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Prisoner Education Guide

Prison Legal News: September, 2005

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Volume 16, Number 9

In this issue:

  1. Inside the American Correctional Association (p 1)
  2. Do You Like Adventure? Prisons for Iraq (p 5)
  3. What's Wrong With the ACA? (p 7)
  4. From the Editor (p 8)
  5. USP Beaumont, Texas: Murder and Mayhem in the Thunder Dome (p 10)
  6. Interest Awarded in New Hampshire Canteen Surcharge Fee (p 12)
  7. CCA Guard Arrested for Sexually Abusing Vermont Prisoners (p 13)
  8. First They Came For Lynne Stewart (p 14)
  9. Houston Grand Juries Mostly Law-Enforcement (p 16)
  10. Parole Violators Flood Pennsylvania Prisons (p 17)
  11. Michigan: Money Bilked From Prisoners (p 18)
  12. Texas Prison Expert Pays the Price for Telling the Truth (p 18)
  13. $7,500 of Personal Injury Award Exempt From Attachment By Illinois DOC (p 19)
  14. Nebraska Law Automatically Restores Felon Voting Rights (p 19)
  15. Habeas Hints (p 20)
  16. Antibiotic Resistant Staph Infections Continue to Plague Prisons, Jails (p 22)
  17. Iowa's Governor Grants Ex-Prisoners Automatic Voting Rights Restoration (p 23)
  18. Florida Bans Sex Offenders from Hurricane Shelters (p 23)
  19. 300 More Washington Prisoners Headed to CCA Prisons (p 24)
  20. Mother Of New York Prisoner Awarded $377,200 For Suicide (p 24)
  21. New York Prisoner Awarded $5,250 for Prison Welding Shop Injury (p 25)
  22. Hawaii Settles Class Action Wrongful Imprisonment Suit for $1.2 Million (p 26)
  23. New York Prisoner Awarded $1,000 For Uncleaned Prosthetic Eye (p 27)
  24. U.S. Supreme Court: Michigan Plea Bargainers Have Right to Counsel On Appeal (p 28)
  25. Massachusetts DOC Fails to Meet Women's Special Needs (p 29)
  26. Acting Pro Se, NJ Prisoner Beats Charges of Spitting on Guard (p 30)
  27. Only One California Jail Has State-Mandated Psychiatric Treatment Center Licensure (p 30)
  28. Miami-Dade Pays $6.25 Million to Settle Illegal Strip Search Suit (p 31)
  29. California Guards Assigned Word Puzzles to Satisfy Training Requirements (p 31)
  30. Summary Judgment for CMS/NJ DOC Reversed in Physical Therapy Suit (p 32)
  31. California Guards Union Intimidates Prison Staff For Infracting Guard Misconduct (p 32)
  32. Ban On Male Guards In Michigan Women's Prisons Upheld (p 34)
  33. Seventh Circuit Upholds Indiana Sex Offender's Banishment From City Parks (p 36)
  34. Seventh Circuit Reverses Summary Judgment for CMS, Prison Doctor (p 36)
  35. Ninth Circuit Upholds Preliminary Injunction Against Webcams In Arizona Jail (p 37)
  36. Confiscation of "New Afrikan" Literature May Violate First Amendment (p 38)
  37. Guard Denied Qualified Immunity in MI Prisoner's Retaliation Claim (p 39)
  38. Washington Prisoner's Uninformed Disciplinary Plea Agreement Upheld (p 40)
  39. Rehabilitated California Ex-Cons Have No Privacy Protection From Media Productions Based Upon Public (p 40)

Inside the American Correctional Association

by Silja J.A. Talvi

[Ed. note: Prison Legal News goes undercover at the American Correctional Association's 2005 winter conference in Phoenix, Arizona. It's just business," as one prison medical administrator puts it. And what a surreal business it is.]

There is no doubt that good work is done at the penitentiary & It only remains to go unto perfection," unnamed speaker at the 1874 Congress of the National Prison Association, later renamed the American Correctional Association.

[We] linger at the gates of correctional Valhallawith an abiding pride in the sense of a job superbly done! We may be proud, we may be satisfied, we may be content," Harold V. Langlois, American Correctional Association (ACA) President, 1966.

We'll have a hard time holding onto what we have now," Gwendolnn C. Chunn, ACA President, Winter ACA Conference, 2005. (Referencing the unprecedented prison expansion boom of the 1990s.)

January 10, 2005It was the third day of the American Correctional Association's winter fair in sunny Phoenix, Arizona. The spectacular southwestern sunrise and balmy outside temperatures aside, the inside of the Phoenix Civic Plaza didn't feel like a particularly pleasant place to be.

That is, unless you happened to be in the business of profiting from the $50 billion per year prison industry, particularly as a member of the American Correctional Association.

In 1870, the National Prison Association was founded by a group of reform-minded prison wardens who saw promise in rehabilitation, religious redemption, and the importance of treating prisoners like human beings.
Held in Cincinnati, the first national Congress of the National Prison Association brought together 230 people, and featured a keynote speaker who put it thusly: It is left to the philanthropic and Christian sentiment of the age to devise ways and means to elevate the unfortunate and wayward to the true dignity of manhood,"

The organization was renamed the American Correctional Association (ACA) in 1952. By the time that investigative journalist Jessica Mitford was invited to attend 101st Congress of the ACA in Miami Beach in 1971, there were 2,000 people in attendance. As she reported, reform and rehabilitation were no longer as prominent on the agenda; the business of corrections was the emphasis. Mitford wrote about exhibitors selling everything from tear gas grenades to prototypical versions of the stun gun. Prisons were also facing costly litigation instigated by prisoners. As Mitford reported in the 1973 book, Kind and Usual Punishment: The Prison Business, litigation was very much on everybody's mind.
How much had changed over the course of 34 years?

