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Prisoner Education Guide

Prison Legal News: October, 1999

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Volume 10, Number 10

In this issue:

  1. Insanity, Brutality and Fatality: Florida's X-Wing Marks the End of the Line (p 1)
  2. Death Row Eulogy (p 3)
  3. Worst of the Worst? (p 4)
  4. From the Editor (p 5)
  5. Florida Jail Workers Busted in Bribery Investigation (p 5)
  6. Pro Se Tips and Tactics (Discovery) (p 6)
  7. Georgia Court Access Consent Decree Terminated (p 8)
  8. Arizona DOC Settles Sexual Abuse Suit (p 9)
  9. ADOC Settlement Terms (p 9)
  10. FBI Investigates CCA-Run INS Center in New Jersey (p 10)
  11. Pro Se Texas Prisoner Awarded $1.08 Million in Failure to Protect Suit (p 10)
  12. Media Interview Protected Free Speech (p 11)
  13. Florida Jail Guard Found Guilty in Prisoner's Death (p 11)
  14. Tough on Prisoners Florida Sheriff Avoids Prison (p 11)
  15. Supreme Court Holds PLRA Attorney Fee Cap Inapplicable to Work Performed Before Enactment (p 12)
  16. PLRA Attorney Fee Limits Not Retroactive in Second Circuit (p 13)
  17. Utah Jail Settles ADA Suit (p 14)
  18. $90,000 Settlement in Utah Jail Suicide (p 14)
  19. CDC Settles Excessive Force Suit for $1,000 (p 14)
  20. Private Transportation Company Liable Under 42 USC § 1983 (p 15)
  21. Michigan's Female Prisoners Have Educational Parity (p 15)
  22. Go Directly to Jail: At the Academy in Alpharetta, Men Pay Big Bucks to Pretend They're in Prison (p 16)
  23. Concealment of Info Tolls Statute of Limitations (p 19)
  24. Texas Settles with Hanged Prisoner's Family (p 19)
  25. Prison Officials Waive Untimely Asserted Heck Defense (p 20)
  26. Racial Segregation in Double Celling Unconstitutional (p 21)
  27. Georgia Parole Regulation Still Ex Post Facto (p 21)
  28. Feds Not Obligated to Accept State-Ordered Concurrent Sentence (p 22)
  29. CDC Whistleblower Gets $1.7 Million (p 23)
  30. Alabama Prison Officials Held in Contempt Again (p 23)
  31. News in Brief (p 24)
  32. BOP Sentence Reduction Exclusion Based on INS Detainer Upheld (p 25)
  33. Perp Walks Unconstitutional According to New York Federal Court (p 25)

Insanity, Brutality and Fatality: Florida's X-Wing Marks the End of the Line

Upon the ranks of such as we,
They enforce their mastery.
And yet we bleed the same as they,
The tie that binds us day to day.
The public interest uppermost,
So some say while playing host.
But if the public really knew
The kind of hell their prisons brew.

--from the poem Limbo by Rudolph Martinez San Quentin Prison

They call it the end of the line. The hole under the hole. Some call it hell. Human Rights Watch in 1991 compared it with the world's most inhumane and barbaric prisons. X-wing is where Florida's "worst of the worst" are consigned to do their time.

But does that dehumanizing label refer only to the imprisoned? Or could it be that the "worst of the worst" of Florida's prison guards relish the opportunity to enforce their mastery over the denizens of hell?

"Or," as Palm Beach Post reporter Jenny Staletovich writes, "do X-wing and places like it make our most violent criminals even more violent, and, worse yet, turn the men who must guard them into monsters?"

X-wing is a forbidding, narrow, dim hallway in the bowels of the Florida State Prison, in Starke, lined with 24 ...

