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Prisoner Education Guide

Prison Legal News: June, 2007

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Volume 18, Number 6

In this issue:

  1. The Political Economy of Prison and Jail Litigation (p 1)
  2. Florida’s Broward County Jail: Abuse and Misconduct As Usual (p 12)
  3. From the Editor (p 12)
  4. Suicides Plague Wisconsin Jails; Attempted Suicide Suit Settles for $13.1 Million (p 14)
  5. Dr. Yank: Washington Prison Dentist Nearly Kills Patient (p 16)
  6. Landmark Settlement Reduces SHU Time, Increases Treatment Of New York Prisoners With Mental Illness (p 17)
  7. Maryland Restores Voting Rights to 50,000 Felons (p 19)
  8. Missouri Legislature Allows Wrongfully Convicted to Receive Compensation (p 20)
  9. Supreme Court: California’s Law Permitting Suspicionless Police Search of Parolees Does Not Violate Fourth Amendment (p 20)
  10. Increasingly Repressive Sex Offender Residency Restrictions Have Doubtful Benefits (p 21)
  11. Phoenix, Arizona Sheriff’s Policy Delaying Prisoners’ Elective Abortions Enjoined (p 22)
  12. Alaska Jail Settles Alcohol Withdrawal Death Case For $573,000 (p 22)
  13. Colorado Successfully Pressures FBI To Release DNA Info; Racial Bias Infects DNA Databases (p 23)
  14. Guards Convicted of Stealing, Bringing Drugs into Washington State Private Jail (p 24)
  15. Disallowing Printed E-Mail Responses To Wisconsin Prisoner’s Web Page Raised Triable Issues of Fact (p 24)
  16. BOP Cancels Solicitation of Proposal for Single-Faith Program (p 26)
  17. Lifetime Supervision or Lifetime Incarceration for Colorado Sex Offenders? (p 26)
  18. Louisiana Prisoner Denied Religious Materials Under “Approved Vendor” Policy Settles Suit for $21, 786.13 in Damages and Fees (p 27)
  19. Study: Supermax Prisons Achieve Control While Inflicting Debilitating Side Effects, But Don’t Reduce Recidivism (p 28)
  20. California Sheriff Criticized on Injury Non-Treatment After Use of Force (p 29)
  21. South Carolina Prisoner Awarded $4,000 For Fall, Broken Ankle (p 30)
  22. Human Rights Watch Urges Access to Condoms in U.S. Prisons and Jails (p 30)
  23. Private Prison Companies Bilk Florida Taxpayers Out of Millions (p 32)
  24. $30,000 Award in Hawaii Medical Negligence Suit (p 32)
  25. Los Angeles County Jail Visitor’s Injury After Scuffle With Deputies Settles For $150,000 (p 33)
  26. Florida Court Without Jurisdiction to Impose Confinement Condition Sanctions at Sentencing (p 33)
  27. City of Detroit Must Record Suspect Confessions; $4 Million Wrongful Incarceration Award (p 34)
  28. Excessive Force And Medical Negligence Death In Youngstown, Ohio Arrest Settles For $350,000 From Police, $100,000 From PHS (p 34)
  29. U.S. Supreme Court: State Felon’s Deportation Order Reversed Where Underlying Offense Amounted Only to Federal Misdemeanor (p 35)
  30. $248,000 Jury Award for Inhumane D.C. Jail Conditions (p 35)
  31. Fifth Circuit Remands Texas Prisoner’s Retaliation Claim, Adopts De Minimis Standard (p 36)
  32. Harsh Federal Parole Conditions for Federal Sex Offender Upheld (p 36)
  33. California Prison Guards Awarded $440 Million Retroactive Pay Increase (p 37)
  34. Second Hawaii Sex Assault Case Settled for $25,000 (p 37)
  35. $2.5 Million Settlement in Schenectady County Strip Search Suit (p 38)
  36. California Governor’s Parole Veto Reversed by Federal Court (p 38)
  37. New York Jail’s Juvenile Education Suit Returns to District Court (p 39)
  38. Ninth Circuit: Prisoner is Protected by Legal Privilege but Not Marriage Privilege When Writing His Lawyer-Wife (p 40)
  39. Federal Prisoner’s Criminal Assault Conviction Reversed; Entitled to Raise Self-Defense (p 40)
  40. Washington Indigents All Get Experts at Public Expense (p 41)
  41. New York Prisoner Beaten By Unofficial Enforcer Awarded $500,000 (p 41)
  42. News in Brief: (p 42)
  43. Alaska DOC Liable for Rape of Federal Prisoner by Prison Doctor (p 44)

The Political Economy of Prison and Jail Litigation

by Margo Schlanger*

This article explores the practical effects of the prisoner civil rights docket on conditions of incarceration for the 2.2 million people in American jails and prisons on any given day.1 The analysis takes on a great deal more importance than it ideally would because detention facility litigation is unique in its regulatory importance. Whereas in most other areas of governmental activity, other accountability mechanisms have pride of place, we have as a polity largely failed to implement any other effective regulatory system to govern our burgeoning incarcerative apparatus; at least in many states, litigation is just about the only reform tool available. It is unlikely to live up to the need. But what is suggested below is that in a variety of ways, detention litigation at least pushes jail and prison administration in the right direction, towards more rationality and more humane conditions. This process has been undermined by the Prison Litigation Reform Act, passed a decade ago. But litigation remains a vital ameliorative force for improvement if not radical reinvention of detention policy.

I. The Limits of Constitutional Regulation

An investigation of detention facility litigation should start with an acknowledgement of its limits. Jails ...