The 2005 winter conference in Phoenixattended by an estimated 4,000found the ACA still touting its principles: Humanity, Justice, Protection Opportunity, Knowledge Competence and Accountability." The organization stresses that it brings together individuals and groups that share a common goal of improving the justice system." But with the prison industry now bringing in annual revenue of $50 billion, the ACA seems most intent on improving" profits.

Today's ACA is a sleeker version of the organization Mitford examined, complete with ...

Do You Like Adventure? Prisons for Iraq

by Silja J.A. Talvi


DynCorp International, a subsidiary of Computer Sciences Corporation, was in heavy recruit-ment mode at the Winter, 2005 ACA Conference.
The Dawn of Liberty," blared one flyer. Join Us in the Fight for Freedom EVERYWHERE.

To get current and former correctional employees to consider exciting opportunities in the Middle East," DynCorp was making Iraq sound like a trip to Disneyland. Do you like adventure? Do you like to travel internationally?"

In an ever increasing world of tension and instability, the U.S. Government has expanded its role in establishing societal stability through democratic style of governance.

With an unblemished background," a civilian police officer in Iraq could earn $120,632, with all lodging, meals, transportation, and logistical and administrative support provided at no cost. The small print on one flyer mentioned that a one-year contract was based on six-day workweek, 12 hours per day.

For a prison guard making $12 an hour, this offer seemed mighty tempting. One female guard sat outside the convention center, looking over the materials. I wonder if it's worth it?" she mused.

One of the ACA's workshops was even devoted to Prisons for Iraq," featuring ACA Board member Mark ...

What's Wrong With the ACA?

The American Correctional Association (ACA) is the largest and best-known organization of prison and jail staff in the country. It offers higher education programs designed to train prison industry professionals and, like a traditional professional association, it certifies persons as members in good standing of the profession. Of course, the major organizational function of the ACA is accreditation of prisons, jails, and juvenile facilities on the basis of published standards that the ACA has promulgated. Unfortunately, the ACA's actual performance of this function does not assure that minimum professional standards are observed. In fact, the ACA's process substitutes the standards and accreditation process for any form of more meaningful corrections oversight.

The ACA appears to embrace the deployment of their standards and accreditation process to protect facilities from outside scrutiny. On their website is a list of benefits that a prison obtains by being accredited. The first benefit is that the cost of liability insurance will decrease, because it will be harder to sue the prison successfully. The second benefit states that accredited agencies have a stronger defense against litigation" because accreditation shows that the prison is trying to do things right.

The ACA claims that prisons are ...

From the Editor

by Paul Wright

As mentioned in previous issues of PLN, our website has been a major undertaking and now makes available all back issues of PLN in various formats, including all articles in PLN's customized and searchable database as well as the issues in PDF format. The website has met with very positive responses and we continue to add materials to it on a daily basis. We welcome suggestions and ideas on how we can bring still more information and news to our readers.

Subscribers will soon receive PLN's annual fund raising letter and a survey seeking input about the content of the print magazine. Please respond to the survey as it allows us to better serve your needs.
Due to delays in production over the summer we got behind on our publishing schedule. To get back on schedule we are publishing on a bi weekly schedule until we get caught up. Please bear with us during this process and we apologize for the delay but we believe that switching to a new desk top publishing program, while inconvenient at first, will allow us to further improve our quality and services.

This issue is jam packed full of ...

USP Beaumont, Texas: Murder and Mayhem in the Thunder Dome

Located in East Texas, the Federal Correctional Complex (FCC) at Beaumont is made up of a trio of federal prisons that are home to 5,667 prisoners. These prisons are run by the Bureau of Prisons, which is the federal arm of the U.S. prison system and an agency of the Department of Justice. The BOP oversees more than 150,000 U.S. prisoners; 21,488 of them are imprisoned in Texas.

It is normally the failings of the private prison industry that receive the most attention, but by taking a closer look at the federally-managed Beaumont complex, a number of questions are raised regarding the management of federal prisons.

Recognizing the inherent dignity of all human beings and their potential for change, the Bureau of Prisons treats inmates fairly and responsively and affords them opportunities for self-improvement to facilitate their successful re-entry into the community."

(All italicized quotes are excerpts from the Bureau of Prison's Vision Statement" from the State of the Bureau 2001" Report.)

The U.S. Penitentiary in Beaumont is home to what prisoners call the thunder dome." This moniker, borrowed from the Mad Max fantasy flicks of the 1980s, refers to the place where ...

Interest Awarded in New Hampshire Canteen Surcharge Fee

The New Hampshire Supreme Court held that the state was required to pay interest to all prisoners who receive pecuniary damages as a result of" Starr v. Governor, the New Hampshire canteen surcharge case.
Darren Starr, a prisoner of the New Hampshire State Prison system brought suit challenging the legality of a 5% surcharge assessed on all goods sold at the canteen pursuant to RSA 662:7-b(2001). At the time of the lawsuit, the proceeds of the surcharge were deposited in the victims' assistance fund into the fund exceeded $750,000; thereafter the access was deposited in the general fund.

