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Articles by Derek Gilna

Congress Passes Legislation Allowing BOP Guards to Carry Pepper Spray

by Derek Gilna

The “Eric Williams Correctional Officers Protection Act” (S.238), named after a federal prison guard murdered by a prisoner at USP Canaan in Pennsylvania, passed both houses of Congress by unanimous votes. The bill provides authority for Bureau of Prisons (BOP) employees to carry OC pepper spray in medium and higher security facilities.

Federal lawmakers were energetic in their praise of Williams, 34, and lamented his death in the line of duty. He was kicked down a flight of stairs, brutally beaten and stabbed over 100 times by prisoner Jessie Con-Ui on February 25, 2013; Williams was working alone in a housing unit at the time. [See: PLN, July 2013, p.56].

Con-Ui, 40, is currently facing first-degree murder charges and prosecutors are seeking the death penalty. He reportedly said he killed Williams over a “disrespect issue.”

Under the Act, federal prison employees who are allowed to carry pepper spray must undergo training; further, the Government Accountability Office is required to evaluate the impact of the legislation, including the effect of issuing pepper spray to BOP staff on reducing crime and violence in federal prisons, whether staff at lower-security facilities should be provided with pepper spray and ...

The Sentencing Project Explores Impact of Race and Ethnicity on U.S. Prison System

by Derek Gilna

A June 2016 report by The Sentencing Project found that blacks are incarcerated in state prisons at much higher rates than whites – up to ten times the incarceration rate in five states. The report offered recommended solutions to what is clearly a national problem.

Fueled by “America’s failed experiment with mass incarceration,” the U.S. prison population has increased over 500% in the past forty years. Fortunately, states like New Jersey, New York, Rhode Island and California have adopted meaningful reforms that reduced their incarceration rates by 20-30%, while still driving down crime rates. Sadly, despite reforms in various states, the disparity of incarceration rates of blacks and Hispanics compared to those of whites is still shocking.

The Sentencing Project describes the harsh reality: “African Americans are incarcerated in state prisons at a rate that is 5.1 times the imprisonment of whites. In five states (Iowa, Minnesota, New Jersey, Vermont, and Wisconsin), the disparity is more than 10 to 1.” Additionally, according to the report, “In twelve states, more than half of the prison population is black: Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia.” The racial ...

White House Justice Initiative Seeks Economic Boost from Policy Change

by Derek Gilna

Former President Obama’s Council of Economic Advisors produced a report in April 2016 that concluded the United States would gain an economic boost by reducing the nation’s level of imprisonment.

According to the report, titled “Economic Perspectives on Incarceration and the Criminal Justice System,” investments in “police and policies that improve labor market opportunity and education attainment are more cost-effective than additional incarceration.”

Calling for a $10 billion investment in police spending, the report also suggested increasing the federal minimum wage to $12 by 2020, claiming that together those initiatives would result in a three- to five-percent decrease in crimes rates and a “societal benefit” of $8 billion to $17 billion.

The Council also called for a “holistic approach to criminal justice reform,” arguing that investments in early childhood education and community policing should be paired with “expanding expungement, ‘banning-the-box,’ and limiting blanket criminal record exclusion in occupational licensing laws.”

Improving an ex-offender’s access to health care and housing should also be undertaken, along with “new approaches to fines, fees, and bail that do not criminalize poverty.”

“The reason we have so many more people in prison than any other developed country is not ...

Delaware Supreme Court Strikes Down Death Penalty, Following Hurst Decision

by Derek Gilna

On August 2, 2016, the Delaware Supreme Court, in Rauf v. State of Delaware, struck down the state’s death penalty in a closely-watched decision. Benjamin Rauf was charged with first-degree felony murder, and the state indicated it would seek capital punishment. However, the U.S. Supreme Court’s January 12, 2016 decision in Hurst v. Florida, which invalidated that state’s death penalty, prompted the Superior Court to seek guidance from Delaware’s highest court before proceeding to trial.

Hurst held that the “Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” [See: PLN, Feb. 2016, p.22]. According to the ruling in Rauf, the Superior Court certified five questions of law to the state Supreme Court.

In a 148-page opinion that traced the history of capital punishment in the United States, the Delaware Supreme Court followed the holding in Hurst, finding the state’s death penalty statute did not “sufficiency respect ... a defendant’s Sixth Amendment right to trial by jury.”

The first question the Court considered was whether “a sentencing judge in a capital jury proceeding, independent of the jury, [may] find the existence ...

Divided En Banc Sixth Circuit Blocks Release of Federal Mug Shots

by Derek Gilna

In a 9-7 decision, the en banc Sixth Circuit blocked the release of mug shots of federal criminal defendants, finding that the Internet had caused individuals to be “haunted” by Freedom of Information Act (FOIA) requests that resulted in their booking photos being posted online. Judge Deborah Cook, who wrote the majority opinion, reversed a 1996 decision that found criminal defendants lacked a privacy interest in their mug shots.

According to the Court of Appeals, “in 1996, this court could not have known or expected that a booking photo could haunt the depicted individual for decades. Experience has taught us otherwise. As the Tenth and Eleventh Circuits recognize, individuals have a privacy interest in preventing disclosure of their booking photos.”

That earlier case, Detroit Free Press v. U.S. Department of Justice, 73 F.3d 93 (6th Cir. 1996), designated “Free Press I,” had been contradicted by contrary rulings in other circuits, which focused on the technological changes that had occurred over the past twenty years. In its most recent suit filed against the Justice Department, the Detroit Free Press again argued that criminal defendants could not block access to their mug shots after they had been ...