Florida’s Broward County Jail: Abuse and Misconduct As Usual

Florida's Broward County Jail: Abuse and Misconduct As Usual

by David M. Reutter

Despite Florida's Broward County jail (BCJ) being under the supervision of a court-appointed monitor, recent incidents reveal prisoners are still at danger. BCJ has been under supervision since a 1994 consent decree that settled a conditions of confinement lawsuit filed over thirty years ago. See: Carruthers v. Jenne, USDC SD FL, Case No. 76-6086-CIV-WMH. "One would think that thirty years is plenty of time to get it right, but BSO [the Broward Co. Sheriff's Office] can't get it right. So the case goes on," said Broward Public Defender Howard Finkelstein.

The court-appointed monitoring did not help Dana Clyde Jones, 44, who was found lying in a pool of clotted blood on BCJ's seventh floor on December 16, 2005. As of June 2006 he remained hospitalized with extreme brain damage; he is not expected to recover. Jones suffered from severe mental illness and was jailed for punching his elderly mother.

"We want to determine first why a prisoner with a serious mental illness was housed where he was housed," said Eric Balban, a Washington D.C. attorney at the ACLU's National Prison ...

From the Editor

As this issue goes to press we are finishing the revamped PLN website which will have all the great content our previous site did as well as still more briefs, publications, reports and cases than our previous website did. The feedback we received from users about our old site was that it was not as easy to use as many had hoped. The new site has many new search capabilities and is much more user friendly, more visually appealing and better designed.

It has all back issues of PLN in both a PDF format and also in a searchable database. PLN?s website has thousands of prison and jail court cases and other information, far beyond what the magazine can publish in print format. Visit our website at www.prisonlegal news.org. For prisoners who do not have internet access, encourage friends and family members to visit our site as well.

The upcoming PLN anthology, Prison Profiteers is on schedule to be available at the beginning of the new year from the New Press and PLN will be distributing it as well. The book, which is edited by myself and Tara Herivel, examines who actually benefits from current US policies ...

Suicides Plague Wisconsin Jails; Attempted Suicide Suit Settles for $13.1 Million

by Matthew T. Clarke

There has been a rash of suicides in Wisconsin jails, including six in 2005 and four in the first half of 2006. One jail, in LaCrosse County, experienced prisoner suicides in 1997, 2002, 2005 and 2006. La Crosse County Sheriff Mike Weissenberger blamed the problem on ...

Dr. Yank: Washington Prison Dentist Nearly Kills Patient

by Rick Anderson

If anyone really needed another reason to fear the dentist, Dr. Joel Diven provided it one day in May 2006, when a state prisoner climbed into his dental chair with a toothache.

State investigators say Diven, 72, a Department of Corrections dentist at McNeil Island Corrections Center, wrenched out part of a jawbone rather than a tooth, tearing open the roof of the prisoner?s mouth, then froze as the prisoner faced the possibility of bleeding to death. A second dentist also froze, along with a dental assistant. Another assistant saved the day, taking over Diven?s patient, shouting commands to the doctor, and calling for emergency aid. She told investigators that what she?d witnessed was ?torture...barbaric.?

?I believe it was an isolated incident,? says the Corrections Department?s Health Services director, Marc Stern, ?and we had no indication until then that Dr. Diven could not provide standardized care.?

But former McNeil prisoner Paul Wright, the editor of Prison Legal News, which reports regularly on prison medical errors, says, ?Diven is no exception to doctors in the DOC.? In fact, Diven worked on Wright?s own teeth when he was serving a 17-year sentence for ...

Landmark Settlement Reduces SHU Time, Increases Treatment Of New York Prisoners With Mental Illness

by Betsy Sterling

After five years of litigation and two weeks of trial, the New York State Department of Correctional Services and Office of Mental Health have agreed to a settlement that establishes major improvements in psychiatric treatment for New York State prisoners with mental illness.
The lawsuit, Disability Advocates ...

Maryland Restores Voting Rights to 50,000 Felons

Annapolis, MD - Governor Martin O?Malley on April 24, 2007, signed legislation re-enfranchising more than 50,000 Maryland residents who have completed their felony sentences of prison, parole, and probation. O?Malley?s support of the ?Voting Registration Protection Act? ends the state?s draconian lifetime voting ban and eliminates the three-year waiting period for certain people with past felony convictions.
In March, the Senate approved the bill 28 to 19; the House voted 78 to 60 in favor.

?This is a progressive moment in Maryland and a new direction for our state,? said Kimberly Haven, Executive Director of Justice Maryland who had been disenfranchised due to a felony record. ?By signing this legislation, Maryland moves into the political mainstream. We applaud the commitment of the Governor and the members of the General Assembly who voted to support expanded democracy in Maryland.?

Prior to the new legislation, more than 110,000 Maryland residents were disenfranchised due to felony convictions, one out of every 37 residents. The state was one of only 11 with a permanent felony disenfranchisement policy, and one of only six states that disenfranchised some who had been convicted of misdemeanors. Among those with felony records nearly half ...

Missouri Legislature Allows Wrongfully Convicted to Receive Compensation

The Missouri Legislature has enacted legislation to compensate all persons declared "actually innocent" after DNA testing. In the last 15 years, five such prisoners in Missouri were released after being exonerated by DNA testing.

The latest action by that legislature sought to cure an injustice arising out of its original 2004 DNA compensation bill. Then, the legislature ordered that all persons found ?actually innocent? by a court after August 28, 2003, from DNA testing could receive compensation.

That compensation amounted to fifty dollars per day of incarceration and a waiver of all costs of incarceration. The award would be paid by the Department of Corrections, but yearly payments cannot exceed $36,000 per year. The exonerated are entitled to payments until the full amount is paid. No award is given if the prisoner was serving a concurrent sentence for an unrelated crime.

