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Prisoner Education Guide

Prison Legal News: January, 1999

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Volume 10, Number 1

In this issue:

  1. Juvenile Crime Still Pays -- But at What Cost? (p 1)
  2. California Parolee Gag Order Lifted (p 3)
  3. From the Editor (p 4)
  4. BOP Visitors Subjected to Ion Scan (p 4)
  5. En Banc Review Granted in Taylor (p 5)
  6. PLRA Allows Fees on Fees in Failure to Protect Suit (p 5)
  7. PLRA Immediate Termination Provisions Unconstitutional (p 5)
  8. Tennessee Prisoners Fight to Keep Money (p 6)
  9. PLN Sues Oregon DOC Over Bulk Mail Ban (p 6)
  10. Arizona Jail Slave Labor Used to Stuff Ballot Envelopes (p 7)
  11. Georgia Prison Officials Take Taxpayers for a Long Ride (p 7)
  12. Guard's Death Threats May Violate Eighth Amendment (p 8)
  13. Open Society Institute Funds College Classes in Maryland Prisons (p 8)
  14. BOP Exceeds Statutory Authority in Denying Sentence Reductions (p 9)
  15. No Immunity for Forcing Disabled Prisoner to Work (p 9)
  16. News in Brief (p 10)
  17. Utah Strip Search Suit Settled (p 11)
  18. $15,001 Excessive Force Verdict Affirmed (p 12)
  19. AEDPA Statute of Limitations Tolled (p 12)

Juvenile Crime Still Pays -- But at What Cost?

Juvenile Crime Still Pays – But at What Cost?

by Alex Friedmann

[Last February, PLN published a cover article, "Juvenile Crime Pays," concerning the proliferation of for-profit juvenile justice services. This month we revisit the topic following recent reports of abuse and mis- management at privately operated juvenile prisons.]

The National Juvenile Detention Association estimates that 5 percent of the nation's juvenile detention facilities are privately operated, and the construction of for-profit prisons, jails and boot camps for youthful offenders is a rapidly expanding industry. By slashing operating costs and providing subsistence level services, companies can reap handsome profits from the millions of dollars they receive through largely unregulated government contracts.

As a result of this profit-margin mentality, however, an increasing number of privately operated juvenile detention facilities are being cited for abusive conditionsincluding recent reports of misconduct and mismanagement at for-profit juvenile facilities in Louisiana, Arkansas and Colorado.

Fear and Loathing in Louisiana

The Justice Department filed suit November 5, 1998, against the state of Louisiana for failing to protect juvenile prisoners from brutality and providing inadequate education, medical and mental health care.

"It's incredibly unusual," said David Utter, director of the Juvenile Justice Project of Louisiana, which ...

California Parolee Gag Order Lifted

The California Department of Corrections (CDC) admits it made a mistake when one of its agents tossed a parolee in jail for refusing to sign off on a parole condition banning him from talking to the media.

Arthur Putney, 52, was jailed after parole officials presented him with the no-media-contact parole condition which he refused to accept

"I can't speak to anyone in the press?" Putney said. "What are they hiding?"

Putney had previously contacted reporters on numerous occasions to tell them about his lawsuit pending against the CDC. The suit targets officials at Avenal State Prison who Putney accuses of falsely labeling him as a Black Guerilla Family prison gang recruiter and then confining him to administrative segregation for 13 weeks.

Deputy Regional Parole Administrator Ed Elmer said he was unaware of Putney's lawsuit and that it was not a factor in the parole condition placed on Putney by his south Sacramento parole officer.

"That condition of parole is inappropriate," Elmer told the Sacramento Bee October 13, 1998. "He will be on the streets today."

First Amendment activists think there is still a big problem, that it is not an unprecedented act but merely a chilling extension ...

From the Editor

Greetings and welcome to a new year of PLN . Our longevity is a proud accomplishment and one that would not be possible without the continuing support of you our readers. I thank each of you who responded to PLN 's recent fundraiser mailing.

If you have yet to mail your donation to PLN , please do it as soon as you are able. No amount is too small. Prisoners can donate postage stamps. As a matter of fact I have you been wondering what to do with those outdated 32¢ stamps? (First Class letters will soon cost 33¢ to mail in the U.S.) Here's an idea: go out and get yourself some brand new 33¢ stamps; bundle up those 32¢ stamps and mail them to PLN . We cn also used embossed envelopes if stamps aren't allowed at your prison.

There was a typo in the News in Brief on page 7 of the November PLN. The item datelined "MT" (Montana) about a prisoner stabbing a guard should have been datelined "MI" (Michigan). That error somehow slipped by PLN 's editors. We're not perfect.

This issue features PLN 's annual index, a resource that transforms PLN back issues ...

