Prison Legal News:
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Volume 18, Number 2
In this issue:
- Still More Murder and Mayhem in Maryland (p 1)
- Confronting Confinement, A Report On Safety and Abuse In America’s Prisons, Vera Justice Institute (2006), 118 pp. (p 8)
- From the Editor (p 8)
- Sacramento Jail Rampant with Excessive Force and Brutality (p 10)
- Bureau of Prisons Begins Certifying Sexually Dangerous Persons (p 14)
- New York’s Prison System Infested With Drugs (p 16)
- High Ranking Louisiana Prison Official Pleads Guilty to Federal Charges (p 17)
- California Habeas Handbook, Expanded 5th Edition, by Attorney Kent Russell, Sept. 2006, 114 pages plus appendix, soft cover (p 18)
- 5-Point Restraints = Excessive Force + Due Process Violation Results in $25,000 Virginia Damage Award (p 18)
- Correct Rx a New Major Player in the Prison Drug Industry (p 20)
- The Warehousing of New Hampshire’s Mentally Ill (p 20)
- Seizure of Washington Prisoners’ Cash at Jail Booking Unconstitutional (p 22)
- Prison TB 10 Times Higher Than Non-Prison Cases (p 22)
- $400,000 Wrongful Death Settlement After San Diego Jailers Hog-Tied Prisoner (p 24)
- Fulton County Reinstates Deputies Fired in Killing Rampage (p 24)
- 1997 Changes in Pennsylvania Commutation Law Held Ex Post Facto (p 25)
- Summary Judgement Reversed on Illinois Outgoing Mail Ban (p 26)
- Federal Court Compels Activation of California DOC Mental Health Crisis Beds; Approves New $111 Million Mental Care Hospital (p 26)
- Cleaning up Mississippi’s Supermax: Conditions Suit Settled (p 28)
- North Carolina Jail Prisoner Killed During Court Appearance (p 28)
- Prison Deaths: A National Shame (p 29)
- California Governor Vetoes Open Records, Prisoner Condoms and Media Access Bills (p 30)
- California DOC Medical Receiver’s Initial On-The-Job Impression: “Conditions Disgraceful” (p 30)
- U.S. Spends Record $185 Billion on Justice System is 2003 (p 32)
- New York’s Governor Vetoes New Treatment Facilities For Mentally Ill Prisoners (p 32)
- PLN Awarded $48,709 In Attorney Fees After Successful FOIA Suit Against BOP (p 33)
- Colorado Parolee’s Disenfranchisement Upheld (p 33)
- Mississippi DOC Guts TB Program (p 33)
- Family of Texas Prisoner Murdered in Geo-Operated Prison Awarded $47.5 Million (p 34)
- 9th Circuit Holds § 1997e(a) Applies to Private Prisons; Magazine Confiscation Is a “Prison Condition” (p 34)
- $255 Awarded For Destruction of Prisoner’s Property (p 34)
- Michigan Jail Prisoners Pay For Incarceration (p 35)
- New Jersey Prison Commissioner’s Complete Ban On Media Lifted (p 35)
- Garnishment of Ohio Prisoner’s Account Permitted to Pay Court Costs (p 36)
- Sixth Circuit Extends Abela Ruling to Parole Denial Habeas Petitions (p 36)
- Virginia Prison Minister Indicted on Sex Charges; Ministries Under Fire (p 36)
- $2.5 Million Settlement for Illegal Strip Searches in Connecticut Jail (p 37)
- New Jersey Sex Offenders Must Be Protected and Segregated During Transports (p 38)
- MO Jail Guards Denying Seizure Medication amd Assigning Prisoner to Top Bunk May Violate 8th Amendment (p 38)
- Nebraska UA Procedures Do Not Violate Due Process (p 39)
- Illinois Jail’s Strip Search Policy Unconstitutional (p 39)
- BOP Halfway House Walkaway Is Not Federal “Crime of Violence” (p 40)
- Native American Entitled to Prayer Feather (p 40)
- New Hampshire Prisoner’s ADA Claim Survives Summary Judgment (p 41)
- News in Brief: (p 42)
- No Qualified Immunity for Michigan Prisoner’s Heat-Dehydration Death (p 44)
"Lock them up and throw away the key." Like the rest of the nation, this overriding penal philosophy in Maryland has led to a criminal justice system that is defunct at every level. The state's adult prisons are "in crisis." Its juvenile facilities are "beyond dysfunctional." And its jails - where endemic violence has forced prisoners to make body armor from newspaper - are spiraling into chaos.
Until recently little attention has been paid to what's happening in the state's brutal and violent prisons. But now, following the murders of two guards in the first six months of 2006, the first such deaths in over two decades, legislators and the public are finally taking notice. PLN readers will note this is the third major story we have run on violence and safety in Maryland prisons.
House of Corruption
It was 10 p.m. on July 25, 2006, as guard David W. McGuinn, 42, performed a routine head count in the west wing of the Maryland House of Correction (MHC). Though he was known around the prison as "Homeland Security" for his rigid enforcement of institutional rules, McGuinn likely felt safe even though he was alone. The prison had been ...
Reviewed by John E. Dannenberg
The Commission on Safety and Abuse in America's Prisons released its June 2006 report Confronting Confinement which concluded, "What happens inside jails and prisons does not stay [there]. It comes home with prisoners after they are released and with corrections officers at the end of each day's shift. We must create safe and productive conditions of confinement .. because it influences the safety, health and prosperity of us all."
Since so few citizens know (or even care) what goes on behind bars in America's lockups unless and until they are directly affected by their own or a loved one experiencing "the system," this report was designed to bring the realities and effects of life behind bars into the public limelight.
Included are those components that no judge or jury ever intended -- prison rape, gang violence, abuse by guards, cruel medical care, infectious disease and endless solitary confinement. While the report may not come as "news" to the average PLN reader, it serves valuably as a comprehensive and highly credible reference tool to present to the ...