The injustice came because only one of the five exonerated men could receive compensation under that legislation. The legislature then convened a subcommittee to work out the matter. The 2004 bill benefited only Anthony Woods, who was imprisoned for 18 years. Woods received an award exceeding $320,000.

The other four were left out. One of those men ...

Supreme Court: California’s Law Permitting Suspicionless Police Search of Parolees Does Not Violate Fourth Amendment

Supreme Court: California's Law Permitting Suspicionless Police Search of Parolees Does Not Violate Fourth Amendment

by Marvin Mentor

A divided U.S. Supreme Court has upheld the constitutionality of a unique California statutory condition of parole wherein any police officer may conduct a suspicionless search of a California parolee. The only limits on such Fourth Amendment-protected searches are those grounded in arbitrary, capricious or harassing motivation.

Donald Curtis Samson, a California parolee, was stopped in 2002 while walking down the street with a woman and a child. San Bruno Police Officer Alex Rohleder recognized Samson as a parolee and believed Samson had an at-large warrant. When he questioned Samson, Samson responded that he had no warrant. Rohleder confirmed this by radio. Nonetheless, solely on the basis that Samson was a parolee, he searched Samson and found a baggie of methamphetamine. Samson was convicted and sentenced to seven years after his motion to suppress the evidence on Fourth Amendment grounds was denied. The California Court of Appeal affirmed his conviction and Samson petitioned the U.S. Supreme Court on certiorari.

The Supreme Court accepted the case to flesh out an open question remaining from U.S. v. Knights, 534 U ...

Increasingly Repressive Sex Offender Residency Restrictions Have Doubtful Benefits

by John E. Dannenberg

While politicians trample each other in their rush to enact increasingly onerous post-release residency restrictions on all manner of sex offenders, the California Legislature took pause to commission a study to measure the effectiveness of such restrictions throughout the United States. The findings were that, by and large, (1) residency restrictions did not correlate with a significant measure of reduction of recidivism and (2) the more repressive the restrictions, the more likely the affected offenders were to simply not register. The former strongly suggests that residency restrictions amount to little more than a placebo to garner public favor, while the latter confers a counterproductive reaction portending an increase in valid public safety concerns. Nonetheless, things only got worse for California sex offenders in November 2006 with the passage of the even more confining ?Jessica?s Law.?

The study reviewed sex offender registration, community notification, civil commitment, residency restrictions, and risk assessment/treatment/supervision. There are 550,000 registered sex offenders in the United States, 100,000 of whom live in California.
Although there is a national registration law (Jacob-Wetterling Act of 1994), fully 20% fail to comply. As of April 2006, California had 87,060 registrants ...

Phoenix, Arizona Sheriff’s Policy Delaying Prisoners’ Elective Abortions Enjoined

Phoenix, Arizona Sheriff's Policy Delaying Prisoners' Elective Abortions Enjoined

by John E. Dannenberg

Maricopa County, Arizona Sheriff Joe Arpaio's policy that required a female prisoner seeking an elective abortion to first obtain a court order for this procedure was enjoined because it represented an exaggerated response to Arpaio's alleged penological concerns.

Jane Doe was sentenced to four months in county jail on March 18, 2004. Shortly before being committed, she discovered she was pregnant.

Correctional Health Services (CHS), the jail's contract medical provider, confirmed the pregnancy but declined Doe's immediate and repeated request to be transported to a hospital for an elective abortion within the first trimester of her pregnancy. Per jail regulations, she offered to pay for both the procedure and the guarding costs. Only on May 12, 2004 did CHS transport her for the procedure, after Doe obtained the court order.

Doe complained that the jail's policy requiring a court order before providing this type of elective treatment was unconstitutional. She sued in state court under 42 U.S.C. § 1983 claiming Fourteenth Amendment violation of the right to privacy and Eighth Amendment violation of the right to adequate medical care. She ...

Alaska Jail Settles Alcohol Withdrawal Death Case For $573,000

On June 12, 2006, the State of Alaska settled a federal civil rights lawsuit over the wrongful death of a prisoner in a state-run jail for $573,000.

Julia Walker is the mother of Troy Wallace, who died while a prisoner in the Ketchikan Correctional Center, a jail run by ...

Colorado Successfully Pressures FBI To Release DNA Info; Racial Bias Infects DNA Databases

State law enforcement agencies have struck a tentative deal with FBI officials that allows agencies to share previously privileged information.

The deal resulted from the brutal rape and beating of a Colorado woman who literally lost an eye from the attack.

DNA from the rapist was compared to more than 50,000 profiles in the Colorado database but didn?t yield a match. Authorities then ran it through the FBI?s National DNA Index System of over 3.5 million subjects. Still no match was found.

However, one Oregon offender profile was similar enough to suggest that the rapist might be related to a Colorado resident. If the suspect could be tested and the DNA matched the case would be solved.

Denver District Attorney Mitch Morrissey contacted the FBI to retrieve the identity of the Oregon suspect. To his surprise the FBI refused to release the name. At the time of Morrissey?s request FBI policy prohibited the release of one state?s data to another state.

So Morrissey did what any self-respecting public official would do. He threatened the FBI with negative media coverage.

?Your policy is not likely to sit well with [the victim] when she understands your ...

Guards Convicted of Stealing, Bringing Drugs into Washington State Private Jail

by Matthew T. Clarke

Security Specialists Plus (SSP) is a 60-employee firm operating out of Bellingham, Washington?s Irongate industrial area. It provides animal control services to unincorporated parts of Whatcom County, hires out private security guards, and serves legal documents. It also has a contract to incarcerate about 50 of the county?s prisoners at its Baker Creek Place private jail. The minimum-security prisoners are in work-release programs or on the county?s prisoner work crews. The 13-year-old, approximately $500,000-per-year jail operation has recently come under scrutiny due to several problems, including a guard who smuggled marijuana into the facility, a guard who stole money from a prisoner and a guard with multiple felony convictions.

