by Alan Prendergast
In January 2010, Scott Howard, a 39-year-old federal prisoner, made his way briskly into a hearing room in the Robert F. Kennedy Justice Building in Washington, D.C. He was neatly dressed in blazer, slacks and tie, and quite nervous about what he was about to do. He was determined to not think about it too much, to just get it over with – like so much else that he’d been through over the past few years.
The room was teeming with Department of Justice attorneys, law enforcement agents and corrections officials. Not exactly Howard’s kind of crowd; he’d tried to tell his story to such people before, only to be labeled a liar and a whiner. But the participants also included members of Congress, medical professionals, prison activists, counselors and sexual-assault survivors.
They’d all come to take part in a “listening session” on the wishfully titled Prison Rape Elimination Act. Passed in 2003, PREA created a national commission to study the causes and costs of sexual assault behind bars and to come up with federal policies to attack the problem. Seven years and several blown deadlines later, backers are still waiting for United States Attorney General Eric Holder to adopt new standards incorporating the commission’s findings.
Howard had been invited to join the discussion because of his experiences behind bars – in particular, the three nightmarish years he’d spent in Colorado state prisons, doing time for fraud. It would be the first time he’d ever discussed his ordeal publicly.
When his name was called he went to the microphone, trying to keep his hands steady as he studied the pages in front of him. “Thank you for allowing me to participate,” he began.
He explained that, although living in a halfway house, he was still in the custody of the U.S. Bureau of Prisons: “Before I was taken into BOP custody, however, I served time in the Colorado Department of Corrections, and it was there that I was repeatedly raped, assaulted and extorted by members of a large, notorious gang.”
The gang was the 211 Crew, a white supremacist group found in many Colorado prisons. 211 leaders pressured him for money and demanded that he help them in an ambitious $300,000 fraud scheme; their threats soon turned into physical attacks, then sexual assaults. He was forced to perform oral sex on gang members and anally raped.
“I spent well over a year trying to get protection by writing to officials,” he said. “My efforts to report were mostly fruitless – and often put me at greater risk. Because I am openly gay, officials blamed me for the attacks. They said as a homosexual I should expect to be targeted by one gang or another.”
Howard didn’t tell the whole squalid story. He didn’t mention the evidence of staff involvement with the gang that made his efforts to seek protection even dicier. He didn’t go into how, once he finally started “naming names,” as prison investigators demanded, they accused him of crying rape to cover up his own criminal activities. He barely referred to his last day as a Colorado prisoner, when, he says, he was put in a cell with one of the gang leaders and sexually assaulted again. Despite being a bare summary, the statement was still graphic – and powerful. At times his voice choked up, but Howard kept reading.
When it was over, he sat in the gallery and listened to other testimony by experts and survivors. Then the DOJ officials began asking questions, and some of the questions were directed at Howard. He was astonished. They’d actually paid attention. They’d even taken notes.
“That was very important,” he says now. “Having people listening to me and asking questions – it made me feel like I was being taken seriously at last.”
A lot of people are taking Howard seriously these days. Since his talk in Washington a year ago, he’s emerged as a highly visible “survivor speaker” for Just Detention International, a nonprofit active in the campaign to stop sexual abuse in prison, and a caustic critic of Colorado’s DOC and its treatment of rape victims. Last summer he settled a civil rights lawsuit against several DOC officials for $165,000.
The settlement came as Howard’s attorneys were seeking a hearing to investigate how and why the Colorado Attorney General’s Office had failed for years to produce a critical document in the case – a 2005 entry in Howard’s prisoner file that corroborated his claims of seeking help and being ignored. The document, which only surfaced after a private law firm got involved in the defense of a second Howard lawsuit, also casts doubt on the veracity of several sworn affidavits filed by case managers and supervisors claiming that Howard never told them that he was being threatened and extorted.
Winning his case was a major victory for Howard. Finding the proof that he wasn’t lying was even greater vindication, though. Behind bars, all kinds of crimes are committed in secret, and prisoners soon learn to keep quiet about them. Exposing the most heinous violations can be almost impossible when staff attitudes about rape and homosexuality are as convoluted as those of the predators – and Howard says that’s what made the Colorado prison system particularly dangerous for him.
