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Articles by David Reutter

Florida's Rush to Disenfranchise Felons Before the 2004 Election

By David M. Reutter

After George W. Bush won Florida by 537 votes in the 2000 election, an uproar arose when it was learned that election supervisors, using a list compiled by an Atlanta firm, had mistakenly identified voters as felons and purged them from voter rolls. Some supervisors mistakenly allowed actual felons to vote or turned away legitimate voters as suspected felons. Florida is one of six states that imposes a lifetime civil and voting rights ban on anyone convicted of a felony.

It is unknown how many valid voters were disenfranchised, but the resulting outcry led to the purchase of new voting machines and the reform of Florida election laws. The new process requires election supervisors to send certified letters to suspected felons. If they do not respond, they are removed from voter rolls. Civil groups lament the unfairness of putting the burden of proof on the voter.

In mid-May 2004, the state provided county election supervisors a list of 48,000 possible felons. Those supervisors are trying to develop safeguards in addition to the certified letters. "We have to identify a proper procedure to ensure that anyone removed is actually a felon," said Ion Sancho, the Levin ...

Denial of Nation of Islam Literature Unconstitutional

by David M. Reutter

The Third Circuit Court of Appeals held that prison officials' refusal to allow prisoners to receive Nation of Islam literature was unconstitutional, but prison officials were entitled to qualified immunity from money damages for their illegal actions. Pennsylvania prisoners Richard X. Sutton, Robert X. Wise, and Michael X. Walker were placed on Special Management Unit at the State Correctional Institute at Camp Hill (SCI). Pursuant to Administrative Directives 801 and 802, they were limited to a personal Bible, Holy Koran, or other religious equivalent.

The prisoners requested access to various texts written by Fard Muhammad and Louis Farrakan from their personal property. Camp Hill's Muslim Chaplain Adeeb Rasheed was asked by the property room guard if the requested texts were religious. Rasheed determined they were not religious. The prisoners then filed grievances. Reverend James W. Smith, the Facility Chaplian Program Director, and Father Frances T. Menei, Administrator of Religious and Family Services, examined the requested texts. Their response to the grievance found the books are not essentially religious in nature and they "smack of racism and hatred." The prisoners then filed a 42 U.S.C. § 1983 action alleging First Amendment violations. The district court ...

Punitive Damages Are Prospective Relief Under PLRA

by David M. Reutter


The Eleventh Circuit Court of Appeals has held that the PLRA makes punitive damages prospective relief that requires the district court to make a factual finding the award is narrowly drawn to correct the violation of the Federal right. This appeal was filed by defendant guards ...

Florida DOC Ordered to Assist Felons Restore Their Voting Rights

Florida DOC Ordered to Assist Felons Restore their Voting Rights


by David M. Reutter

A Florida circuit court has ordered the Florida Department of Corrections (FDOC) to assist ex-felons who did not receive help in the application process for restoration of their civil rights as required by state law. Florida is one of six states that imposes a lifetime civil and voting rights ban on anyone convicted of a felony. The loss of civil rights takes away not only the right to vote but also the right to hold public office, serve on a jury, and qualify for certain types of state occupational licenses required for many jobs.

The FDOC, pursuant to § 944.293 Florida Statutes, is required to assist those who are about to be released from custody or supervision in the filing of an application for restoration of their civil rights. Between 1992 and 2001, the FDOC admits it failed to assist 124,769 offenders in filing the Office of Executive Clemency (OEC) application for civil rights restoration. As many as 30,000 of those offenders qualify for rights restoration without a hearing. The remaining offenders require a hearing before their rights are restored; that process often takes ...

Preliminary Injunction Granted to Religious Objector of Tuberculosis Skin Test

by David M. Ruetter

A New York federal district court has granted a preliminary injunction to a prisoner who objected on religious grounds, to taking a Purified Protein Derivative Test(PPD) to detect tuberculosis (TB). In a previous unpublished opinion, the court held the religious rights of Selam Selah, a prisoner at Auburn Correctional Facility, were substantially burdened by the New York State Department of Correctional Services (NYDOCS) policy of requiring mandatory PPD tests. When Selah asserted his religious objections and refused a PPD test, he was placed in tuberculin hold.

The court held a two day hearing on Selah's motion for a preliminary injunction and found three forms of TB exist: (1) Latent TB is where one has been exposed to and contracted TB but suffers no adverse effects; (2) Active TB is where one becomes ill throughout the body; and. (3)Active Contagious TB is where the lungs are infected and the disease is capable of spreading by sharing air space with others. The court also found there are three methods to detect TB: (1)PPD test, which is the injection of a substance containing a derivative of TB that causes a skin reaction; (2) Chest x-rays ...

Alabama Jail Conditions Unconstitutional, County Liable

by David M. Reutter


The Court of Appeals for the Elev-enth Circuit has held, in a case with protracted litigation resulting in three opinions of the Court, that the conditions of the Butler County Jail in Greenville, Alabama are so atrocious that Sheriff Diane Harris, the Butler County Commission, and Butler County can be held liable for the injuries incurred by pretrial detainees Joe Marsh and Leroy Owens. Marsh and Owens claim the injuries they suffered, although arising from distinct incidents, were caused by the same jail conditions and practices.


The Butler County Jail is a two-story building constructed in 1929 and 1930. By 1996, because the County failed to maintain the facility over the years, the building was in an extremely dilapidated and poor condition. Sewage leaked from overhead pipes. Sinks and toilets were inoperable, trash was strewn everywhere, windows were cracked and could not be closed, and there exists infestation of vermin and insects. The cell locks on the second floor were inoperable and prisoners freely roamed the floor.


