by Matt Clarke

On July 11, 2018, the Ninth Circuit Court of Appeals granted habeas relief to an Arizona death row prisoner based on ineffective assistance of counsel at resentencing. 

Michael Ray White was manipulated by a woman with whom he was having an affair into shooting her husband so she could collect on a life insurance policy. The wounds he inflicted would not have been fatal were it not for a medical error at the hospital. 

White was convicted of capital murder and received the death penalty. After losing his direct appeal, he received state habeas relief – a new mitigation hearing and resentencing. However, White’s counsel for resentencing failed to challenge the only aggravating factor that had made White eligible for the death penalty – whether the murder was for pecuniary gain – or to investigate his background for mitigating circumstances. 

There was “abundant and readily available evidence” that White was suffering from mental illness as well as Graves’ disease, which has neuropsychological effects. He had also been abused as a child and struggled with low intellectual function. However, his resentencing counsel merely relied on White’s statement to a probation officer that “he ...

by Matt Clarke

On May 17, 2018, baby Cashh arrived in the world, slipping out of his mother onto the floor of an isolation cell at the Ellis County Jail in Texas. Cashh survived only nine days following his traumatic and premature birth. [See: PLN, Oct. 2018, p.51]. His mother, Shaye Marie Bear, 25, had been experiencing labor for two days, but jail guards dismissed her screams of pain and a doctor misdiagnosed her condition.

Bear, an admitted methamphetamine addict, had been arrested two months earlier for drug possession. She was five months pregnant. Her bail was set at $5,000 – more than she or her family could afford.

On the morning she gave birth, Bear saw a doctor employed by Correct Care Solutions, the Tennessee-based company that contracts to provide medical care at the jail. She told the doctor that she had been experiencing labor pains for two days and full contractions for hours. The doctor measured her cervix and decided she was not in labor. He said her vaginal bleeding was likely due to an infection. 

That afternoon, Bear had a bond reduction hearing. According to a transcript, she told the judge that she ...

by Matt Clarke

A federal civil rights lawsuit brought by the family of a Texas prisoner who died after jailers ignored his rapidly deteriorating mental and physical condition settled for $1 million. 

When Fernando Longoria, 29, reported to the Carrizales-Rucker Cameron County Detention Center in Texas in January 2015 ...

by Matt Clarke

According to a June 2018 report by the Prison Policy Initiative (PPI), Oklahoma’s incarceration rate has surpassed not only that of every other state in the U.S., but also of almost every other nation. To calculate the rates, PPI totaled the number of prisoners in both state prisons and local jails. The average incarceration rate in the U.S. was 698 prisoners per 100,000 residents.

With 1,079 prisoners per 100,000 residents, the rate in the Sooner state vaulted past that of the previous leader, Louisiana, whose rate fell to 1,052 per 100,000 thanks to recent criminal justice reforms passed by the state legislature.

Oklahoma’s own reform efforts include a 2016 referendum in which voters approved the reclassification of simple drug possession and some minor property crimes from felonies to misdemeanors. According to Open Justice Oklahoma, fiscal year 2018 saw a 28 percent drop in the number of felony charges filed.

Another pair of laws passed in 2018 will end mandatory minimum sentences for certain nonviolent drug-related and burglary offenses, as well as ease sentences for repeat drug offenders. But those efforts are expected to reduce only the growth in the rate ...

by Matt Clarke 

In Hawaii, the United Public Workers union represents around 13,000 state and county employees, including approximately 1,200 prison guards. The union has been engaged in a seven-year battle against the Department of Public Safety’s policy of denying promotions to guards who were suspended for disciplinary violations within the preceding two years.

Having unsuccessfully pursued that claim before the Merits Appeals Board, the circuit court and appellate court, the union is taking the case to the Supreme Court of Hawaii. 

The union’s argument centers around the requirement of Article XVI of the state constitution that public employment “shall be based on the merit principle.” It claims that, in the consolidated cases of five prison guards who were denied promotions in 2010 and 2011, the policy prevented the best candidate from being promoted in violation of the merit principle. It noted there is no such “bright line” prohibiting the promotion of guards who, for example, have been fired from previous jobs or convicted of a criminal offense. Those cases are decided on an individual basis. The union also noted that the plaintiffs were eligible for and often received temporary assignments to higher ...

by Matt Clarke

In a monthly meeting held in the ballroom of an Austin hotel on August 24, 2018, the Texas Board of Criminal Justice – the agency that establishes rules by which the Texas prison and parole systems operate – voted unanimously to reduce the cost of phone calls made by prisoners from a maximum of $0.26 a minute to $0.06 a minute. The Board also increased the cap on the length of calls from 20 to 30 minutes. The ruling went into effect on September 1, 2018. 

