Prison System Allowed Privileges: In less than a year, rapist rated lower risk

[This article provides some insight into the workings of our state's correctional system]

In June 2000, after a judge sentenced serial rapist Scott A. Miller to 699 years for attacks that terrorized Wilmington women, officials at the state prison near Smyrna put him in a maximum-security unit.

Locked in his cell almost all day, Miller could leave for exercise, bathing, counseling and an infrequent visitor or phone call. Outside his cell, Miller needed a guard escort and wore handcuffs and leg irons.

Miller became a chronic violator of prison disciplinary rules, even while under the tightest security, prison records show. Eleven months after his arrival, he was deemed a lower risk and sent to a medium-high security unit. He ate meals, took classes, and bought commissary items without shackles or a guard escort.

Despite getting sent back to “max” twice, Miller was moved back to medium-high security by April 2003, where he stayed for 15 months, until July 12. That day, Miller, 45, took advantage of lax security to sneak into an office area and abduct counselor Cassandra Arnold, whom he raped before being shot to death after a seven hour stand-off. Arnold has since sued the state.

Miller’s ability to move to a lower-risk ranking within Delaware’s prison system was not unusual among people convicted of heinous crimes. A News Journal review of the state’s prisoner classification policies found that Delaware provides some of it’s most violent inmates opportunities for reduced supervision not available in some other states.

 Another inmate I medium-high security is Donald Flagg, who is serving a life sentence for shooting a man to death in 1998 and holding the man’s wife as a sex slave for four days.

While security lapses are the main focus of a gubernatorial task force investigation the horror of July 12, members are also questioning Miller’s housing status. “Our analysis starts with why he was there and should he have been there,” vice chairman Thomas P. McGonigle said.

Stanley W. Taylor Jr., commissioner of the State Department of Correction, would not comment for this article. Spokeswoman Beth Welch said Taylor has concluded Miller’s risk level was appropriate.

Taylor has acknowledged, however, that Arnold’s ordeal led him to review classification policies and make one change: Officials now can take into account a “pattern of assaultive/predatory behavior in institutions and/or the community” before deciding risk level. Miller tied up victims and threatened them with a knife or gun.

 Prison officials would not release Miller’s classification or disciplinary records, but revealed some details this month in an internal report about Arnold’s abduction and in recent interviews. Officials would not release classification procedures, but the paper obtained manuals and other policies.

The newspaper’s review of Delaware’s policies found that:

             ●Except for death row inmates, the risk level of all inmates in maximum security at Smyrna is reviewed every three months. Some experts, including Minnesota’s top classification administrator, said inmates such as Miller should remain in maximum security for several years before being considered for less-restrictive housing.

            ●Unlike Virginia, Rhode Island and some other states, Delaware does not consider time remaining on a sentence when reviewing risk.

            ●Delaware also does not consider an inmate’s minor disciplinary violations, unlike Rhode Island, Wyoming, Tennessee and some other states. Instead, Delaware evaluates “major” prison violations, such as assault, theft and threatening behavior. The state does not consider minor violations, such as abusing privileges or being in an unauthorized area.

The hostage standoff and prison security has become a key issue in Delaware’s gubernatorial campaign.

Republican Bill Lee, a retired judge, said Delaware must revamp its classification system. “Any system that allows violent offenders to have freedom of movement within the facility is obviously flawed,” Lee said. “Why was Miller running loose when he’s got 700 years to serve?”

Gov. Ruth Ann Minner would not agree to an interview, but issued a statement that said Delaware’s classification system, created with help from the National Institute of Corrections, a branch of the U.S. Department of Justice, was designed for Delaware’s inmates.

“Commissioner Taylor has asked that the NIC review our classification policy as part of an action plan he released earlier this month, and I look forward to the results of that review,” Minner’s statement said.

Independent-Libertarian candidate Frank Infante did not return calls.

Jeffery K. Martin, Arnold’s attorney, said Miller’s prison violations and past crimes-which included cocaine trafficking, terroristic threatening and robbery convictions-should have earned him a permanent maximum security cell.