As we previously reported the New Hampshire Supreme Court held in Starr v. Governor, 148 N.H. 72, 802 A2d 1227 (2002) (Starr I) that because the 5% surcharge neither funds of the maintenance, overhead or operation of the commissary, you're reimbursed to prison for providing a commissary,'... the surcharge or the tax." The court further concluded that because the only transactions subject to the tax or those that took place at the prison canteen, the tax was disproportionately applied and therefore unconstitutional." See: [PLN , 2004].

On remand, the trial court ordered the State to reimburse those individuals ...

CCA Guard Arrested for Sexually Abusing Vermont Prisoners

Sexual abuse by a Corrections Corporation of America (CCA) guard has spurred three lawsuits against CCA and resulted in the guard's arrest.
The legal activity resulted from incidents at CCA's prisons at the Marion Adjustment Center (MAC) and St. Mary's Kentucky. MAC was home to Vermont prisoners that relocated to another state to ease overcrowding. PLN reported the September 2004 riot at MAC. [PLN March 2005].

The matter came to a crescendo on January 26, 2005, after 26-year-old Joel Becks, a former MAC guard, was arrested on charges of sexual abuse and official misconduct for sexually a abusing two prisoners by Kentucky's Nelson County Sheriff's Department.

Becks' charges stem from two incidents occurring in April 2004. Becks stayed over" from his shift ending at 3 p.m. on April 12. Around suppertime, Becks entered cell D205, finding prisoners John Doe and John Roe violating rules by smoking. Becks closed the cell door. He ordered Doe to the back of the cell and Roe to watch for guards.

Becks dropped to his knees, pulled Doe's sweats down, fondled him and commenced to performing fellatio. Doe neither became erect or ejaculated. Frustrated by Doe's lack ...

First They Came For Lynne Stewart

First they came for the communists, and I did not speak out
because I was not a communist;
Then they came for the socialists, and I did not speak out
because I was not a socialist;
Then they came for the trade unionists, and I did not speak out
because I was not a trade unionist;
Then they came for the Jews, and I did not speak out
because I was not a Jew;
Then they came for me
and there was no one left to speak out for me.

Pastor Martin Niemöller, 1945

Now they're coming for the lawyers, and we must all speak out.
On February 10, 2005, after 13 days of deliberations, prominent New York civil rights attorney Lynne Stewart was convicted of conspiracy, providing material support to terrorists, and defrauding the United States government. Her 7-month trial was held in the same federal courthouse where the Rosenbergs were tried for conspiracy to commit espionage more than 50 years ago. Stewart faces between 35 and 45 years in prison.
Stewart was indicted in March 2002. The indictment was based on governmental monitoring of conversations between Stewart and her client, Shiek Omar Abdel Rahman, which occurred two ...

Houston Grand Juries Mostly Law-Enforcement

Houston Grand Juries Mostly Law-Enforcement and Government Employees

by Matthew T. Clarke

Ever since a ruling by the U. S. Supreme Court in Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940), grand juries have been required to represent a broad cross-section" of the community.

Apparently, in Harris County, Texas, it is sufficient for grand juries to represent a broad cross-section of law enforcement and other government employees. Furthermore, only one in eleven grand jurors were Hispanicand most of them were non-voting alternate jurorsin a county that is one-third Hispanic.

There are two methods of grand juror selection used in Texas. A state district judge can appoint three to five commissioners who select another fifteen to forty residents. A state statute requires that the residents represent a broad cross-section of the population of the county, considering the factors of race, sex and age." From the residents selected, the judge selects twelve grand jurors and two nonvoting alternates. The other method is to select qualified residents randomly from the regular jury pool and have them constitute the grand jury. The commissioner method is used in Harris County. Of the five largest Texas ...

Parole Violators Flood Pennsylvania Prisons

In the latest performance of justice by the numbers, a behind the scenes power struggle is playing out between the Pennsylvania Department of Corrections (DOC) and the state Board of Probation and Parole (BPP). As usual, prisoners are caught in the middle.

Conflicting priorities are fueling the dispute. The DOC, recipient of large expansion-related budget increases in recent years, is ostensibly trying to curtail costs by keeping a lid on its once-exploding prison population. The BPP on the other hand, is flooding the system with technical violatorsparolees who are returned to prison merely for violating the terms of their parole. The BPP claims the revocations are necessary to avoid another incident like that of Robert Mudman" Simon, a parolee who murdered a cop within weeks of being released in 1995.
Though both sides deny it, the conflict has created tension between Parole and Corrections," said. M.L. Ebert, president of the Pennsylvania District Attorney's Office. Money is the reason. I really think it comes down to dollars and cents," said Julia Ingersoll, director of Legal Studies at Harcum College. The cost is phenomenal to have people constantly in prison." Currently, Pennsylvania spends $29,907 a year on each state ...

Michigan: Money Bilked From Prisoners

Michigan: Money Bilked From Prisoners Used For Bonuses

While Michigan was trying to boost its cash-starved budget through spending cuts and tax increases, those in the Attorney General's Office were feasting on money squeezed from state prisoners.
In October 2004, Attorney General Mike Cox paid $340,000 in merit bonuses to his legal staff, most of them assistant attorneys general who already earn up to $100,000 a year. The bonuses ranged from $150 to $1,700 for each of the 240 employees.

Money for the bonuses came from $1.7 million in assets seized from prisoners during the previous year. The assets were confiscated by the attorney general's office purportedly to cover the costs of imprisonment. We collected more in prisoner reimbursement than anyone thought we could, and we decided to share some of it with folks in the office," Cox said.

An official in Governor Jennifer Granholm's administration said the money should have gone into the state's general fund instead of being used to pay bonuses.