Death Row Eulogy

By William Van Poyck

On July 17, 1999, my friend and co-defendant, Frank Valdes, was stomped and beaten to death in his X-Wing cell by a large group of Florida State Prison (FSP) guards. As FSP prisoners know only too well, this beating was uncommon only because Frank actually died. And, but for a series of events which led to the Governor becoming personally involved, this murder would have been covered up just as so many other beatings are. Nine guards (a captain, five sergeants and three CO's) have been suspended. The Florida Department of Law Enforcement is investigating and the state attorney has publicly labeled it "a clear case of murder." Search warrants were executed and evidence seized from the guard's homes. Charges are expected to be brought. Now, the FBI has joined the case, expanding their probe to the entire Florida DOC, "based upon the large volume of beating complaints they have received prior to and subsequent to" Frank's murder.

Predictably, the guards' attorney, while admitting that "a terrific fight" occurred in that cell (where guards used three cans of pepper spray, a tear gas grenade and an electric stun shield on Frank), has claimed ...

Worst of the Worst?

Prison officials have attempted to justify the cruel and inhumane conditions of confinement in control units by claiming that only the "worst of the worst" are confined in them. PLN editor Paul Wright has made the rounds of Washington state's control units. At the Intensive Management Unit in Shelton, Washington, the "worst of the worst" often consisted of prisoners going to the dining hall without their identification cards or the cards being worn backwards, taking too long in the shower and similar acts of criminal depravity.

Florida's X-Wing is no different. Florida DOC spokesperson Debbie Buchanan claims X-Wing is used only for "inmates we can't keep under control in any other way." Who are the X-Wing desperados? According to the Miami Herald they include:

Thomas Woodel, infracted for possessing contraband. The contraband consisted of a Popsicle stick, a latex glove, 69 33¢ stamps and 14 20¢ stamps.

Dallas Price, infracted for possessing contraband. The contraband consisted of 7 excess deodorants, an excess dental floss, a 1/8 pack of tobacco and 2 excess shampoos.

Alfredo Berrios, infracted for possession of contraband. The contraband consisted of "a laundry bag that is not an inmate type laundry bag."

Juan ...

From the Editor

A PLN supporter recently commented that I must find editing PLN incredibly depressing given the content of the July, 1999, issue: medical neglect, rape, extrajudicial murders, brutality, sensory deprivation control units, random shootings, etc.

As an optimist, I see the prison struggle glass as being half full rather than half empty. Twenty five years ago most prisons and jails had no medical staffing at all, now they have inadequate and incompetent medical staffing. Nowadays guards who beat prisoners to death are sometimes subjected to a halfhearted prosecution and given a modest sanction if convicted. Before not even that happened. Women prisoners are no longer seen exclusively as the sexual playthings of male guards. This is progress, of sorts.

PLN doesn't report the news we do simply to bum everyone out. Last year when Chinese premier Li Peng toured the United States, the corporate media gave ample airtime and print space to human rights activists describing human and civil rights abuses in Chinese prisons in great detail. As I watched, I noted that everything they described as occurring in Chinese prisons: beatings, slave labor, political prisoners, brutality, long term isolation, etc., has been extensively reported in the pages of PLN ...

Florida Jail Workers Busted in Bribery Investigation

On Dec. 4, 1998, fourteen Miami-Dade County jail employees were indicted on state bribery charges and federal marijuana and cocaine trafficking conspiracy charges. Five other jail workers were suspended pending the outcome of internal investigations.

The indictments followed a year-long probe by Miami-Dade police and the FBI that uncovered rampant corruption among jail personnel. While the investigation focused on the Dade Co. Jail and the Turner Guilford-Knight Correctional Center, misconduct was found at all four of the county's lockups. The probe was kept secret from the jail's internal affairs office and from jail director Donald Manning, who resigned Oct. 29, 1998 amid allegations of mismanagement.

The investigation, which included undercover agents, audio and video surveillance, jailhouse snitches and wiretaps, centered on Eduardo Manzano, an incarcerated drug dealer who reportedly paid jail employees to help him operate his illicit enterprise from behind bars. Manzano allegedly was given access to jail office phones and was able to order retaliatory shootings against rival drug dealers from his cell.