On August 3, 2006, SSP guard Joshua Oscar Caleb Kulsrud, 25, was arrested by deputies at the jail on suspicion of smuggling tobacco to prisoners. When his backpack was searched, the deputies discovered marijuana. During questioning Kulsrud admitted that he intentionally failed to monitor prisoners when they provided urine samples for drug screening tests.

Whatcom County Sheriff Bill Elfo said Kulsrud?s actions were lazy, negligent and incompetent, and not due to bribes from prisoners. Kulsrud pleaded guilty to possession of marijuana the ...

Disallowing Printed E-Mail Responses To Wisconsin Prisoner’s Web Page Raised Triable Issues of Fact

Disallowing Printed E-Mail Responses To Wisconsin Prisoner's Web Page Raised Triable Issues of Fact

by John E. Dannenberg

The Seventh Circuit U.S. Court of Appeals held that the Wisconsin Department of Corrections? (WDOC) policy of disallowing prisoner mail receipt of printed responses to their personal web pages (as distinguished from hand-written ones), in light of applicable WDOC regulations, raised triable issues of fact regarding a prisoner's First Amendment complaint.

WDOC prisoner Jevon Jackson had two mail-related complaints. In the first, he challenged WDOC's policy of banning catalogs whose advertised products could be purchased with postage stamps. There, he was procedurally barred because he never appealed the denial of his initial grievance. When he tried to revive the complaint by filing a repeat grievance, he was denied on administrative rules that disallow such repeated appeals. The Seventh Circuit honored WDOC regulations and held that failure to properly exhaust the initial appeal below doomed the second one.

Jackson did properly exhaust his second issue, however. He had complained that his First Amendment rights were violated when WDOC refused to let him receive a printed (e-mail hard copy) response to his personal website. WDOC regulations permit such a website ...

BOP Cancels Solicitation of Proposal for Single-Faith Program

On October 26, 2006, the federal Bureau of Prisons (BOP) announced that it was canceling its solicitation of proposals for single-faith, faith-based residential re-entry programs. The move came after a lawsuit was filed by the Madison, Wisconsin-based Freedom From Religion Foundation (FFRF), which is ?a national association of freethinkers, atheists and agnostics? founded in 1978 that works to keep church and state separate. The BOP already operates multi-faith re-entry programs and had planned to expand to include single-faith programs.

According to BOP spokeswoman Traci Billingsley, the single-faith program requirements will undergo major revisions and be re-announced. This came as a shock to Annie Laurie Gaylor, co-president of FFRF, who had been celebrating the cancellation of the single-faith program initiative.

?They are slow learners,? said Gaylor. ?Setting up single-faith programs is certainly not in the best interests of our secular government or of the prisoners. They were taking solicitations from vendors to go into five or six federal prisons with taxpayer funding. They said one might be Roman Catholic and one a Southern Baptist, for instance.?

?We apparently averted the denominational kind of thing, but we know what is going on will be Christian to the hilt,? Gaylor stated. ?Secular, practical ...

Lifetime Supervision or Lifetime Incarceration for Colorado Sex Offenders?

by G.A. Bowers

Colorado has one of the toughest sex offender laws in the nation, according to University of Denver law professor Karen Steinhauser. Under the 1998 Lifetime Supervision of Sex Offenders Act (Act), over 800 sex offenders have been incarcerated. Of the 182 who have met the parole board through September 2005, two were paroled, both in 2005.

Under the Act, class 2, 3, and 4 sex offenders are sentenced to a set minimum prison or probationary term and a maximum term of life in prison. They may be sentenced, for example, to a term of two years to life. Few understand the gravity of the sentence, hearing only the ?two years? part and either not hearing or not understanding the ?to life? part as the judge pronounces sentence. They arrive at the prison gates believing they will be released in two years. Then they learn the awful truth: that they very well may spend the rest of their lives in prison.

Such sentences grant broad discretion to the Colorado parole board, which is loath to parole any prisoner. Al Stanley, parole board chairman, justifies the low parole rate by claiming sex offenders have not completed treatment and ...

Louisiana Prisoner Denied Religious Materials Under “Approved Vendor” Policy Settles Suit for $21, 786.13 in Damages and Fees

Louisiana Prisoner Denied Religious Materials Under "Approved Vendor" Policy Settles Suit for $21, 786.13 in Damages and Fees

The State of Louisiana has settled with a prisoner who was denied religious materials while imprisoned in the Louisiana State Penitentiary at Angola. Under the agreement, which was concluded on February ...

Study: Supermax Prisons Achieve Control While Inflicting Debilitating Side Effects, But Don’t Reduce Recidivism

Study: Supermax Prisons Achieve Control While Inflicting Debilitating Side Effects, But Don't Reduce Recidivism

by John E. Dannenberg

The Justice Policy Center of the Urban Institute (UI) issued a research report, Evaluating the Effectiveness of Supermax Prisons, in which it concluded that while these restrictive lockups achieve their goals of maintaining order, safety, control and incapacitation of violent/disruptive prisoners, they also cause serious debilitating side effects such as increased mental illness. But the ultimate concern of whether supermaxes serve to advance the welfare of thusly confined prisoners [by reducing recidivism] appears doubtful.

There are over 25,000 prisoners housed in supermax prisons in 44 states. While the term "supermax" doesn't usually appear in detention facility lexicons, the terms "special housing unit" (SHU), "intensive management unit" (IMU) and "administrative segregation" (Ad Seg) are familiar descriptors. But it all boils down to the familiar regimen of 23-24 hours per day in a cell, in-cell feeding (sometimes "Nutriloaf"), separate showers, isolated dog-kennel-sized "exercise yards," constant lighting, no contact visiting, and often, no human contact whatever for long periods of time. While occupants selected for supermax housing are supposedly the "worst of the worst" behavioral management problems, it is widely known ...