Confronting Confinement, A Report On Safety and Abuse In America's Prisons, Vera Justice Institute (2006), 118 pp.
Last month's issue of PLN had a cover story on the prison telephone industry and the ongoing outrage of the kickbacks paid by phone companies to prisons and jails in exchange for exclusive monopoly rights to gouge consumers by charging outrageous phone rates. No sooner had that issue of PLN been mailed than incoming governor of New York Elliot Spitzer announced, upon assuming office on January 8, 2007, that he was not going to renew the New York state prison system's phone contract with MCI when it expires in April, 2007, and any new contracts would forgo the more than $20 million a year ...
This month's cover story is by long time PLN contributing writer Mike Rigby. I am pleased to announce that in December, 2006, Mike was released from the Texas Department of Criminal Justice after 13 years of imprisonment. He will continue contributing articles to PLN as his new schedule allows. It's good to have our contributors and writers get out of prison and be able to, if not meet them yet, at least talk on the phone. Texas is the only prison system that does not allow its prisoners to have telephone access.
Imagine six million candles of light and the noise level of a jet plane taking off inside an average 6'x10' jail cell. That's what Courtney Countee, Jessie Kerwin, Daniel Lucas, Jason Morrison, Cladius Jefferson and Michael Toro endured at the hands of the Sacramento County jail's Custody ...
Recently, Federal Public Defenders in New Mexico, South Dakota and Massachusetts have learned that just prior to release, clients are being transferred to the Butner, NC Federal Medical Center and certified as SDPs, based on a caseworker?s review of records. We are told that of 500 cases reviewed to date, proceedings have been initiated in 11.
A ?sexually dangerous person? is one who ?has engaged or attempted to engage in sexually violent conduct or child molestation and . . . suffers from a serious mental illness, abnormality or disorder resulting in serious difficulty refraining from sexually violent conduct or child molestation if released.? 18 U.S.C. § 4247. The definition was added to the existing definitional statute in chapter 313 of title 18 which addresses mental disease or ...
BOP has a new tool authorized this summer as part of the Adam Walsh Act. BOP may now ?certify? prisoners as ?sexually dangerous persons? (SDP). Certification can occur prior to sentencing, or at any time after the commencement of probation or supervised release and prior to the completion of the sentence. We will all need to pay attention to the risk of this new federal SDP designation, 18 U.S.C. § 4248.
by David M. Reutter
The most glaring result of America's war on drugs has been the explosion of the nation?s prison population. Over 75 percent of all prisoners are either doing time for drug related offenses or were under the influence of drugs when they committed their crimes. When that statistic is considered, it seems that keeping drugs out of jails and prisons would be a top priority.
Yet, New York's jails and prisons are infested with drugs. They enter the system in various ways: through food packages, contact visits, and from guards seeking to make extra money. "We've heard from some it's even easier [to get drugs in prison than on the streets], and there's less chance of getting caught," said Erie County, New York, Deputy District Attorney Molly Jo Musarra.
The statistics certainly show that more drugs are within New Yorks prison system than other states'. Random drug tests in New York prisons are 10 times more likely to be positive than those in Pennsylvania.
Because New York does fewer random tests than other states, critics say that number may be conservative.
The drug ...
New York's Prison System Infested With Drugs
On June 29, 2006, Louisiana prison administrator James H. Leslie, 55, was formally indicted on federal charges of tampering with a witness. The indictment was returned on February 16, 2006 but remained sealed so as not to impede an ongoing investigation.
“[T]here is no longer any need for this matter to remain under seal,” stated a motion filed by the U.S. Attorney’s office.
According to the indictment, Leslie “attempted to corruptly persuade another person with the intent to hinder, delay and prevent the communication of information” to a federal agent.
At the time, FBI investigators were looking into allegations of extortion raised by rodeo producer Dan Klein, Jr. FBI agents were also investigating suspicions of mail fraud, theft from a federally-funded program and perjury.
Klein was under contract to provide livestock for the Angola Prison Rodeo. He alleged that Warden Burl Cain had pressured him to make a $1,000 donation to the prison chapel fund, and said he wore a recording device when he made the payment to Cain in April 2004.
In response, Warden Cain stated that Klein was angry because the contract to supply cattle for the prison rodeo had been opened up ...
Three years after publishing his 67 page 4th Edition of the California Habeas Handbook (CHH) [see: PLN, Jan. 2004, p.18], Attorney Kent Russell has rewritten and expanded this tutorial guide to aid pro per prisoners in researching and filing successful habeas corpus petitions in state and federal courts. Although billed as a ?California? handbook, the CHH deals mainly with federal habeas corpus petitions grounded in U.S. Supreme Court precedent; as such, it is relevant to all 2.3 million U.S.
prisoners. Printed in larger type (happily, for aging prisoners), with 40 % more text and updated to include Russell?s popular quarterly Prison Legal News column ?Habeas Hints? through mid-2006, the 5th Edition is also current with 2006 U.S. Supreme Court case law.
Russell explains that this handbook is aimed principally at state prisoners challenging their convictions or sentences. It is not for challenges to conditions of confinement (i.e., 42 U.S.C. § 1983 complaints). And because condemned prisoners are always appointed counsel, Russell advises reliance on those attorneys. [Note: The CHH can yet usefully serve to stimulate any prisoner to raise pertinent questions to his attorney.] The CHH is also ...
Reviewed by John E. Dannenberg
Charles Card was confined at Virginia?s Sussex II State ...
A federal court in Virginia held that subjecting a prisoner to five-point restraints for 46-48 hours on five occasions was cruel and unusual punishment. It also found the lack of procedural protections deprived the prisoner of due process of law.
One enterprising pharmacist has made herself a major player in the drug distribution industry. With an idea that literally was created at her kitchen table Ellen Yankellow and two fellow pharmacists founded Correct Rx, a pharmacy that specializes in prison and geriatric supplies.
Yankellow did not start out to be a major drug distributor. In 1992 she was recruited by Rombro Health Services of Baltimore. Rombro was eventually sold to a company which in turn was involved in a series of mergers. When the dust eventually settled, in 2003, Yankellow found herself unemployed.
