, they’re under a lot of stress. That given, there is an obligation under the law to provide reasonable medical treatment.”

Transparency

Robert Kern believes the efforts to contain the prison scandal are being directed “by the highest office in the state.”

Kern hopes Gov. Jack Markell will keep his vow to make state government more transparent by providing as much information as possible about inmate health care, rather than hindering free speech.

Kern’s son Daniel died Sept. 15 while an inmate in state custody of pancreatitis, an illness that should have been easy to diagnose and treat. Daniel Kern had been serving a one-year sentence for his third DUI conviction. His complaints of severe abdominal pain went unanswered. His family says the medical examiner told them Daniel died of “gross medical neglect.”

“I think this is business as usual,” Robert Kern said. “They should be promoting transparency. I think the fact they don’t want this type of factual information to get out to the public is really a method on their part of minimizing damage. It’s totally unethical. It’s totally unjust.”

Kern is concerned about the administration’s focus.

“This type of action won’t produce positive results. It’s not going to effect change. It will just extend the problem,” he said. “It makes me angry they are going to pursue this. How many other people are going to be pressured by state government to keep silent.”

Contact investigative reporter Lee Williams at (302) 242-9272 or lee@caesarrodney.org

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

© Copyright 2009 by the Caesar Rodney Institute

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The Caesar Rodney Institute announces the release of its investigation into the Sept. 15 death of Daniel R. Kern, an inmate who was being held at the Plummer Community Correction Center in Wilmington.

The special report about Kern’s death, titled “Always and forever your son, Daniel,” reveals how the 41-year-old inmate died from an illness that should have been easy to diagnose and treat.

The Delaware Department of Correction and its medical vendor Correctional Medical Services, however, ignored Kern’s frequent complaints of severe abdominal pain and other symptoms, and denied care.

Kern’s family says he was allowed to die because he was gay. They are calling on lawmakers to act before more inmates die needlessly from preventable and treatable illnesses.

CRI investigative reporter Lee Williams wrote the special report about Kern’s death.

It follows the release of “Rogue Force,” a special report that reveals how guards at the Sussex Correctional Institution are physically abusing inmates in their care.

The 10 stories in “Rogue Force” show how Delaware is breaking an agreement with the U.S. Justice Department, in which the Department of Correction promised to improve its shoddy medical care, which federal investigators determined was violating the civil rights of the 6,900 inmates in state custody.

It also uncovers physical abuse by guards at SCI and its consequences.

The series proposes solutions to the problems within the DOC and includes more than 30 questions that Correction Commissioner Carl Danberg refused to answer.

The Caesar Rodney Institute will continue to publish follow-up stories on the Institute’s Web site. CRI is committed to reporting the problems revealed in “Rogue Force” until the state makes substantive changes to its prison system.

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