Unregulated companies transport troubleCriticism of private prisoner transport industry intensifies since escape near Spencer.
By: Tom Lawrence, The Daily Republic
It was supposed to be a short stop at a highway gas station. No big deal.
That stop in the early morning hours of July 14 at the Fuel Stop, an island of light located in a dark, rural area off Interstate 90 near Spencer, was anything but routine. Most of the people in the van wore orange jumpsuits and were in shackles, at least in theory. Oscar Antonio Herrera-Menjivar was one of 13 prisoners — 12 men, one woman — aboard the van operated by the Inmate Services Corp., of West Memphis, Ark.
It stopped at the Fuel Stop around 2 a.m. Herrera-Menjivar, a 31-year-old prisoner facing sexual assault charges on a minor girl in Omaha, Neb., escaped from the van, which was supposed to be taking him back to Omaha from Florida, where he had been captured by the U.S. Marshals Service. He remains on the loose. But his escape offers a glimpse into the private companies that move convicted and accused criminals across the country.
McCook County Sheriff Mark Norris, who was called to the Fuel Mart after the escape and led the search for the first few days, said the inmate transfer vehicle did not appear properly equipped.
“I didn’t see any bars or cages or anything,” Norris said. “Just a regular van.”
The van was not a specially equipped Ford E350 van, as the company claims on its website, but just a regular van, according to Omaha Metro Fugitive Task Force Detective Tim Flohrschutz, who is still looking for Herrera-Menjivar.
Norris said a two-man team was in charge of the prisoners.
When the van turned onto Exit 353 and stopped at the Fuel Mart, the driver went inside the store to get something to drink, Norris said. The guard, however, was not on alert. Instead, the sheriff said, the guard was asleep.
Herrera-Menjivar had somehow gotten free of his shackles. Seizing the opportunity, he grabbed a bag with a change of clothes, walked off the van and vanished into the South Dakota summer night, Norris said.
“He got up, opened the door and walked off.”
McCook County has not used private transfer firms, Norris said. The county has few out-of-state cases, but when it does, the prisoners are moved by officers.
“We take care of our own problems, or we have used the U.S. Marshals,” Norris said. “Never any private contractors.”
But some agencies do contract with private companies to move prisoners around. Frank Smith, of Anthony, Kan., a consultant with the Private Corrections Working Group, said the private transport firms are not watched closely.
“It’s virtually unregulated,” Smith said. “They are such a disaster. They are so corrupt.”
He said the number of escapes, as well as reports of inmates abused by guards, as well as other problems, make it clear such companies should not be allowed to exist. Smith, 73, worked in criminal justice and substance abuse treatment and research for decades and was a social worker for the state of Alaska.
“I started fighting the private prison industry then,” he said. “I thought I smelled a rat. We’re a citizen watchdog nonprofit, extremely low budget, essentially volunteer and are associated with public law enforcement and corrections. We’re anti-for-profit corrections.”
The private prison scandal in Alaska, part of a wide-ranging investigation into corruption in the state, ended with lawmakers, lobbyists and state employees investigated, charged, and in some cases, imprisoned.
Former Alaska state Rep. Tom Anderson, a Republican from Anchorage who assisted a private prison firm seeking state contracts, served a five-year sentence on bribery, conspiracy and money-laundering charges. Anderson was just released from probation Wednesday.
Smith said using private companies to house and transport prisoners began in the 1800s but was discarded early in the 20th century because of problems. But it was revived in the 1980s as a perceived way to reduce costs.
“It’s been around for 28 years,” he said.
Smith said using private firms does not work, since while they may keep costs down, they do not provide adequate security.
In addition, he said there is corruption because the firms, as they did in Alaska, will offer bribes and campaign donations in order to land contracts.
“These guys spend millions of dollars,” he said. “They spend millions in campaign contributions.”
Inmate Services Corp. President Randy L. Cagle Jr. said the McCook County Sheriff’s Office and other law enforcement agencies are to blame for not catching Herrera-Menjivar.