On July 2, 1996 Marsh was lying on his bunk when four prisoners entered his cell challenging him to fight. When Marsh refused, he was struck with a pipe ...

USPC Parole Revocation Policies Violate Due Process

by David M. Reutter


A federal district court for the Dis-trict of Columbia has granted injunctive relief to prisoners challenging the United State Parole Commissions (USPC) unconstitutional policies, which unduly delay revocation of parole proceedings.


The USPC assumed the powers, duties, and jurisdiction of the District of Columbia Board of Parole (DCBP) on August 5, 2000, pursuant to the National Capital Revitalization and Self-Government Act of 1997. USPC replaced the parole revocation procedures of DCBP with new parole regulations.


Upon assuming DCBP parole matters, USPC was hit with a backlog of 230 cases waiting in custody for hearings. Immediately, USPC found its resources were "overwhelmed," and operations "reached a state of near collapse." USPC's backlog had increased in October 2000, to 400 arrested parolees who were beyond the constitutional deadline established in Morrissey v. Brewer, 92 S.Ct. 2593. In November 2000, USPC released 116 arrested parolees without hearing in an effort to reduce the backlog, but "delays of four months from arrest to final revocation decision continued to be common&with some hearings delayed six months or more."


USPC found itself unable to provide preliminary interviews in a timely manner, unable to determine when warrants were executed, or which parolees were awaiting bearings. Additionally, USPC admitted that documentary evidence needed to make findings as to probable cause, and for revocation of parole was often missing.


In Morrissey, the Supreme Court established that despite their limited rights, parolees retain a liberty interest in their freedom. Thus, probable cause decisions must be made "as promptly as convenient after arrest." The Court did not define what "prompt" entails, but USPC interprets it as being three to five days after arrest.


The prisoners challenged USPC's policy of delaying final probable cause determination for more than 21 days after arrest. The District Court cited numerous cases, which are not isolated incidents, of probable cause determinations not occurring until 50 to 176 days after arrest.


USPC's policies also require a final revocation hearing "shall be scheduled to be held no later than sixty days after a final determination of probable cause." This policy comports with Morrissey's holding. The prisoners evidenced cases where final determination was not made until from 152 to 326 days after arrest. The U.S. Marshall Service's report to the Court stated that the average time from arrest to revocation hearing is 99 days, and from arrest to final decision averages 156 days.


The District Court held that to comport with the outer limits of due process under Morrissey, USPC must provide a final determination of probable cause within 5 days of arrest, a final revocation hearing 60 days thereafter, and a final revocation decision 21 days thereafter. In other words, USPC must complete the process within 86 days of arrest.


The parolees also challenged as violating due process, USPC's regulations denying them the opportunity to review all the evidence against them before having to present their case. USPC's procedures provide for discovery only at the final revocation hearing. Morrissey held the "minimum requirements of due process&include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence." The District Court held this ...

PLRA Does Not Apply to Juvenile Facilities; $379,000 Attorney Fees and Costs Awarded

by David M. Reutter


A federal district court in South Dakota has held the PLRA attorney fees provision does not apply to juvenile facilities, and awarded $379,000 in attorney fees and costs. The court had before it the plaintiff's motion for attorney fees and costs after a Settlement ...

Florida Prisoner Sues for Contracting HIV

by David M. Reutter

Florida prisoner Richard James Randles filed simultaneous state and federal lawsuits alleging guard B.D. Hester ordered him, on three separate occasions, to clean up blood from other prisoners who had accidentally wounded themselves or attempted suicide at the Zephyrhills Correctional Institution medial/psychiatric ward. Randles requested to use the blood-spill kits containing full body protective clothing. Hester refused the request, and only provided Randles a pair of plastic or latex gloves to wear while cleaning up the blood spills. Randles claimed that prior to the incidents he tested normal for HIV and that a nurse could verify the cuts he had on his hands during the clean ups. After being exposed to HIV contaminated blood during the clean ups, Randles tested HIV positive.

The state tort action alleged that Hester's negligence was the cause of Randles' illness. The state moved for dismissal on sovereign immunity stating that Hester's actions were criminal misconduct and the state could not be held liable. The Florida Second District Court of Appeal held that under Section 768.28(9)(a), Florida Statutes, the complaint could only be dismissed if it alleged the acts were taken by the employee ...

Supreme Court Holds No Immunity for Alabama Hitching Post

by David M. Reutter

The U.S. Supreme Court has reversed an Eleventh Circuit Court of Appeals ruling that held government officials are entitled for qualified immunity unless there exists previous case law that is "materially similar" to the facts at issue. The Supreme Court held that there need only exist cases that give officials a "fair and clear warning" that their conduct violates the constitution, and when such cases exist the officials are not entitled to qualified immunity.

In 1995, Alabama was the only state that followed the practice of chaining its prisoners together on outside work squads. The Alabama Department of Corrections (ADOC) was also the only prison system in the nation that permitted use of "hitching post" to punish its prisoners for misbehavior or refusing to work on the chain gang. The hitching post is a horizontal bar that is 45 to 57 inches from the ground, and prisoners were to be handcuffed on the bar at face level. Over long periods of time from being hitched, a strain on the muscles would result from having to stand for so long and arms raised in a stationary position. In addition, prisoners would endure exposure to sunburn, dehydration ...


 

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