“A prisoner serving 700 years should be kept in maximum due to his propensity for violence and the fact that rehabilitation is not in order,” Martin said.

Arnold also alleged in her lawsuit that an unidentified female guard once wrote a report accusing Miller of stalking her. Welch said officials could not confirm that allegation.

Brian Dawe, executive director of Corrections USA, a trade association for prison guards, said Delaware’s policies lead to poor decisions with Miller.

“I wouldn’t even review the guy for five years minimum,” Dawe said. “You need that long to get a feel for him. It was poor management, and in light of what happened to the counselor, that’s been borne out.”

Welch aid Miller was in maximum security for nearly 3.5 years before going to the medium-high unit. Only 11 months were at Smyrna; the rest were at Wilmington’s Young Correctional Institution in Wilmington while Miller awaited trial and sentencing.

Wilmington Predator

The eight rapes and one kidnapping that put Miller in prison for good had teenagers and young women in northeast Wilmington fearing for their safety in 1997. He raped a 16-year-old and her younger cousin while wearing a werewolf Halloween mask, blindfolded one victim; and tied up two teenage victims at knifepoint.

Miller’s probation officers for an unrelated misdemeanor charge told police he fit their description of the rapist. Miller was 6-foot-3, 210 pounds and often wore construction boots, which matched victim’s reports.

When Miller was charged in March 1998, officials put him in maximum security at Young prison, then called Gander Hill.

After a jury convicted Miller in March 2000, prosecutor Susan B. Purcell said his days as a sex predator has ended. “It’s very satisfying to know,” Purcell said, “he will not be able to do this to any other women.”

In August 2000, after getting a no-parole sentence, Miller was put in “max” at Smyrna. The state’s manual says maximum security is for inmates who are escape risks or “more severe internal management risks.”

Good behavior can result in lower security level. “It is important that offenders with long sentences have the opportunity for reduced security levels based on compliance with institutional requirements,” the manual says.

Inmates serving at least five years are reviewed after six months and then annually, the manual says. Those serving life are reviewed every 18 months.

Anthony J. Rendina, Delaware’s classification administrator, said officials did not consider Miller as a life-sentence inmate. “He would have been with us the rest of his life, but he wasn’t serving a life sentence technically from a court-ordered standpoint,” he said.

Rendina also said Smyrna’s maximum security inmates are reviewed every three months. “This review schedule for classification is something you cannot waiver from,” he said.

Eric Skon, Minnesota’s assistant corrections commissioner, said prisoners there get a timetable to have their risk lowered if they complete programs. Miller would not have immediately qualified, he said.

“He would be considered a potential escape risk,” Skon said. “This is a guy who just got life. He’s never going to see daylight again. As long as he could medically handle it, he could stay in maximum security for an extended period of time.”

Kara Gotsch, public policy coordinator for the ACLU’s National Prison Project, said inmates and staffers must be protected from violent inmates.

Prisons also must provide even dangerous inmates serving life with incentives to be sent to lower risk settings. “If you don’t, those prisoners will consistently be management problems,” Gotsch said. “A lot of timers, lifers are the ones who get in the least amount of trouble.”

Security Risk Lowered

Miller could not stay out of trouble in prison. In 2000, while in the “max”, he had nine disciplinary offenses, the internal report said. He broke three major rules and three minor ones at Gander Hill, followed by three minor ones at Smyrna. The worst offense was at Gander Hill, when he grabbed a baton from a guard and struck another guard, said Welch, who would not detail other violations.

In July 2001, however, officials moved Miller to the medium-high cellblock. Rendina said he met requirements for the lower risk setting.

The internal report said Miller completed several prison programs, including conflict resolution, decision making and anger management. He entered a high school diploma program but finished no courses.

By January 2002, Miller was back in maximum security for “failing to follow his established treatment plan,” the report said.

That September, Miller went back to a medium-high security. But in October, he committed a major violation, a fight in which another inmate was the aggressor and went back to “max”.

Offenses a Warning Sign

By April 2003, Miller again qualified for medium-high security under a new point-based classification system.