Other jail workers were cited for smuggling contraband including cigarettes, food items, cellular phones and drugs in exchange for cash, jewelry, car repairs, sports equipment, free hotel stays and other amenities.

"It has ...

Pro Se Tips and Tactics (Discovery)

In my last column, I discussed discovery generally and introduced the tools of discovery. In this column I provide more detail on some specific discovery topics: how "mandatory disclosure" rules in effect in many federal district courts can be used to your advantage; how to decide what must be disclosed under mandatory disclosure rules; and the duty of the plaintiffs and defendants in federal lawsuits to preserve and disclose evidence relevant to the case.

1. Mandatory disclosure rules can help you find out much about your case.

A few years ago, the Federal Rules of Civil Procedure were changed to require the parties in a lawsuit to meet soon after the case is filed to discuss the case, and propose to the court how the case should proceed through discovery and trial. Rule 26(f). (See also Rule 16 and the local rules of the district you are in, which will affect the timing of this meeting.) The rules were also changed to create a new "automatic" form of discovery. Within 10 days after the meeting of the parties, each party must even without a request from the other side disclose to all other parties:

the identity of people "likely ...

Georgia Court Access Consent Decree Terminated

After being in effect less than a decade, a consent decree stemming from a class action lawsuit and providing for a mixed system of court access for Georgia state prisoners was dissolved on November 11, 1998, as U.S. District judge Anthony Alaimo vacated his previous orders of 1988-89 and ...

Arizona DOC Settles Sexual Abuse Suit

On March 11, 1999 the Arizona Dept. of Corrections (ADOC) agreed to settle a lawsuit filed by the U.S. Dept. of Justice (DOJ) which alleged that state prison officials failed to protect female prisoners from systemic sexual abuse, misconduct and harassment by guards.

Federal authorities began investigating the Arizona Center for Women in Phoenix and state womens' prisons in Alhambra, Perryville and Tucson in February 1995 following media reports of sexual abuse. After two years of unsuccessful negotiations, in which the ADOC refused to hand over documents or to allow DOJ access to state facilities, the Justice Dept. filed suit in March 1997 under the Civil Rights of Institutionalized Persons ACT (CRIPA) [PLN, Oct. 1997].

Federal officials claimed that since 1992 there have been 34 reported cases of forced sexual contact between prisoners and corrections staff, including five rapes. There have also been 65 cases of consensual sexual contact with prison staff, according to the DOJ, resulting in 60 employees being fired, disciplined or who resigned because of incidents involving sexual misconduct. The Justice Dept. further alleged that prison guards routinely invaded the privacy of female prisoners by watching them shower or use the toilet.

Arizona officials maintained that ...

ADOC Settlement Terms

-Additional staff training on sexual misconduct and prisoner privacy issues.

-Implementation of a program to inform the state's 1,810 female prisoners about their rights.

-Requiring all male prison employees who may be alone with a female prisoner to notify a supervisor.

-Providing two 15-minute periods a day at the women's prison in Tucson when prisoners can dress or shower with only female guards present.

-Requiring male prison employees to announce themselves when entering an area where female prisoners might be dressing.

-Strengthening standards for investigations into sexual misconduct claims.

-Creating a new staff position for a female programs administrator, who will handle complaints of inappropriate conduct between employees and prisoners.

-A prison expert selected by the Justice Dept. and the ADOC will monitor and inspect state women's prisons twice within a six-month period. If the monitor finds that the ADOC is adequately protecting the rights of female prisoners, the Justice Dept. will drop its suit.

FBI Investigates CCA-Run INS Center in New Jersey

A Corrections Corporation of America operated immigrant detention center in Elizabeth, New Jersey is under investigation due to alleged misconduct by company employees. Federal officials confirmed on April 13, 1999 that the U.S. Dept. of Justice had requested the probe, which is being conducted by the FBI. The Elizabeth Detention Center has been operated by CCA since 1997 and holds asylum-seekers and other non-criminal immigrant detainees.

On January 28, 1999, Salah Dafak a detainee at the facility, was beaten so badly that he required hospital treatment.

