by Mark Wilson
The Massachusetts Supreme Court held that the prosecutor, not the judge, determines the applicable sentence under drug laws that authorize two different sentences for the same conduct.
Massachusetts General Law, chapter 94C, section 32A criminalizes the distribution of controlled substances. Subsections (a) and (c) criminalize first-time distribution of forty class B controlled substances. Subsections (b) and (d) criminalize subsequent distribution of those controlled substances. Subsections (b) and (d) punish possession with intent to distribute a class B substance, but subsection (b) requires a 24 month mandatory minimum sentence while subsection (d) requires a 42 month mandatory minimum sentence.
Moses Ehiabhi was convicted under sections 32A(c) and (d) of a second charge of possession with intent to distribute cocaine. The judge asked the prosecutor why she charged Ehiabhi under section (d), which carries a 42-month mandatory minimum sentence while section (b) carried only a 24 month mandatory minimum sentence, and the elements of both offenses are identical.
The prosecutor explained that she "typically" brings cocaine charges under the enhanced section because cocaine is "considered a more dangerous substance than other" drugs like pills. She also defended her charging decision by arguing that Ehiabhi was on federal supervised ...
by Mark Wilson
Oregon prison officials have paid $450,000 to settle state and federal claims that systemic gang violence resulted in a prisoner being murdered in his cell. Officials had previously admitted that staff negligence was a “substantial factor” in the murder.
In July 2010, Oregon prisoner Michael Clarence ...
by Mark Wilson
The California Court of Appeals held that a lower court erred in holding that failing to register as a sex offender does not authorize parole supervision as a high-risk sex offender.
In 1989, Charles Andre Toussain was convicted of assault with intent to rape and sentenced to six years in prison. In April 2013, Toussain was convicted of failing to register as a sex offender.
On March 13, 2014, the California Department of Corrections and Rehabilitation (CDCR) released Toussain on parole on the condition that he submit to electronic monitoring via Global Positioning System (GPS) technology.
Ten days after he was released, Toussain's parole agent was notified by the GPS tracking company that Toussain's GPS unit had been tampered with or was malfunctioning.
Toussain, a transient, was found lying on the ground in front of the Santa Ana Public Defender's office. His GPS device was on the ground next to him.
Toussain claimed the GPS unit came off his leg when he fell down, but he admitted that he did not attempt to contact his parole agent.
In April 2014, Toussain's parole agent filed a parole revocation petition in superior court, alleging that ...
by Mark Wilson
The United States Court of Appeals for the Tenth Circuit affirmed a lower court's judgment that a Kansas jail's postcard-only policy violated the First Amendment.
Nicholas Cox was detained in the Johnson County Adult Detention Center awaiting trial on Kansas domestic violence criminal charges.
The ...
by Mark Wilson
The United States Court of Appeals for the Ninth Circuit reversed the dismissal of a jail guard’s hostile work environment claim against a sheriff, holding that unwelcome and pervasive hugging can create a hostile or abusive work environment.
Victoria Zetwick began working as a California jail guard for the Yolo County Sheriff’s Department in 1988. She was promoted to sergeant in 2002.
Edward G. Prieto was elected as Yolo County Sheriff in 1999. After his election, Prieto hugged all the female guards when he introduced himself to the jail staff. He shook hands with the male guards. Between 1999 and 2012, Prieto subjected Zetwick to numerous unwelcome hugs. Zetwick claims that Prieto hugged her at least two dozen times between 1999 and 2002, and at least 100 times between 2003 and 2011.
In May 2003, Prieto kissed Zetwick on the lips, supposedly to congratulate her on her recent marriage to a sheriff’s deputy. She expressed shock to her husband, co-workers and supervising lieutenants, but not to Prieto. Her supervisors did not refer her complaints for investigation. Instead, Zetwick’s co-workers and supervising lieutenants teased her that Prieto was going to kiss her on the lips following the incident ...
An Illinois federal court dismissed medical care claims against a prison warden, but refused to dismiss claims against non-medical staff who denied a prisoner’s grievance. Illinois prisoner Tony Foster was diagnosed with a cataract in his left eye. Dr. Norman Patterson prescribed eyeglasses because Foster said he was losing vision in the eye. Patterson refused, however, to refer Foster to an ophthalmologist. Foster later developed a cataract in his right eye, and glasses did not improve his condition.
Foster wrote to the medical director, Dr. Parthasarathi Ghosh, requesting to be seen by an ophthalmologist. He also submitted an emergency grievance which was not answered. Foster then sent a second grievance, which was denied by Sarah Johnson, a member of the Administrative Review Board. Foster subsequently sent seven requests to Patterson and three to Ghosh, seeking treatment for his cataracts.
Foster brought federal suit, alleging that defendants were deliberately indifferent to his serious medical condition by denying him access to an ophthalmologist to correct his cataracts. He later filed an amended complaint, naming warden Michael Lemke and Sarah Johnson as defendants.
Lemke and Johnson moved to dismiss, arguing that the claims against them were time-barred and they lacked personal involvement ...
by Mark Wilson
The United States Court of Appeals for the Fifth Circuit reversed the dismissal of a jail suicide suit. The lower court failed to analyze whether factual disputes existed as to whether unconstitutional jail conditions contributed to the detainee’s death.
Texas nurse, mother and wife, Diana LaRoy Simpson, struggled with depression and had attempted suicide. She told her husband that if she attempted suicide again, she would withdraw cash from an ATM, check into a motel and overdose on pills.
Simpson’s husband noticed a cash withdrawal from his bank account on May 18,2015. His wife had worked the nightshift at the hospital the night before, where she often slept after her shift because it was 75 miles from her home.
When Diana did not answer her cellphone, her husband called the hospital to see if she was sleeping there. He was told that she left after her shift. He then called several police agencies to report his wife missing and at suicide risk. He put a photograph of his wife’s vehicle on Facebook, asking anyone who saw it to contact authorities.
A woman who saw the Facebook plea and recognized Simpson’s vehicle parked on a road in ...
by Mark Wilson
The United States Court of Appeals for the Eighth Circuit reversed a lower court’s denial of qualified immunity to a guard who ordered a prisoner confined to a restraint board for more than three hours.
Minnesota prisoner Ronnie Jackson has a long history of mental health problems, prison rule violations and violent behavior. He has claimed to hear voices that tell him to slit his cellmate’s throat. For several years, he has been confined in an Administrative Control Unit (ACU), where he remains locked in his cell 23-hours a day.
ACU prisoners may request medical attention by sending a “kite.” If their condition is a life-threatening emergency situation, the prisoner may press a duress button in his cell. At about 7:20 a.m., on May 13, 2014, Jackson told a guard he was not feeling well. By noon, he was experiencing severe chest pains, nausea, shortness of breath, and vomiting, which he believed to be side effects of Effexor, which he took for depression.
During the next 90 minutes, Jackson repeatedly sought medical attention. He asked a nurse and a guard for assistance. When they declined, he pushed his emergency duress button three times. After ...
