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Articles by Mark Wilson

States Adopt Limited Collateral Consequence Reforms; More Needed for Meaningful Impact

by Mark Wilson

Between 2009 and 2014, forty-one states and the District of Columbia enacted 155 laws - 93 in 2013 and 2014, alone - to ease the impact of some “collateral consequences of criminal convictions,” according to a recent report of the Vera Institute of Justice, Center on Sentencing and Corrections. Yet, those reforms do not go far enough to have any meaningful impact, the report found.

During the “tough-on-crime” era of the last 40 years, federal, state and local policymakers sought to extend the punitive reach of the criminal justice system beyond formal criminal sanctions. This resulted in “the expansion, both in number and scope, of a vast network of post-punishment penalties and restrictions (or ‘collateral consequences’) aimed at excluding individuals with criminal histories from many aspects of mainstream life,” the report found. Those collateral consequences were designed to “continue to stigmatize and marginalize individuals - with a criminal record well beyond their sentences. What has resulted is a system to delineate a person’s status as either a law-abiding member of the community at large or as one of those who must forever sit outside it.”

Today, approximately 45,000 laws and rules impose post-sentence civil penalties, disqualifications and disabilities ...

One Oregon Prisoner + Sex with Two Jailers = 86 Months in Prison

Two Oregon jail employees who pleaded guilty to 40 criminal charges were sentenced to 36- and 50-month prison terms for having sex with the same prisoner 19 times.

Jill Curry, 38, a civilian jail services technician at the Washington County Jail since 2004, and the wife of a sheriff’s deputy, was apparently bored with her life.

Between May and July 2014, Curry repeatedly let 25-year-old prisoner Jeng-Li Delgado-Galban out of his cell and took him to a supply closet to engage in sex.

Curry told someone she was having sex with Delgado-Galban and that person reported her, according to an affidavit released by law enforcement officials on August 20, 2014. Investigators then secured video footage of Curry and Delgado-Galban entering the closet together at least six times. Curry later admitted to having an improper sexual relationship. [See: PLN, July 2016, p.63; May 2015, p.63; April 2015, p.63].

Delgado-Galban, a reported gang member, was in custody on charges of tampering with a witness, sexual harassment, failure to register as a sex offender, false swearing, harassment, second-degree assault and unlawful use of a weapon. He reportedly testified against Curry before the Washington County Grand Jury.

Following her indictment ...

Oregon “Incorrigible Masturbator’s” Life Sentence Unconstitutionally Disproportionate

The Oregon Court of Appeals held on June 17, 2015 that a true life sentence for “an incorrigible masturbator” was an unconstitutionally disproportionate punishment – a decision subsequently upheld by the state Supreme Court.

Under ORS 137.719(1), certain recidivist sex offenders may be sentenced to a presumptive life sentence without the possibility of parole when convicted of a third felony sex crime. Public indecency is a felony sex crime if the offender has a prior conviction for public indecency or another sexual offense.

In July 2006, Dennis James Davidson’s grandmother caught him masturbating while looking out the window at the neighboring home of a young woman, identified only as “A.” That same month, another neighbor observed Davidson, 39, masturbating on the porch of A’s residence. When Davidson saw the neighbor, he thrust his hips in her direction and yelled “You want some of this?”

After the police arrived Davidson denied the neighbor’s accusations, telling the officers that he knew A, had just been in her home where they had masturbated together, and the neighbor saw him zipping up his pants as he left after the encounter.

During a search of Davidson’s backpack, police found a ...

Canadian Solitary Confinement Deaths Result in Rare Lawsuits, Eventual Reforms

Deaths in Canadian federal prisons associated with the prolonged placement of prisoners in solitary confinement, as well as challenges to the use of segregation in provincial jails, have resulted in some limited reforms.

Ashley Smith was sentenced to Canada’s youth justice system when she was 12 years old; she was transferred to the adult federal prison system when she turned 18 in 2006. Smith was held in solitary confinement during her first 11.5 months in the adult system before killing herself, at the age of 19, at the Grand Valley Institution for Women in Kitchener, Ontario in October 2007. She had a history of mental health problems.

In August 2010, prisoner Eddie Snowshoe, 24, ended 162 days in segregation by hanging himself at the Edmonton Institution in Alberta. An inquiry into his death found that guards were unaware he had already served over 130 days at the Stony Mountain Institution near Winnipeg, Manitoba before being transferred to Edmonton, or that he had previously attempted suicide three times.

“It is urgent that we ensure that practices conform to [the Canadian] Charter of Rights protections before any more of our vulnerable prisoners, like Ashley Smith and Eddie Snowshoe, die alone ...

Challenge to Ohio Private Prison Confinement Not Cognizable in Habeas Corpus

The Ohio Court of Appeals has affirmed the dismissal of a prisoner’s habeas corpus petition seeking immediate release from a private prison.

Ohio state prisoner Maurice Freeman was confined at the Lake Erie Correctional Institution, a private prison owned and operated by Corrections Corporation of America. [See: PLN, Nov. 2014, p.44].

Freeman filed a habeas corpus petition in state court, alleging that his confinement at Lake Erie was illegal because he was being held by a private company rather than the State of Ohio. He argued that he was expressly ordered to serve a prison term at a state institution, and therefore sought immediate release from the CCA-run Lake Erie facility.

The trial court dismissed Freeman’s habeas petition, finding that he failed to allege sufficient facts to support a claim that he was entitled to immediate release.

The Ohio Court of Appeals affirmed. “As a general proposition, a writ of habeas corpus can be issued only when the petitioner has demonstrated that he is entitled to be released immediately,” the Court observed. “Unless a prisoner can prove that he has completed his maximum sentence, his entitlement to immediate release can only be established by showing that the ...

