Prison Legal News (PLN) regularly reports on prison and jail-related court decisions involving violations of prisoners’ constitutional rights. Those who are new to the arena of civil rights litigation and unfamiliar with prisoners’ few remaining rights may need a basic introduction to the legal issues concerning such claims.
This article provides a primer on prisoners’ federal constitutional rights; it does not encompass federal or state statutory rights, nor does it address rights arising under the 50 different state constitutions.
A “right” is variously defined as a moral or legal entitlement to have or obtain something or to act in a certain way, or something to which one is justly entitled.
The Bill of Rights – the first ten amendments to the U.S. Constitution – can more accurately be called a Bill of Privileges, as all such rights can be taken away. Can you have a right to something if it can be taken from you? Our government can take your freedom through incarceration; your children through termination of parental rights; your privacy by monitoring your phone calls and emails; and even your life by imposing the death penalty. Prison officials routinely put prisoners in solitary confinement ...
by Alex Friedmann*
It sounds like such a simple question: do private prisons save money? The answer, however, is dependent on a number of factors – including how “saving money” is defined.
Consider that in 2013, the nation’s largest for-profit prison company, Corrections Corporation of America (CCA), made $300.8 million in net profit on gross revenue of $1.69 billion. Thus, the company achieved $300.8 million in savings over operational expenses at its prisons, jails and other detention facilities. But how much of that $300.8 million went to taxpayers or reverted to state treasuries or county coffers?
None. Those “savings” went to CCA in the form of corporate profit.
Over the past three decades there have been dozens of studies and analyses of cost comparisons between public and privately-operated prisons – by academics, government agencies and independent organizations – all attempting to answer the elusive question of whether private prisons save money. This is not one of those attempts.
Instead, rather than trying to determine if prison privatization results in savings due to the shifting of costs from public agencies, this article takes an opposite approach by identifying costs that are shifted from privately-operated facilities to the ...
On May 27, 2016, a class-action lawsuit was filed against Securus Technologies, Inc. in the U.S. District Court for the Southern District of California, accusing the company of recording privileged phone calls between prisoners and their attorneys as described in this issue’s cover story.
The suit was filed by former San Diego jail detainees Frank Tiscareno and Juan Romero, who allege Securus recorded calls made to their attorneys – a practice that is prohibited by state statute. The California Invasion of Privacy Act includes protections for communications between prisoners and their lawyers, physicians and members of the clergy. Cal. Penal Code § 636(a).
“But in reality, Securus does eavesdrop on, listen in on, record, and store private and confidential attorney-client phone calls without permission of all parties, and Securus shares access and recordings with law enforcement personnel, including prosecutors, as evidenced by, inter alia, reports by lawyers of production of such recorded calls from prosecutors in discovery,” the complaint states.
Recording attorney-client calls, and potentially sharing them with prosecutors and law enforcement officials, “creates a huge potential for mischief and abuse.” The lawsuit also contends that Securus did not provide adequate notice that calls would be ...
PLN Challenges Postcard-only Policy at Jail in Knoxville, TN
by Alex Friedmann
On October 6, 2015, Prison Legal News filed suit in federal court against Knox County, Tennessee, Sheriff James “J.J.” Jones and the assistant chief deputy at the Sheriff’s Office, challenging mail restrictions at the Knox County Jail which, among other provisions, only allow prisoners to receive correspondence in the form of postcards.
PLN also filed a motion for a preliminary injunction, asking the court to prohibit the defendants from “improperly censoring publications and correspondence mailed to prisoners at the Knox County Jail ... by Plaintiff and other senders pursuant to a postcard-only policy, publication ban, and arbitrary book size restriction,” and to enjoin jail officials from denying due process when publications are rejected.
According to PLN’s complaint, the Knox County Jail has censored at least 147 pieces of mail sent to prisoners since November 2014, including PLN’s monthly magazine, brochures and books. Not only were the mailings censored, but the jail failed to provide PLN with notice of the censorship or the reason why the correspondence was rejected, nor an opportunity to appeal.
The jail also imposes restrictions on books, including size (no larger than 6 ...
Who Owns Private Prison Stock?
by Alex Friedmann
The nation’s two largest for-profit prison companies, Tennessee-based Corrections Corporation of America (CCA) and Florida-based GEO Group (GEO), are publicly traded on the New York Stock Exchange. Other private prison firms, including Management & Training Corporation (MTC), Community Education Centers (CEC), LaSalle Southwest Corrections and Emerald Correctional Management, are privately-held and thus do not have public stock.
As of July 2015, CCA had issued approximately 117 million shares of stock with a market cap of $4.05 billion, while GEO had issued around 75 million shares with a market cap of $2.76 billion. So who owns the vast majority of stock in these two companies? The answer is not everyday people or individual investors, but rather other corporations – banks, mutual fund management companies and private equity firms – as well as public employee retirement systems.
In fact, around 92.4% of CCA’s stock was owned by 300 institutional investors while 91.1% of GEO Group stock was owned by 272 institutional investors at the end of July 2015. In some cases, the same institutional investors held stock in both companies.
The largest owner of CCA stock was Vanguard Group, Inc ...