Kevin Simpson, who worked as a transportation officer for TransCor America, Inc. a CCA subsidiary said when he arrived at the detention center to take Dafah to the hospital he noticed that Dafali's clothes were bloody, his chin was split open and a shoe imprint was visible on his face. Simpson said CCA guards told him Dafali had injured himself by hitting his head and face against the wall of his cell. "I didn't believe it. I still don't. I don't see how you can get a shoe print on your face from a wall," he said. Simpson was fired after he allegedly refused to cooperate with an internal ...

Pro Se Texas Prisoner Awarded $1.08 Million in Failure to Protect Suit

In May, 1999, a federal jury in San Antonio, Texas, awarded Texas prisoner William Wallace Campbell $80,000 in compensatory damages and $1 million in punitive damages in a failure to protect lawsuit. Campbell represented himself pro se throughout the action. This is the highest damage award to a pro ...

Media Interview Protected Free Speech

A federal district court in Pennsylvania held that the transfer of a prisoner for his participation in a pre-authorized media interview and his subsequent correspondence with the newspaper reporter violated the prisoner's constitutional rights. Prison officials were denied qualified immunity and the prisoner was awarded damages, but the court ...

Florida Jail Guard Found Guilty in Prisoner's Death

On December 22, 1998, former Osceola County, Florida jail guard Greg Wilson was convicted of manslaughter in connection with the March 1997 death of prisoner Daniel B. Sagers.

Wilson and several other guards, including Wilson Santiago and Gail Edwards, were trying to place Sagers in a restraining chair after he ...

Tough on Prisoners Florida Sheriff Avoids Prison

In the March, 1999, issue of PLN we reported the arrest of Marion County, Florida, sheriff Ken Ergle, on corruption charges. Ergle had previously gained notoriety for housing county jail prisoners in tents under draconian conditions and charging them "rent" and a $10 "fee" in order to seek medical attention. Ostensibly all of this was designed to "save taxpayer money."

In April, 1999, Ergle pleaded guilty to stealing $155,000 in cash from the sheriff's department which he used for personal expenses. On April 23, 1999, Ergle was sentenced to two years of house arrest, 18 years of probation, 240 hours of community service, repaying the money he stole and reimbursing the state of Florida for the cost of their investigation into his corrupt activities.

In declining to sentence Ergle to prison, judge Robert Rawlins cited Ergle's contributions to the community and the perils of sending law enforcement officials to prison. Ergle has apparently neither a sense of irony, nor shame, in that he built his political career as a "tough on prisoners" sheriff by going to considerable lengths to further immiserate the lives of Marion county jail prisoners. Yet Ergle had no qualms about going to into ...

Supreme Court Holds PLRA Attorney Fee Cap Inapplicable to Work Performed Before Enactment

by Matthew T. Clarke

The Supreme Court has held that the attorney fee cap contained within the Prison Litigation Reform Act, 42 U.S.C. §1997e(d), (PLRA) does not apply to attorney fees for work performed prior to the enactment of the PLRA.

This case involves two class-action lawsuits filed years ago by Michigan state prisoners. In Glover v. Johnson, 478 F.Supp. 1075 (E.D.Mich.1979), 510 F.Supp. 1019 (E.D. Mich. 1981), female prisoners won their equal protection claim that they were treated worse than similarly situated male prisoners. In Hadix v. Johnson, 740 F.Supp. 433 (E. D, Mich. 1990), male state prisoners incarcerated at the State Prison of Southern MichiganCentral Complex won a class-action lawsuit challenging broad aspects of their conditions of confinement. Both suits were in the post-trial enforcement phase long before the PLRA was enacted.

In 1985, orders issued awarding the Glover and Hadix class attorney their fees and providing for future attorney fees at the rate of $150/hour. This fee arrangement functioned well in both cases even though several district court proceedings and appeals were necessitated during the course of the continuing litigation. However, on April 24, 1996, the ...