?All I knew was that I was out of work, and I was too young to retire,? she said. ?And all I knew how to do was this.?
Yankellow and her two partners Jill Molofsky and Jim Tristani got a loan, a line of credit and got busy. Their success was immediate. Gross profit grew 140 percent during the first two years. Correct Rx began with 14 employees. It now employs 85. After 3 years the company is almost entirely debt ...
Pharmaceutical drug distributors have found a future and a fortune in our nation?s prison system. Record rates of incarceration equal record profits for drug companies.
by David M. Reutter
Despite over 30 years of litigation, mentally ill prisoners at the New Hampshire State Prison (NHSP) are still not receiving care to treat their conditions. In fact, with NHSP adopting the trend of locking prisoners down in Special Housing Units (SHU), NHSP's mentally ill are probably worse off than when litigation started, if that?s possible.
Challenges to NHSP's overall conditions of confinement began when prisoner Jaan Laaman brought suit in federal court in 1975. Relevant to this article, the Laaman action culminated in a 1990 Consent Decree that became a settlement agreement ratified in April 2001 after the original decree was vacated under the Prison Litigation Reform Act, see: Laaman v. Warden, New Hampshire State Prison, 238 F.3d 14 (1st Cir. 2001). That agreement solely focused on the care of mentally ill prisoners and how that care would be delivered. Any violation of the agreement was to be enforced via actions in the state courts.
As so often happens in prison litigation, NHSP and state officials failed to comply with the agreement. By 2004, several NHSP prisoners were forced to bring an action in ...
The Warehousing of New Hampshire's Mentally Ill
by Michael Rigby
On August 29, 2006, a, federal district court in Washington held that a state law allowing jails to confiscate money from prisoners during booking without notice or a hearing was unconstitutional.
In May 2003 the Washington legislature amended RCW 70.48.390, which originally authorized jails to charge a $10.00 booking fee, to charge up to $100.00 to cover the cost of booking. According to the statute, the fees were "payable immediately from any money then possessed by the person being booked into jail." Several jails, including the Spokane and Snohomish county jails, have been actively confiscating money under the statute. If the prisoner has no cash at the time of arrest, the fee is deducted from any money family or friends deposit in the prisoner's canteen fund.
One person unceremoniously separated from his money by the Spokane County Jail is Shawn Huss, who was arrested for alleged domestic violence on October 31, 2004. During the intake process, jailers seized all the cash in his wallet--$39.30--as partial payment of the jail's booking fee of $89.12. Huss was not informed the money ...
Seizure of Washington Prisoners' Cash at Jail Booking Unconstitutional
?From 1993 through 2003, the percentage of TB cases among local inmates increased from 42.8% to 53.5%? The rate among federal prisoners ?increased from 2.9% to 11.8%,? and the state prisoner rate ?decreased from 52.3 in 1993, to 6.6 in 2003, a decline of 87.4%.
California and Texas ?accounted for 42.7% of the 7,820 reported TB cases among inmates from 1993 to 2003, and another 4 states (Florida, Georgia, Illinois and New York) accounted for an additional 28.6% of reported TB cases. These same 6 states accounted for 56.9% of the 200,648 reported TB cases among non-inmates.?
Researchers found that one ?notable reason for the high rates of TB in correctional institutions is the greater proportion of TB in correctional institutions is the greater proportion of persons who are at high risk for ...
The number of Tuberculosis (TB) cases in correctional populations far outpaced the general population between 1993 and 2003, according to a study published in the American Journal of Public Health. TB case rates in the general population remained at fewer than 10 cases per 100,000 people, while correctional rates topped 10 times that amount.
The County of San Diego, California agreed in September 2006 to pay $400,000 to settle an excessive-force wrongful-death lawsuit brought by the family of a prisoner who died on February 2, 2001 in the Otay Mesa Jail after being hog-tied by sheriff?s deputies.
by John E. Dannenberg
Since that firing, six of those eight employees have been reinstated to their jobs. Of those six only two are currently working for the Sheriff, at the county jail. Two other officers, a sergeant and a lieutenant, received unpaid suspensions; Freeman also issued written reprimands or counseling letters to three more staff members.
PLN has previously reported on Nichols? violent escape from the Fulton County courthouse, which started when he overpowered a deputy and took her gun. See: PLN, April, 2006. Nichols used that gun to kill the judge presiding over Nichols? rape trial. After shooting Judge Rowland Barnes, Nichols shot and killed the court reporter, Julie Ann Brandau. As he fled the courthouse Nichols killed Sgt. Hoyt Teasley; later that day he also fatally shot U ...
After the March 11, 2005 killing rampage by Brian G. Nichols at an Atlanta courthouse, Fulton County Sheriff Myron Freeman talked tough about punishing officers who failed to perform their duties or lied during the ensuing investigation. He initially followed through by firing eight people, including Maj. Orlando Whitehead, Maj. Lucious D. Johnson, Capt. Chelisa Lee, Lt. Twantta Mathis, Sgt. Jerome Dowdell, Deputy Paul Tamer, Deputy Joel Middlebrooks and detention officer Barron Ross.
The U.S. District Court for the Middle District of Pennsylvania held that a 1997 state ballot constitutional amendment, which modified Pennsylvania?s commutation laws to require a unanimous vote rather than a simple majority of the Board of Pardons to initiate pardons or commutations of death or life-sentenced prisoners, was an ex post facto law that caused ?individual disadvantage? to all such prisoners who applied for pardons.
The non-profit Pennsylvania Prison Society, represented by attorney Ernest Preate, Jr., filed a complaint against Governor Edward Rendell in state court in October 1997, challenging a then-pending November 1997 ballot initiative that would make it easier for the state to stifle commutations and pardons. Subsequently approved by the voting public, the amendments to the Pennsylvania commutation process provided that a unanimous vote of the Board of Pardons (concurrently reformulated to replace an attorney on the Board with a crime victim) was required to place the matter before the Governor. The gravamen of the plaintiffs? complaint was that the application of the amendment to prisoners sentenced to life before its passage impermissibly increased the measure of punishment as applied to them.