“In Colorado, corrections officers labeled openly gay people as troublemakers,” he says. “You can’t believe them, they get in relationships and then claim rape – and so on. The message goes out to the inmate population that these are people to victimize because they already have a bad reputation among staff, and nobody’s going to believe them.”
• • •
Almost from the moment he hit the yard at the Fremont Correctional Facility in late 2004, Scott Howard knew he was in trouble. The medium-security prison was run differently from anything he’d seen before. And too many people he didn’t know already knew who he was and what he’d done.
Fremont wasn’t Howard’s first rodeo. He arrived there in the middle of a ten-year tour of state and federal prisons, the result of a fraud spree in Colorado, Wisconsin, Tennessee and elsewhere. His criminal history also involved jail stays in Florida and Texas, where he reportedly tried to post as bond collateral the car he was accused of stealing.
Howard grew up in a small town in Tennessee, where his sexual orientation was a poor fit with the prevailing Baptist culture. He left home, acquired a taste for gambling and the high life, and was busted in Florida in 1991, at age 21, after he stole a friend’s credit card and used it to hire a limo. He soon graduated to computer hacking and more sophisticated forms of identity theft.
In the late 1990s, Howard discovered major security flaws in the payroll systems of large corporations, which often relied on outside agencies to issue paychecks to temporary staff. He used a Trojan program to steal data from corporate websites, then submitted payroll requests to staffing agencies, either in his own name or someone else’s. It was a surprisingly simple and lucrative scam, as long as he moved quickly to the next pigeon before the fraud could be detected.
“It was a traveling crime,” Howard says. “It took me to thirty cities in a year. I was in my twenties, and it was fun back then. It was also very stupid and very high-risk.”
The scam unraveled in Wisconsin in 1999. A woman at a temp agency noted that Howard’s zip code didn’t match the address he submitted with a check request. When he came to pick up his money, he was arrested. A check for $40,000, issued by the Hershey Corporation, was found in his pocket.
Sentenced to eight years, Howard soon came up with an even more audacious plan to collect cash while behind bars. He filed a bogus tax return, claiming a $17,155 refund – and the Internal Revenue Service actually paid it. The next year he asked for $1.2 million, complete with forged letters on charity letterheads acknowledging enormous contributions.
This time the IRS took a closer look. Howard soon had federal time piled on top of his state sentence. But first he had another stint in Colorado, stemming from a payroll fraud in Denver that had been uncovered after his Wisconsin arrest. That’s what brought him to the yard at Fremont – and a sense of impending doom.
As a gay man who’d already spent substantial time behind bars, Howard thought he knew how to keep out of trouble. He’d seen plenty of intimidation and gang-related fights at other lockups, but nothing like the atmosphere at Fremont. Prisoners sporting black eyes in the lunch line were a common sight. Members of the 211 Crew commanded their own set of tables in the dining hall, known as the Four Corners, and charged weaker white prisoners tribute for the privilege of living in one of “their” units.
The 211s were particularly vocal about their hatred of homosexuals and sex offenders. Howard observed several openly gay and transsexual prisoners at Fremont. They were not in a good place. “All of these people were paying rent and being beaten,” he says. “If you were smaller, or suspected of being gay, or a pretty-boy type – anything of that sort got back to them.”
Gangs are a fact of life in prison. But Howard had never seen one that operated so openly, with so little official interference. “You had good officers and even overzealous officers, but most of them were older and very nonchalant about what was going on,” he says. “They told me, ‘This is prison. This is not a playground. If you don’t like it, you shouldn’t have come here.’”
Officially, the 211 Crew is far from a pervasive presence in Colorado’s prisons, with roughly 300 “confirmed” members in a population of more than 20,000. Howard insists the actual numbers are much higher, and the gang clearly had a particular interest in him. Within a few days, three members approached him, beaming friendship, and asked about “all that cash” he’d scammed from big companies and the government. They seemed extremely well-informed about his attempt at a big tax refund, which had made headlines. Despite Howard’s denials that he’d been any kind of financial genius, he was soon fielding daily questions about tax fraud.