California Sheriff Criticized on Injury Non-Treatment After Use of Force

A highly critical May 2006 report by the Riverside County Grand Jury found that at the five county jail lockups, a disturbing pattern had emerged where prisoners who were injured while being subdued often were not provided medical aid. Worse, Sheriff?s Dept. personnel frequently filed inaccurate reports and often could not produce videotapes that are required in all such incidents.

In its random search of Use of Force reports, the Grand Jury made five findings. It found that many of the reports were inaccurately completed; incident dates differed from witness reports and primary reports; pepper-sprayed prisoners were not given required medical assessment or treatment; videotapes were often missing, in spite of rules requiring a five-year retention period; and custody transfer orders were missing pertinent information. Further, although procedures were not uniform among the jails, deputies were permitted to bid overtime slots at facilities other than where they were trained.

The Grand Jury provided the Sheriff with five recommendations: 1) Scrupulously follow regulation 15 CCR, art. 1.5, § 3268.1(a), which requires documenting use-of-force incidents, 2) Immediately treat pepper-sprayed prisoners, 3) Follow General Orders to videotape all use-of-force incidents, 4) Train deputies on General Orders specifying transfer requirements and ...

South Carolina Prisoner Awarded $4,000 For Fall, Broken Ankle

On August 21, 2006, a South Carolina jury awarded $4,000 to a man who fell and broke his ankle while imprisoned in the Charleston County Detention Center.

Plaintiff Clark Green, 40, claimed that while imprisoned in the two-story jail he was forced to walk down the stairs for recreation with his hands cuffed behind his back and his legs shackled. As he got to the last four steps he fell and sustained an ankle fracture that required casting.

Green claimed he was unable to grab the hand rail and break his fall because of the handcuffs. He further claimed the baggy, ill-fitting jail clothes and broken sandals he had been issued contributed to his fall. Defendant?s claimed Green was negligent and noted that no other prisoners had reported falling on the stairs.

Green sued the county Sheriff?s Department for his injuries. Green?s last demand before trial was $75,000--the county offered $500. A Charleston County jury awarded Green $4,000 after deliberating 4 hours.
Green was represented by Cameron L. Marshall of Charleston. Judge Thomas L. Hughston Jr. presided. See: Green v. Charleston County Sheriff?s Department, Charleston County Court of Common Pleas, Case No. 2005CP10002003 ...

Human Rights Watch Urges Access to Condoms in U.S. Prisons and Jails

by Megan McLemore

Incarcerated individuals bear a disproportionate burden of infectious diseases, including Hepatitis B virus (HBV), Hepatitis C virus (HCV), and HIV/AIDS. The HIV prevalence in state and federal prisons is more than 3 times higher than in the general population. The prevalence of HCV among prisoners approaches 40 percent. Co-infection is also a concern: although data is scarce, a significant number of HIV-positive prisoners are also infected with HCV.

Although the majority of prisoners infected with HBV, HCV and HIV acquired the infection outside of prison, the transmission of infectious disease in prison is increasingly well documented. Despite overwhelming evidence that condom use prevents the transmission of HIV, US prison officials continue to limit the availability of condoms to incarcerated persons. These policies stand in stark contrast to the public health approach taken by prison officials in Canada, Western Europe, Australia, Ukraine, Romania, and Brazil, where condoms have been available to prisoners for years. Moreover, several large, urban jails in the US as well as Vermont (Mississippi provides condoms only for conjugal visits) have provided condoms to prisoners, either through medical staff or more general distribution.

Moreover, leading correctional health experts in the US endorse condom distribution ...

Private Prison Companies Bilk Florida Taxpayers Out of Millions

by David M. Reutter

From its inception, privatization of Florida prisons has been touted as a way to save taxpayers money. Yet, a 2005 audit by Florida's Office of Program Policy Analysis and Government Accountability (OPPAGA) revealed that private prison vendors bilked taxpayers for $13 million. To add insult to injury, Florida's Department of Management Services (DMS) entered into a settlement with one of the companies to receive only pennies on the dollar in return.

Two private companies operate five Florida prisons. The GEO Group operates prisons in South Bay and Moorehaven while Corrections Corporation of America (CCA) runs prisons in Lake City, Panama City, and Quincy. GEO also has a contract to run the Graceville prison, which is under construction.

OPPAGA's audit revealed that over an eight-year period the companies received $4.5 million for unfilled jobs. GEO received an additional $5 million in cost-of-living salary adjustments that were never paid to employees. At its Quincy prison, CCA received $2.9 million more for facility maintenance than it spent.

The bulk of the blame for the overpayments has been laid at the feet of the Correctional Privatization Commission (CPC). From its inception, CPC was infiltrated by ...

$30,000 Award in Hawaii Medical Negligence Suit

On March 14, 2006, a court in Hawaii awarded a prisoner $30,000 for medical negligence by Oahu Community Correctional Center (OCCC) personnel.

Walter V. Rodenhurst, III, was a pre-trial detainee who was incarcerated at the Federal Detention Center (FDC) due to overcrowding at OCCC. When he complained of abdominal ...

Los Angeles County Jail Visitor’s Injury After Scuffle With Deputies Settles For $150,000

Los Angeles County Jail Visitor's Injury After Scuffle With Deputies Settles For $150,000

The Los Angeles County Claims Board settled out an injury lawsuit for $150,000 in December 2006 that resulted from a jail visitor being injured after scrapping with deputies in the visiting lobby.