PLRA Attorney Fee Limits Not Retroactive in Second Circuit

The court of appeals for the Second Circuit held that the Prison Litigation Reform Act's (PLRA) attorney fee provisions do not apply to fee awards made after the law's enactment when representation began before the PLRA's enactment.

Donovan Blissett, a New York state prisoner, filed suit in ...

Utah Jail Settles ADA Suit

On May 6, 1999, Salt Lake County, Utah, settled a lawsuit by paying $2,000 in damages, $4,000 in attorney fees and agreeing to modify its jail for the handicapped. Robert Earls, a former jail detainee, is missing a leg and must use a prosthesis. The prosthetic leg must ...

$90,000 Settlement in Utah Jail Suicide

On May 28, 1999, Salt Lake county, Utah, paid $90,000 to the family of a detainee who committed suicide in the county jail.

Henry Delgado was arrested on Jul 16, 1997, on charges of assaulting a police officer, resisting arrest and carrying a concealed weapon. While held in the ...

CDC Settles Excessive Force Suit for $1,000

On October 26, 1998, the California Department of Corrections (CDC) paid $1,000 to settle an excessive force suit filed by pro se prisoner John Gann against nine named prison officials.

On January 7, 1994, Gann, Alex Bermudez and Carlos Ramirez were housed in the Administrative Segregation Unit (ASU) at ...

Private Transportation Company Liable Under 42 USC § 1983

Private Transportation Company Liable Under 42 USC § 1983

A federal district court in Colorado held that alleged sexual assaults committed by an employee of a private transportation company, under contract with the state Department of Corrections, were committed under color of state law and stated a claim under 42 U.S.C. § 1983.

Under a contract for extradition transportation between TransCor America, Inc., a subsidiary of the Corrections Corporation of America, and the Colorado Department of Corrections, former TransCor employees Jack ter Linden and Randy Goodman transported Joann Gwynn from Oregon to Colorado in November of 1993.

Gwynn filed suit against TransCor, ter Linden and Goodman, alleging violations of her constitutional rights during the trip. She alleged that ter Linden repeatedly raped, sexually assaulted and fondled her during the 145 hour trip and that Goodman failed to prevent or report these assaults.

Defendants moved to dismiss Gwynn's § 1983 claim for failure to state a claim, arguing that ter Linden's sexual assaults were not committed under color of state law and did not constitute state action, but rather were purely private conduct undertaken for purely private purposes.

The court treated the state's motion as a motion for summary ...

Michigan's Female Prisoners Have Educational Parity

A federal district court in Michigan held that the educational, vocational, and apprenticeship opportunities provided to male and female prisoners in the Michigan Department of Corrections (MDOC) are now sufficiently comparable for equal protection purposes to require termination of the court's 20 year supervision over the case.

In 1977, female prisoners confined to the MDOC filed a class action lawsuit alleging inequalities apparent in the treatment and rehabilitation programs as compared with those programs available to male prisoners. The court analyzed this facial gender discrimination claim under a heightened scrutiny standard of review and found that although the two groups were 'similarly situated,' they were being treated dissimilarly, to the disadvantage of the women. This judgment was never appealed by the government and remains the law of the case.

In December 1993, the government filed a Fed.R.Civ.P. 60(b) motion to terminate the court's jurisdiction, but the motion was denied because the MDOC had not substantially complied with the court's remedial orders or plans. On appeal, however, this order was vacated with the instruction to determine whether sufficient parity of treatment has presently been achieved.

On remand, the trial court re-examined the standard of ...

Go Directly to Jail: At the Academy in Alpharetta, Men Pay Big Bucks to Pretend They're in Prison

By Dan Savage

Alpharetta, Georgia- I'm naked, and I'm not happy. In just under an hour, I've been subjected to two of three punishments I'd specifically asked to be spared from. On forms I filled out weeks ago, I ticked the "quiet menace" box over the "shouted orders" box, and in the "special requests" space, I explained that I didn't want to be naked. Yet here I am, standing in front of my three fellow prisoners all fully clothed bare assed. I'm being bellowed at by a very large, very intimidating man in a black police uniform. The four of us were "arrested" about an hour ago, and I'm being "processed" first: questioned, fingerprinted, photographed and strip searched.