The conversations quickly got less genial. Howard made little attempt to disguise who he was in prison – in one court filing, his attorneys describe him as “obviously gay” – and the gang members soon had their suspicions confirmed. They frequently intercepted other prisoners’ mail, on the lookout for money order receipts or other helpful intel, and one of the items they came across was a gay magazine a friend had sent Howard.
John Anderson, a veteran 211 shot-caller known on the yard as Ghost, informed Howard that homosexuals had to pay rent. That meant buying canteen items for 211 members and sending money orders to addresses Ghost provided. “In the beginning, it was twenty dollars here or there,” Howard says. “Then it got more intense.”
In Howard’s second month at Fremont, Ghost demanded that he send out a $500 money order. Howard demurred; where was he going to get that kind of money? Ghost punched him in the stomach and the face and told him he had two weeks.
A few days later, Ghost was back in his face, demanding twenty bucks in canteen items to pay a debt the shot-caller owed to a rival gang member. Howard insisted he had no money.
“Find it,” Ghost snapped.
The next day, when Howard failed to make the required purchases, Ghost told him they were going to go see Allen Hernandez, alias “LBow,” the man Ghost owed. Once they were in LBow’s cell, Ghost informed him that Howard was going to settle the debt with a blow job. While Ghost stood lookout, Hernandez forced Howard to his knees and told him to open his “faggot mouth.”
Howard asked to be let go. Hernandez laughed. “You gotta beg me for it, bitch.”
The assault lasted a few minutes, Howard says. LBow ejaculated, pulled up his boxers and sweatpants, and told Howard to “get your bitch ass out of my cell.”
On the way back to his own unit, Ghost hissed at Howard, “Don’t you say a fucking word to anyone, or I’ll fuck you up.”
Howard went to his cell. He showered. He cried. He felt sick and deathly afraid.
He couldn’t escape the 211 Crew, but for the next few days they were oddly friendly to him. They approached him on the yard and at meals. Ghost introduced him to other 211 “brothers,” who asked him more questions about his tax scam.
Just weeks earlier, prosecutors in Denver had issued indictments against 24 members of the gang, on charges ranging from a 2001 prison murder to drug-related street crimes.
One of those named in the indictment was the group’s leader, Benjamin Davis, who’d launched the gang at the Arkansas Valley prison in the early 1990s after a racial beating. (The name “211” supposedly refers to the robbery section of the California penal code).
Davis was now stuck in the state supermax and facing more time, so the Fremont contingent was working on a plan to raise cash and get him “a fucking great attorney,” Howard learned. They wanted to file bogus tax returns, using the personal data of various sex offenders, minorities and other lowlife prisoners that couldn’t be traced back to them.
Howard told them he didn’t think it would work. A fucking great attorney would cost a lot more money than the $17,000 he’d collected in Wisconsin. The gang members listened soberly, nodded and walked away.
But Ghost didn’t care for Howard’s tone. He told him so a few days later, pulling him aside after breakfast to let him know he’d been disrespectful to his brothers. He demanded that Howard settle another debt with canteen items, this time for fifty dollars. Howard said he didn’t have it.
No problem, Ghost told him. Howard would settle the debt the same way he had with LBow. Frantic, Howard said he didn’t feel well. Ghost pulled a shank out of his pocket and made it clear that it was Howard’s choice whether it ended up in his ribs or not.
“You’re going to suck that dude’s dick to pay this off for me,” he said quietly, “and for being a smartass to my brother.”
Howard went to the cell of a prisoner named Griego and did as he was told.
In mid-February 2005, Howard made up an excuse to see his case manager, Jerry Morris. Terrified of being labeled a snitch and what Ghost might do to him, he didn’t say anything to Morris about the assaults.
“Outside this guy’s office are twenty or thirty inmates waiting to see him,” Howard recalls. “There’s no way to close the door, so everybody can hear what you’re saying.”
Morris would later insist that Howard didn’t advise him of any threats or problems that day. Howard claims that he asked for protection from 211 without going into any specifics, but Morris told him that “homosexuals usually have problems with one gang or another.” Howard could do his best to “get along,” or he could be a “whiner” and end up confined indefinitely in administrative segregation.