BOP Visitors Subjected to Ion Scan

A memo has been posted alerting the population at USP-Lompoc [federal prison in Calif.] that a pilot program has been implemented whereby visitors will be scanned with a nuclear ion machine that detects "drug use". There are graduated penalties for those visitors who fail this space-age drug test, ranging from 48 hours exclusion from visiting privileges for the first "offense" to 180 days for the fourth.

This machine purportedly costs in the 6- or 7-figure range and is similar to the new airport detectors that sniff for explosive residue.

Already, visitors who do not even use drugs have been barred. If someone is sitting on a public bus in close proximity to a pot smoker, that innocent bus rider may come up positive on this machine when it sniffs minute traces of marijuana smoke in the clothing.

In the memo I saw, there is no provision requiring prison staff to clear this machine.

-- M.C., Federal Prisoner

En Banc Review Granted in Taylor

In the December, 1998, issue of PLN we reported Taylor v. United States , 143 F.3d 1178 (9th Cir. 1998). In that case, a panel of the Ninth circuit court of appeals unanimously held that 18 U.S.C. § 3626(b)(2) is unconstitutional. This provision of the Prison Litigation Reform Act allows for the immediate termination of prison and jail consent decrees.

On November 10, 1998, the Ninth circuit agreed to rehear the case en banc. There is currently a circuit split on the constitutionality of § 3626(b)(2). With the exception of the Ninth circuit, every circuit court to consider the issue has upheld the statute's constitutionality. PLN will report the outcome of the case. See: Taylor v. United States , ____F.3d. ____(9th Cir. 1998).

PLRA Allows Fees on Fees in Failure to Protect Suit

The court of appeals for the Third circuit held that the Prison Litigation Reform Act (PLRA) allows lawyers to collect attorney fees in litigating attorney fee awards. The practice is sometimes referred to as "fees on fees." The court also held that the PLRA attorney fee rates, in that circuit ...

PLRA Immediate Termination Provisions Unconstitutional

Afederal district court in. New Jersey has declared unconstitutional the provisions of the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626(b)(2)(3), permitting the immediate termination of consent decrees.

In 1983, Robert Lee Denike and Kenneth Vespa, New Jersey state prisoners, sued prison officials under § 1983 alleging urine tests at the prison were unconstitutionally administered. The suit was consolidated with other similar suits, certified as a class action, and a consent decree setting forth procedures for urine tests was entered.

In 1996, the PLRA was signed allowing immediate termination of prospective relief in prisoner civil rights actions unless the court finds the relief is narrowly drawn and is the minimum, least intrusive method to correct the violation of Federal rights. In January, 1998, defendants sought immediate termination of the consent decree.

The court held that the PLRA immediate termination provisions, as applied to final judgments, were unconstitutional because it violated the separation of powers doctrine by retroactively reopening a final judgment and applying a law to it which was not in effect at the time of its entry.

Readers should note that every court of appeals to address the issue has upheld the constitutionality of the ...

Tennessee Prisoners Fight to Keep Money

Eight Tennessee prisoners have filed suit to challenge the constitutionality of a state law that allows the Department of Corrections to seize up to 90 percent of a prisoner's trust account to pay for the cost of their own imprisonment.

The new law took effect in May, 1998, however DOC spokesperson Pam Dobbins told the Tenneseean in August that the state had yet to finish setting up a billing system that would implement the law.

While most prisoners are indigent, some do have money. During a debate over the new law, legislators were told that 72 of the state's 16,000 prisoners have more than $4,000 in their prison trust accounts. One prisoner had more than $111,056 in his account, legislators were told.

The law targets only prisoners who have enough money in their trust accounts to pay for at least 10 percent of the cost of their incarceration for two years (about $3,500). According to the Tennessean , none of the eight Brushy Mountain Correctional Complex prisoners who filed the suit has more than $600 in his trust account.

[Editor's Note: There seems to be a growing trend of state lawmaker targeting prisoners' trust ...

PLN Sues Oregon DOC Over Bulk Mail Ban

On October 29, 1998, Prison Legal News ( PLN ) sued the Oregon Department of Corrections (DOC) in federal district court for damages and declaratory and injunctive relief. Since at least 1991 the Oregon DOC has had a policy requiring that all mail sent to Oregon prisoners be sent via first or second class mail. The Oregon DOC refuses to deliver mail sent via third and fourth class mail, AKA standard or bulk mail. PLN mails its magazine via third class mail at non profit rates. The result is that the Oregon DOC refuses to deliver PLN to the prisoners in its custody due solely to the mail rate paid to send PLN .

The Oregon DOC has adamantly refused to change its bulk mail ban despite letters from PLN , our attorney and grievances by Oregon prisoners. In addition to PLN , the other plaintiffs in the lawsuit are the Coalition for Prisoner Rights, a New Mexico based newsletter, and Oregon prisoners Michael Tucker, Mark Wilson and Le Hung.