32 Deaths at CCA-operated Immigration Detention Facilities Include at Least 7 Suicides
by Alex Friedmann
On June 17, 2015, U.S. Rep. Raúl Grijalva sent a letter to U.S. Attorney General Loretta Lynch, requesting an investigation into recent deaths at the Eloy Detention Center in Arizona. The facility, which houses detainees for Immigration and Customs Enforcement (ICE), is operated by Corrections Corporation of America – the nation’s largest for-profit prison company.
One of the deaths, that of José de Jesús Deniz-Sahagún, 31, a Mexican national, was ruled a suicide by the Pinal County Medical Examiner’s Office. Deniz-Sahagún died on May 20, 2015 due to asphyxiation; a sock was found lodged in his throat. The day before his death he was reportedly examined by mental health staff at the CCA facility for “delusional thoughts and behaviors,” according to the autopsy report.
“Eloy Detention Center is in the business of detaining people for profit, but that does not exempt them from upholding the law,” Rep. Grijalva said in a statement. “Where transgressions occur, accountability must follow.”
Approximately 200 detainees at the Eloy facility staged a hunger strike over the weekend of June 13-14, 2015. According to Puente Movement ...
How the Courts View ACA Accreditation
by Alex Friedmann
The American Correctional Association (ACA), a private non-profit organization composed mostly of current and former corrections officials, provides accreditation to prisons, jails and other detention facilities.
According to the ACA, “Accreditation is a system of verification that correctional agencies/facilities comply with national standards promulgated by the American Correctional Association. Accreditation is achieved through a series of reviews, evaluations, audits and hearings.”
To achieve accreditation a facility must comply with 100% of applicable mandatory standards and at least 90% of applicable non-mandatory standards. Under some circumstances, the ACA may waive certain accreditation standards. There are different standards for different types of facilities, such as adult correctional institutions, jails, juvenile detention facilities and boot camp programs.
The standards are established by the ACA with no oversight by government agencies, and the organization basically sells accreditation by charging fees ranging from $8,100 to $19,500, depending on the number of days and auditors involved and the number of facilities being accredited. [See, e.g.: PLN, Aug. 2014, p.24].
The ACA relies heavily on such fees; it reported receiving more than $4.5 million in accreditation fees in 2011 – almost ...
Recidivism Performance Measures for Private Halfway Houses in Pennsylvania
by Alex Friedmann
In 2013, Pennsylvania Department of Corrections (DOC) officials announced they would provide financial incentives to privately-operated community corrections facilities – halfway houses – that reduce the recidivism rates of offenders released from those facilities.
The unique initiative followed a DOC report that found high recidivism rates in the state, with prisoners released from halfway houses (most of which are privately-operated) having higher rates than those released directly from prison. For example, for 2010-11 releasees, the one-year overall recidivism rate was 40.5% for those paroled to a community corrections facility but only 32.7% for those released from prison.
An average recidivism rate based on data from the report was established as a baseline, and privately-operated community corrections facilities are required to meet the baseline rate within a certain range or risk losing their contracts. Those that achieve rates at least 10% lower than the baseline will receive a financial bonus of one percent of the contract amount.
“It’s not unreasonable for us to expect them to have an impact on crime, because that’s what we’re paying them to do,” said Pennsylvania Department of Corrections Secretary John ...
There are currently 2.2 million people held in prisons and jails in the United States,1 and an estimated 95% of prisoners currently in custody will one day be released. Based on 2012 data, around 637,400 people are released annually from state and federal prisons.2
According to an April 2011 report by the Pew Center on the States, the average national recidivism rate is 43.3%.3 Based on that average rate, an estimated 276,000 released prisoners can be expected to recidivate each year, many committing new crimes and returning to prison.
This negatively impacts our communities in several ways, including the societal costs of more crime and victimization as well as the fiscal costs of reincarcerating ex-prisoners who commit new offenses – at an average annual cost of $31,286 per prisoner, according to a 2012 report by the Vera Institute.4
Studies have consistently found that prisoners who maintain close contact with their family members while incarcerated have better post-release outcomes and lower recidivism rates.
These findings represent a body of research stretching back over 40 years. For example, according to “Explorations in Inmate-Family Relationships,” a 1972 study: “The central finding of this ...
However, when we ran across a pleading filed in a criminal court proceeding in Tennessee, it was simply too good not to report.
The pleading, a response to a May 2013 motion for limine filed by a Williamson County prosecutor in a case involving defendant Donald Powell, requested that the court prohibit Powell’s defense counsel, appropriately named Drew Justice, from referring to the District Attorney or Attorney General as “the Government.”
“The State has noticed in the past few years that it has become commonplace during trials for attorneys for defendants, and especially Mr. Justice, to refer to State’s attorneys as ‘the Government’ repeatedly during trial,” Assistant DA Tammy J. Rettig wrote. “The State believes that such a reference is used in a derogatory way and is meant to make the State’s attorneys seem oppressive and to inflame the jury.”
Justice filed a response on May 31, 2013 that squarely addressed the DA’s motion, which he summarized thusly: “The ...
PLN primarily reports on civil litigation involving prisons and jails rather than criminal cases. There are other resources that address criminal law; for example, Punch & Jurists (www.fedcrimlaw.com), which covers issues related to federal criminal cases.