Officials with the Michigan State Employees Unionwho swallowed $230 million worth of pay concessions in fiscal year 2003-04 and were being asked to take another $148 million hit ...

Texas Prison Expert Pays the Price for Telling the Truth

by Matthew T. Clarke

Tony Fabelo was the head of the Texas Criminal Justice Policy Council for two decades. He survived multiple changes of administration by doing a great job as the state's top number-cruncher on prison issues. Legislators of both parties say the Cuban-born Ph.D., a nationally-known authority on prisons and prison construction, served the state well during its dramatic build up of the prison system. However, Tony Fabelo no longer has a job.
O.K., technically Fabelo wasn't fired. No, Governor Rick Perry simply signed a line-item veto eliminating the council's $1 million biannual appropriation from the state budget. Fabelo, who recognized the irony of being the head of an unfunded government entity, then resigned and became a nationwide consultant on prison issues.

Why was Fabelo's council, which was doing such a good job, eliminated? Perry says that the council's job was done and he wanted to save the money. Neither aspect of that rationalization makes sense. The state still has one of the largest prison systems in the world and will still need advice on how to manage it. During its existence, the council collected twice as much money in federal ...

$7,500 of Personal Injury Award Exempt From Attachment By Illinois DOC

A court of appeals in Illinois ruled that the Illinois Department of Corrections (DOC), which was seeking to attach a settlement awarded a prisoner in a personal injury suit, could not attach $7,500 of the award. That ruling was later affirmed by the Illinois supreme court.

Lonnie Booth was an Illinois state prisoner in May 2001 when he received a $41,715.57 settlement in a personal injury suit after attorney fees and costs were deducted. In January 2003, the DOC filed suit seeking to recover $40,656.89 plus court costs as reimbursement for the costs of Booth's incarceration. Booth failed to appear at a hearing and the judge entered an order awarding the DOC $40,656.89. Booth then moved for declaratory judgment, claiming the settlement award was exempt under section 12-1001(h)(4), Code of Civil Procedure [735 ILCS 5/12-1001(h)(4)].
Section 4-101(11) of the Code of Civil Procedure [735 ILCS 5/4-101(11)] states that the Attorney General may attach the property of prisoners' in cases brought under Section 3-7-6 of the unified Code of Corrections. However, 735 ILCS 5/12-1001(h)(4) provides for a $7,500 exemption for payments ...

Nebraska Law Automatically Restores Felon Voting Rights

On March 10, 2005, Nebraska lawmakers overrode a veto by the governor and passed legislation automatically restoring the voting rights of felons.
With the passage of Legislative Bill 53, Nebraska felons will automatically have their voting rights restored two years after completing their sentences, including any parole or probation. Currently, felons must wait 10 years and then petition the Board of Pardons for restoration of their voting rights.

Few make the trip, said Senator DiAnna Schimek, who introduced the bill. Though about 1,000 people per year complete their sentences, only 145 made petitions to the board in fiscal year 2003-2004, Schimek said.
Governor Dave Heineman had vetoed the bill a day earlier. But with a vote of 36-11, the Legislature easily collected the 30 votes necessary to override the veto.

In support of the bill, Speaker Kermit Brashear reminded lawmakers that the issue was not about the governor or even victims' rights. Rather, it was about those who have done their time and returned to society with a desire to participate.

What is it about our personality that would put that off for 10 years," asked Brashear. This is a positive, affirmative thing for people who would have paid ...

Habeas Hints

This column is intended to provide habeas hints" to prisoners who are considering or handling habeas corpus petitions as their own attorneys (in pro per). The focus of the column is habeas corpus practice under the AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.

THIS YEAR IN HABEAS

U.S. Supreme Court Term:
2004-2005.

As 2005 comes to a close, this column takes its annual look at the U.S. Supreme Court decisions that impacted habeas corpus practice during this past term. At the end of each of the summaries, I've included one or more Habeas Hints" based on the Court's decision.

Pace v. DiGuglielmo, 125 S.Ct. 1807 (2005).
Johnson v. United States, 125 S.Ct. 1571 (2005).
Gonzalez v. Crosby, 125 S.Ct. 2641 (2005).

In this trio of procedural decisions, the Court clarified the circumstances under which the AEDPA statute of limitations would be tolled (suspended from running out) because of the pendency of a properly filed" habeas corpus petition in state court.

In Artuz v. Bennett, 531 U.S. 4 (2000), the Court had held that a state petition which was properly filed" would toll the ...

Antibiotic Resistant Staph Infections Continue to Plague Prisons, Jails

Antibiotic Resistant Staph Infections Continue
to Plague Prisons, Jails

by Michael Rigby

Chelsea Johnson, 30, said it began as a small pimple that formed on her right cheek shortly after she arrived at the Orange County Jail in 2003. Three days later, her entire face was swollen and she felt feverish. A nurse examined her but failed to prescribe any medication, she said.
Johnson was released after 6 days, but it took another 4 months and several trips to the doctor before the culpritMethicillin Resistant Staphylococcus Aureus, or MRSAwas diagnosed. By that time, the infection had spread over her face and body. I felt like a leper," she said. I just didn't want to go outside. I couldn't live my life.

With outbreaks of MRSA on the rise nationwide, stories like Johnson's are becoming more common. It's an emerging epidemic," said Dr. Gonzalo Ballon-Landa, an infectious disease consultant in San Diego County. Doctors in California and the whole community are not picking up yet on the fact that [it] is here.

Staph bacteria is commonly found on the skin and in the nose of healthy people. When it enters the body through the skin or another ...