The move came as the Board debated a new prison phone contract for the Texas Department of Criminal Justice (TDCJ). The new seven-year contract was awarded in a competitive bidding process to current TDCJ telecom provider CenturyLink, based in Monroe, Louisiana. It requires the company to update existing equipment and install video visitation systems in 12 facilities located in major metropolitan areas. The $0.06-per-minute rate applies both to in-state and long distance phone calls at all TDCJ facilities. 

“This is great news for families who are stressed by incarceration both financially and emotionally,” said Jennifer Erschabek, executive director of the Texas Inmate Families Association, who ...

by Matt Clarke

On December 28, 2017, the family and estate of a mentally ill prisoner who committed suicide while incarcerated at the Yuba County jail in California filed suit in federal court alleging violations of his civil rights. The case settled ten months later for $1 million.

Bertram Hiscock, 34, killed himself in January 2017 on his third suicide attempt since arriving at the jail 77 days earlier. It was the second time he had tried to choke himself to death by swallowing his own feces and urine. 

“I don’t want what happened to my brother to continue to happen to other people,” said Vincent Hiscock, a lecturer in the English Department at Cornell University in Ithaca, New York.

Although Bertram had graduated as valedictorian from his high school and studied theology and earned a bachelor’s degree in English literature from the University of California at Berkeley, he began to suffer from bipolar disorder type 1. The mental illness resulted in hallucinations and caused him to display odd behavior; his condition was largely managed by the drug Abilify. 

“He was being exceptionally careful in wanting to stay well,” Vincent said.

But on November 14, 2016 ...

by Matt Clarke

On August 7, 2018, the Eighth Circuit Court of Appeals held the physical injury requirement of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(e), does not require a prisoner to show that deliberate indifference to his serious medical needs caused his injury in order to recover monetary damages for the pain he suffered due to that indifference.

Daaron McAdoo was incarcerated at the Hot Springs County Detention Center in Arkansas when he was involved in a fight with another prisoner. After McAdoo refused to stop fighting when ordered to do so, guard Ben Cash grabbed him by the waist, took him to the floor and placed a knee on his back.

McAdoo immediately began complaining of shoulder pain. Jail Sgt. Amy Martin authorized his transport to a hospital about three hours later. An emergency room physician diagnosed a dislocated shoulder and prescribed hydrocodone tablets to be taken every four hours for pain, plus a shoulder splint. McAdoo was returned to the jail; because the facility prohibited the use of narcotics, he did not receive hydrocodone but instead was offered non-prescription pain relievers.

During a follow-up examination at the hospital two days later ...

by Matt Clarke

A June 2017 audit at the Montana Women’s Prison (MWP) found the facility was not in full compliance with 20 of 43 standards promulgated under the Prison Rape Elimination Act (PREA), enacted in 2003. [See: PLN, Nov. 2017, p.1; Sept. 2013, p.1].

The prison, which has a design capacity of 206 prisoners, held 212 women as of February 2018.

According to the lead auditor, Jillian Shane, findings of noncompliance are common in PREA audits. She also said prison officials have 180 days to achieve compliance with any standard found lacking. A re-audit in October 2017 indicated that MWP met all – but exceeded none – of the 43 PREA standards.

The audit took place against a backdrop of allegations of sexual harassment and abuse of prisoners by staff at MWP. Conducted while Joan Daly-Shinners was warden, the initial audit faulted the facility for inadequate or nonexistent PREA training for staff and prisoners; failing to have a full-time PREA coordinator; blind spots in the prison’s video surveillance system; failing to timely screen newly-arrived prisoners for risk of abusiveness or victimization; and failure to protect people who reported sexual abuse from retaliation.

One particularly important deficiency was ...

by Matt Clarke

According to a recent study by the U.S. Department of Justice, about 11% of the state and federal prison population in 2016 was over age 55. Of those prisoners, numbering roughly 160,000, around 38,000 were 65 or older. The share of prisoners over age 50 is expected to swell from about 17% in 2013 to 33% by 2030.

States that have an even higher percentage of elderly prisoners include Massachusetts, where 17% of state prisoners are over 55. New York’s overall prison population fell by 17% between 2007 and 2016, but at the same time the number of prisoners age 50 or older rose by 46%, to include over 10,000 of the state’s more than 50,000 prisoners.

Older prisoners face unique safety hazards, plus other age-related problems – such as incontinence and dementia – are exacerbated in penal settings. They also require more healthcare services, which they have a constitutional right to receive under the Eighth Amendment. In Massachusetts, for example, the annual cost of caring for a single hospitalized prisoner is $283,000 – four times the cost of incarceration in a maximum-security facility.

The United States is not alone in ...