NHBA Prison Series: Maintaining Order and Dispensing Punishment

By Tom Jarvis and Scott Merrill

Maintaining order in the New Hampshire State Prison (NHSP) system is never a completely precise affair despite the many rules and regulations that exist to keep people safe. As New Hampshire’s prison population grows, so does the need for disciplinary actions and protective remedies to keep inmates, corrections officers, and others visiting the state’s prisons safe.

In 2023, there were 2,100 people being held in the three New Hampshire state prisons, which is three times what it was in 1978. Preserving safety inside these prisons requires a high level of control over the physical space and the bodies of all of those inside.

For inmates, this means dress codes, occasional strip searches, and formalized routines and restrictions throughout the day. For the occasional female attorney visiting her clients, it has even meant no dresses above the knee. For corrections officers (COs), it means treating inmates with respect by maintaining boundaries while also understanding the culture on the inside. Prison society, after all – much like that on the outside – has its own class system and rules. Navigating all these rules for prisoners, COs, and visitors is an ongoing process.

Disciplinary Action and the SHU

When an inmate violates the rules of the prison or commits a crime while incarcerated, they are given a disciplinary report, or D-report, and must submit to a disciplinary hearing (commonly referred to as a D-board hearing) in front of the disciplinary board.

“A lot of times D-reports were also used as bargaining chips to get information from inmates, basically turning them into confidential informants,” says a former NHSP Corrections Officer who wishes to remain anonymous (hereinafter referred to as the CO). “A D-report can affect an inmate’s pay, their parole, and their ability to get canteen.”

An inmate’s canteen is the items they purchase from the prison commissary, such as food, fans, and radios. There are even bigger items like televisions and tablets, which are used to make video calls and message loved ones through the messaging system, and to download movies, games, books, and prison programming. The items are typically purchased using money they’ve earned while working in the prison, or that was deposited into their account by a family member. The items they are allowed to purchase are based on their classification (C1 to C5).

“Canteen can be used as currency,” attorney and former deputy director of the New Hampshire Public Defender Tracy Scavarelli says. “There is also a lot of gambling that occurs inside where they trade canteen items. I actually have a client who runs one of their poker tournaments on a frequent basis. His explanation is that it gives folks something to do. It keeps people quiet on the pod. He’s an older gentleman, so he likes to run it to keep his pod orderly and quiet. You would think the administration would do something like that, but it’s left to the inmates.”

Anthony Naro, a criminal defense attorney who worked for the New Hampshire Public Defender for 12 years, says lawyers are not allowed to speak for their clients at the D-boards. He says that the two most common reasons for a hearing are drug possession and fights.

“D-boards are akin to a disciplinary hearing at a college or university, where you can have counsel sit next to you and advise you, but your attorney can’t participate in the proceedings,” he says. “It’s quite unfair in my opinion, but those are their rules. The way I look at discipline at the prison is the same way I look at the motor vehicle code. It is impossible to drive anywhere and not violate the motor vehicle code, much like it’s impossible to live at the prison and not violate any of their administrative rules. I had a client – good guy – who had some Ibuprofen someone who left the prison gave to him. When it was discovered, he received a D-report for it. I’m like, ‘come on guys.’”

Depending on an inmate’s classification, D-reports can be faced with an upgrade as punishment. For example, if an inmate who is a C3 attacks someone, they will be upgraded to C4 and will immediately go to the Secure Housing Unit (SHU), which is solitary confinement.

“There are three main reasons why an inmate would go to the SHU,” says the CO, who worked in the SHU for three years. “One is coming to the prison with a high-profile crime like a murder. They stay in SHU for the first three to five years of their sentence. The second reason is if they are being punished for assaulting another inmate or an officer or if they break one of the more serious rules. If you attack someone, you immediately go to the SHU, and if I broke up a fight, both guys would go to SHU for the night. The third reason to go into SHU would be PC.”

Protective Custody

PC, or protective custody, is a ward in the SHU reserved for inmates who have been threatened and fear for their safety in General Population. The CO says when an inmate first arrives at the prison, the corrections officers secretly classify them as either predator or prey and that it’s the prey who typically end up in PC.