Iowa's Governor Grants Ex-Prisoners Automatic Voting Rights Restoration

Iowa's Governor Grants Ex-Prisoners Automatic
Voting Rights Restoration

by Matthew T. Clarke

On July 6, 2005, Governor Tom Vilsack of Iowa signed an Executive Order which enacted a blanket restoration of citizenship rights to ex-prisoners who have completed their sentences. This allows persons previously convicted of a felony or aggravated misdemeanor to recover their rights to vote and hold public office. It does not restore their right to own firearms. The move could affect up to 50,000 Iowans in the next election cycle.

Under Iowa law, persons convicted of aggravated misdemeanors and felonies lose their rights to vote and hold public office. Under previous law, such persons who had completed their sentences and fully paid all fines, restitution, and other financial obligations could individually petition the governor for restoration of their citizenship rights. The process took up to six months. The Executive Order removes the requirement of fully paying restitution, fines and financial obligations and makes the restoration process automatic upon application following completion of the sentence.

Nationally, disenfranchisement serves to deny voting rights to 6.7 million Americans, 500,000 of them war veterans and 1.6 million of them black. Thus, it has a disproportionate effect ...

Florida Bans Sex Offenders from Hurricane Shelters

Florida Bans Sex Offenders from
Hurricane Shelters

A new Florida policy bans sex offenders who are not allowed contact with children from public hurricane shelters. Instead, they will be shuttled to their own shelters-prisons across Florida.

The rule applies to offenders not allowed contact with children as a condition of their probation. This regulation and a flurry of laws have been approved since 9-year-old Jessica Lunsford was discovered murdered in March, 2005 in Citrus County.

When placed on probation, sex offenders are asked to provide a home address for the state's registry of sex offenders, along with an alternate location they can go to in case of emergencies such as hurricanes. If they do not have an alternative, or if their back-up plan goes awry, sex offenders can talk to their probation officers about going to a local jail or prison, where there is less chance of them being with or harming a child.

State officials say that offenders seeking shelter in a prison or jail won't be placed with other prisoners since they are not being arrested. At the jail or prison, sex offenders will wear an ID badge and can use the telephone. 7,458 sex ...

300 More Washington Prisoners Headed to CCA Prisons

As we predicted, Washington's sentencing reform" has sharply increased the state's prison population to approximately 17,6001,400 prisoner's overcapacityadding 2,100 prisoners within the last two years alone.
Worse yet, nothing, including slashing sentences by up to 50 percent for a few hundred prisoners, has stemmed the flow and there is no end in sight.
As prison officials scrambled to find beds for this influx of new prisoners, they have resorted to shipping prisoners to rental beds in other states. In May 2003, 100 prisoners were sent to Nevada prisons, followed by 140 more later that summer. Still the problem persisted.
The 2004 Washington Legislature then attempted to put a $320 million, 2,400 beds, prison expansion Band-Aid over the emblem. Only, that prison building boom won't be complete until 2008, doing nothing to ease current overcrowding.

Despite the abysmal track record of private prisonsextensively reported in PLNprison officials opted to send 290 prisoners to private prisons operated by Corrections Corporation of America, (CCA), the nation's largest private jailer, in 2004.

In true CCA form, problems soon followed. On July 24, 2004, dozens of Washington and Wyoming prisoners gathered on the yard at the ...

Mother Of New York Prisoner Awarded $377,200 For Suicide

On March 14, 2005, a court of claims in White Plains, New York, awarded $377,200 to the mother of a suicidal state prisoner who died while in custody.

While serving time at New York's Green Haven Correctional Facility for automobile-related crimes, William E. Newborn Jr. became concerned about ...

New York Prisoner Awarded $5,250 for Prison Welding Shop Injury

On July 27, 2004, the Court of Claims in Rochester, New York, awarded Noel Atkinson, a New York state prisoner, $5,250 for past pain and suffering due to an injury he received while working in a welding shop at the Cape Vincent Correctional Facility. During the bench trial, Judge ...

Hawaii Settles Class Action Wrongful Imprisonment Suit for $1.2 Million

The state of Hawaii has agreed to pay $1.2 million to settle a class action federal lawsuit involving hundreds of wrongfully imprisoned individuals. The state also agreed to implement measures ensuring the timely release of prisoners.

The lawsuit, brought under 42 U.S.C. § 1983 by the American Civil ...

New York Prisoner Awarded $1,000 For Uncleaned Prosthetic Eye

On September 1, 2004, a court of claims in White Plains, New York, awarded $1,000 to a state prisoner because prison personnel failed to timely clean his prosthetic eye, causing him pain and suffering.

Lionel Walker, a prisoner at the Fishkill Correctional Facility, went to the infirmary on July ...

U.S. Supreme Court: Michigan Plea Bargainers Have Right to Counsel On Appeal

by John E. Dannenberg

The U.S. Supreme Court ruled that Michigan defendants convicted pursuant to a plea of nolo contendre or to a plea bargain are constitutionally entitled to appeal their convictions to the Michigan Court of Appeals, and if indigent, are entitled to a state appointed attorney. In so holding, the high court held that Michigan Constitution Art. 1, § 20 (rev. 1994), codified at Mich. Comp. Laws Anno. § 770.3a, which provided that such appeals were only available by leave of the court, violated due process of law as established in Douglas v. California, 372 U.S. 353 (1963). (The Court had previously reserved this question in Kowalski v. Tesmer, 125 S.Ct. 564 (2005). See PLN, July, 2005).