The system assesses inmate risk by assigning points for severity of crime, previous felonies, escape attempts, major prison offenses and other factors. Reviews are conducted by a team of guards, counselors and managers.

During reclassification, an inmate whose crime ranged from first-degree robbery to murder gets six points. Someone with four or more major prison offenses gets five points.

If the score is at least 17 out of a possible 37, maximum security is suggested. The score usually determines an inmate’s housing unit, but classification boards or the warden can override the score. Several states consider factors Delaware does not rank:

Time remaining on sentence and minor disciplinary offenses.

Joseph DiNitto, Rhode Island’s associate classification director, said both are good indicators.

“The closer you are to release or parole, the more likely you are going to try to behave yourself,” DiNitto said.

Welch said consultants who helped devise Delaware’s system told the state that the time remaining on a sentence was not a valid indicator.

DiNitto said chronic minor violations are a warning. “Here’s a guy I want to look at because they are unable to follow rules and regulations. Even though they may be relatively minor in nature, I’ve got my antennae up,” he said.

‘Threatening Behavior’

Over the 15 months before Arnold’s abduction, Miller remained in medium-high security but kept breaking rules.

During 2003, he had one major offense for derogatory language, and three minors, including being in an off-limits area. This March, Miller scored low enough to qualify for medium-low security but was not moved there because of “disorderly/threatening behavior,” the internal reports said.

 In the weeks preceding Arnold’s attack, Miller committed 10 more violations:

            ●Abusing privileges, possessing a nondangerous contraband and not obeying an order on May5.

            ●A verbal confrontation and not obeying an order May 24 at his kitchen job, which led to his firing. On June 4, the sanction was overturned and he returned to work.

            ●Taking a sandwich to his cell, which on June 27 cost him his job again. The major offenses were theft and lying; the minors were not obeying an order, abuse of privilege and creating a health hazard.

His frustration grew over his disciplinary problems, his recent divorce and his desire to be transferred to a Virginia prison.

On July 12, Arnold had said, Miller appeared agitated during her “Less Stress” group counseling session. A roving guard looked in on the class.

After it ended, Arnold said she walked through tow open security doors, one propped with a chock, to her office area. About 10 minutes later, she spotted Miller in a bathroom.

He held a metal shank to her neck and dragged her into her office, where he raped her six hours later. Several minutes afterward, a rescuer who had crept through the ceiling shot Miller to death.

Miller could not have exploited the security lapses if he had been kept in maximum security, attorney Martin said. “An inmate sentenced to 699 years should have never been allowed to prowl the hallways in search of his next victim.”

SECURITY LEVELS

Delaware’s penal system houses its inmates based on their security risk, which is determined by factors including the severity of their crime, previous escape attempts, and major disciplinary violations inside prison. The following is a description of the security levels inside Delaware’s five prisons and how prisoners are handled, based in state corrections policies and interviews with prison officials.

Maximum: Designed for inmates who present an escape risk and/or are more severe internal management risks. Prisoners are always escorted when outside cells and wear handcuffs and leg irons. They eat in their cell, and have access to limited programs. Not eligible for furlough.

Medium: Designed for inmates who present escape and/or internal management risks but are not as severe internal management risks as maximum inmates. Supervised by roving guards outside their cell. They eat meals in chow hall. Eligible for escorted furlough.

The Smyrna prison is the only one in Delaware with a medium-high unit. The unit is for inmates who have not yet established a record of behavior within the prison, according to the state classification manual. Inmates in medium-high units have restricted access to jobs and programs.

Minimum: Designed for inmates who do not present an escape risk and who are not management problems. Unrestricted movement outside cells. Access to all programs inside the prison perimeter and some outside the perimeter.

Prison Totals: As of Friday, the Delaware Correctional Center near Smyrna had 1,073 prisoners in minimum security, 329 in medium, 351 in medium-high and 329 in maximum, a spokeswoman said. The prison also had 362 prisoners in specialized, infirmary, pre-trial and disabled inmate units.