While the court agreed with defendants that the ...
by John E. Dannenberg
Illinois prisoner Gene Arnett and two other prisoners attempted to escape from Tamms Correctional Center (Tamms) in May 2000. They used hacksaw and jigsaw blades to attempt to cut through bars in their cell windows.
When prison officials discovered the escape attempt they told the media ?that the saw blades might have been hidden in the binding of a hardcover book delivered as legal mail?., that such mail typically comes from attorneys, and that the law prohibits them from searching legal mail.?
Internal affairs investigated the escape attempt and prepared an investigation report. Arnett was subsequently charged criminally with the escape attempt, and received the Internal Affairs report through discovery.
When prison officials learned that Arnett had the report, they seized it from his cell, redacted guard?s home addresses and returned the redacted copy to Arnett. Tamms Warden, George Welborn, and DOC?s in-house counsel requested that the Attorney General?s office intervene in Arnett?s criminal proceeding, seeking a protective order barring public access to the ...
The Illinois Court of Appeals held that prison officials violated a prisoner?s First Amendment free speech rights by refusing to allow him to mail an investigative report out of the prison.
California?s 16-year-old prisoner mental health federal lawsuit (originally, Coleman v. Wilson) was given new and urgently needed life on May 2, 2006 when a frustrated U.S. District Judge (Emeritus) Lawrence K. Karlton ordered the California Department of Corrections and Rehabilitation (CDCR) to activate 125 intermediate inpatient mental health beds and 75 mental health crisis beds by May 30, 2006 to absorb the 123-bed long waiting list for prisoners in need of critical mental health care. The court further approved CDCR?s plan to commence building a $111 million mental health hospital within the confines of Salinas Valley State Prison (SVSP) which will house 200 maximum security patients. The court disapproved CDCR?s long-range plan for enhanced mental health care beds because CDCR?s own projection showed that plan would result in a shortfall of 1,000 needed beds by the year 2011; the court ordered an amended plan be submitted.
Of CDCR?s 172,000 prisoners, approximately 31,000 are known to be mentally ill. The majority are classified as CCCMS and can safely live in the general population while taking psychotropic medications. But severely mentally ill prisoners need ?crisis beds? in a mental ...
by John E. Dannenberg
by David M. Reutter
A class action lawsuit filed on behalf of prisoners at the Mississippi State Penitentiary at Parchman charged that the totality of conditions are so "hellish" that it makes "Unit 32 the worst place to be incarcerated in Mississippi, perhaps the nation." The suit forced prison officials into a consent decree to upgrade Unit 32's conditions.
Unit 32 is a supermax facility that comprises five buildings, housing around 1,000 men. It imposes forced lockdown of 23 to 24 hours a day in total isolation. Many prisoners have been there for years. Often, they are confined for arbitrary reasons such as being HIV-positive, have special medical needs, are severely ill, or have requested protective custody. Generally, prisoners are not given advance notice or an explanation why they have been placed in Unit 32, nor do they receive information on how they can be removed from there.
With enforced idleness and isolation being imposed, the mentally ill regress, making the unit into a miniature hell. Those prisoners scream, moan, curse, make animal noises, engage in maniacal laughter, and have hallucinatory ravings. This prevents those holding onto their sanity from ...
Cleaning up Mississippi's Supermax: Conditions Suit Settled
Forrest, who had a history of courtroom violence, was standing trial, on Wednesday July 12, 2006, for three felony charges. He became enraged when the judge would not allow him to fire his attorney Sam Dixon.
Despite the fact that Forrest was fully restrained he managed to overpower a deputy and wrestle away his gun. He was immediately pinned against a wall but still managed to fire off two shots. One shot went wild while another struck a deputy in the arm. A total of six shots were fired during the scuffle that fatally wounded Forrest.
?He was almost like a wild animal,? said Dixon. ?I really have never seen anything like it in my life.?
But attorney George Hughes had seen first-hand how violent Forrest could become. In January 2005, Forrest stood trial for kidnapping his aunt at knifepoint. Hughes was his attorney.
When a jury returned a guilty verdict Forrest viciously attacked Hughes. It took five deputies to stop the assault.
Hughes suffered a fractured skull, his right cheekbone was broken, his left eye was ...
Willie Forrest, 37, was fatally shot by a Northampton sheriff?s deputy, after he grabbed another deputy?s gun and fired two shots.
The abhorrent quality of correctional health care not only violates prisoners? constitutional rights, it costs taxpayers millions of dollars and threatens the general health of communities surrounding these facilities. Understanding why prisoners die is an essential first step in identifying the major pitfalls of our health care system. Passing legislation to correct these problems is the crucial next step.
Therefore, Congress should extend and strengthen the Deaths in Custody Reporting Act, or DICRA, before it expires at the end of this year.
An investigative series revealing the questionable circumstances surrounding thousands of deaths in police and prison custody led former Representaive Asa Hutchinson to introduce DICRA in 2000. Before DICRA, data collection on prison deaths was incomplete, mostly because states lacked the incentive to participate ...
While the human rights abuses of prisoners detained in Guantánamo Bay and the Middle East have sparked widespread criticism and debate in this country and abroad, surprisingly little attention has been focused on the treatment of citizens imprisoned within our borders. Each year, approximately 7,000 Americans die in U.S. prisons and jails. Some of these deaths are from natural causes, but many more result from mental disorders left undiagnosed and diseases left untreated.
On September 29, 2006, Governor Arnold Schwarzenegger vetoed legislative bills that would have permitted better access to public records, condoms in state prisons as well as media access to specified prisoners.