Tenth Circuit: No Summary Judgment on Official Capacity Claims

The Tenth Circuit Court of Appeals reversed a district court’s denial of summary judgment on individual capacity claims against an Oklahoma sheriff related to a prisoner’s suicide. The appellate court held it lacked jurisdiction to consider official capacity claims.

On July 27, 2009, Charles Jernegan was incarcerated on an outstanding warrant at the David L. Moss Criminal Justice Center in Tulsa, Oklahoma. He reported that he felt paranoid, nervous or depressed, and was hearing voices. He also said he was taking medication for mental health problems. Someone wrote “Diag. Paranoid-Schizo” on his intake booking form, and based on his comments the form directed further assessment. Yet Jernegan was not referred to the jail’s mental health team for follow-up care; rather, Nurse Faye Taylor recommended that he be placed in general population.

On July 28, 2009, Jernegan filed a medical request through the jail’s computer “kiosk” communications system, asking to speak with someone about problems he was having.

His medical record contained an entry dated July 30, 2009 at 8:00 a.m., claiming that healthcare employee Sara Sampson “attempted to see” him in response to his kiosk request, but couldn’t because he’d been moved ...

Oregon Parole Board Incorrectly Prohibited Legal Assistant from Speaking at Parole Hearing

Last year, the Oregon Court of Appeals held that a prisoner was improperly compelled to choose between having his mother or a legal assistant speak on his behalf at a parole hearing.

Oregon state prisoner Richard Hartwell is serving a life sentence for a 1985 murder. During an August 4, 2010 exit interview hearing before the Oregon Board of Parole and Post-Prison Supervision (Board), Hartwell was accompanied by inmate legal assistant (ILA) David Atkinson. His mother also attended telephonically.

During the hearing, the Board Chair forced Hartwell, who had mental health problems, to choose whether Atkinson or his mother would speak on his behalf. Hartwell told the Board his mother wanted to speak but he needed Atkinson to speak as well.

“Well, sir, he cannot speak on your behalf,” said the Chair. “By Board rule, only one person can speak on your behalf as your supporter.” Hartwell ultimately elected to have his mother speak.

Throughout the hearing, Board members attempted to discuss various issues with Hartwell, but many of his “statements were non-responsive, incoherent, and highly tangential, although it is clear that the board as well as [the ILA] tried to redirect him at various points.”

Hartwell’s mother told ...

Oregon Prison Parenting Program Dramatically Reduces Recidivism

Oregon prisoners who complete a parenting program are significantly less likely to engage in criminal behavior and substance abuse after release, a long-term study found.

More than half of America’s 2.3 million prisoners have children under the age of 18 according to a 2010 Pew study. In other words, one of every 28 children in the U.S. has an incarcerated parent. Around half of incarcerated parents were their child’s primary financial provider before being arrested. According to another study by the Brookings Institute, African American parents who did not graduate from high school are 50 percent more likely to spend time behind bars before their child’s fourteenth birthday.

“If we are going to improve the lives of children and keep them safe and healthy, if we are going to reduce poverty, stop crime, and make communities safer, we must find effective methods of intervening in and breaking the intergenerational cycle of criminal behavior,” said Colette S. Peters, Director of the Oregon Department of Corrections (ODOC). “To do that, we must look to the needs of the children of incarcerated parents.”

Teaching prisoners good parenting skills is an important step in breaking that cycle, according to ...

Wisconsin Jail Policies Unconstitutional But Not Enjoined

A Wisconsin federal court held that a jail's disciplinary, mail, and publication rules were unconstitutional. The court declined to enjoin those practices, however, essentially rendering its holding a mere advisory opinion.

On September 29, 1970 pretrial detainees of the Milwaukee County Jail (MCJ) brought federal suit challenging jail practices and conditions. The challenge narrowed as the suit progressed. Ultimately, only four challenges reached trial, to-wit: that disciplinary, mail censorship, reading material, and telephone procedures were unconstitutional.

On January 17, 1973, the district court issued an opinion holding that all but the MCJ telephone policies were unconstitutional.

First, the court found that the jail's disciplinary procedures did not satisfy minimal due process requirements because there were no clearly defined rules, giving notice of the conduct that would result in discipline. The court observed that Stewart v. Jozwiak, 346 F.Supp. 1062 (E.D. Wis. 1972) outlined minimal due process protections for sentenced prisoners including: an impartial hearing officer; advance written notice of the hearing; written pre-hearing notice of the charges; the right to present witnesses; the right to confront and question accusers; and a short, written statement of the hearings officer's decision. Foreshadowing the Supreme Court's soon ...

Washington Prison File Inspection Request is PRA Request

The Washington Court of Appeals held that a prisoner's request to review his central file was a Public Records Act (PRA) request.

On May 3, 2010, an attorney for Washington prisoner Marvin Hunter requested the opportunity to review Hunter's Department of Corrections (DOC) central file. DOC denied the request.

On January 4, 2012, the trial court denied Hunter's request for an in camera review of the withheld documents, concluding that Hunter's request was not a PRA records request. On January 24, 2013, the court denied Hunter's motion for reconsideration and on March 21, 2013, the court denied his motion for attorney fees and penalties.

The Washington Court of Appeals accepted DOC's concession that the trial court incorrectly concluded that Hunter's request was not a PRA request and remanded to the trial court.

Citing Seattle Times Co v. Serko, 170 Wn2d 581, 593-94, 243 P2d 919 (2010), Hunter argued that the trial court had no discretion to refuse to conduct an in camera review. Nevertheless, the court refused to order an in camera inspection on remand, leaving it to the trial court to determine whether such inspection is required.

The court also vacated the ...


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