Antonio Halbert had pled nolo contendre to two counts of second-degree sexual misconduct. At his sentencing hearing, his counsel requested concurrent sentencing, which Halbert expected. When the judge sentenced him to consecutive terms, i.e., the maximum, Halbert asked the next day to file an appeal. He attempted to comply with the Court of Appeals filing form, after being denied his request for assistance of counsel to prepare the application. Because he was uneducated and had learning disabilities, he ...

Massachusetts DOC Fails to Meet Women's Special Needs

by Michael Rigby

The failure of the Massachusetts Department of Corrections (MDOC) to address the special needs of women in prison impedes the effective maintenance of family ties, according to a March 2005 research report by the University of Massachusetts's Center for Women in Politics and Public Policy.

In 2003, 182,000 women were imprisoned in the U.S. Of these, 136,000 were mothers of approximately 314,000 children under age 18, the researchers estimated. Because 65% of these mothers had been the children's primary caretaker before their imprisonment (compared to 25% for male prisoners), the children of mothers in prison experience far greater dislocation than do the children of male prisoners.
Though most experts agree that regular contact with children is essential for maintaining the parent-child relationship, this sadly is not the case for many imprisoned women. The report notes a 1997 national study that found half of the mothers in prison never received a visit from their children, one-third never received a phone call, and one-fifth never received mail.

This separation has devastating consequences on the children. Those aged 2-6 are predisposed to separation anxiety, guilt, and shame, while older children may experience withdrawal or ...

Acting Pro Se, NJ Prisoner Beats Charges of Spitting on Guard

A New Jersey jury took only three hours to declare William Victor not guilty of spitting on a Northumberland County Prison (NCP) guard in 2003. NCP's warden called the verdict ridiculous." Considering Victor proceeded through trial representing himself, incredible is a more fitting adjective.

Charged with aggravated harassment by a prisoner, Victor remained calm during trial while questioning witnesses. He showed little emotion when the jury foreman read the not guilty verdict.

On the opening day of trial, guard Bernard Bogus, 60, testified he pointed a flashlight into Victor's cell shortly before midnight. After noticing Victor was not on the top bunk, a light search of the cell found him sitting on the toilet.

After the light was placed on him, Victor allegedly told Bogus, if you don't get that fucking flashlight out of my face, I'll spit in your face." Bogus responded by telling Victor he was just doing his job of making sure he was safe. Victor then stood up and allegedly spit on Bogus' face and shirt.

The prosecution also brought in Warden Ralph Rick" Reish, guard Kerri DeCosta, and Sgt. Theresa Noworski to testify. Of course, there was also a jail house ...

Only One California Jail Has State-Mandated Psychiatric Treatment Center Licensure

by John E. Dannenberg

Although California law has since 1998 required all county jails that provide inpatient medical or psychiatric care to have a correctional treatment center license, only one (Los Angeles) has obtained one. The issue was highlighted when the San Jose Mercury News wrote that the Santa Clara County Main Jail (SCC), which has a 43 bed section that treats and stabilizes prisoners who are a danger to themselves or to others, has operated for five years without licensure.

In 1988, state legislators began a ten-year struggle to improve local jail health care. But putting regulations in place in 1998 was not a panacea for health care deficiencies. At most, only those new health care facilities being built after 1998 would be able to comply, unless older facilities were substantially remodeled.

Such is the case of SCC, which was built in the late 1980s. Although it is modern in many respects, its cells for psychiatric care are only 1/2 the size required by the new, 1998 regulations. Because of this deficiency, SCC cannot gain licensure. It is estimated it will take $4.6 million in renovation costs to meet the new standards. The conundrum is that while ...

Miami-Dade Pays $6.25 Million to Settle Illegal Strip Search Suit

A Florida federal district court has approved a $6.25 million settlement in a lawsuit alleging thousands of female prisoners were illegally strip searched at the Miami-Dade County Correctional Facilities.

The settlement entitles l0,000 women who were strip searched after being picked up on prostitution or other minor charges ...

California Guards Assigned Word Puzzles to Satisfy Training Requirements

California State Assembly Member Rudy Bermudez, himself a member of the powerful prison guards union (CCPOA) while on leave from his prison job to serve elective office, sharply criticized the practice of solving word puzzles used by California prison guards to complete part of their annual training requirement.

It's unbelievable what they're doing. Just totally unacceptable."
California guards must complete 52 hours of annual retraining in such things as firearms, use of force and prisoner transportation. Of this, only 40 hours are hands on." Pursuant to a union contract change effective July, 2004, the remaining 12 hours may be earned by studying bulletins pertaining to policy changes, rules updates and solving puzzles.

One exercise involved guards finding the names of professional football teams hidden among jumbled letters. Another sought the hidden words elf," snow," and gingerbread." Guards were given the training material and told to complete the puzzles while on duty guarding prisoners, Bermudez reported. This was particularly embarrassing in light of the Inspector General's report on the January 10, 2005 murder of a Chino State Prison guard that was tied to lax training, among other problems.

A union spokesman blamed the puzzle practice on a lack ...

Summary Judgment for CMS/NJ DOC Reversed in Physical Therapy Suit

A New Jersey state appellate court issued an unpublished opinion reversing a lower court's grant of summary judgment to Correctional Medical Services (CMS) and the New Jersey Department of Corrections (DOC).

On November 7, 1996, Craig Szemple, a prisoner at the New Jersey State Prison, under went two surgeries to correct carpal tunnel syndrome and ulner nerve entrapment. The treating physician ordered physical therapy to begin as soon as possible and continue for three months. This order was noted in Szemple's prison medical file on November 21, 1996.