UNICOR’s Manufacture of Defective Military Helmets Criticized

by Derek Gilna

The Office of the Inspector General of the U.S. Department of Justice (DOJ) released a report in August 2016 that was sharply critical of ArmorSource LLC and its subcontractor, Federal Prison Industries (FPI), better known as UNICOR, for the manufacture of defective combat helmets for the U.S. military. Despite evidence of negligence and poor supervision and inspections, the DOJ declined to prosecute.

UNICOR, the federal prison system’s industry program that provides jobs and vocational training for prisoners, has come under criticism for providing insufficient training, using antiquated machinery and having indifferent supervision, resulting in inferior products. Further, prisoners’ rights advocates claim the use of low-cost prison labor amounts to exploitation. Prison Legal News has previously reported on problems surrounding UNICOR’s helmet manufacturing program. [See: PLN, Jan. 2011, p.20].

According to the DOJ, in 2008 UNICOR received a subcontract from ArmorSource to produce 23,000 combat helmets at a cost of $229 to $239 each, for a total of more than $23 million. UNICOR made an initial delivery of 3,000 helmets from an FPI program at a prison in Beaumont, Texas. “However [they] did not receive payment for ... 3,000 helmets because ...

Private Probation Company Agrees to Multiple Settlements in Georgia

by Derek Gilna

In July 2016, just before trial, Sentinel Offender Services, a private probation company, agreed to pay a $200,000 settlement to LaSaundria J. Walker for illegally keeping her in jail after she completed her term of probation. Sentinel also agreed to pay Hills McGee $75,000 to settle a lawsuit after he was jailed for two weeks for failing to pay community supervision fees.

Those settlements were in addition to a jury award of $50,000 in compensatory damages and $125,000 in attorney’s fees to Kathleen Hucks, another Sentinel client, for false arrest and imprisonment. [See: PLN, Feb. 2017, p.48]. More than a dozen people have sued the company in both Richmond and Columbia counties in Georgia, plus a dozen more in other jurisdictions, accusing Sentinel of committing numerous civil rights violations.

Augusta attorney Jack Long has led efforts to prevent Sentinel and other private probation firms from profiting from improper business practices – which typically include imposing numerous fees on probationers, then having them jailed when they are unable to pay. The subject of an article published by the American Bar Association in 2014, Long, as well as other attorneys, have argued that Sentinel ...

Federal Judge Grants Ex-offender “Certificate of Rehabilitation”

by Derek Gilna

New York U.S. District Court Judge John Gleeson, known for his well-reasoned opinions, has, in addition to his usual duties, immersed himself in other issues not typically associated with the federal judiciary.

For example, he has encouraged prosecutors to revisit cases where the interests of justice dictate that prisoners be released based upon new evidence or prosecutorial misconduct. Also, his recent grant of a “certificate of rehabilitation” to a former non-violent offender has focused attention on the issue of removing barriers that released prisoners face, particularly in terms of obtaining employment.

In granting the non-traditional relief, Gleeson seized upon recent pronouncements by the federal executive branch that encouraged prosecutors and judges to eliminate collateral consequences that prevent ex-offenders from fully reintegrating into society.

Judge Gleeson had originally convicted the defendant, identified only as “Jane Doe,” for a non-violent felony related to an auto accident fraud scheme. Doe, a single mother of two children, had been a certified nurse – but her conviction made her ability to find a job dependent on whether her employer conducted a background check. She attempted to form her own nursing agency to address that problem, and also worked as a house cleaner ...

Quickest Path to Reducing Pretrial Incarceration? Eliminate Money Bail

by Derek Gilna

According to the non-partisan Prison Policy Initiative (PPI), the fastest way to reduce the number of pretrial detainees held in local jails is simple: Eliminate or reduce the use of money bail.

In a money bail system, defendants unable to come up with the required funds to pay their bond amount (or 10% of the bond if they use a bail bondsman) remain in custody until their case reaches its conclusion or is dismissed. Proponents of limiting the use of money bail point to both the unfairness of the current system and its cost.

In a May 2016 report titled “Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time,” PPI noted there are 646,000 people held in over 3,000 local jails throughout the U.S. Around 70 percent of those individuals are pretrial detainees who have not been convicted, and therefore are presumed innocent. Holding those people – many of whom are indigent – in custody until they are able to post bail has doubled the jail population in the past two decades.

“We find that most people who are unable to meet bail fall within the poorest third of society ...

Report Says Private Prison Companies Increase Recidivism

by Derek Gilna

In June 2016, In the Public Interest (ITPI), a non-partisan public policy group, published a report titled “How Private Prison Companies Increase Recidivism,” based upon the fact that for-profit prisons rely upon incarceration to generate revenue – thus they have no incentive to provide rehabilitative programs that reduce recidivism. In a country with the highest incarceration rate in the world, this is a recipe for disaster.

According to a study by the U.S. Department of Justice (DOJ), “50% of incarcerated people return to prison within three years of being released.” The ITPI report noted that “Academic research has found that incarcerating people in prisons operated by private companies, which have business models dependent on incarceration, increases the likelihood of those people recidivating.”

The report further said that while governmental agencies, which do need not to generate profit, typically operate prisons with the goals of rehabilitating prisoners and protecting public safety, private prisons are beholden to stockholders who expect to receive a return on their investment.

“Often,” ITPI wrote, “achieving the profit comes at a cost to prisoners, those who work inside the prisons, and the broader public.”

Private prison companies sell their services to government agencies on ...


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