I want my money back.

The Academy Training Center, located just outside Atlanta, "caters to men who are curious about prison life." The four of us have come to "experience authentic incarceration" In a facility staffed by "genuine law enforcement officers." As The New York Times recently reported, thousands of tourists are visiting the country's prisons; a billboard in Kansas beckons, "How About Doin' Some TIME in Leavenworth?" [See also PLN, Aug. 1998, "Prisons ...

Concealment of Info Tolls Statute of Limitations

A federal district court in New York held that a prisoner could amend his complaint to add new defendants, and that the amendment relates back to the original complaint, overcoming an otherwise time-barred amendment. The court further held that official concealment of guard identities equitably tolled the statute of limitations.

On January 14, 1994, while confined to the Suffolk County (NY) jail, Michael Blaskiewicz was severaly beaten by several guards during "an institutional shakedown." Two months shy of the three-year statute of limitation, the prisoner filed a pro se § 1983 civil rights complaint against the county.

Initially, the prisoner did not know the identities of the guards involved in the incident, and county officials did not respond to his request for information until six weeks after the statute of limitation had run. Interestingly, one of the guards was the infamous jail security director, Sgt. Roy Fries. See: Mathie v. Fries, 935 F.Supp. 1284 (EDNY 1996) [PLN, Oct 1997; 121 F.3d 808 (2nd Cir. 1997) [PLN, Apr '98).

On August 25, 1997, the court appointed counsel to represent Blaskiewicz, and counsel subsequently moved to amend the complaint to add the newly identified individual guards as defendants. The county opportunistically ...

Texas Settles with Hanged Prisoner's Family

The state of Texas agreed in June 1999 to pay $215,000 to settle a lawsuit filed by the family of Rodney Hulin, a 17-year-old Texas state prisoner who was found hanging in his cell in 1996.

About 30 days after arriving at the Clements unit in Brazoria, Texas, Hulin ...

Prison Officials Waive Untimely Asserted Heck Defense

The Seventh Circuit court of appeals has held that prison officials' untimely assertion of the Heck defense waived the defense.

Richard Carr, a middle-aged minimum- security Illinois prisoner was 96 days from release in 1989 when young gang members on his unit rioted. The gang members threatened anyone who tried to report to the count area. The guards locked the door, cutting Carr off from the count area. Carr asked a guard what to do and was told to return to his housing area. Carr missed morning count.

Eventually, guards retook Carr's unit and transported all prisoners to a maximum security prison, charging them with failing to report for count. Carr was found guilty and punished the same as the rioters, losing six months good time.

Carr filed suit under 42 U.S.C. § 1983, alleging deprivation of liberty and due process violations. In 1995, the district court granted Carr partial summary judgment on the issue of liability.

In Miller v. Indiana Department of Corrections, 75 F.3d 330 (7th Cir. 1996), the Seventh Circuit held that the principle of Heck v. Humphrey, 512 U.S. 477 (1994) applied to prison disciplinary proceedings so that a suit for damages ...

Racial Segregation in Double Celling Unconstitutional

A federal district court in Pennsylvania held that the creation of racial segregation for double-cell assignment may be unconstitutional even if the classification policy specifically forbids such segregation in cell assignments.

Seifuddin M. A. Simpson, a Pennsylvania state prisoner, brought suit under 42 U.S.C. § 1983, against Pennsylvania Department of Corrections (DOC) officials challenging the conditions of confinement and classification system at SCI-Graterford. Simpson claimed that double-celled prisoners were only housed with prisoners of the same race. He also alleged that the double-celling, a result of overcrowding, caused deficiencies in cell furnishings, cleaning supplies, laundry services, ventilation, bedding, clothing, seating, recreational equipment, and telephones. The DOC officials moved for summary judgment.