The public records access bill (AB 2927) would have made public agency records requests available on the Internet. Any denials of requests for access would have been routed to the Attorney General, who would have been required to give a written opinion within 20 days. Additionally, tardy responses by public agencies would have subjected them to up to $10,000 fines. ?Right now, in California, someone who makes a request that is denied by a state or local agency has only two options. One is to sue ... and the other is to walk away with his tail between his legs,? said Thomas Newton, general counsel of the California Newspaper Publishers Association. Schwarzenegger, who ran for office on a platform of ?transparency in government,? reneged, pooh-poohing the bill as ?unduly burdensome? on the Attorney General. AB 2927 had passed both houses of the state Legislature unanimously.
The condom bill (AB 1677), authored by Assemblyman Paul Koretz, would have permitted non-profit healthcare agencies to make condoms available ...
by John E. Dannenberg
by John E. Dannenberg
In his first bi-monthly accounting to his boss (U.S. District Judge Thelton E. Henderson), California's Prison health-care Receiver ("CPR") Bob Sillen concluded that the California Department of Corrections and Rehabilitation's (CDCR) health-care situation was even worse than earlier reports indicated and that therefore "the remedies [needed] may be more dramatic, far-reaching and difficult to achieve than previously envisioned." The hard-hitting July 2006 33-page report is based upon Sillen's personal on-site visits and meetings with the parties' attorneys and dozens of state employees, including Governor Schwarzenegger (whose earlier flip comment of impending federal CDCR takeover, "Let them take it. It's no sweat off my back," still reverberates in the media). Sillen also met with state agency heads, CDCR executives, guards, health-care clinicians at five prisons, prisoner/patients, and union officials of all major bargaining units involved with CDCR. Additionally, Sillen dug into budget proposals, internal affairs investigations, policies and reports of the court's experts. He has set up offices at 1731 Technology Dr., Suite 700, San Jose, CA 95110 and hired a dozen key staff.
Addressing the "state of the State ...
California DOC Medical Receiver's Initial On-The-Job Impression: "Conditions Disgraceful"
According to a report released by the U.S. Department of Justice?s Bureau of Justice Statistics in April, 2006, the U.S. spent a record $185 billion for police protection, detention, and judicial and legal activities in 2003. This represented a 418% unadjusted increase over 1982 justice expenditures. Adjusting for inflation, real justice expenditures almost tripled.
Local governments funded 50% of the $185 billion while state governments accounted for another 33% of the expenditures. This means that state and local governments spent four times more on justice than on education and twice as much as they spent on public welfare. Justice expenditures equaled hospital and health care expenditures at the local and state level.
The justice system employed almost 2.4 million people in March 2003--58% of them at the local level and 31% at the state level. That month?s justice employee payroll was about $9 billion.
Justice expenditures increased as follows per U.S. citizen between 1982 and 2003: Overall-418%; detention-423%; police-241%; justice and legal expenditures-321%.
Federal intergovernmental justice expenditures increased from $189 million is 1982 to over $5.1 billion in 2003. This was driven by the creation of multiple large law ...
by Matthew T. Clarke
by John E. Dannenberg
Prior to leaving office, on August 16, 2006, then New York Governor George Pataki (R)vetoed Assembly Bill No. 3926-A, which would have provided $280 - $380 million to construct Residential Mental Health Treatment Programs (RHMTP) to house and control the behavior of seriously mentally ill New York state prisoners who are being disciplined by placement in administrative segregation (Special Housing Units (SHU)). Pataki essentially belittled the RHMTP concept as the coddling of mental miscreants, overlooking New York prison statistics revealing the tripling of suicide and self-mutilation rates of seriously mentally ill prisoners when placed in the SHU. Pataki?s veto message, wherein he admitted he had been "convinced by ... dedicated [prison] professionals," argued that providing special treatment for seriously mentally ill prisoner- disciplinees "would invite the feigning of illness ... to avoid SHU confinement."
Approved unanimously in the Senate, and 133-6 in the Assembly, the bill was intended to put New York on the forefront of prisoner serious mental illness treatment. The legislature recognized that 12 percent of New York's prison population suffers from serious mental illness, rising to 23 percent of the 7 ...
New York's Governor Vetoes New Treatment Facilities For Mentally Ill Prisoners
In June, 2006, Prison Legal News won the right to gain media investigative access to federal Bureau of Prisons (BOP) records regarding lawsuits by prisoners, employees, contractors and visitors without payment of search and copying fees, pursuant to PLN's request under the Freedom of Information Act (FOIA) (5 U ...
The Colorado Supreme Court has held that a person on parole does not have a right to vote. That ruling came in an appeal filed by Pastor Michael Danielson after the District Court for the city and County of Denver dismissed his suit against Colorado's Secretary of State (Secretary).
Danielson was prohibited from registering to vote by the Secretary on grounds that section 1-2-103(4), C.R.S. (2005) provides that no person "serving a sentence of parole shall be eligible to register to vote or to vote in any election." Danielson, who was on parole, challenged the statute as being unconstitutional under Article VII, section 10 of the Colorado Constitution.
The Supreme Court found that except for his status as a parolee, Danielson is an eligible elector. The Court then held the statute barring him from voting while on parole is constitutional. While parole did not exist when Colorado adopted its constitution, the Legislature was not "constrained from punishing crimes with sentences that include custody while the convicted person is being transitioned to community and before restoration of his or her full rights." Legal custody is a long-prevailing view of parole, the Court ...
Colorado Parolee's Disenfranchisement Upheld
Now the MDOC uses a skin test where a serum is injected under prisoners? skin, turning the skin red if the prisoner has TB. The problem is that the skin test, according to a recent British study, could result in up to 65 percent of TB positive people getting the wrong treatment if no other testing is done. The skin test simply isn?t accurate.
Even so, the MDOC?s chief medical officer, Dr. Kentrell Liddell, decided in June, 2006, that the skin test is all that will be given to incoming prisoners from now on. She made this decision knowing that TB, an airborne disease, spreads 10 times faster among prisoners because of the close proximity in which they?re housed.
But Mississippi prisoners may avoid being sacrificed to TB by uncaring prisoncrats yet. This is so because there is a new machine that produces accurate test results, and, in the ...