“They should accustom them to better training,” Cagle said in a telephone interview. “The response time was horrible.”
He said no deputies arrived at the convenience store for almost 48 minutes. Cagle declined to discuss details on how Herrera-Menjivar escaped from the van and his two employees.
“It’s irrelevant,” he said, before again stressing the need for better training of the local responders.
According to McCook County, the call reporting the escape was received at 2:14 a.m. and deputies were at the Fuel Mart at 2:33 a.m. — a response time of 19 minutes. The sheriff’s office is in Salem, which is 13 miles from the Fuel Mart.
When told that Cagle blamed him and his department, Sheriff Norris broke out in laughter for several seconds.
“How the (heck) was it my fault? I was in bed,” Norris said when he stopped laughing.
He said two of his deputies, along with a Hanson County deputy and two state troopers, were at the scene “within minutes” after they were notified.
McCook County Emergency Manager Brad Stiefvater was also amused by the claim that somehow the county’s employees were responsible.
“McCook County may not know how to catch a prisoner,” he said. “But we dang sure know how to hold on to them once we catch them.”
Cagle denied a guard was asleep when Herrera-Menjivar walked off the van, but refused to provide any other information on the escape.
“Don’t believe everything you hear,” he said.
Cagle said Herrera-Menjivar and other prisoners — he said he had no idea how many were aboard the van — were shackled.
“Anytime people are transferred, they are,” he said.
Cagle said his company will continue to transport prisoners, and he is not especially bothered by the loss of one of them, which he said had never occurred before.
“Happens to everybody,” Cagle said.
He also offered unsolicited opinions during the interview on the Sept. 11, 2001, terrorist attacks, Osama bin Laden and the Central Intelligence Agency, but said he didn’t want to spend much time talking about the escape, or the private inmate transfer business. After repeated requests to talk more about the incident, he ended the call.
Escapes, rapes, deaths
Other prisoner transfer companies have run into trouble over the years.
In 2003, a confidential settlement was reached between a woman who said she was sexually assaulted during a prisoner transfer conducted by a private firm.
Extraditions International Inc., of Commerce City, Colo., was transporting Robin Darbyshire from Carson City, Nev., to a Colorado jail in May 2001.
The trip took four days, and according to Darbyshire, an Extraditions International guard sexually harassed and threatened to kill Darbyshire and another female prisoner.
According to the American Civil Liberties Union, which represented Darbyshire in the lawsuit, the guard, Richard Almendarez, sexually assaulted Darbyshire during a restroom break and threatened to shoot her if she resisted or shouted for help.
Almendarez weighed 325 pounds and had been fired from the Texas prison system for assaulting a prisoner there and failing to report it, according to the ACLU.
“This case provides an excellent example of why contracting with private for-profit companies to conduct correctional functions can be dangerous to prisoners and the public,” said David C. Fathi, a staff attorney at the ACLU’s National Prison Project and co-counsel in the lawsuit.
Extraditions International was also sued in 2002 for a similar incident when officers reportedly left a woman alone overnight in a company holding cell with five male prisoners. They did so to save money, according to the lawsuit.
In 2010, a Court Services Inc. employee, Albert Preston Long, 50, of Florence, Ky., pleaded guilty to traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a female arrestee, deprivation of rights under color of law, felon in possession of a firearm, and use of that firearm in furtherance of a crime.
On April 3, 1997, six prisoners were burned alive when a van operated by the Federal Extradition Agency, which despite its name was privately owned and operated, that was transporting them to Florida caught fire on Interstate 40 near Dickson, Tenn.
Both of the guards in the van escaped serious injury but the prisoners, locked in a wire-mesh cage in the back, could not be freed and died in the blaze as the guards watched helplessly.
The van, which had more than 260,000 miles on it, was making “knocking noises,” a female inmate told employees, but nothing was done. During the fatal trip, the van’s drive shaft came loose, bounced off the highway and punctured the gas tank, sparking the blaze.
The men, all being held on parole and probation violations, were being transferred by the Memphis-based firm that was owned by Clyde Gunter, a former bounty hunter.
