Allegheny County Jail circumventing ban on solitary confinement, non-lethal weapons, critic says

Allegheny County Jail officials sought assistance early last year from the Department of Justice’s National Institute of Corrections, which provides training and services to local and state facilities.

The jail for years has been the subject of criticism and repeated lawsuits for violations ranging from the use of excessive force to a failure to treat mental illness and an overuse of solitary confinement. Corrections expert Gary Raney said he was asked by Department of Justice to do an assessment of the jail and provide technical assistance.

However, in September, just days after he did a presentation for the Jail Oversight Board in which he was critical of a company Warden Orlando Harper brought in to provide militaristic and weapons training, Raney was told by the Department of Justice that the request from Allegheny County officials was withdrawn.

That revelation came on Friday, a day after allegations were made that the jail is violating a newly enacted referendum banning the use of solitary confinement, as well as a motion passed by the oversight board in September targeting the use of non-lethal weapons.

A request to talk to Allegheny County Executive Rich Fitzgerald about these issues on Friday was denied through a spokesperson.

On Thursday, advocates for people incarcerated at the jail sent oversight board members a letter alleging that the continued use of solitary confinement went against a referendum banning it. The ban took effect Dec. 5.

In a report dated Wednesday, Harper reported that 294 people at the jail had been held in “segregation” throughout the month of December — many of them for the entire month, others for days and weeks.

At the board’s monthly meeting on Thursday, Allegheny County Councilwoman Bethany Hallam, also an oversight board member, asked Harper about the report and whether he believed the jail was in compliance with the referendum.

“We are fully compliant and have been fully compliant,” Harper said.

He told the board the jail no longer has solitary confinement. Instead, he said they were using “segregation.”

“It doesn’t matter what you call it. Segregation means you’re by yourself,” said Witold Walczak, the legal director of the ACLU of Pennsylvania, which has been involved in multiple lawsuits against the facility. “Saying it’s different because it’s segregation is nonsense. It’s smoke and mirrors.”

Under the referendum, passed by nearly 70% of Allegheny County voters in May, solitary confinement is defined as holding a person in their jail cell for more than 20 hours a day. Studies have found that it is detrimental, especially to people who have mental health conditions, which studies show usually include a majority of those incarcerated.

Raney said Harper calling it “segregation” was “word mincing,” adding, “Solitary confinement is segregation. Segregation is solitary confinement.”

Under the referendum, there are three cases when solitary is permitted. They include a facility-wide lockdown, emergency use for up to 24 hours “to ensure the safety of other detainees or inmates,” and if a person requests protective custody on their own.

It goes on to say that “no person may be held in emergency or short-term solitary confinement unless the warden has made and documented an individualized determination of the necessity for that person’s confinement.”

In the monthly segregation report, jail administration listed the word “safety” as the reason for each person’s segregation.

That is not individualized, Raney said.

Critics said there was more word mincing during Thursday’s meeting when Harper responded to a question about a September motion passed 4-3 by the board that banned the use of non-lethal weapons at the jail.

Hallam said she had heard reports that officers were patrolling the jail carrying those kinds of shotguns. When she asked Harper if that was accurate, he said it was but called the weapons “special delivery devices.”

Harper then read the language of the motion, which said, “The Jail Oversight Board prohibits Allegheny County from bringing into the jail any shotguns, rubber bullets or other similar equipment or animals identified or described in any C-SAU training program until permission is granted by the Allegheny County Jail Oversight Board.”

“We have not brought in any shotguns because we already had shotguns in the facility,” Harper said.

Raney was critical of Harper’s explanation.

“That’s totally disingenuous, I don’t think there’s any question about that,” he said.

Bret Grote, legal director of the Pittsburgh-based Abolitionist Law Center, called Harper’s interpretation “preposterous on its face.”

If there is a question of the wording of the motion, the way to address it is to find out the legislative intent, he said. When the motion passed, oversight board members said they intended for it to be a ban on the use of non-lethal weapons.

Raney, a former sheriff and corrections expert who contracts with the Department of Justice to provide assessments and training, said there is a time and place for weapons that fire pepper bullets and other non-lethal ammunition.

However, he said, “The idea of carrying a shotgun around all the time is ridiculous and kind of dangerous for everybody.”

During his presentation in September, and again on Friday, Raney said that the referendum’s ban on the use of solitary confinement, a restraint chair and chemical weapons takes away the tools needed by jail staff to keep themselves and those incarcerated safe.

“If it’s being abused, it’s unconstitutional,” Raney said. “But it does have a place when it’s done properly.

For example, he said, if a person is resisting an order, using pepper spray to get a situation under control is much less dangerous than having corrections officers go “hands-on,” which increases the likelihood of injury for everyone.

“From my perspective, it was a serious mistake to ban the use of pepper spray and the restraint chair in the jail,” Raney said. “This taking away of tools to help people stay safe was the wrong move.”

Since its passage, Harper and his supporters have said the same.

Still, Grote said, the language of the referendum and motion don’t leave room for interpretation.

Grote said the flouting of the rules “shows that Warden Harper is acting without any oversight from the county executive, without any guidance from the county solicitor, and that he is the law himself.”

“He’s been allowed to do whatever he wants to do without regard for legal restrictions the entire time he’s been warden at Allegheny County Jail,” Grote said.

Walczak questioned why Allegheny County Executive Rich Fitzgerald has failed to take action against Harper.

“It’s confounding,” he said. “We’re talking about accountability. You don’t have to fire him. You have to tell him to follow the law.”

Brandi Fisher, president of the Alliance for Police Accountability, said she hopes to speak to Fitzgerald about holding Harper accountable for the referendum violations.

“The warden is being intentionally evasive, disingenuous and trying to find any way to go around what the law requires,” she said. “He’s trying to find ways purposely to circumvent the law.”

Grote said the recourse for violations of both the referendum and motion could include court action.

Raney said he now serves as a federal monitor in two county jail facilities that have been sued.

“Real reform in a place like that comes from class-action lawsuits,” Raney said, though they typically take years and cost millions of dollars.

“It’s a really sad waste of taxpayer money because it could be fixed in the first place by good leadership,” Raney said.

Walczak said that to get the Department of Justice involved would require showing a pattern and practice of federal civil rights violations.

That’s exactly what Grote hopes to do in the ongoing class-action his organization filed against the county in September 2020. The federal lawsuit, which includes claims of excessive use of solitary confinement, improper use of the restraint chair and a lack of mental health treatment, is moving into the discovery phase.

“It’s our objective to get Allegheny County under a federal court order for all of the claims in that case,” he said.