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Articles by David Reutter

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 ...

PLRA Allows California Religious Preliminary Injunction

by David M. Reutter

The Court of Appeals for the Ninth Circuit has upheld the grant of a preliminary injunction to California Muslim prisoners .See: Mayweathers v. Terhune, 136 F. Supp. 2d 1152 (E.D. Cal. 2001). Prison officials appealed the injunction arguing that: the prisoners lacked standing; the district court had no jurisdiction to enter a second injunction after the notice of appeal was filed; and the district court abused its discretion in entering the injunctions. The injunction barred disciplinary action against Muslim prisoners for attending Jum'ah services and missing work or educational assignments.

In order to have standing, a plaintiff must allege "actual or imminent harm." "The status of being subject to a governmental institution that was not organized or managed properly" does not raise a prisoner's claim to the level of a claim or controversy. In this case, the prisoners claimed they were subject to disciplinary action for unexcused absences to attend Jum'ah services on Fridays. Therefore, they face the choice between following work program rules and obeying the Qur'an. The court held that the prisoners have standing to seek injunctive relief.

The defendants then filed a notice of appeal. The court entered ...

Florida Guards Murder Another Prisoner, Get Another Acquittal

by David M. Reutter

A state jury has acquitted three Florida prison guards in the murder of death row inmate Frank Valdes. The guards, Captain Timothy Thornton, Sgt. Jason P. Griffis, and Sgt. Charles A. Brown, were exonerated of second-degree murder, conspiracy to commit aggravated battery on a prisoner, official misconduct, and accessory to felony murder. Despite taking months to select a jury and four weeks of trial, the jury rendered its decision in only 3 ? hours. The jury's decision was a result of the paltry job done by the prosecution, the jury's composition, or perhaps both.

Valdes was on death row at Florida State Prison (FSP) for killing a guard while trying to free another prisoner being transported from Glades Correctional Institution to a doctor's office in West Palm Beach. The area around FSP is home to a small rural community that relies upon the $100 million economic impact provided by the employment of 3,000 people who work at the areas five prisons. Of the 11,079 potential jurors available in Bradford County, over 3,000 were called to the courthouse for possible selection in the Valdes murder trial. With only three jurors chosen, of ...

Court Criticizes PLRA Attorney Fee Cap

by David M. Reutter
( A federal district court for the Eastern District of Michigan (EDM) has held the Prison Litigation Reform Act (PLRA) caps attorney fees in prisoner civil rights cases, but criticized that holding. Michigan prisoner Blaine Sallier was awarded damages of $13,000 by a jury for a ...

Court Issues TRO Protecting Constitutional Right to Family Relationships

by David M. Reutter

A federal district court in New York has issued a Temporary Restraining Order (TRO) barring enforcement of a condition of probation prohibiting a female probationer from having contact with her child's father, DaShawn Johnson. Probationer Julie Tremper pled guilty to criminal possession of a weapon, resulting in sentencing being postponed for one year in lieu of interim probation during that period. Thereafter, the Court could dismiss the charge, impose sentencing terms of incarceration or probation, or take other action.

Tremper and Johnson filed suit and sought TRO relief barring enforcement of a special probation condition that Tremper refrain from contact with Johnson. The defendant, Ulster County Department of Probation (UDCP), regularly recommends that judges impose such a condition. Tremper and Johnson alleged the condition violated their "privacy and associational rights under principals of substantive due process under the First, Fourth, Ninth, and Fourteenth Amendments." Specifically, they argued their right "to participate in the care, custody, and management of their natural child, and the right of their child to live together with her natural parents."

There is no dispute that enforcement of the condition will cause irreparable harm to Tremper and Johnson by prohibiting them from ...

Hitching Post Unconstitutional

The Court of Appeals for the Eleventh Circuit has held that handcuffing a prisoner to a hitching post for prolonged periods violates the Eighth Amendment, but granted guards qualified immunity. Alabama prisoner Larry Hope was assigned to the chain gang at Limestone Correctional Facility (Limestone) in 1995 .On two occasions he was handcuffed to a "restraining bar" or "rail," known as the hitching post.

The first time, Hope was hitched because of a verbal altercation with another prisoner .After two hours Hope was released .During that period he was offered water and a bathroom break, every fifteen minutes .The second time, Hope was involved in a physical altercation with a guard .There is a dispute about who started the fight, but Hope stated one of the guards began choking him because he fell asleep on the bus en route to the work site, and did not exit promptly with other prisoners .Hope was taken back to Limestone and hitched to the post without a shirt for seven hours .During this period Hope was given water once or twice and no bathroom breaks.

To establish an Eighth Amendment claim a prisoner must prove a subjective violation, as well as an objective ...

Court Modifies Education Plan for Rikers Island Youth

by David M. Reutter


In continuing its enforcement of an "Education Plan" for the Rikers Island Academies, a New York federal district court has made modifications to the Plan because it is "deficient in many respects." PLN previously reported upon the previous ruling in this case. See PLN November 2000. This is a class action suit filed by youths sixteen to twenty-one years of age, who have not yet received a high school diploma or its equivalent. The Court granted the youth's summary judgment motion, and on June 29, 2000, reluctantly approved the Education Plan noting it would "not meet all the needs of incarcerated youths" and appointed a monitor.


After a year's observation, the monitor filed a Final Report. Based upon that report, both parties moved to modify the plan. The Court stated that although it is pleased that significant changes have occurred over the course of six years litigation, further modifications are required to fulfill the law.


Class members are entitled to schooling within 10 days of incarceration, and the Court held the defendant's were not adequately following the law and the plan when informing youths, especially the non-English speaking, they could enroll in educational ...

 

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