Juries awarded $30 million in damages, but after an insurance company paid some claims, no more could be collected, since the Federal Extradition Agency went out of business.
There are numerous such stories online and many media reports of problems with the private transportation firms. The companies are often reluctant to discuss their work with journalists, so the bad news appears to dominate.
There was an industry group known as the Association of Private Correctional and Treatment Organizations, but it folded in 2008. In 2003, it funded a study claiming private prisons could save states millions.
Smith, of the Private Corrections Working Group, said there are numerous examples of major problems with the private firms.
“You know, if you were hauling cattle from one end of the state or the other, or from South Dakota to Nebraska, you’d have rules, you’d have to stop at a weigh station or something,” he said. “But with inmates, there’s no regulations. You just haul them around.”
In fact, there is a federal law regulating the transfer of dangerous criminals by private firms.
The Interstate Transportation of Dangerous Criminals Act of 2000 requires private prisoner transport companies provide a minimum of 100 hours of employee training, give them a background check and drug test, and require them to be in uniform while transporting prisoners.
The prisoners must be “clothed in brightly colored clothing that clearly identifies them as violent prisoners, unless security or other specific considerations make such a requirement inappropriate.”
They must also be transported wearing handcuffs, leg irons and waist chains unless the use of all three restraints would create a serious health risk to the prisoner, or extenuating circumstances (such as pregnancy or physical disability) make the use of all three restraints impractical.
Local law enforcement must be notified 24 hours in advance of any scheduled stops in their jurisdiction for the purpose of loading or unloading prisoners or using such facilities for overnight, meal or restroom breaks. Scheduled stops do not include routine fuel stops or emergency stops, according to the law, which means notification to local law enforcement might not have been required in this case. Whatever the requirement, no notification was given.
Fuel Mart employee speaks
Marguerite “Sam” Roberts was working at the Fuel Mart the night Herrera-Menjivar escaped.
Roberts, a Spencer native who has worked at the store for more than four years, said she didn’t see the Inmate Services Corp. van arrive, since she was on the south side by the diesel pumps and the van stopped on the opposite side, where the gas pumps are located.
Roberts was outside throwing away garbage when a uniformed man approached her.
“He said, ‘Did you see a guy go through here in a bright orange jumpsuit?’ ” she recalled Wednesday.
Roberts said she told him she had not. She thinks Herrera-Menjivar got out of the van, waited for her to turn her back and then ran into the dark, apparently into an adjacent cornfield.
“It was really a strange night,” Roberts said.
She had no customers when the van showed up, but she was soon surrounded by law enforcement officers. Roberts said she didn’t feel threatened or in danger at any time.
“I had a whole crowd of people after that,” she said with a laugh. “They were out here with flashlights and spotlights and everything else.”
Roberts said one of the company’s guards was upset when he realized the prisoner was on the run.
She told him her grandfather had worked for the State Prison of Southern Michigan and frequently transferred prisoners. But the guard was in no mood to chat.
“He said, ‘I think this is the last time I’m going do it,’ ” Roberts recalled.
Omaha Metro Fugitive Task Force Detective Tim Flohrschutz said the transport company picked up Herrera-Menjivar on July 9 after he waived extradition and agreed to return to Omaha to face the sexual assault of a minor charge. He said he’s not sure why it took five days to get him that far, or why he wasn’t immediately taken to Nebraska.
Instead, Herrera-Menjivar had been taken through Montana and the van was on its way east when he escaped. Cagle, the president of the transport company, refused to explain the circuitous route to The Daily Republic.
Herrera-Menjivar had been arrested June 25 by the U.S. Marshals Service in Bonita Springs, Fla. Flohrschutz said the accused man was walking to an ATM when the marshals took him into custody on the charge of first-degree sexual assault of a 14-year old girl.
Herrera-Menjivar had fled to Florida after learning he was wanted for the alleged crime. Flohrschutz said his capture there seemed to be the start of a process to bring him to justice. But Herrera-Menjivar’s escape from the van along I-90 put another wrinkle into the story.
