That grand jury is ongoing; any decision to press charges must be made by District Attorney Stephen A. Zappala Jr.
But being fired over alleged prisoner abuse need not be the end of a prison guard's career. Just ask one of the supervisors at SCI-Pittsburgh, Jon Tustin.
Sources close to the investigation say that Tustin, who ranks among the prison's top brass as administrative captain, is not among those being named. But the accusations at SCI-Pittsburgh may have a familiar ring for him. His own career suggests that even if discipline results from these investigations, it can often be reversed.
In 1998, 13 corrections officers were suspended, fired or demoted after a year-long investigation into inmate abuse at SCI-Greene. The prison's superintendent was transferred. Two supervisors were also fired. One of them was Tustin.
But today, says Dave Mandella, the vice president of the union representing corrections officers at SCI-Pittsburgh, Tustin "pretty much runs the show here."
Just as the ongoing investigation at SCI-Pittsburgh began with allegations from inmates, so did the 1998 investigation at SCI-Greene.
Inmates complained that they were subjected to abuse when being transferred to the Restricted Housing Unit -- a prison-within-a-prison for inmates who violated the rules. Prisoners alleged that guards beat inmates during those transfers; there were also accusations that corrections officers used racial epithets, falsified disciplinary reports, deprived inmates of food, and humiliated them and their visitors.
Throughout the ensuing investigation, authorities pledged to take the matter seriously, with then-Governor Tom Ridge telling the Pittsburgh Post-Gazette, "It is very important that there is accountability within our criminal-justice system, but there is also accountability for those who oversee the system."
In fact, as many as 42 corrections officers were questioned about "a pattern of abuse against inmates," the paper reported. Investigators also turned up three dozen videotaped incidents in which prisoners -- though not severely abused -- were subjected to allegedly unnecessary force. Some lower-ranking officers told the Post-Gazette that the abuse was directed by higher-ups: As one told the paper, "I'd get a call from an officer saying that an inmate was causing a problem and he'd tell me, ‘How about putting it to him a little bit' or ‘I want you to work him over.'"
In all, 24 guards -- including 11 supervisors -- were disciplined in May 1998. While most were given reprimands or temporarily suspended, two were demoted and four were fired.
Among those terminated were Tustin and fellow lieutenant Scott Nickleson, who were fired for "unsatisfactory performance." It wasn't Tustin's first brush with abuse accusations: Between 1992 and 1998, according to court records, he was sued 18 times by inmates alleging unnecessary force. And the Department of Corrections had reportedly investigated Tustin in 1996 for abuse violations.
All those civil suits were eventually rejected and Tustin was cleared in that earlier investigation. He told the P-G that -- based on that outcome -- he believed the procedures used while transferring prisoners were acceptable. "Every one of my supervisors was aware of these [transfers]," he told the paper. "They said that in their minds, this type of force was considered justified." Based on that finding, and subsequent positive performance evaluations, he said, "[W]e thought there were no problems."
No criminal charges of abuse were ever filed, and two of the fired guards got their jobs back; discipline for other guards was reduced. When reporters moved on from the story after the summer of 1998, however, Tustin and Nickelson were still out of work.
But due to requests made under the state's Right-to-Know law, City Paper has discovered that within two years, both Tustin and Nickelson were back on the job. Both are, in fact, earning more now than ever before.
Nickelson and Tustin challenged their firings under the state's civil-service laws, which protect employees from politically motivated disciplinary action. And the state lost both times.
Nickelson's case was resolved by August 1999, when he was reinstated to his previous rank and salary -- $42,203.20 a year, according to a settlement obtained by City Paper. The award was retroactive, meaning taxpayers shelled out back pay to the date of his termination. In the end, his discipline amounted to a 10-day suspension.
Tustin's case wasn't resolved until February 2000, when he was demoted from lieutenant to Corrections Officer-1, the lowest tier. When he began work again, at SCI-Fayette, his pay was adjusted from its former $51,438.40 a year to $36,483.20. He received back pay at that rate dating back to June 5, 1998.
Today, both men are earning more than they did at SCI-Greene. Tustin was reinstated to Lieutenant in 2004. Today he's the "administrative captain" at SCI-Pittsburgh, where he earns $79,617 a year. Nickelson now earns $83,623 at SCI-Fayette, according to employment-data reports obtained from the DOC last year through Right-to-Know law requests.
That outcome outrages Bret Grote, an organizer with prisoner-rights group FedUp!
"The timing of the firing and subsequent rehiring reveal that the DOC is more concerned about their public image than the constitutional rights of prisoners," Grote says. "As soon as the media moved on to other stories, they were re-hired. And why not? This type of abuse happens every day in the state prisons."
City Paper tried to contact Tustin and Nickelson by phone, mail and email. On June 16, two CP reporters went to SCI-Pittsburgh at the end of Tustin's shift, and were told the captain would not be coming out.
When asked to comment on the reinstatements, and the policies that allowed them, DOC press secretary Susan McNaughton said the department would not comment. Nor would the department facilitate an interview with them.
"You've tried to contact them; they know the story's being written," McNaughton said. "It's their choice if they want to say something or not."
Some observers contend the DOC may have erred in firing Tustin and Nickelson in the first place.
It's not unusual for corrections officers to be fired and rehired, says Richard Lichten, a retired lieutenant in the Los Angeles County Sheriff's Department who now serves as an expert witness in cases about jail procedure. Such reversals, he says, often indicate that the discipline was based on shoddy investigation.
"Maybe internal affairs didn't do their jobs, or maybe they had exculpatory evidence they chose to overlook," he says. "The only way to really know is to get the full and complete investigation materials."
Which is where Lichten faults the state's handling of Tustin and Nickelson. While he's not familiar with their cases, he says it's usually best for prison agencies to be transparent about their findings -- even if the ultimate result is to reverse a termination.
Many allegations of abuse are trumped up in "frivolous lawsuits by inmates," he says. "Prisons are getting sued constantly," he says. But "90 percent of time, use of force is justified." And "if everything's above water in an abuse investigation, it's usually best to release those findings and let people know what you found."
"But because the officials aren't willing to be upfront about what they're investigating it's difficult to take them at their word. And that's a sad thing."
In any case, Tustin and Nickelson's advancement has apparently inspired some resentment among other corrections officers.
In a complaint filed with the Equal Employment Opportunity Commission last year, Robert Stafford, then a lieutenant from SCI-Pittsburgh, claimed that he had been wrongly passed up for a promotion in favor of Nickelson. Stafford's written complaint argues that he has received "highly acceptable employee evaluations since hire" -- and that, what's more, "I have not been terminated for misconduct."
Stafford argues that the DOC ignored a "Management Directive" stating that applicants for promotion can be rejected if they "have been dismissed from public service … for delinquency or misconduct," or if they "have an unsatisfactory past employment record."
The results of that EEOC complaint are not public. Neither Stafford, who has since retired, nor his attorney, have responded to calls and emails. But under the terms of its settlement with Tustin and Nickelson, the DOC stipulated that records of their termination would only be retained "until May 4, 2003 for purposes of disciplinary considerations" should either man be involved in alleged mistreatment.
And Mandella, the union officer at SCI-Pittsburgh, says that while today's rank-and-file prison guards are under a grand jury's microscope, Tustin's own history rankles.
"They want to pretend that this never happened," says Mandella of the DOC's handling of the SCI-Greene allegations. "But it did, and people remember."