On September 5, 2004, Jamal Johnson, who was on probation, came to the Los Angeles County Men?s Central Jail accompanied by family members to visit a prisoner to inform him of a death in the family. Inside the visitor's lobby, sheriff's deputies spotted Johnson's cell phone -- a prohibited item -- and asked him to take it outside and store it. When Johnson did not comply, and just walked away, deputies escorted him outside and told him he could not return that day. Nonetheless, Johnson made his way back in. Deputies, spotting him, escorted him outside the lobby and patted him down. At that time, Johnson struck the deputy with his elbow. Five deputies, using physical force and pepper spray, subdued Johnson and arrested him for battery on a peace officer. He was hospitalized for several days in the jail ward, but the District Attorney did not prosecute him.

Johnson ...

Florida Court Without Jurisdiction to Impose Confinement Condition Sanctions at Sentencing

Florida?s Third District Court of Appeals has held that a trial court has no jurisdiction to impose sanctions that regulate the treatment of prisoners in conjunction with a criminal sanction.

Henry Cuesta is a prisoner serving a life sentence for first degree murder with a firearm. When asked to comply with the Miami-Dade Circuit Court?s order to testify against his co-defendant, Cuesta refused. He feared retribution from other prisoners for being a ?snitch.?

The Circuit Court held Cuesta in contempt and sentenced him to six months in the Dade County Jail with loss of privileges, including no phone calls, family or contact visits, exercise, television, library or commissary. Cuesta appealed.

The Third District held that the trial court lacked jurisdiction to regulate treatment of prisoners in jails or prisons as a special condition to a sentence imposed. The special conditions were struck, but otherwise Cuesta?s conviction and sentence were affirmed. The ruling was effective immediately without regard to future motions. See: Cuesta v. Florida, 929 So.2d 648 (Fla.App. 3 Dist., 2006).

City of Detroit Must Record Suspect Confessions; $4 Million Wrongful Incarceration Award

A Michigan federal district court has approved a settlement that requires the City of Detroit to record all interrogations of criminal suspects and awards the estate of a wrongfully convicted man $4,075,000.

The complaint in this action outlines a pattern of ?unconscionable deceptions? to deceive Eddie Joe Lloyd ...

Excessive Force And Medical Negligence Death In Youngstown, Ohio Arrest Settles For $350,000 From Police, $100,000 From PHS

by John E. Dannenberg

The death of a Youngstown, Ohio arrestee who was severely beaten by police and negligently treated by Prison Health Services? (PHS) contract jail medical staff resulted in a settlement totaling $450,000.

African-American Booker Mitchell, 72, was summoned to the scene of an automobile accident involving his wife, Mattie. He brought Mattie?s driver?s license and proof of financial responsibility. Youngstown Police Officer Michael Walker refused Booker?s offer to use his AAA membership to have Mattie?s car towed, and Booker walked away.
Inexplicably, Walker next grabbed Booker from behind, knocked him head-first into a parked van, denting the van. Walker then landed on the unarmed Booker, whereupon he maced and handcuffed him. Walker arrested Booker for obstructing official business, resisting arrest and disorderly conduct. One hour later, he was transported to Mahoning County Justice Center.

At booking, PHS, who conducts medical intake interviews, noted Booker suffered from high blood pressure. PHS nurse Wilson reported that Booker could not remember what medication he took, that he had been pepper-sprayed, but regretted the incident at his wife?s accident and was not in ?acute distress.? Booker constantly complained that his head hurt. When PHS staff ...

U.S. Supreme Court: State Felon’s Deportation Order Reversed Where Underlying Offense Amounted Only to Federal Misdemeanor

U.S. Supreme Court: State Felon's Deportation Order Reversed Where Underlying Offense Amounted Only to Federal Misdemeanor

On December 5, 2006, the U.S. Supreme Court reversed the federal deportation order of an alien who had been convicted of felony drug possession in South Dakota. An immigration judge had determined that the harsher Immigration and Nationality Act (INA) guidelines, which mandate deportation proceedings after state felony convictions, trumped the federal Controlled Substances Act (CSA), which rates such criminal behavior as only a misdemeanor.

Jose Lopez entered the U.S. illegally in 1986 but became a permanent resident in 1990. In 1997 he was convicted in South Dakota of aiding and abetting another person's possession of cocaine, a felony under state law. Upon release from his five-year state prison sentence, immigration authorities ordered Lopez deported pursuant to the INA guidelines. The Board of Immigration Appeals and the Eighth Circuit U.S. Court of Appeals rejected Lopez's appeals.

On certiorari, the U.S. Supreme Court resolved the tension between the competing INA and CSA provisions. The Court observed that although Lopez's state felony act of "possession" equated with felony drug "trafficking" under the INA, simple possession was only ...

$248,000 Jury Award for Inhumane D.C. Jail Conditions

Five prisoners in the D.C. Jail were awarded a total of $248,000 in damages On February 1, 2006, following a two day jury trial in federal district court over inhumane and unconstitutional conditions at the jail.

Shannon J. Battle, Bernard Brown, Eugene Scott, Vonsauli Smith and Timothy Williams ...

Fifth Circuit Remands Texas Prisoner’s Retaliation Claim, Adopts De Minimis Standard

Fifth Circuit Remands Texas Prisoner's Retaliation Claim, Adopts De Minimis Standard

by Michael Rigby

The U.S. Fifth Circuit Court of Appeals held that prisoners must allege more than de minimis retaliatory acts to support retaliation claims under 42 U.S.C. § 1983. However, the Court further held that a transfer to a less desirable prison met this standard.

David Gene Morris claimed that while imprisoned at the Telford Unit he was retaliated against for using the prison grievance system. Morris asserted that on November 25, 1997, he filed a grievance regarding the way Christy Powell ran the prison commissary, where he worked. A week later he was reassigned to the kitchen, and in May 1998 was transferred to the Terrell Unit.