For many years the Mississippi Department of Corrections (MDOC) has led the nation in controlling tuberculosis (TB) in its prison system. This was accomplished by giving chest x-rays to all incoming prisoners to determine whether they had the disease. Unfortunately this practice has been terminated to save money.
On September 15, 2006, a jury in Willacy County, Texas awarded $47.5 million to the family of a prisoner who was murdered at a private prison operated by the Geo Group (formerly Wackenhut Corrections). The Florida-based company was spun off from Wackenhut's parent corporation in 2003 [see PLN ...
The Ninth Circuit Court of Appeals upheld the dismissal of an Idaho prisoner's suit for non-exhaustion, concluding that the Prison Litigation Reform Act (PLRA) applies to private prisons. The court also held that confiscation of magazines is a "prison condition" under the PLRA.
Raymond Roles is a prisoner of the Idaho Department of Corrections, housed in a private prison operated by Corrections Corporation of America, Inc. (CCA). A CCA guard confiscated eight magazines from Roles' cell because he kept them more than 6 months.
Roles did not grieve the confiscation before filing suit alleging that the confiscation violated the First Amendment, and state law. The district court dismissed the suit for non-exhaustion under 42 U.S.C. § 1997e(a).
The Ninth Circuit joined the Sixth, Tenth and Eleventh Circuits in concluding, based upon statutory language and Congressional intent, that the PLRA's "exhaustion requirement plainly applies to private prisons."
The court also rejected Roles' argument that the confiscation of magazines is not a "prison condition" within the meaning of § 1997e(a). Although the PLRA does not define "prison condition" the Supreme Court construed the ...
9th Circuit Holds § 1997e(a) Applies to Private Prisons; Magazine Confiscation Is a "Prison Condition"
The California Department of Corrections and Rehabilitation (DOC) appealed an order awarding state prisoner Carlos Escamilla $255 for property that turned up missing. Escamilla petitioned for a writ of habeas corpus to receive reimbursement. The DOC claimed that precluded his award under the California State Tort Claims Act (CSTCA). The award was affirmed on appeal.
Escamilla was escorted to segregation after a riot ensued at his DOC facility. Sergeant Valenzuela stopped him and told him he was going to the "hole." Escamilla requested that his canteen items, which he had just purchased for $70 and was trying to get back to his cell when the riot happened, be placed with his property. Valenzuela said "No! That goes in the trash!" In view of guards, he placed his Levi's, Reebok shoes, a Nike sweatshirt, and a Seiko watch in his canteen bag. His property wasn't returned to him when he was released from segregation. When grievances failed, Escamilla petitioned for a writ of habeas corpus to receive reimbursement. The DOC claimed the writ didn't satisfy the CTC and that it should have been a writ of mandamus. The court awarded ...
$255 Awarded For Destruction of Prisoner's Property
Proposed by State Sen. Laura M. Toy, R-Livonia the law was signed into effect by Gov. Jennifer Granholm on April 5, 2006.
The law only affects municipalities with populations exceeding one million residents. Neither is it a new development. For years state law has allowed county jails to seek reimbursement. City jails are only now being included.
Reimbursement charges will target the cost of medical treatment, examinations, dental care and prescription drugs. Prisoners? financial status will be investigated and the court may invoke liens against real estate, personal property, cash accounts ?and any other possessions of significant cash value.? Only a defendant?s homestead is excluded from attachment by the bill.
The municipality is entitled to seek an ex parte restraining order to prevent a defendant from disposing of property before it is attached.
Prisoners who fail to cooperate with a court?s investigation of his or her assets forfeits any entitlement to a sentence reduction. Failure to pay incarceration costs can result in the revocation of probation.
?I concur with this ...
Under a law passed by Michigan legislators prisoners can now be required to pay up to $60 per day for the cost of their incarceration in city jails.
by Gary Hunter
Immediately upon taking office, in January 2005, New Jersey Department of Corrections (DOC) Commissioner George Hayman imposed a total ban on media interviews with prisoners. DOC spokesman Matthew Shuman said the policy was put in place because of security concerns.
"Anything can happen in prison," said Schuman. "The press still has the option of writing to inmates if they have questions."
Peter Sussman, author, journalist and an expert on prison/media relations calls the ban the tightest in the country. Journalists are not allowed to interview, accept collect calls or visit with prisoners.
Edward Barocas, legal director of New Jersey's American Civil Liberties Union pointed out that refusing to allow reporters to be placed on a prisoner's visitation list restricts their rights as citizens.
"Such a practice would appear to violate freedom of speech and freedom of the press, which are crucial to ensuring government accountability," said Barocas. "When journalists are not allowed into a prison, you have to wonder what could be covered up and why."
Others hold similar concerns. Edward Martone is director of education and policy for the Association of Correction. He ...
New Jersey Prison Commissioner's Complete Ban On Media Lifted
The Ohio Supreme Court has held that the state may collect court costs from an indigent criminal defendant, including collection from a prisoner's account.
Before the Court was the appeal of Michelle Threatt, who was ordered on August 15, 2003, to "pay costs of execution for which execution is granted." The Court said it had already ruled in State v. White, 103 Ohio St.3d 580, 817 N.E. 2d 393 that R.C. 2947.23 requires a court to assess costs against all convicted defendants. Upon motion by the defendant, the court could waive those costs. White left open the methods available for the clerk to make collection.
The Court held that R.C. 5120,133 (A) "permits The Department of Rehabilitation and Correction to deduct payments toward a certified judgment from a prisoner's account without any other required proceeding in aid of execution."
The Court noted that the judgment could be reduced by performing community service. Moreover, indigent defendants also have "available those defenses and protections that are available against civil collection methods." The Court finally, held that the time to appeal a judgment for ...