Nevertheless, it was not until December 9, 1996 that Dr. Acheloe, the Group Medical Director of the Central Region of CMS, reviewed [this] recommendation and authorized physical therapy. CMS policy required that Acheloe's recommendation also be approved by his supervisor, the statewide medical director for CMS.

Acheloe again recommended physical therapy on January 27, 1997 and February 25, 1997, because it had not yet begun. Szemple did not receive his first physical therapy evaluation on March 17, 1997 and did not begin receiving physical therapy until approximately April 1, 1997.

Szemple brought suit in state court against CMS and DOC alleging that they negligently delayed his physical therapy. Pursuant ...

California Guards Union Intimidates Prison Staff For Infracting Guard Misconduct

California Correctional Peace Officers Association (CCPOA) local chapter president Chris Trott, of Calipatria State Prison in Imperial, admitted his union placed a rat trap on the prison CCPOA bulletin board in an intimidating retort to three union members having been placed on paid administrative leave pending an investigation regarding their alleged use of excessive force to subdue a prisoner. The symbology, according to the accompanying union flyer, was to catch" the Captain and Warden and to challenge the suspensions. Trott added that the rat trap was a union tactic" to complain about unspecified management problems at Calipatria.
Todd Slosek, spokesman for the California Department of Corrections (CDC) said that this intimidation of the ratting" Captain was precisely the type of Code of Silence" misconduct that CDC wants to stop, calling it unacceptable" and completely unprofessional."

The three suspended staff, a sergeant, a guard and a medical technical assistant (MTA), were observed by Captain Serchel Leapheart subduing life prisoner Adron Cowains after Cowains allegedly assaulted an MTA at the Facility B clinic. Leapheart wrote the three up.

Not satisfied with just intimidating Captain Leapheart, the union also posted a display reading, 2005: The Year of Shame," accompanied by a picture of ...

Ban On Male Guards In Michigan Women's Prisons Upheld

The U.S. Sixth Circuit Court of Appeals has held that a Michigan Department of Corrections policy prohibiting male guards from holding certain positions in the state's female prisons did not violate Title VII of the Civil Rights Act of 1964.

For many years, the problem of sexual abuse and mistreatment of female prisoners has gone unchecked in Michigan prisons. By its own admission, the Michigan Department of Corrections (MDOC) investigated 217 allegations of sexual misconduct against female prisoners between 1994 and January 31, 2001. Only 47 were deemed unfounded. Moreover, of the 20 male prison employees nationwide convicted of sexually abusing female prisoners in 1997 and 1998, fully half (10) were in Michigan.

The rampant sexual abuse of female prisoners in Michigan has also been documented by several reports in the last dozen years. In 1993, for instance, the Michigan Women's Commission reported that sexual assault and harassment are not isolated incidents and that fear of reporting such incidents is a significant problem." In 1996, a report by Human Rights Watch (HRW) described a continuing pattern of rape, sexual assault, and other abuses of females by male guards that has consistently been overlooked by officials at all ...

Seventh Circuit Upholds Indiana Sex Offender's Banishment From City Parks

In a decision that further restricts the already limited movement of sex offenders, the en banc U.S. Seventh Circuit Court of Appeals has held that banning a convicted child molester from all public parks in the City of Lafayette, Indiana, did not violate the offender's constitutional rights under the First and Fourteenth Amendments.

In January 2000, Plaintiff John Doe, an admitted pedophile with convictions dating back to 1978, stopped at a city park on his way home from work and watched five youths in their early teens playing on a baseball diamond. Doe fantasized about having sex with them for 15-30 minutes but left without acting on his urges. The incident so upset Doe, who has been receiving psychological treatment since 1986, that he immediately notified his therapist and started receiving weekly shots of Depo-Provera to help suppress his urges. Doe was also encouraged to discuss the incident with his Sexual Addicts Anonymous group, which he attended voluntarily.
Sometime later, an anonymous source informed Doe's probation officer of the January park incident and of Doe's thoughts at the time. Upon being apprised of the situation by the Lafayette Police Department, city officials banned Doe for life ...

Seventh Circuit Reverses Summary Judgment for CMS, Prison Doctor

In an unpublished decision, the Seventh Circuit Court of Appeals reversed a grant of summary judgment to a prison doctor, holding that the doctor manifested a substantial departure from accepted professional judgment in the treatment of a prisoner's cluster headache condition.

Illinois prisoner James Edens suffers from cluster headaches, which are a rare and intensely painful form of vascular headache that, although individually of relatively short duration, usually occur several times a day over the course of weeks or even months before going into remission." If left untreated, cluster headaches are severely painful, even to the point of disability.

While at the Logan Correctional Center ... [Edens] was taking ... Elavil (a tricyclic anti-depressant), which ... brought his headaches under control." In February 1999, however, Edens was transferred to the Pinckneyville Correctional Center and his Elavil prescription was discontinued.

Dr. Dennis Larson suggested meditation and relaxation' after Edens speculated that the attacks might be stress-related." Larson did not prescribe any medication at that time. Subsequently, another physical prescribed Fioricet which also controlled Edens' headaches and remained his primary treatment until mid-autumn 1999, when the physician left Pinckneyville.

On November 8, 1999, Larson discontinued Edens' Fioricet prescription, replacing it with Tylenol. According to ...

Ninth Circuit Upholds Preliminary Injunction Against Webcams In Arizona Jail

The U.S. Ninth Circuit Court of Appeals has upheld a preliminary injunction prohibiting an Arizona sheriff from displaying live video of prisoners in the Maricopa County Jail on the internet.