Morris filed suit, pro se, in the U.S. District Court for the Eastern District of Texas claiming the job change and transfer were retaliatory and, as such, violated his rights under the First Amendment. The defendants moved for summary judgment. The district court denied their motion and they appealed. The Fifth Circuit remanded and instructed the district court to consider whether a prisoner?s retaliation claim "must allege more than a de minimis adverse act." Morris ...

Harsh Federal Parole Conditions for Federal Sex Offender Upheld

The U.S. Court of Appeals for the Second Circuit has affirmed a federal district court order requiring a released sex offender to undergo polygraph exams, to avoid contact with minors, and to abstain from using the Internet while on parole.

Jeffrey Johnson, a federal prisoner, served 88 months in prison for sexual predation against minors. He was convicted thereof after having sexually explicit conversations with several minors via the Internet, and having sex with two of them between 1995 and 1997.

In July of 2004, Judge Thomas McAvoy of the U.S. District Court for the Northern District of New York set Johnson?s parole conditions. They were: (1) to participate in polygraph exams, (2) to avoid all contact with minors, and (3) to abstain from using the Internet. Johnson appealed.

On appeal, the Second Circuit found that forcing Johnson to participate in polygraph exams wouldn?t violate his right against self-incrimination under the 5th Amendment to the U.S. Constitution. Since polygraph evidence is inadmissible in court, even if Johnson was forced to divulge evidence of unknown crimes during a polygraph exam, that evidence could never be used against him. Thus, the appeals court held that the same ...

California Prison Guards Awarded $440 Million Retroactive Pay Increase

California?s 30,000 prison guards, some 6,000 of whom pulled down over $100,000 last year, won an arbitration award on January 19, 2007 for retroactive pay increases totaling $440 million. Funding for this liability was not included in the California Department of Corrections and Rehabilitation?s (CDCR) recent $10 billion budget request for the coming fiscal year.

The $440 million includes $200 million for back pay and health benefits plus $240 million in the form of a 3.1% pay scale adjustment to bootstrap the guards? wage basis to that of the California Highway Patrol and five ?bellwether? municipal police departments. The adjustments were arbitrators? interpretations of the guards? five-year contract negotiated by former Governor Gray Davis, who scored over $3 million in ?gratitude? from the guards? union (CCPOA) for his election campaigns. That contract was originally projected to cost California taxpayers $521 million, but wound up sapping them $2 billion. CDCR prison guards? base pay now ranges from $60,576 to $68,780, depending upon length of service. But their contract expired in July 2006, and new contract provisions are still in negotiation.

California?s Department of Finance spokesman H.D. Palmer stated that of the ...

Second Hawaii Sex Assault Case Settled for $25,000

The state of Hawaii has agreed to settle with a second prisoner who claimed she was sexually assaulted by a former warden while imprisoned at the Maui Community Correctional Center, as reported in a February 9, 2007 article in the Honolulu Advertiser.

According to the settlement, the victim, Viki Wong ...

$2.5 Million Settlement in Schenectady County Strip Search Suit

On July 31, 2006, Schenectady County, New York, agreed to settle a suit over its county jail strip search policy for $2.5 million.

This is a class-action civil rights lawsuit brought in federal district court pursuant to 42 U.S.C. § 1983. The plaintiff class consists of ?persons who ...

California Governor’s Parole Veto Reversed by Federal Court

California Governor's Parole Veto Reversed by Federal Court

by John E. Dannenberg

The U.S. District Court granted a California second degree murderer's 28 U.S.C. § 2254 habeas corpus petition and ordered that he be released on parole unless the Board of Prison Hearings (Board) gave him a new parole suitability hearing within 60 days that comported with due process of law. The prisoner had been granted parole by the Board in April 2003, but the grant was reversed by then-Governor Gray Davis.

Eulogio Martin was convicted of a 1979 double-murder and the gunshot injury of a third victim, and was sentenced to 15-life for the murders plus five years in enhancements. While Martin had excelled in self-improvement in prison, he had also accumulated 20 serious prison disciplinary violations for possession of drugs, weapons material and gambling paraphernalia, and had been stabbed three times by loan sharks over drug debts. However, his last disciplinary incident was in 1995. As a Mexican national, he was subject to automatic deportation upon parole.

Governor Davis, who reversed 98% of all Board grants of parole, cited several reasons for his reversal. He described the crime in the Board's boilerplate language ...

New York Jail’s Juvenile Education Suit Returns to District Court

New York Jail's Juvenile Education Suit Returns to District Court

The Second Circuit Court of Appeals has held that a federal court may only grant relief in a civil rights action filed by a prisoner on federal law claims but not on state law issues. Before the appellate court, once again, was a class action suit filed by juveniles held in New York City jails. PLN has previously reported on this litigation, which seeks to require the juveniles be provided educational opportunities required by state and federal law.

The matter was before the court on an appeal by the City defendants, who raised several issues. First, they contended that the plaintiff prisoners were required under the Prison Litigation Reform Act (PLRA) to exhaust administrative remedies.

The district court rejected that argument on two alternative theories: That administrative remedies were not "available" and that, in any event, the defendants had waived the affirmative defense of non-exhaustion. In 1996, the City defendants had opposed a State defendant's motion to dismiss the complaint based on the prisoners' failure to exhaust administrative remedies.

The opposition had said the matter was not grievable. Based on this argument, the district court denied the motion ...

Ninth Circuit: Prisoner is Protected by Legal Privilege but Not Marriage Privilege When Writing His Lawyer-Wife

A California state prisoner who was being tried in United States District Court for federal conspiracy, racketeering and murder offenses committed from state prison, and whose wife was his lawyer, was permitted to write to his wife confidentially under his state prison-created ?confidential-legal? privilege, but only for matters related to his trial. For matters not related to legal work-product or attorney-client privilege, however, the U.S. Court of Appeals for the Ninth Circuit ruled that he could not assert confidentiality under a U.S. Supreme Court-derived ?marital communications privilege.?