The lawsuit claims that the Oregon DOC's ban on third and fourth class mail violates the First Amendment right to free speech of publishers and plaintiffs. The plaintiffs also claim their right to due ...

Arizona Jail Slave Labor Used to Stuff Ballot Envelopes

Prisoners at the Maricopa County Jail (home of "America's Meanest Sheriff") were used to stuff 400,000 envelopes with ballots for early voting in the 1998 elections. Maricopa County Elections Director Karen Osborne said that jail inmates received community service credit in lieu of wages and the guards assigned to supervise the operation were paid overtime wages by the Elections Department.

"We're still going to save more than $125,000," Osborne told the Arizona Republic . She said that help wanted notices were widely circulated and no more than a dozen "free" people applied for the onerous task of stuffing 400,000 envelopes. She said it was the Sheriff's idea to use prisoners.

Maricopa County Democratic Party Chairman David Eagle was sharply critical of the operation. "Some inmate might memorize a name and address that he shouldn't see," he said.

Eagle initially characterized the operation as slave labor. But, after he visited the operation he retracted that criticism. As reported in the Arizona Republic : "...any notion of 'slave labor' was erased when he [Eagle] saw the inmates line up every hour for soda pop and cookies."

But Eagle remained steadfast in his opposition to the operation.

"A ...

Georgia Prison Officials Take Taxpayers for a Long Ride

Georgia prison officials used $23,602 from state prison industries profits to attend a conference on prisons in Israel tied to the country's 50th anniversary celebration.

DOC chief Wayne Garner defended the trip, saying he has been a" good steward of tax dollars." Garner said he paid his own air fare, but the state shelled out $18,244 for airline tickets for Assistant Commissioner Paul Melvin; Executive Assistant Duke Blackburn; and Debra Elovich, director of women's and juvenile services. The state also paid $1,755 each for three conference fees. Garner says his conference fee, which included hotels and meals, was picked up by Israel.

Participants in Israel's 50th Jubilee Prison Conference, June 21-25, 1998, visited four cities, changing hotels twice. They visited a mineral spa, toured the home of Jesus' disciple Peter, visited other ruins, and took a yacht trip on the Sea of Galilee. They also toured one Israeli prison.

There were 14? hours of meetings spread over the five days, according to the conference agenda.

Profits from Georgia Correctional Industries are usually reinvested in the industries. Some state officials were critical of Garner for using the money to pay for what appeared to be ...

Guard's Death Threats May Violate Eighth Amendment

The court of appeals for the District of Columbia (DC) Circuit held that a guard's death threats to a prisoner stated a claim under the Eighth amendment. The court also held that the In Forma Pauperis (IFP) provisions of the Prison Litigation Reform Act (PLRA) do not apply to cases filed before its enactment.

Johnny Chandler is a DC prisoner. Corporal Brenda Brooks, a DC prison guard, threatened to have him killed. Chandler filed administrative complaints with prison officials requesting a transfer to a different prison or that some action be taken with regards to Brooks. Chandler received no response.

Chandler filed suit in federal court under 42 U.S.C. § 1983 seeking monetary and injunctive relief. Chandler claimed that Brooks' threats caused him psychological damage and his fear that she would carry out her threats caused him nightmares and anxiety. The district court dismissed the suit for failure to state a claim upon which relief could be granted. The court of appeals reversed and remanded.

Chandler filed his notice of appeal on April 22, 1996. On April 26, 1996, the PLRA was signed into law which created 28 U.S.C. § 1915(g). This statute prohibits courts from ...

Open Society Institute Funds College Classes in Maryland Prisons

When the Clinton Crime Bill gutted federal Pell Grants for prisoners, some states' prison education programs were hit harder than others. Many states funded post-secondary education entirely with state money. Maryland prisoners, though, were the hardest hit. Virtually all of Maryland's prison college education funding was channeled through Pell Grants. When that source dried up, post-secondary education in Maryland prisons blew away. Until this year.

In September, 1998, the Open Society Institute, a project of the Center on Crime Communities & Culture, announced a $1.2 million grant to be awarded over four years to the Maryland DOC's Correctional Education program. The money will be supplemented in the first year by a federal grant of $248,586 and additional funds in three subsequent years, officials said.

The program will employ teachers from three Maryland community colleges, the University of Maryland Eastern Shore, and Coppin State College. It will transform the lives of Maryland's prisoners, said Mary Cotter, a senior research assistant with the Center on Crime, Communities & Culture's Baltimore office.

"Education is crime prevention, and we're making up for previous bad educational experiences of prisoners", she said. Such education "would give them a way to look ...

