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Melissa Lucio

This is the third column in a series about Melissa Lucio and the state of Texas’ capital case against her. Read the first column here and the second column here.

Determining whether death row inmate Melissa Lucio had a disciplinary record is of the utmost importance in deciding whether her life should be spared. Without a disciplinary record, there’s no indication of her future dangerousness at all, as all of the other state’s witnesses in the penalty phase of her trial testified that they never saw Lucio harm anyone. To be clear, the State of Texas’ witnesses didn’t exculpate Lucio either, but it’s crucial to note that despite this woman allegedly being irredeemably malevolent, no one’s ever eyeballed her hurting another person.

Without a disciplinary record for Lucio, a capital sentence remains unsupported — and the execution scheduled for April 27, 2022 should be halted immediately.

Seeing how Lucio doesn’t have a disciplinary record requires a greater understanding of correctional discipline than most people need or want.

Since the 1970’s, a movement towards more informal dispositions of inmate misconduct has gained traction in prisons and jails. It’s rooted in restorative justice principles but really it’s just a practical management strategy for overcrowded and undermanned correctional spaces. Vernon Fox, a former assistant deputy warden, wrote that informal discipline is necessary because guards and administrators “must be prepared to understand human behavior, rather than trying to judge the amount of pressure necessary to keep a man in line.”

As researchers have noted, it’s really hard to study the effects of informal discipline, usually because there’s a lack of record to study; informal discipline dispositions are supposed to be deleted from an inmate’s file — as long as the inmate agrees to its imposition. Basically, if a prisoner agrees to a puny penalty — even if they haven’t misbehaved — it's possible to short circuit the formal discipline process where they’d likely be held responsible and develop a record within the facility. That’s how it worked when I was incarcerated in Connecticut and the Bureau of Prisons does the same for federal facilities across the country.

In a system dedicated to harsh punishment, informal discipline seems almost progressive, a penological “no harm, no foul.” That’s one way to appreciate it. Or it could be that these procedures bypass the minimal — virtually non existent — protections built into the formal disciplinary process to extract a bit of punishment, a pinch of pain, from an inmate and place her in a situation where she acquiesces to mild sanctions so that she doesn’t eventually develop a disciplinary record to be held against her.

In the penalty phase of Lucio’s trial, the state of Texas entered into evidence a total of ten disciplinary report forms. According to the rules of the jail, though, just the presence of these forms does not a disciplinary record make. According to Discipline Plan, Section T of the Cameron County Jail’s Inmate Handbook, there’s a prescribed way of dispensing discipline:

“Inmates accused of violating the rules of conduct shall be written up on a Notice of Rules Violation form and on an Incident Report. The incident report shall document the incident and must be completed before jailer leaves shift of duty. These reports shall be forwarded to the shift supervisor for initial action. The shift supervisor will determine if the infraction merits a warning to the inmate or if the incident report will be forwarded to the Disciplinary Committee.”

In the Cameron County Jail, there can be no disciplinary report without an incident report. A formal disciplinary record would require the “Disciplinary Board Process” box on the incident report to be checked. Only two incident reports in Lucio’s jail file have the Disciplinary Board Process box checked — and they’re the two reports where Lucio is actively cleared of wrongdoing by staff in the papers themselves.

Although it doesn’t call it an “informal” process per se, the handbook for Lucio’s jail clearly allows an inmate to avoid the formal discipline process by accepting an informal disposition by signing the report. Direct comparison between facilities isn’t always possible, but each of the 4416 state prisons and local jails in the United States has its own specific procedures. The Cameron County Jail doesn’t call theirs an informal disciplinary process but it mirrors those in other jurisdictions that do.

Taking the disciplinary report forms in chronological order (they don’t appear that way in the record) reveals the following:
For a December 1, 2007 disciplinary report for possessing tattoo paraphernalia, the corresponding incident report has the “No Action Taken” box checked. It was not referred for discipline.