The court granted summary judgment on all the conditions-of- confinement issues. The court also noted, and quoted from, the DOC's classification policy which specifically instructed DOC employees to consider race when double celling prisoners, but not to segregate prisoners by race. Such a policy is constitutional. However, Simpson challenged the practice of racially segregating double celled prisoners, not the policy. Simpson presented evidence that the defendants employed the policy in an overbroad manner, resulting in unconstitutional racial segregation. Therefore, the court did not grant summary judgment on ...

Georgia Parole Regulation Still Ex Post Facto

The U.S. court of appeals for the Eleventh Circuit held that the retroactive application of an amendment to the Georgia parole regulations, changing the frequency of required parole reconsideration hearings, continues to violate the Ex Post Facto Clause of the federal constitution.

Robert Jones, a Georgia state prisoner was sentenced to life terms in 1974 and 1982. At the time of sentencing, Jones was entitled to an initial parole hearing after seven years, and reconsideration every third year thereafter.

In September 1986, Ga.Comp.R & Regs r. 475-3-.05.(2) was amended to increase the time interval between reconsideration hearings from 3 to 8 years. After Jones' initial interview in 1989, his first reconsideration hearing was set for 1997. However, in Akins v. Snow, 922 F.2d 1558 (1991), the Eleventh Circuit held that the retroactive application of the rule violated ex post facto principles.

As the result of Akins, Jones received reconsideration hearings in 1992 and 1995. However, in 1995 the Georgia Parole Board construed California Dep't of Corrections v. Morales, 514 U.S. 499 (1995), as overruling Akins and Jones' next reconsideration hearing was set for 2003.

After his reconsideration hearing date was extended, Jones filed a pro se § 1983 action alleging that the Parole Board's action violated several of his constitutional rights. The district court dismissed the complaint as frivolous. On appeal, the Eleventh Circuit reversed to the extent that Jones alleged an ex post facto violation. Still, on remand the trial court entered summary judgment against Jones on the theory that Morales overruled Akins. Jones appealed.

After reviewing the Supreme Court's earlier ex post facto rulings and its decision in Akins, the court thoroughly analyzed Morales and the Court's most recent ex post facto case, Lynce v. Mathis, 519 U.S. 433 (1997).

The court determined that the regulation at issue in Morales applied only to prisoners whose likelihood of release on parole was remote, and it was also "carefully tailored" to save time and money. Most importantly, the regulation had no effect unless the Parole Board made specific findings, after a hearing, that the prisoner was unsuitable for parole. Because of these "safeguards," the Morales Court approved the California regulation.

The court distinguished the California and Georgia regulations by noting that the latter applies categorically to all prisoners serving life sentences. Plus, the Georgia Parole Board is not required to have any hearings, nor make any particularized findings. The regulation simply lengthens the period between parole reconsideration to "at least every eight years." The court recognized that "[e]ight years is a long time;" indeed, it "is simply too long." Because the amendment had the likely affect of increasing the quantum of punishment of those affected, the court determined that it runs afoul of Lynce.

The court concluded that Akins has not been overruled. In fact, the court construed both Morales and Lynce as supporting the Akins decision. The judgment of the district court was reversed. See: Jones v. Garner, 164 F.3d 589 (1999).

Feds Not Obligated to Accept State-Ordered Concurrent Sentence

By Ronald Young

The court of appeals for the Seventh circuit held that a California state court's designation of a prisoner's sentence as concurrent with his prior federal sentence created no obligation on the U.S. Attorney General to provide the prisoner with credit for time served in state prison. The court also held that a state prisoner's federal sentence did not begin to run as of the date that state authorities offered him to the Bureau of Prisons, but on the date that his subsequently imposed state sentences were stayed and he was ordered delivered to federal authorities pursuant to a previously filed federal detainer.

Tony R. Jake entered into a plea agreement with the state prosecutor, pleading guilty on the condition that his state sentence run concurrently with a prior federal sentence and that he be permitted to serve his sentence in any federal penitentiary. After sentencing him to 20 years to run concurrently with a 16 year federal sentence, the state judge ordered that Jake be turned over to federal authorities. However, due to a clerical error on his judgement papers, Jake was remanded to the California prison system. No attempt was made to ...