BOP Exceeds Statutory Authority in Denying Sentence Reductions

Afederal district court in the District of Columbia held that the Bureau of Prisons (BOP) had exceeded its statutory authority by defining "violent" offenses to preclude a sentence reduction for convictions the courts have consistently defined as "non-violent." In 1994 congress enacted 18 U.S.C. § 3621(e)(2)B) which states: "The period a prisoner convicted of a non violent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve." [ PLN , Dec. 1994]

In implementing this statute the BOP issued Program Statement 5162.02 which defined as "violent" offenses numerous crimes that are statutorily and judicially defined as non violent. Several courts have held the BOP exceeded its statutory authority in promulgating P.S. 5162.02. See: Downey v. Crabtree , 100 F.3d 662 (9th Cir. 1996)[ PLN, May, 1997].

William Miller was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Miller completed the BOP's drug treatment program but was denied the one year sentence reduction because in PS 5162.02 ...

No Immunity for Forcing Disabled Prisoner to Work

The court of appeals for the Eighth circuit held that a prison guard was not entitled to qualified immunity from money damages for forcing a prisoner to perform work he was physically incapable of doing. Ramon Sanchez, a Missouri state prisoner, had a medical exemption from performing hard labor due to a serious back injury. After road flooding occurred near the Algoa Correctional Center, the superintendent directed unit supervisors to select prisoners to perform sandbagging duties.

Sanchez was among the prisoners ordered to fill and load sandbags. Sanchez told the guard who assigned him the task that he was medically exempt from work duties. The guard told Sanchez he was being ordered to work and would be punished if he did not. Sanchez reported for duty and was assigned to load sandbags into a truck. He seriously reinjured his back and had to be hospitalized. Sanchez filed suit claiming the forced labor violated his Eighth amendment rights. The district court dismissed the suit, finding the guard was entitled to qualified immunity from money damages.

The court of appeals reversed and remanded. "The Eighth amendment's prohibition against cruel and unusual punishment forbids knowingly compelling an inmate to perform labor that ...

News in Brief

AL : In September, 1998, Madison county (Huntsville) prisoners Rodney Baker, Antonio Davidson, Steven Dillard and Nara Lemons, were charged with murder for allegedly beating prisoner Robert Sevigny to death.

AL : Mario Centobe (32) is the Mississippi prisoner who escaped from a prison van when he and fellow prisoner Jeremy Granberry overpowered a guard taking them to a court hearing. Centobie was recaptured and was awaiting trial in the Etowa county jail on charges of shooting one policeman and killing another who had tried to recapture him. On October 10, 1998, Centobie escaped the jail by walking out with the help of Donna Hawkins, a jail employee.

CA : In October, 1998, Santa Clara county began using an interactive kiosk to allow detainees to post bail using their credit cards. The kiosk is like an ATM machine, except instead of dispensing cash it offers release from jail, if the detainee can afford it. Defendants get the basic bail amount back once the case is resolved. If they use a bail bond agent or the kiosk the defendant must pay a non refundable "fee" of $500.

CA : On September 29, 1998, a brawl between 30-50 black and white prisoners broke out in the ...

Utah Strip Search Suit Settled

On January 21, 1998, the Utah Department of Corrections settled a strip search lawsuit with prisoner David Hansen. Hansen had filed suit claiming his Fourth amendment rights were violated when he was handcuffed and subjected to a strip search where prison guards manipulated his testicles and buttocks. Hansen also claimed ...

$15,001 Excessive Force Verdict Affirmed

The court of appeals for the First circuit affirmed a jury verdict awarding $15,001 in damages to a prisoner beaten by prison guards. The court affirmed several evidentiary rulings by the district court excluding evidence of a disciplinary hearing guilty plea by the plaintiff and not allowing defendants' counsel ...

AEDPA Statute of Limitations Tolled

The court of appeals for the Third circuit held that the one year statute of limitations in which to file a federal habeas corpus petition is a statute of limitation subject to tolling. In 1994 Frank Miller, a New Jersey state prisoner, was found guilty in a prison disciplinary hearing of smuggling drugs into prison. Miller appealed the administrative ruling through the state courts. Miller then filed a motion for an extension of time in which to file his federal habeas corpus petition challenging the infraction. Miller claimed he was delayed in filing the petition because he was repeatedly transferred among prisons and did not have access to his legal materials. The district court denied the motion. Miller appealed and the Third circuit reversed and remanded.

When the Anti-Terrorism and Effective Death Penalty Act (AEDPA) was enacted it created a one year time period after a conviction is final, in which prisoners can seek federal habeas corpus review. See: 28 U.S.C. § 2244(d)(1). [ PLN , Aug. 1996]. Habeas petitioners challenging convictions that were final before AEDPA's enactment had until April 24, 1997, to file their petitions. This also applies to non criminal proceedings such as prison disciplinary ...


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