A December 12, 2007 disciplinary report doesn’t list a rule violation and instead just says “verbal warning” where the officer should write the rules she violated. There’s no incident report from that same date, but an incident report from the day before details a scenario where a guard said Lucio “kept or used too much cleaning fluid," which the guard didn’t like. Lucio protested that another staff member directed her to clean her area that way. The guard writes in the incident report that she thought Lucio was disrespecting and intimidating her. If there were a rule violation an officer would have written it on the disciplinary form. No one did.

A disciplinary report from February 15, 2008 for alleged fighting is thrown out; a lieutenant voided it out and wrote “no action” on the bottom of it. An incident report from the same date reads: “No action taken due to investigation. Inmate not involved.”

Then there’s an April 16, 2008 disciplinary report for "possession of contraband." The corresponding incident report, the only one dated April 16, accuses her of "unauthorized communication" and details that an officer found notes from Lucio to another inmate in the other inmate’s possession — which, incidentally, means the other inmate possessed contraband, not Lucio. At the bottom, it’s clear that the matter was not referred to the disciplinary board as the box that would show that isn’t checked.

Moreover, the possession of contraband and unauthorized communication actions would be reconciled in the paperwork, but they’re not.

That leaves five reports. Among those are four identical copies of a December 11, 2007 disciplinary report for allegedly disrespecting other inmates and yelling at them. The corresponding incident reports describing these situations indicate that no disciplinary action was taken.

That leaves one last disciplinary report in Lucio’s file. And it’s blank.

According to Daniel E. Manville, author of the Disciplinary Self-Help Litigation Manual and a clinical professor at the Michigan State University College of Law, guilty findings on disciplinary reports usually find their way into electronic records, if a jail utilizes such a system. A public records request filed with Cameron County, Texas unearthed two of them with a note from Dylbia Jefferies Vega, the Cameron County public information officer, that read: “Attached is all they have.”

One of the electronic records is for the tattoo paraphernalia and the other for "unauthorized communications." These two entries don't mean that Lucio has a disciplinary record; if she did, they would have been reflected under the "Hearings" or "Incidents" headings in her electronic file, but they’re not. Instead they’re under the “Special Custody” portion of Lucio’s file, meaning where she was housed in the jail. These are two instances where supervisors moved Lucio because of an incident.

Jail life is inherently chaotic and paperwork is bound to hit some snags. But the fact remains that the two entries in Lucio’s electronic files weren’t referred to the Disciplinary Board as required by the facility’s own rules.

I can see why the uninitiated might think there’s too much smoke in Lucio’s file to conclude it contains no fire. These informals weren’t supposed to remain in her file; it’s not clear why they did.

But even if a formal “guilty” finding had been entered for every situation, writing a note to someone, possessing tattoo paraphernalia (essentially an electric razor or motor from a radio paired with a paperclip) and raising one’s voice hardly make an inmate so dangerous that they need to be killed.

More than that, the facts recounted in the incident reports offer a lot of insight into Lucio’s behavior and she’s no scofflaw. Stitching these reports into one narrative depicts a woman whose existence is determined less by action than by circumstance. A woman who seems destined to be in the same place as someone else’s misdeeds; the alleged fighting scenario describes her as “blocking ‘defensive punches’” to protect another prisoner. One who gets caught up in scenarios over which she has no ultimate control: The tattoo paraphernalia turns up in a light fixture that can be accessed by a number of people.

The reports tell the story of a woman who will take responsibility for things she hasn’t done, just to avoid conflict. A close read of what’s happening in these informal, should-have-been-deleted reports only enhances our understanding of Lucio’s factual innocence claims.

Ultimately, the question isn’t whether Lucio had a discipline record while she was in jail awaiting trial. She doesn’t. The question is whether the then-District Attorney for Cameron County, Texas, Armando Villalobos, knew she didn’t -- and sold a false story to the jury for no other reason than to extinguish her life.

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