“It was definitely a letdown,” Flohrschutz said. “We worked pretty hard to catch him.”
Although he was apparently a stranger to South Dakota, Herrera-Menjivar was able to evade capture.
Private transport in SD
Michael Winder, a spokesman for the South Dakota Department of Corrections, said the department has used private prisoner transfer firms at times.
The department prefers to use its own staff or a statewide shuttle service provided by the Pennington County Sheriff’s Office, he said.
It also has used the Northwest Shuttle System, a cooperative effort of law enforcement agencies in multiple states.
“The shuttle remains a 15-state system of in-state warrant and outof-state fugitive return built on a handshake and a phone call,” according to the Pennington County Sheriff’s Office website. “There are no federal laws or state statutes that govern shuttle business, only the goal of financially responsible fugitive return and the cooperative efforts and communication of each agency each week and yearly at the regional conference.”
When it needs to move a prisoner and has no other options, the state has used Prisoner Transportation Services, which is based in Nashville, Tenn., Winder said.
“They’re pretty highly trained,” he said. “Every case is different based on the variables. Sometimes they have a time limit, so we have to go get them. Sometimes they have medical issues.”
U.S. Marshals Service Supervising Deputy Tom Genz, who is based in Sioux Falls, said the escape opened his eyes.
“I didn’t even know these companies existed. I was shocked,” Genz said. “It just seemed self-evident that if this kind of person is going to be transported, he’s going to be transported by law enforcement officers.”
The marshals operate the Justice Prisoner & Alien Transportation System. It is sometimes colloquially referred to as Con Air.
The marshals use JPATS to move federal prisoners from one jurisdiction to another and also move state and local prisoners when specifically requested. The Marshals Service charges a fee that varies depending on the distance and jail costs en route.
The fee typically ranges from $1,900 to $3,000.
Genz said over the years a number of South Dakota agencies have used JPATS to transport prisoners. Minnehaha County, Pennington County and Davison County have used JPATS the most.
The U.S. marshals joined with officers from the South Dakota Division of Criminal Investigation; the South Dakota Highway Patrol; Turner, McCook, Hutchinson and Minnehaha counties; and the Sioux Falls Police Department in the search for Herrera-Menjivar.
Still on the loose
Two people in southeast South Dakota reported being contacted later in July by a man who authorities believed to be Herrera-Menjivar, but despite dozens of hours of searching, he was not caught.
He has since been spotted in the Omaha area twice, but Flohrschutz said he thinks Herrera-Menjivar has left the region.
Before Herrera-Menjivar left Nebraska prior to his capture, he reportedly sexually assaulted one and perhaps two young girls, Flohrschutz said. There are two Sarpy County, Neb., warrants for his arrest, and a third one is “pending,” according to the detective.
After he was caught in Florida, the Sarpy County, Neb., Sheriff’s Office Warrants and Extradition Unit arranged to have Inmate Services Corp. bring him to Omaha. But that went sour at the Spencer truck stop. Authorities think Herrera-Menjivar walked and likely caught a ride aboard a train to get back to Omaha.
Flohrschutz said investigating the crimes was difficult, since friends and relatives of Herrera-Menjivar are reluctant to cooperate. Some see nothing wrong with him having sex with teen girls.
Flohrschutz said several people told investigators that such relationships are acceptable in their culture, and they think law enforcement agencies are persecuting Herrera-Menjivar because he is Hispanic.
“That’s kind of the mentality we’re running into,” he said.
In addition to pursuing young girls online, Herrera-Menjivar befriended a 12-year-old boy and “exploited him” to meet young girls, Flohrschutz said.
Flohrschutz said he feels Herrera-Menjivar may have returned to Florida, or he may have gone to New York, where he has family. Or he may have fled south of the border to Mexico or even returned to his native El Salvador. He is not a legal resident of the United States.
But Flohrschutz said he isn’t giving up on finding Herrera-Menjivar.
“We’ll never stop looking for him until we catch him,” he said.