Garnishment of Ohio Prisoner's Account Permitted to Pay Court Costs
This action arose after Tennessee prisoner Ashad R.A. Muhammad Ali was denied parole for various offenses committed in 1985 that resulted in thirty years imprisonment. On July 24, 2000, Ali received a parole hearing. The Parole Hearings Division of the Tennessee Board of Pardons and Paroles (Parole Board) denied parole on the ground that ?[t]he release from custody at the time would depreciate the seriousness of the crime of which the offender stands convicted or promote disrespect of the law.? Ali appealed the decision, but received notice on December 12, 2000 that the full Parole Board had denied parole.
Ali then filed state court actions challenging his parole denial on the basis that it violated the Ex Post Facto Clause by using regulations enacted after his conviction rather than ...
The Sixth Circuit Court of Appeals has held that the 90-day period to apply for certiorari review to the U.S. Supreme Court tolls the one-year statute of limitations for habeas corpus actions challenging parole denial. In so holding, the Court extended its decision in Abela v. Martin, 348 F.3d 164 (6th Cir. 2003), which applied the tolling period to actions challenging a state court judgment of conviction.
McDonald, 42, first fell into legal troubles in 1991 when he was a sheriff?s deputy at the Richmond City Jail. An admitted cocaine addict, McDonald was arrested for possession of cocaine with intent to distribute and for attempting to supply a prisoner with marijuana.
Convicted in July 1992, he was sentenced to six years in prison; he served one year in Henrico County?s Jail West before being paroled.
During his incarceration the ex-sheriff?s deputy embraced the Christian faith under the tutelage of jail chaplain Quillie Boone. Once McDonald was released, then-Sheriff Toby Matthews allowed him to return to the jail in a ministerial capacity under Boone?s supervision.
McDonald eventually became a full-time chaplain with the Good News Jail and Prison Ministry, and Henrico County Sheriff Mike Wade allowed him to continue to visit the facility after Boone retired in 2000 ...
Toney Leon McDonald, an ex-sheriff?s deputy and now ex-prison minister, was arrested on May 17, 2006 on four counts of sexual misconduct with a 23-year-old female prisoner. After posting a $25,000 bond, McDonald surrendered to authorities a second time on May 19, 2006 on charges of having oral sex with a different jail prisoner.
The settlement comes in a class action filed in a Connecticut federal district court. The class is estimated to encompass ...
The State of Connecticut has entered into a settlement agreement that will cost it $2.5 million for a correctional policy of strip searching all detainees regardless of their charges.
This class action suit was brought by ADTC prisoners, alleging violations of their First, Eighth and Fourteenth Amendment rights. ADTC is a prison for the treatment of prisoners who have been convicted of sexual offenses and found to be compulsive and repetitive in their offending behavior. As such, they are the most despised and reviled prisoners in the prison system, causing them to be harassed and physically assaulted by other state prisoners whenever they are exposed to those prisoners, such as when they are transported to and detained in other prisons.
An example cited by the Court was the assault of ADTC prisoner Paul Cornwell, who was transported from ADTC to the New Jersey State Prison for treatment of a herniated disc. After receiving treatment, he was transported to the Garden State Correctional Facility, where he was placed in a holding cell with another ADTC prisoner and about twelve other state prisoners for about three hours.
Two guards stood ...
A New Jersey federal district court has issued a preliminary injunction requiring prison officials at the Adult Diagnostic and Treatment Center in Avenel, New Jersey (ADTC) to protect and segregate ADTC prisoners when transporting them to medical appointments or court appearances.
James Phillips was a prisoner in the county jail for Jasper County, Missouri. As a result of a previous head injury he suffered from frequent seizures. John Freitas, the jail physician, prescribed a seizure medication called Depakote to control his seizures, but guards at the jail didn?t allow Phillips to have it. The guards also assigned him to a top bunk and denied his requests to be moved to a bottom bunk.
Not surprisingly, Phillips eventually had a seizure while he slept in the top bunk. As a result, he fell to the floor where he sustained injuries to his head, neck and spine. He then filed suit in the U.S. District Court for the Western District of Missouri under 42 U.S.C. § 1983. He claimed that the doctor and guards had been deliberately indifferent to his serious medical needs in violation of the 8th Amendment to the U.S. Constitution. Among the defendants were Dr ...
The U.S. Court of Appeals for the 8th Circuit has reversed a federal district court?s grant of summary judgment to jailers who denied seizure medication to a prisoner, who then fell from a top bunk while having a seizure.
DCS tests urine samples for drugs using the fluorescence polarization immunoassay (FPIA) method, which is approximately 95 percent accurate. If the test is positive, a second test is performed. Prisoners may obtain independent gas chromatography/mass spectrometry (GC/MS) tests at their own expense. During disciplinary proceedings, the laboratory technician who performed the FPIA test submits a written statement of the procedures used, but the prisoner may not call the technician as a witness.
Present and former DCS prisoners brought suit claiming that the drug-testing procedures deprive them of due process. The district court rejected their claim.
The Eighth Circuit affirmed, rejecting plaintiffs? arguments that the DCS drug-testing procedures were unconstitutional, because: (1) they do not allow the prisoner to sign and seal the specimen after collection; (2) the State does not conduct GC/MS tests on samples that test positive; and (3) the technician does not testify during disciplinary hearings. The court found that the Nebraska regime provides greater procedural safeguards than it approved ...
The Eighth Circuit Court of Appeals upheld a lower court?s decision that Nebraska?s Department of Correctional Services (DCS) urine sample collection and testing procedures do not deprive prisoners of due process of law.
by Michael Rigby
On December 16, 2005, a federal district judge ruled that the Will County, Illinois jail routinely violated prisoners' Fourth Amendment rights by subjecting them to a blanket strip search policy, paving the way for a potential multi-million dollar damage award.
In May 2003, Javar Calvin, William Moore and Charles Davis filed suit in the U.S. District Court for the Northern District of Illinois pursuant to 42 U.S.C. § 1983, challenging the Will County Adult Detention Facility's policy of strip searching all arrestees regardless of their supposed offense and without any individualized suspicion.