CDC Whistleblower Gets $1.7 Million

A former California Department of Corrections (CDC) guard who reported the Corcoran State Prison "gladiator fight" shootings to the FBI, resulting in the indictment of eight other Corcoran guards, has been paid $1.7 million by the state.

Richard Caruso, 35, sued the CDC in 1997 alleging that it unfairly ...

Alabama Prison Officials Held in Contempt Again

A federal district court held Alabama prison officials in contempt for violating a 12-year-old Consent Decree. The court also awarded attorney's fees against the state and dissolved the decree pursuant to the Prison Litigation Reform Act, (PLRA).

In 1983, prisoners in an Alabama jail filed suit challenging, among other ...

News in Brief

Brazil: A riot involving 320 prisoners erupted at a facility in Florianopolis, Santa Catarina state, on May 7, 1999. One prisoner was killed and 4 injured during the disturbance, in which rioters chased away the guards and set fire to mattresses and tires.

Brazil: Three hundred and forty-five prisoners escaped from a maximum security facility in Sao Paulo over the weekend of June 5-6, 1999. It was the largest prison break in the country's history. One guard, Paulo Roberto da Silva, was arrested; he and other guards are suspected of leaving the prison's inner doors open.

CA: Former federal prison guard Donnell Hawthorne, 38, pleaded guilty in April 1999 to engaging in sex acts with three female prisoners at the Federal Correctional Institution in Dublin. He also admitted to lying to the FBI about the sexual encounters. Prosecutors said it was the fourth such case at the prison within the past two years.

CA: In May 1999, Gov. Gray Davis ordered the Department of Corrections to stop selling used guns to licensed firearm dealers, including assault weapons banned under federal law. The department had suspended the practice last year but some sales of Mini-14 and AR-15 rifles apparently ...

BOP Sentence Reduction Exclusion Based on INS Detainer Upheld

By Ronald Young

The court of appeals for the Ninth circuit held that the Bureau of Prisons' (BOP) regulation conditioning a sentence on completion of a community-based treatment program was a reasonable and permissible construction of the statute that allows sentence reduction for prisoners who have completed a residential substance abuse program. The court also held that the BOP rule excluding prisoners with detainers from sentence reduction eligibility under the substance abuse treatment statute was a valid exercise of the BOP's authority under the statute. It further held that the community requirement and detainer exclusion did not deprive prisoners subject to Immigration and Naturalization Service (INS) detainers of due process; and the detainer exclusion did not violate equal protection by allegedly operating to the perculiar disadvantage of aliens.

Four federal prisoners petitioned for habeas corpus relief under 28 U.S.C. § 2241 after the BOP found them ineligible for the sentence reduction incentive provided under the Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. § 3621,"which Congress enacted to encourage prisoners to complete substance abuse treatment programs."

The four prisoners all had completed a residential substance abuse treatment program but were denied the sentence ...

Perp Walks Unconstitutional According to New York Federal Court

A federal district court in New York has ruled that "perp walks" staged by the police at the behest of the media are unconstitutional.

John Lauro, Jr. was the doorman at a building In Manhattan. Matthew Eberhart was a building tenant. Eberhart asked Lauro to water his plants and bring in his mail while he was on vacation. The superintendent of the building told Eberhart that Lauro was suspected of a number of thefts in the building, so Eberhart set up a camera in his apartment and recorded Lauro's activities in his apartment while he was away.

Upon his return, Eberhart viewed the video and saw Lauro doing suspicious things, such as opening closet doors, dresser drawers, and handling the contents of another drawer. The videotape showed a very limited view of a portion of the apartment and did not show Lauro taking anything. Eberhart could not identify anything as missing.

Eberhart contacted five television stations about the videotape and sold one exclusive rights to it. Eberhart also contacted the police and filed a complaint against Lauro. Police Detectives Ryan and Charles took Eberhart's statement, then visited Lauro at his home in New Jersey. They had no jurisdiction ...


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