Decision to move rape suspect to less-secure unit questioned

• Questions raised as to why Department of Corrections moved violent inmate to a less-secure facility.
• The inmate was charged with raping a teacher in a less-secure prison after being transferred there.
• DOC is fighting a workplace safety fine%2C despite acknowledging a female employee was raped.

Clarification: The headline on this story has been changed to clarify that the Arizona Department of Corrections made the decision to move inmates. This story was originally published at 10:05 a.m. MST February 11, 2015.

When Jacob Harvey, a convicted rapist who beat his victim in front of her toddler, entered the state prison system in March 2013, the Arizona Department of Corrections placed him in close custody — the second-highest level of security for the most violent offenders.

But by January 2014, Harvey had been moved to the medium-custody Meadows unit in Florence, where he is accused of subsequently raping and nearly killing an unarmed female teacher in a classroom that had no prison guards or camera monitors, records show.

The decision to move Harvey, 21, to a less-secure facility is the linchpin of a federal lawsuit filed by the teacher, a former DOC employee who claims she was placed in a dangerous environment that caused the attack.

The Arizona Republic also found that when Harvey was moved Oct. 25, 2013, he took the last remaining empty bed in Meadows, putting the facility at the Eyman prison at its 1,126-bed capacity. On that day, there were 25 empty beds in the close-custody Rynning unit, where Harvey had been held.

At the time of Harvey's transfer, the DOC was planning on moving medium-custody inmates to the Red Rock Correctional Center, a private prison in Eloy.

Corrections officials cited overcrowding within the state's medium-custody facilities as the reason to move inmates to the private prison. Private prisons do not take close- or maximum-custody inmates because they are too violent.

Medium-custody inmates began moving to the Red Rock private prison in January 2014, and the state had an incentive to fill those beds quickly because the private contractor was guaranteed a 90 percent occupancy rate regardless of whether the private beds were used.

On Jan. 30, 2014, the day of the attack, DOC records show the Meadows unit remained at capacity, leaving the state no beds there and causing the state to move medium-security inmates within its system to Red Rock. There were 23 empty beds that day in the close-custody Rynning unit where Harvey initially had been held.

The teacher claims in her federal lawsuit that DOC employees had recommended Harvey remain in close custody. She alleges a DOC administrator in charge of determining where Harvey would be housed disregarded the recommendation and moved him to medium custody, according to court records.

Corrections spokesman Doug Nick declined to answer questions regarding Harvey's transfer to a less-secure prison or whether the state's private-prison expansion had to do with the move.

However, Nick provided records showing that during Harvey's first six months in close custody, he received no major disciplinary actions and was then moved to the medium-custody Meadows unit.

That document also showed that when Harvey entered prison, his custody "score" called for him to be housed in medium security. But, the central office did an "override" and put him in close custody. No documents were provided to support the decisions.

The state Attorney General's Office in court papers stated "there is no reasonable way that assigning Harvey to a medium-custody unit by itself could be construed as 'deliberately indifferent' in creating a dangerous situation that allowed for the assault" on the teacher.

The Attorney General's Office also has argued that "the risk of harm, including assault, always existed at a prison like Eyman," and placed blame on the teacher.

"Of course if plaintiff did appreciate the danger of her situation, as an employee, she could have done something about it," Assistant Attorney General Jonathan Weisbard wrote in a Jan. 14, 2015, court filing.

Scott Zwillinger, the attorney for the teacher, said he would not speculate as to whether the private-prison expansion had anything to do with the attack. But he said moving Harvey to a less-secure facility where he was allowed to walk around unsupervised was "illogical."

"He was put in for a horrific crime that was nothing short of murder. He was in for 30 years, and then you add to the fact he had been misbehaving for not following prison rules," Zwillinger said. "Every single factor shows he should have been in close or maximum custody (before the incident). Everyone is telling the central office this, but Lord knows why it was overruled. I'm looking forward to having that question answered."

Zwillinger said he was unaware until told by The Republic that there were vacant beds in the close-custody unit from which Harvey was transferred before the teacher was attacked.

"That is shocking," he said.

Corrections records show Harvey was guilty of a minor violation for being disruptive and being in the wrong place on July 17, 2013, prior to being downgraded to medium custody.

After being placed in medium custody, he was found guilty of a minor and a major violation on Dec. 8, 2013, for being disruptive and being in the wrong place.

The DOC also found Harvey guilty of major prison violations of kidnapping, sexual assault and aggravated assault on staff during the Jan. 30, 2014, incident in which the teacher was assaulted. Following the incident, he was moved to a maximum-security unit, which houses murderers and those on death row.

He also was found guilty of assaulting a DOC employee on Feb. 17, 2014.

While the DOC took action against Harvey, the department is appealing a $14,000 penalty assessed by the Arizona Division of Occupational Safety & Health, which also investigated the incident.

ADOSH charged the DOC with two "serious" workplace violations. One was for failing to "reduce or eliminate the likelihood of physical assaults by inmates against employees working in the education program at the Meadows Unit." The other was for not assessing the workplace "to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment."

In a statement, the DOC said there were "a significant number of factual inaccuracies in the ADOSH report, and we are preparing to challenge those inaccuracies through the administrative process."

The DOC statement also said: "The 2014 assault on the ADC teacher was a cowardly and despicable crime, for which the inmate is rightfully facing prosecution. The safety and well-being of all ADC staff is the department's paramount priority, and the victim has our full assistance and support."

Still citing a shortage of medium-security beds, Gov. Doug Ducey and the DOC currently are asking the Legislature to approve an additional 3,000 private-prison beds.