Howard didn’t know what to do. He was afraid to tell even his parents, since phone calls were monitored. He decided to notify one friend on the outside about the extortion and urge her to write a letter to the warden, asking that he be moved to another prison. A few days later he was summoned to a meeting with another case manager, Dave Mason, who asked about the letter and if he was being threatened by 211.
Howard broke down and admitted it. He began to talk about the assaults, he says, when Mason interrupted him. “That’s all I want to know,” the case manager said, and made a phone call to a supervisor to relay the information.
Four days later, Howard was abruptly transferred. He went from Fremont to the Sterling Correctional Facility, a sprawling complex housing 2,500 prisoners. Although technically a high-security prison, surrounded by an electrified “kill” fence, Sterling has a range of security levels for offenders classified from minimum to “close.”
Howard had no problems at Sterling the first two months he was there. He was placed in a highly monitored unit, with limited movement and cameras and emergency call buttons in the cells. But when he was moved to a lower-security wing in late April, he discovered that he’d gone from one 211 stronghold to another.
Official DOC reports indicate that there were fewer than 25 members of the 211 Crew at Sterling at the time, all of them housed in either high-security units or administrative segregation. Howard says the actual figure was closer to a hundred, an assertion supported by internal documents and even some staff testimony. Many of them could be found in Sterling’s less secure areas, readily identifiable by their shaved heads and copious tattoos of swastikas, shamrocks and even “211” and “CREW.”
The group was running large football and baseball pools, collecting as bets the tokens prisoners used to buy sodas. They had allies in the computer lab, including the notorious Simon Sue, who at seventeen had masterminded a triple homicide in the tiny settlement of Guffey. Although not a gang member himself, the diminutive Sue helped the gang produce authentic-looking property sheets, Howard says, to explain away the extra radios, clothing and other extorted goods in their cells.
Howard was recognized the first day he hit the yard. Two 211 members approached him. One, who’d been at Fremont, greeted him with a wolfish smile.
“Ghost has friends here,” he said.
• • •
Based on surveys of prisoners in jails and state and federal prisons, the U.S. Bureau of Justice Statistics estimates that at least 88,500 adults endured some form of sexual abuse while incarcerated in the American corrections system last year. The surveys provide just snapshots of the prisoner population on a given day. A recently-released Department of Justice report places the total number of incidents in 2008 at 200,000.
The number of reported sexual assaults in prison is, of course, lower than the survey totals. Much, much lower. Extrapolating from the BJS figures, Colorado’s prison system would be expected to have between 600 and 800 sex abuse victims a year. Yet in a Prison Rape Elimination Act cost impact study, the DOC claims only twelve confirmed incidents of sexual assault in 2008 and five in 2009. That works out to about 25 to 50 reports a year, since fewer than 20 percent of allegations of sexual violence are ever substantiated by investigators.
Corrections officials protest that meeting the PREA standards could cost hundreds of millions of dollars; but reformers say that lack of aggressive enforcement in prison assault cases costs society in other ways, from the spread of sexually communicable diseases to lawsuits. According to a DOJ report, a 1 percent reduction in the annual rate of prison sexual abuse could lead to a “monetary benefit” to society of between $157 million and $239 million.
Rape and coercion have long been regarded as an inevitable part of prison life, particularly among the most targeted populations – prisoners who are young and slight of stature, effeminate or gay, the mentally ill and first-timers. Yet the national commission established by PREA found that a number of fixable problems, from poor staff training and inadequate screening of vulnerable prisoners to overcrowding and an almost complete lack of prosecution of perpetrators, could and should be addressed to reduce the rate of assault.
Howard’s journey through Colorado’s prisons points to another problem the commission report scarcely mentions: the utter indifference of many staffers. Howard met with several case managers and supervisors at Sterling and filed grievances over his placement there.
The officials have divergent stories about what happened in those meetings and how explicit Howard was about his plight. But their tendency to downplay his complaints and insist that he “name names” helps to explain why the system’s number of reported assaults is so low.
The day the 211 member recognized him on the yard, Howard went to case manager David Backer to seek a transfer to another unit. According to Backer’s own paperwork, Howard told him “he had a high profile case and that the 211 gang attempted to extort money from him in the past…. He claimed he did not feel in danger or threatened by anyone at the time of our interview.