All three plaintiffs were strip searched at the jail following their arrest on what turned out to be erroneous failure to appear warrants. Within two days a judge had ordered their release. Before this happened, however, each plaintiff had been returned to the jail for processing, where they were strip searched again.
On May 17, 2004, Judge Robert Gettleman granted the plaintiffs motion for class action certification. The class consisted of two subclasses of prisoners who were strip searched at the jail after May 7, 2001 -- those arrested for minor offenses such as traffic violations ...
Illinois Jail's Strip Search Policy Unconstitutional
by John E. Dannenberg
The Ninth Circuit U.S. Court of Appeals held that a walkaway from a federal halfway house did not fit the categorical "crime of violence" definition for career offender under U.S. Sentencing Guidelines (U.S.S.G.) § 4B1.1, notwithstanding that the U.S. Supreme Court had ruled in Taylor v. United States, 495 U.S. 575 (1990) that all escapes, as a matter of law, constitute crimes of violence.
Frazer Piccolo left the Clark County (Nevada) Community Corrections Center, a non-secure halfway house, on April 9, 2003 to attend a drug treatment meeting. He didn't return, and subsequently turned himself in on February 25, 2004 and was charged with escape pursuant to 18 U.S.C. § 751(a). The U.S. District Court strictly followed Taylor, and in light of Piccolo's criminal record, sentenced him as a career offender under § 4B1.1.
On appeal, Piccolo argued that a walkaway escape was irreconcilable with statutory definitions of "violent offenses." In § 4B1.2, for example, escape is not expressly enumerated. Nor does escape have as an element the use, attempted use or threatened use ...
BOP Halfway House Walkaway Is Not Federal "Crime of Violence"
Wolf was held in solitary confinement at BCDC on a murder charge. He is certified by the U.S. Department of Interior Bureau of Indian Affairs to be a member of the Cherokee Nation. His testimony at a court hearing was that he worships alone with the feather in a personal ceremony. Without the feather, he can?t pray to the Great Spirit. The feather can be an eagle, owl or hawk feather. The eagle is the most powerful, and Wolf requested BCDC officials to allow him an eagle feather, which is a foot or one and a half feet long and black tipped.
His request winded its way to Sheriff Keith Ferguson and Captain Hunter Petray. They mulled it over and sought advice of legal counsel.
Ultimately, they refused Wolf?s request on three grounds. First, they believed a prayer feather could be used as a weapon; they submitted it could ...
An Arkansas federal district court has held that a Native American prisoner has a constitutional right to possess or use a prayer feather for religious purposes. This action was brought by Billy Joe Wolf, complaining about acts while he was imprisoned at Arkansas? Benton County Detention Center (BCDC).
The First Circuit Court of Appeals has reversed a New Hampshire federal district court's summary judgment order concluding that a prisoner failed to demonstrate that prison officials violated his rights under Title II of the Americans with Disabilities Act (ADA).
While imprisoned at the New Hampshire State Prison (NHSP), prisoner Matthew Kiman began exhibiting signs of a disability in 1997. He first experienced numbness and pain in his left leg and buttocks. He met with NHSP's nurse and physical therapist several times between October and December 1997. On December 17, he reported having weakness and pain in his left shoulder. He paroled to serve a sentence in Massachusetts and missed an appointment on January 8, 1998, to see NHSP's doctor.
After a total release from imprisonment, Kiman had an April 1998 appointment with Dr. Jay Smith, who noted atrophy in Kiman's muscles and fasciculation (involuntary contractions and twitching) along both sides of his body. A subsequent consultation with a neurologist did not reach a conclusive diagnosis, but that specialist believed Kiman might have a motor neuron disease or muscular dystrophy.
Kiman had been bounced between several prison ...
New Hampshire Prisoner's ADA Claim Survives Summary Judgment
Arkansas: On October 12, 2006, Michael Bolton, 25, a prisoner at the East Arkansas Regional Unit in Brickys was stabbed and killed during a fight with fellow prisoner Dale Pierce, 26.
Brazil: In July, 2006, the nation?s judiciary ordered that cell phone blockers be installed in the nation?s prisons and jails to impede cell phone communication among prison gangs. The order was given by Judge Ritinha Stevenson of the 20th Federal Civil Court in Sao Paulo.
California: In September, 2006, the Amador county board of supervisors denied a Department of Corrections request to add 400 more prisoners to the Mule Creek State Prison citing the prison?s inability to handle the sewage generated by prison now. Julio Guera, the operator of the city?s wastewater treatment plant recently toured the prison sewage treatment facility and called it ?hopelessly overloaded.?
Connecticut: On April 9, 2006, George Smith, a guard at the Janet York Correctional Institution for women was charged with sexually assaulting a female prisoner ...
Alabama: On August 21, 2006, Baldwin county jail guard Jorge Quezada, 20, was fired for failing to monitor jail prisoner Ross Paul Yates who died after being handcuffed to a wall for several hours.
The Sixth Circuit Court of Appeals affirmed the denial of qualified immunity to eleven prison officials in the isolation, dehydration and death of a Michigan prisoner.
A "heat alert" was issued for Ionia Michigan from June 29, 2002 to July 5, 2002 because temperatures exceeded 85 degrees. The Bellamy Creek Correctional Facility (BCCF) is located in Ionia and subject to the alert.
On June 19, 2002, BCCF prisoner Jeffrey Clark collapsed outside the chow hall while waiting in line. He was crying and incoherent. Guards believed he had mental, rather than physical, problems and took him by wheelchair to an observation cell.
While in the cell, Clark barked like a dog and screamed. Guards believed he was "faking" while others believed he needed psychological services.
When guards "attempted to move Clark to his regular cell, Clark 'stiffened up and his legs just gave out.'" Guards believed Clark "planned to leave his cell and was 'a manipulator.'" He was returned to the observation cell.
For some reason, on June 30, 2002, the water in the observation cell was turned off. Clark was banging on the door, barking, yelling and unresponsive. No attempt ...
No Qualified Immunity for Michigan Prisoner's Heat-Dehydration Death