This case arises from Maricopa County Sheriff Joe Arpaio's latest publicity stunt. Already known for humiliating prisoners by dressing them in pink underwear, warehousing them in tent cities," and forcing them to toil in chain gangs, Arpaio has chosen to take his contempt for the rights of prisoners and pretrial detainees one step furtherbroadcasting their every move on the internet for all the world to see.

At the County's Madison Street Jail, Arpaio installed four webcams that captured a men's holding cell, two intake areas, and a portion of the women's holding cell--including the toilet (this webcam was repositioned to a hallway after the lawsuit was filed). The video was originally streamed to the County Sheriff's server, but later moved to Crime.com because of the heavy traffic. Visitors to the website could view live video from each of the webcams.

In response to Arpaio's sadistic intrusion on their privacy, 24 pretrial detainees challenged the webcam policy in state court. The Sheriff and ...

Confiscation of "New Afrikan" Literature May Violate First Amendment

Confiscation of "New Afrikan" Literature May Violate First Amendment

The Second Circuit Court o Appeals reversed a New York district court's dismissal of a prisoner's complaint alleging violation of his rights under a Religious Land Use and Institutionalized Persons Act (RLUIPA) and his rights to free exercise and free speech under the First Amendment.
New York prisoner Shabaka Shakur filed a civil rights action alleging facts that occurred around five separate events. The first occurred on Christmas Eve 1999 at Great Meadows Correctional Facility. Guard Daniel Hurlburt searched Shakur's property that day, finding and confiscating 26 books and pamphlets of New Afrikan political literature," which he characterized as Nubian gang materials." Shakur was issued a misbehavior report for violation of Institutional Rule of Conduct 105.12 provides [i]nmates shall not... possess... or use unauthorized organizational insignia materials." An unauthorized organization is any gang or organization which has not been approved by the Deputy Commissioner for program services.
At a hearing on the misbehavior report, Shakur requested to have the confiscated materials sent to Great Meadows' Facility Media Review Committee (FMRC) was denied. Guard Dolan, the hearing officer, found the confiscated materials were not authorized because they ...

Guard Denied Qualified Immunity in MI Prisoner's Retaliation Claim

The Sixth Circuit Court of Appeal has affirmed a Michigan District Court's order denying a guard's qualified immunity defense in a suit filed by prisoner David J. Scott, a prisoner at Carson City Regional Facility. Scott's complaint alleged guard Philip Bair retaliated against him for filing grievances.

On July 6, 1995, Scott reported to Bair to check into a prison building to appear for an unrelated misconduct ticket. Bair said to Scott of his misconduct ticket, [T]hat doesn't surprise me." Scott requested Bair to explain the remark. At that point, Bair walked over to Scott, and said, you don't know who you're f___ing with." Bair then grabbed Scott by the back of the neck and continued, you want to f___ with me, b____!
Later that day, Scott filed a grievance alleging the above facts. The following day, Bair filed a misconduct ticket against Scott for insolence. The hearing officer later dismissed the infraction because Bair's creditability was questionable," relying in part on the fact the charge was filed 24 hours later, after the inmate had claimed to have been assaulted.

In contesting Bair's motion for summary judgment, Scott provided the District ...

Washington Prisoner's Uninformed Disciplinary Plea Agreement Upheld

The Washington Court of Appeals, Division I, upheld a prisoner's disciplinary plea agreement even though his punishment was more extensive than what he had agreed to. The agreement was only upheld, however, because no good time was taken.

Garridan Nelson, a Washington state prisoner in the Airway Heights Correctional Center, was cited for a disciplinary violation after guards found a watch belonging to another prisoner in his hobby craft storage box. Before a hearing was conducted, Nelson agreed to enter a guilty pleawhich involved waiving his right to a hearing and an administrative appeal--in exchange for a punishment of 10 days cell confinement. But instead of honoring the agreement, prison officials suspended Nelson from both his prison job and the hobby shop, took 5 custody points, and barred him from requesting transfer to another prison for 1 year.

In response, Nelson filed, a pro se personal restraint petition on March 17, 2003, challenging the plea agreement. Specifically, Nelson contended that because he was never informed about the possible consequences of the plea agreement, he was entitled to choose between specific enforcement or withdrawal of the agreement.

The Court of Appeals (COA) disagreed. The COA first observed that prisoners do ...

Rehabilitated California Ex-Cons Have No Privacy Protection From Media Productions Based Upon Public

Rehabilitated California Ex-Cons Have No Privacy Protection From Media Productions Based Upon Public Court Records

by John E. Dannenberg

The California State Supreme Court, reversing its 33 year old precedent, held that privacy rights of a former prisoner were trumped by the First and Fourteenth Amendment rights of television producers who mined twelve year old court records to make a TV documentary based upon his earlier crime.
Steve Gates pleaded guilty in 1992 to accessory after the fact in a murder for hire. He did his three years in prison, and thereafter led an obscure, lawful and productive life; he even gained a court certificate of rehabilitation. But to his horror, Discovery Communications, Inc. (Discovery) aired a TV documentary in 2001 based upon data gleaned from official court records of his crime. Worse yet, the TV version implied he was guilty of conspiracy to murder, a crime of which he was not convicted. Gates sued for defamation of character and invasion of privacy.
The California Supreme Court had previously decided this question (Briscoe v. Reader's Digest Association, Inc., 4 Cal.3d 529 (1971)) in favor of such a person's privacy rights. But Discovery argued that intervening U.S ...

 

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