“He was also informed if he did have problems he would be asked to go on tape as to who was threatening him…. He stated he would never do this and would pay them off first. He then left my office.”
Howard says Backer ignored his claims of being extorted and prostituted at Fremont; the case manager told him he should have “kept a low profile.” Howard filed a grievance, which led to another meeting with Backer and two supervisors, Joseph Halligan and John Clarkson. Accounts of what transpired at that meeting vary greatly; in a later deposition, Halligan conceded several times that Howard said he felt “threatened,” then reversed himself and insisted that Howard did not express any concern about threats at that time.
In a written response denying the grievance, Clarkson acknowledged that Backer had been mistaken about requiring a taped statement. But Howard would have to identify who was bothering him before any action could be taken.
“We do have to have names,” Clarkson wrote. “We cannot keep you away from all 211 members. We do not place inmates in administrative segregation to protect them from other inmates, so that is not an option, either.”
But naming names, Howard insisted, would only expose him to more trouble. As the impasse continued and Howard filed more appeals, he was once again hit up by gang members for canteen items and pressured to raise money for the 211 leader’s legal fund through tax scams. As a kind of test run, he filed a bogus income tax return under his own name and received a refund check for a few thousand dollars. The money went to 211 members and outside affiliates.
In August 2005 Howard finally was moved to another unit at Sterling – but not for his own safety. The official reason was that his security classification had changed, based on his convictions in other states. But Backer also told him he’d “filed way too many grievances,” Howard says.
“He is a very needy inmate and is a strain on a case manager after awhile,” Clarkson wrote in one log entry.
Howard admits that he was, in fact, trying to overload his handlers with grievances in order to get transferred. “If you file enough, they want to get rid of you,” he says.
But the plan backfired. In his new unit, Howard was shaken down by a 211 shot-caller named Simon Shimbel, who informed him he would once again be paying rent: $25 a week.
Respectful at first, Shimbel’s attitude toward Howard soon turned ugly. He showed him a letter he’d received from Ghost, essentially giving the Sterling chapter the okay to do what it liked with Howard. “Make him cover debts with his ass,” Ghost wrote.
According to Howard, Shimbel took the directive to heart. He dragged Howard into the unit bathroom’s back stall, punched him in the stomach and ordered him to sit on the toilet with his feet up, so no one could see him from outside. He then forced him to perform oral sex until Shimbel ejaculated.
Howard told no one. After going several rounds with administrators over naming names, he didn’t expect any help from staff. He’d signed extradition papers that would take him out of Sterling for at least a few weeks to deal with court matters in Tennessee, and he was hoping to just hang on until the orders arrived. That 211 shot-callers could simultaneously proclaim their hatred of “fags” while engaging in sexual acts with said fags no longer baffled him. Logic was not the gang’s strong point. Intimidation was.
A week or so after the bathroom blow job, Howard says, Shimbel and another 211 member escorted him to a cell after the 10 p.m. head count, supposedly so that he could help a “homie” write a letter and get a discount on his rent. Howard had a pretty good idea what was about to happen but didn’t see any way out.
The homie turned out to be Phuong Dang, a member of a Vietnamese gang. Dang began by demanding oral sex, Howard says. After a few minutes he stopped, pulled up his pants, and stepped out of the cell for a moment, asking the 211 lookouts for lotion. He found some, returned, and ordered Howard to bend over a desk and spread his legs. He sodomized him for several minutes, then withdrew.
“Not bad pussy,” he said, and left the cell.
Told by Shimbel to get cleaned up, Howard retreated to the bathroom. He sat on a toilet and wept.
His orders for Tennessee arrived three days later. The respite gave him two months to try to figure out what to do. But the gang was busy in his absence, too. When he returned to Sterling, several 211 members surrounded him and showed him a single piece of paper. They figured it would persuade him to get busy raising the big cash needed for the defense fund.
There were two notable things about the document, an intake form from Howard’s own file. It had to have come from a staff computer, which meant the Crew had a DOC employee working with them, either for pay or unwittingly. And it contained the names and address of Howard’s parents, listed as emergency contacts. Someone was waiting on the outside, one of the group explained, to see if Howard was going to do what was expected of him.