“A lot of times, it’s the sex offenders who end up in PC because they are pushed off the tier,” the CO says, explaining that this means the sex offender is made to feel unsafe so they will want to leave General Population. “The inmates will ask for their papers and if they don’t or can’t produce them, they will assume they are a sex offender and will make their lives a living hell to get them off the tier. Some examples include threatening them, taking turns yelling and screaming at night to deprive them of sleep for days, and plugging up their toilets and flushing them a bunch of times to flood their cell.”

The CO continues: “Another particularly heinous thing they sometimes do is fill a milk carton with the nastiest stuff you can possibly imagine – feces, urine, semen – and then stomp on it when the sex offender walks by, so it splatters out from the gap at the bottom of the door where they receive their food trays. It covers the inmate with it – kind of like when you stomp on a ketchup packet as a kid. It sprays everywhere.”

Zebadiah Kellogg-Roe, a current inmate of the NHSP in Berlin, is well acquainted with these threats and with PC. Kellogg-Roe was convicted in 2008 of four counts of aggravated felonious sexual assault and sentenced to an aggregate term of 20 to 40 years. He says the lower classes in prison are referred to as the “skinners” (an inmate term for sex offender), the rats (people who turn State’s evidence, align with police, or turn in other prisoners for violations), and people in PC.

“Those are basically the three groups in the lower-class structure of prison,” Kellogg-Roe says. “When you say the magic words, ‘I am in fear for my life,’ COs immediately have to react and do their job.”

Following an inmate’s report to a CO that he is in fear for his life, Kellogg-Roe says COs follow a protocol.

“They say, ‘turn around,’ and they put handcuffs on you and march you out of the situation,” Kellogg-Roe says. “In that way, you do achieve getting moved out of the space.” He adds that sometimes COs will ask the inmate what’s going on and whether they, “can’t just deal with the situation.”

If they can’t, an inmate is strip-searched and checked for contraband and then placed in a holding cell called a dry cell – a form of solitary confinement with the lights constantly on and no flushing toilet or running water – where they wait for a living reassignment.

“Conceivably, if you cried wolf over and over again, they may not believe you and could say you need to go back,” Kellogg-Roe says, recalling a mentally ill young man in R&D in that situation. “He was curled up in a ball on the floor in his cell. There are times when you can get in a dark place with the officers where they don’t help you.”

Kellogg-Roe says he has repeatedly sought out PC, adding that the harassment he has experienced in prison has allowed him to be reassigned several times. He has cycled from the state prison in Concord to the state prison in Berlin, and at times to various sections within each of those prisons. He says that for some prisoners, PC can provide a sense of control despite the negative connotations.

“In here there’s a lot of, ‘I ran up a gambling debt and owe people canteen and drug money and I have to go to PC to get away from that,’” he says. “I know I can’t beat people up, and I know I just don’t have the authority to make certain changes, so I defer to their authority, which means I go to them when I have an issue. Other inmates don’t acknowledge the COs’ authority and will handle things themselves. And that’s what’s expected of the criminal or the inmate class. And hence the PC prisoner often gets a bad rap.”

Violence in Prison

Despite some occasional incidents, the CO says life in prison is quite mundane compared to what is shown in popular prison movies. While fights do occur and harassment does sometimes happen, the inmates generally adhere to the majority of rules, he says.

“There were a few scary times, where during the heat of the moment I wasn’t afraid but there was a lot of fear after,” he says, recalling one instance where he was involved in an altercation he believes had the potential to turn violent. “One time, I was running an overtime shift and was the only officer watching over 100-plus inmates on the basketball court.”

The CO, stationed near the gymnasium’s only bathroom, was counting the people going in.

“I’d count the people because it’s the perfect time for inmates to pass stuff to each other,” he says. “And I happened to notice more than four guys going to the bathroom that has only four stalls.”

While some COs are referred to by other COs as “high speed,” the CO describes himself as a relaxed officer who never bothered inmates about minor infractions such as wearing their pants too low. Nonetheless, he says he needed to do his job and find out what was happening in the bathroom.

“I went in there and saw more than two feet under the door of the stall,” he says. “I opened the door, and this guy had a huge bag of drugs, doing a drug deal. One of the guys pushed back past me and I grabbed his shoulder. The other guy tried flushing the drugs and I scooped them out and fought with both guys in the bathroom, trying to gain control of them by myself. Then, the scuffle ended up spilling out into the gym after that.”

The CO says he was able to call for first responders while holding the two inmates down in the gym, and when he looked up, he saw that all 100-plus inmates had circled around him.