Robert Griffin was indicted (and subsequently convicted) in district court for federal crimes related to the Aryan Brotherhood prison gang?s racketeering enterprise at California?s supermax Pelican Bay State Prison. The charges included ordering seven murders and two attempted murders. During the course of pre-trial investigations, law-enforcement officials validly searched the home of Griffin?s attorney-wife, Pamela, and seized six boxes of documents. Included were numerous letters written from state prison addressed to ?Pamela Griffin, Attorney at Law.? The U.S. Magistrate Judge appointed a special master to review the letters, who identified and redacted material protected by the attorney-client privilege and the work-product doctrine. The redacted materials plus all ...

Federal Prisoner’s Criminal Assault Conviction Reversed; Entitled to Raise Self-Defense

Federal Prisoner's Criminal Assault Conviction Reversed; Entitled to Raise Self-Defense

The Ninth Circuit Court of Appeals has held that a California federal district court failed to properly define the elements of a claim of self-defense when a prisoner was charged with assault with a dangerous weapon and possession of contraband in prison.

Before the Ninth Circuit was the appeal of Donzell Wayne Biggs, who pled guilty to the charge against him while reserving the right to appeal the district court's order precluding Biggs from presenting evidence and arguing to a jury that he was acting in self-defense.

In 2001, Biggs was held at the administrative segregation unit of the United States Penitentiary at Lompoc. At that unit, prisoners were taken out in groups of four and placed in a recreation cage once daily for one hour.

Biggs attacked fellow prisoner Michael Smith on April 26, 2001 with an 8-inch homemade knife while in the recreation cage. Smith was stabbed in the arm and ear. Biggs alleged he was acting in self-defense because Smith had been trying to procure a knife from other prisoners and had threatened him on the way to the recreation cage.

The district court found ...

Washington Indigents All Get Experts at Public Expense

The Washington State Supreme Court has ruled that CrR 3.1(f) entitles indigent criminal defendants to expert services at public expense, even if they?re represented by private counsel.

Rodin Punsalan and Chayce Arden Hanson were prosecuted in the King County Superior Court in Seattle, Washington - Punsalan for robbery and Hanson for manslaughter. Both were indigent, and both were represented by private lawyers hired by their parents. Under CrR 3.1(f), Punsalan?s lawyer asked the trial court for $6,000 to retain psychologists, and Hanson?s lawyer requested $6,000 for a forensic pathologist. Finding that both defendants had forfeited their right to state-funded expert services by retaining counsel, the trial court denied their requests. Both men appealed, and Division 1 of the State Court of Appeals certified the cases to the State Supreme Court.

In a unanimous decision, the State Supreme Court agreed that CrR 3.1(f) makes no distinction between those with appointed counsel and those with private counsel when it grants indigents expert services at public expense. The Court also recognized that CrR 3.1(f) incorporates the Sixth Amendment (U.S. Const.) guarantee of expert services necessary for an adequate defense, at ...

New York Prisoner Beaten By Unofficial Enforcer Awarded $500,000

A man who claimed he was beaten while imprisoned at New York?s Rikers Island jail complex will receive $500,000 under the terms of a settlement agreement reached with the City on February 14, 2007.

Donald Jackson had claimed in his 42 U.S.C. § 1983 lawsuit that he ...

News in Brief:

Afghanistan: On May 6, 2007, two US army soldiers were shot and killed outside the Pul-i-Charki prison near Kabul and two others were wounded when an Afghan soldier opened fire on their vehicle as it was leaving the prison. The dead soldiers were training guards in the puppet Afghan regime to build a new maximum security wing to house political prisoners released from US run concentration camps in Afghanistan and Guantanamo. The Taliban claimed responsibility for the attack. The assailant was shot and killed by other Afghan soldiers.

Belgium: On April 15, 2007, two men armed with a pistol and grenades hijacked a helicopter they had hired for a sightseeing trip and forced to pilot to fly them to the Lantin prison near Liege where they landed in the prison yard, as the hijackers threw tear gas canisters into the yard and took off with a French man awaiting trial on fraud and theft charges.

Florida: On May 11, 2006, Emery Lewis, 33, a prisoner in the Escambia county jail was charged with raping two other jail prisoners, including a 15 year old boy who was tried as an adult for arson.

Georgia: On April 16, 2007, Christopher Holcomb, 32 ...

Alaska DOC Liable for Rape of Federal Prisoner by Prison Doctor

Alaska?s Supreme Court has held that the intentional-tort immunity law does not prevent a suit against the state when it breaches a duty separate from its role as an employer.

B.R., a federal prisoner housed at the state jail in Anchorage, brought suit after she was sexually assaulted by a physician?s assistant, Clarence Bullock, employed by the Alaska Department of Corrections (ADOC). After B.R. complained of abdominal pain, Bullock examined her.
During that examination he penetrated her vagina in a manner that was not medically appropriate. B.R. reported the assault to state troopers, who opened an investigation.

When B.R. continued to experience abdominal pain, Bullock again examined her and sexually assaulted her. After B.R. reported the second assault, the state charged Bullock; he later pled no contest to one count of attempted sexual assault in the third degree.

B.R. sued ADOC under several theories. The Superior Court granted prison officials summary judgment, holding the intentional-tort immunity statute, Alaska Statute § 09.50.250 (3), barred the suit. B.R. appealed.

The state Supreme Court held the statute closely tracked 28 U.S.C. § 1860(h), and turned to federal case law to make ...

 

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