Howard understood. “My family had never done anything to anybody,” he says. “To know they could reach out and touch my parents – that was a big move on their part.”
Over the next few weeks Howard collected personal data the group had stolen or extorted from sex offenders and other patsies. He even got the names and vitals of death row prisoners in Tennessee. He filled out fraudulent W-2 forms until he had a vast array of them, enough to raise $275,000 in tax refunds, to be funneled to a phony tax-preparation company that Howard had created, and ultimately to the 211 Crew. The packet was sitting on his desk, ready to be mailed to an outside confederate, but Howard kept stalling for more time.
On January 3, 2006, two officers conducted a surprise search of Howard’s cell. They found the bundle of tax return forms, listing 35 prisoners – some of them not even in Colorado. Howard says he didn’t tip off the staff himself, but he wishes the raid had been more discreet.
“They sent the gang coordinators,” he says. “The minute the 211 guys saw that, they pushed me in a corner and asked, ‘Who the fuck have you been talking to?’”
Howard, who has a history of heart trouble, suffered a panic attack that night – the first in a series of convulsive, paralyzing episodes that made him feel like “a mouse in a corner.”
Exhibiting high blood pressure and tachycardia, he was taken to the hospital for observation and remained there for several days.
During that time, Howard decided to name names and try to get out of Sterling. He met with IRS agents, staff brass and an investigator from the DOC Inspector General’s office.
He told them the tax scam was supposed to raise money to hire Harvey Steinberg, the prominent Denver criminal attorney, to defend Benjamin Davis. He told them about the extortion. And eventually he told them about the sexual assaults, naming Shimbel and Dang and Hernandez and Griego.
The last bit of information spilled out first in a conversation with a female IRS agent, who asked him what was “really” going on. “I started crying,” he recalls. “I told her, ‘I’ve been raped. I’ve been beaten. You people have no clue what’s going on here.’”
Larry Graham, the investigator from the Inspector General’s office, was highly skeptical of Howard’s claims. He thought it was suspicious that Howard made detailed sexual assault allegations only after the incriminating tax-fraud materials were found in his cell.
Graham first learned of the claims from a draft of the lawsuit Howard soon filed, acting as his own attorney, in a desperate effort to get a judge to order his removal from Sterling.
There was no DNA evidence, no contemporaneous outcry, nothing but “ice-cold” accusations that the accused prisoners could easily deny, if anyone bothered to ask them.
In Graham’s view, Howard was a smart con artist trying to game the system. Or, as he put it in one e-mail to another DOC official, “Mr. Howard is an admitted homosexual whose other talent is tax fraud … he made an unprovable report of past sexual assaults by 211’s here [at Sterling] and at Fremont. I’m still working on that, but doubt if it will go far.”
In another e-mail, Graham all but dismissed Howard’s story as a ploy for leniency: “Mr. Howard seems to think he can just say the mean old 211 guys made him do it and walk away.”
Yet Howard did have proof of gang involvement in the tax scheme and other businesses.
He helped investigators locate a computer disk that contained evidence of falsified property sheets, payments to the gang by other prisoners and other incriminating data. He turned over an intake sheet on another prisoner that could only have come from a staff computer. But his allegations of staff involvement were deemed “bogus” just the same.
“Even after naming all the names, they just sent me back to my cell,” Howard says now. “I told a captain these people were going to kill me if I didn’t come up with $300,000 by March. Her response was, ‘Let’s see what happens in March.’”
Reluctantly, it seems, administrators made note of Howard’s “custody issues,” listing a couple dozen prisoners he should not be housed with, and shipped him off to the Arkansas Valley Correctional Facility. He stayed there for several months, filing a blizzard of grievances and complaining about sightings of gang members who might retaliate against him. One grievance challenged DOC’s unwritten rule of making cell assignments by race; Howard figured he would be better off with a Hispanic or African-American cellie than a white one who might be in touch with the 211 Crew.
But word of his snitching at Sterling eventually drifted into Arkansas Valley, and Howard was transferred again. This time he was sent to one of the most violent prisons in the state.
“I was sent to Limon, God knows why,” he says. “It was already all over the compound that 211 was going to kill me.”
