By AnnMarie Timmins
Concord Monitor
CONCORD, N.H. — It’s a crime for inmates to throw feces, urine and blood at jail and prison staff. The question before the state Supreme Court is whether throwing it on the floor for staff to clean up also qualifies as assault.
A lower court has said no. The state attorney general’s office says yes and has asked the high court to decide. Meanwhile, prison and jail officials are watching.
“This is part of daily life we have to be on guard for,” said Jeff Lyons, spokesman for the state’s prisons. He said officers deal with inmates throwing their bodily fluids several times a year, most often in maximum-security units. “You never know when it’s going to happen.”
Lawmakers passed the current law forbidding the throwing of bodily fluids in 2000 at the request of prison officials tired of being targeted by inmates. During legislative hearings on the bill, corrections officers described being spit on, being soaked with the contents of a colostomy bag, and having urine thrown in their eyes and mouth.
“We are talking about some kind of behavior that borders on animalistic,” Denis Parker, then of the State Employees’ Association, told lawmakers at the time. “And more than that, we are talking about potential dangers of getting some real infectious dangerous disease that could probably at some point take your life.”
But what if the corrections staff isn’t actually hit?
The question before the state Supreme Court involves six inmates from the Hillsborough County jail who were indicted in 2009 on several counts of assault by prisoner. The indictments allege the six men committed assault by throwing feces and urine on the jail floor for corrections staff to remove.
The law under which they were charged says it is illegal for inmates to “harass” corrections staff by causing or attempting to cause “employees to come in contact with blood, seminal fluid, urine or feces by throwing or expelling such fluid or material.”
Attorneys from the Hillsborough County Attorney’s Office argued the men’s actions qualified as assault because the men intended to harass the jail staff and knew employees would come into contact with the fluids when they cleaned the floor.
The men, Timothy Spade, Ralph Carey, Jarrell Wilson, Jason Connolly, Ryan Freeman and Peter Gibbs, challenged the charges in superior court.
Their lawyers argued the indictments did not adequately allege how jail officers had actually come into contact with the fluids. They also criticized the assault law and its use of the word “contact” as too vague. The lawyers asked the court to dismiss the charges against all six men.
In separate orders, Hillsborough County Superior Court Judge Gillian Abramson agreed.
In the order she issued in Spade’s case, Abramson agreed with public defender Caroline Brown that the law failed to sufficiently define “contact.” Similarly vague, Abramson said, were the six assault indictments against Spade, which alleged he threw feces three times and urine three times over several days in December 2008.
“For example, the indictment in (one charge) alleges (Spade) urinated onto the floor and that (a corrections officer) had to ‘clean it up,’ ” Abramson wrote. “It is unclear from this indictment whether ‘contact,’ i.e., ‘the touching of two objects or surfaces,’ occurred.”
The employee could have hosed the floor clean without touching the urine, she wrote. Or the officer could have mopped it up or used paper towels, again without coming into contact with the urine, she wrote.
And when Abramson looked to legislative records for lawmakers’ intent as they created the law, she concluded they didn’t have in mind the actions of Spade and the other five men. The Legislature, Abramson ruled, wanted to protect prison and jail staff from disease. Each example cited in the legislative history involved staff who were actually hit with bodily fluids.
Disease, she said, is a risk when bodily fluids are thrown unexpectedly. Staff can control the risk, however, if they are cleaning up afterward.
“While such conduct is reprehensible, it is subject to punishment within the prison system, and may constitute some other offense,” Abramson wrote. She suggested criminal mischief.
Nicholas Court of the state attorney general’s office brought the appeals. He is waiting for oral arguments to be scheduled. The court will hear arguments on only the Spade case, he said, and apply its ruling to the other five cases.
Copyright 2010 Concord Monitor/Sunday Monitor