“They could have started kicking me and no one would have gotten to me in time. I could have died,” he says. “But none of them did anything. I’m really blessed that nothing awful happened.”

Attorney Scavarelli says in her more than 20 years as a lawyer, she has only had one serious confrontation with a client in prison.

“When I was a new attorney, one of my first times at the prison was visiting a client in SHU,” Scavarelli says. “You’re alone in the room with your client who is uncuffed and there is a two-way mirror. When I was finished meeting with my client, I was having a difficult time alerting the CO that our visit was over. I was knocking on the window as instructed and no one came.”

She says she continued to knock about five times and that clearly no one was aware of her presence.

“My client actually threatened physical and sexual harm against me once he realized no one was coming,” Scavarelli says. “Being from Jersey, I faked it till I made it. I made sure he kept his distance, and it was a stare off. It was very nerve wracking to be in that situation where a client is threatening harm against you and clearly there was no one aware of my presence and the lack of security. Over time, you just learn to deal with it and have good relationships with your client so as not to be put in those situations.”

PREA

The Prison Rape Elimination Act (PREA) was passed unanimously by Congress in 2003 to protect inmates from sexual assault with a zero-tolerance approach to both inmate-on-inmate and staff-on-inmate misconduct. With PREA, the National Prison Rape Elimination Commission was established and, in collaboration with the Department of Justice, finalized the PREA standards in the Federal Register in 2012.

“The prison system takes PREA very seriously,” the CO says. “Even when it’s consensual sex, we have to report it as rape. I have walked in on inmates who were having sex and I had to do a PREA case. According to the rules, there is no consensual sex in prison.”

While PREA is well-intentioned, some organizations and individuals feel the standards are inadequate. According to the University of Minnesota’s Gender Policy Report, “it falls short of what is needed to protect all prisoners, especially women, people of color, transgender individuals, and disabled people.”

“In my view, it’s not really dealt with,” Naro says. “I bring it up in sentencing hearings when appropriate, especially if the State wants to send a young and vulnerable person to the prison. When I was a public defender, we got a tour of the prison and the CO who was giving us the tour made a comment that really shook me. He said, ‘everybody’s paying rent to somebody,’ and it’s a fact.”

One of the major issues with the fight against rape in prison is a lack of reporting.

“Unfortunately, I’ve had many clients over the years not report things that have happened to them at the prison out of fear and shame,” Scavarelli says. “Often times, there is a fear of retribution and further abuse if they do report it.”

Visitation, Monitoring, and Dress Code

The first line of the New Hampshire Department of Corrections’ visitor dress code reads: “All visitors MUST wear undergarments.” The dress code then outlines several clothing prohibitions, including overalls, scrubs, scarves, and zippered shirts, to name a few. This strict dress code is doubly enforced with women – including attorneys – at the men’s prisons.

“There was one particular corrections officer who would strictly apply the clothing requirements [with attorneys] that apply to general visitors,” Scavarelli says. “If a woman was wearing a blouse without sleeves, but had her suit coat over it, he would sometimes not allow you to go in. He would accuse attorneys of potentially removing their jacket during the visitation. Attorneys are not there to show off a shoulder. We are there to do whatever work we have to do and then leave, the same as a male counterpart.”

Scavarelli says a woman’s dress needed to fall below the knee while sitting and that the corrections officer would frequently have female attorneys demonstrate for him by sitting and showing where the hemline fell.

“I would typically wear turtlenecks and pants so he wouldn’t harass me, but one time I had an emergency situation where I needed to get something signed by my client and had a dress on,” she says, adding that the corrections officer made her go through the process. “I purposely pulled it over my knee as I sat down. He said, ‘oh, how crafty of you.’ It was obviously a harassment technique versus anything to do with security. There was, in my opinion, sexual harassment and arbitrariness in terms of implementing the dress code at the prison.”

Oliver Hooper, serving a 50- to 100-year sentence at the NHSP in Concord after being convicted of aggravated felonious sexual assault in 2006, says visitations – and even phone calls – can be reminders of the lack of control people sometimes feel on the inside.

“You know, when we have visitors visit, they have to fill out forms, they have to be vetted to come visit us,” Hooper says. “And even this phone call we’re on now, you know, is being recorded. They can listen to it any time and the mailings coming in or going out can be read at any time, as well.” t

The New Hampshire Department of Corrections Public Information Office has not responded to the Bar News for comment in this series at the time of this article.