In a corridor at Limon, Howard locked eyes with Allen Hernandez, alias LBow – one of the names on the list of prisoners from Fremont and Sterling who weren’t supposed to be in contact with him. Howard fell to the floor and vomited. He lasted two weeks at Limon before he was shipped out again.
He was at Buena Vista only a few days when a 211 member from Sterling who’d been directly involved in the threats against Howard was moved into the same unit. That night he was subjected to a torrent of screams and taunts from neighboring cells. “They were calling me a snitch and a whore and a fag,” he says. “They were making arrangements to sell me to the black dudes on the tier. The officer station is right there. They could hear it, but they didn’t react at all.”
The experience triggered another panic attack, a trip to the emergency room – and another grievance. “A mistake was made in moving the offender you mention to BCVF after you were already here,” a supervisor responded. “This I can verify was a very unusual situation and should not have happened.”
But unusual situations continued to dog Howard, right up to his last day as a guest of the State of Colorado. On September 18, 2007, while waiting to be picked up by federal marshals and start serving his federal sentence for tax fraud, Howard was escorted past several vacant cells at the Denver Reception and Diagnostic Center to a holding cell containing one other prisoner: Simon Shimbel.
“I can’t go in there,” Howard said, stopping dead at the door. “He’s a custody issue.”
The female sergeant escorting Howard ignored him and beckoned to the control center to open the door. Howard begged her to check the computer, which would show that he could not be housed with Shimbel.
The sergeant refused and told him to get in the cell. “You ain’t on parole yet, you know,” she said. Disobeying her order could delay his release from DOC indefinitely.
He went in. The door slammed behind him. Shimbel immediately got in his face. “I got ad-segged for that,” he said, referring to the stretch in solitary that Howard’s statements to investigators had cost him.
Howard curled up on top of the toilet, keeping his eyes down, while Shimbel berated him for being a snitch. Shimbel knocked him on the floor.
“The only reason I don’t choke you the fuck out is I’m leaving,” he seethed.
Shimbel checked the window to make sure no one was watching. Then he unzipped his pants. “Do what you do,” he said.
Howard says Shimbel struck him on the back of the head until he started performing oral sex. After a couple of minutes he knocked Howard to the floor again and ejaculated into the toilet. “Can’t give you any of this,” he muttered. “You’ll go to the pigs.”
Howard jumped up and hit the cell’s emergency button. When a voice came on the intercom asking him what the trouble was, he shouted that he needed his dress-out clothes. The door opened. The marshals were already coming down the corridor.
Howard and Shimbel were transported to the marshals’ office in the same car. He didn’t get a chance to report the alleged assault until Shimbel was gone – bound for Australia, to serve time for a prison escape there. Shifted temporarily to the Jefferson County jail, Howard spoke to several officers and medical personnel before someone took a report.
A jail sergeant called corrections officers at DOC to check Howard’s account of being sexually assaulted while in their custody.
“The guy’s a drama queen,” he was told. “Don’t worry about it.”
• • •
Howard’s lawsuit was thrown out by U.S. District Judge Edward Nottingham, then reinstated by the Tenth Circuit Court of Appeals, which concluded that there was evidence that prison officials at Sterling knew Howard “faced an ongoing risk from a prison gang with a substantial presence” and failed to take reasonable steps to protect him.
After that ruling came down, Howard managed to get the civil rights law firm of Killmer, Lane & Newman, whose client list ranges from Ward Churchill and Richard Heene to several death row prisoners, to represent him. The case soon became a costly, heels-dug-in wrangle over who had bigger credibility problems: convicted fraud Scott Howard or see-no-evil, cover-your-ass corrections officials.
It was the state’s position that Howard had never told case managers at Fremont and Sterling about ongoing gang threats, extortion or sexual assaults – not until after he was caught red-handed with the tax data in 2006. His transfer from Fremont to Sterling had not been for security reasons, but because he was accepted into a “life learning program” at Sterling. His complaints about his placement at Sterling were not because of 211 threats, but because he wanted to get back to his “paramour” in another unit.
The official version took some bizarre turns. One officer maintained that 211 members at Sterling had such an aversion to homosexuality that one of their members was stabbed over a forbidden tryst; thus it was unlikely that gang members would sexually assault Howard or pimp him out to other gangs. Case manager Backer maintained that complaining about custody issues – for example, saying that gang members are trying to kill you – is somehow different from snitching. Backer had “never seen an inmate get retaliated against” for seeking protection, so why didn’t Howard speak up?
Case manager Halligan insisted that extortion was no big deal, either. “In my experience, threats of extortion and extortion itself rarely leads to violence in DOC,” he stated in one affidavit. “Nearly all such activity is resolved by the inmates themselves.”
After months of discovery and depositions, Howard’s lawyers found numerous holes in the official story, but nothing that proved Howard’s version. “That was a weakness in our case,” attorney David Lane says. “We had no corroboration of any kind that he’d ever made a report. But then lo and behold, there was a memo from his case manager that the attorney general’s office never gave to us. And it was the smoking-gun document of the entire case.”
Howard had filed a second lawsuit after his encounter with Shimbel on his last day in the DOC. A private law firm defended that case, and it produced many of the same documents the Colorado Attorney General’s Office had handed over in the original case – with one glaring exception. A transfer form signed by Fremont case manager Dave Mason had surfaced in the second wave. The form states that one of the reasons Howard was being moved from Fremont to Sterling was because “other offenders” were pressuring him for money. Handwritten and circled on the form is a number: 211.
Weeks before that document was found, Mason had filed an affidavit in the case denying that Howard had ever told him about any threats or extortion. Other officers filed similar affidavits, insisting that nothing in Howard’s file or their discussions with him pointed to a gang problem. Yet the form backed up Howard’s account of his meeting with Mason and the reasons for his subsequent move to Sterling.
Howard remembers seeing the form for the first time last spring and realizing he was on the brink of vindication. “That was the healing point for me,” he says now, “to find this document that shows I wasn’t lying.”
Lane was more furious than elated. In thirty years of practicing law, he insists, he’s never seen a more serious violation of discovery rules. “In the entire world of documents, there was only one that we did not get – and it was the one that blew their case out of the water,” he says. “I believe the attorney general’s office intentionally hid this document. But no one’s been held accountable for this.”
In a court filing, the AG’s office maintained that the omission was “inadvertent,” the result of a copying glitch by a paralegal, who omitted several other less relevant pages when copying Howard’s DOC file. “If Mr. Lane believes there was an ethical violation, he has an obligation to file a grievance,” says AG spokesman Mike Saccone. “If he’s still carping about this and hasn’t done that, I think that speaks volumes.”
Lane did push for an evidentiary hearing in the matter, but within a few weeks the parties quietly settled the case for $165,000. “I was disappointed in the amount,” Lane says, “but Scott wanted to move on with his life.”
Moving on has been difficult for Howard. While the lawsuit was under way, he was inundated with materials reminding him of the details of his assaults. He still suffers from post-traumatic stress. He has bad reactions to encounters with white guys with shaved heads, and for a time avoided contact with white people whenever he could.
“Some days are good, some days are bad,” he says. “Part of my healing process was to forgive people. Am I mad at staff? Do I think they could have prevented it? Absolutely. There were times when I was so upset, I didn’t know if I could go on with it. But I either had to let them get away with it or continue the fight.”
DOC officials didn’t respond to requests for comment on the Howard settlement or any policy changes it may have inspired. In 2007, 211 Crew founder Benjamin Davis, despite his insistence that he’d distanced himself from the gang, was convicted by a Denver jury on charges of racketeering, assault and conspiracy and had an additional 96 years tacked onto his sentence. But the 211 Crew and other gangs continue to be active in Colorado prisons – even if many of their activities are, as the man says, “resolved by the inmates themselves.”
Howard now works as a production manager for a company in the Midwest. He’s been invited to speak at an upcoming gathering of the American Correctional Association as well as a national convention of sexual assault response teams. After years of being afraid to speak out, his name and photo and battles are showing up in Just Detention International fundraising appeals and on the New York Review of Books blog.
“This has turned into my fight,” he says. “I know a person at Fremont who’s going through the same thing right now and is being ignored. I really didn’t seek this, but I can be a voice for those who aren’t being heard.”
This article was originally published by Westword (www.westword.com) on February 3, 2011 and is reprinted with permission.