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Prisoner Education Guide

Prison Legal News: January, 2008

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Volume 19, Number 1

In this issue:

  1. The Poisoned Pen of Fort Lyon Prison (p 1)
  2. From the Editor (p 10)
  3. Food Deprivation & Pink Clothing Imposed for Violating South Carolina Prison Rules (p 10)
  4. Largest Oregon Jail a Cesspool of Misconduct and Mismanagement, Report Finds; Sheriff Faulted and Under Fire (p 12)
  5. Retired Canadian Football-Star-Turned-Prison-Official Faulted (p 14)
  6. Texas Prisoners May Have Right to Extra Storage Space for Religious Materials (p 15)
  7. Audit Reveals Continuing “State of Chaos” at Hawaii Youth Prison (p 16)
  8. As New Regulations Limit Organ Transplants from Executed Chinese Prisoners; South Carolina Allows Organ Donations by Prisoners (p 16)
  9. Utah Prisoner Kills Guard During Escape While on Medical Transport (p 18)
  10. Oklahoma Jail Dodges $700,000 in Fines (p 18)
  11. CCA-Run Immigrant Family Detention Center in Texas Violates Settlement Conditions (p 20)
  12. $195,000 Paid to Family of Slain Florida Prison Guard (p 21)
  13. Los Angeles Jail Canteen Audit: Contractor Rakes In $640,213 Excess Profits (p 22)
  14. Alabama Corrections Commissioner’s Contempt Order Upheld (p 22)
  15. California Prison Guards Lose Unlimited “Time Bank” For On-The Job Union Business (p 23)
  16. Lawsuit Against WI Supermax Settled for $475,000; General Population Prisoners Fill Beds (p 24)
  17. No Criminal Wrongdoing Found in Overpayments to Florida Private Prisons (p 24)
  18. Prisoner Crashes Jet Ski into Dock in Camden County, Georgia (p 25)
  19. Most Serious Sex Offenders in Boston Living in Homeless Shelters (p 26)
  20. New York City Settles Prisoner-On-Prisoner Assault for $180,000 (p 26)
  21. Iowa Faith-Based Program Held Unconstitutional by 8th Circuit; Continues with Private Funding (p 27)
  22. Hawaii Youth Prison Financial Audit Finds Excessive Overtime/Leave Abuses (p 28)
  23. Eighth Circuit Upholds Arkansas Jailer’s 78-Month Sentence for Brutalizing Prisoners (p 28)
  24. Self-Defense: A New Jersey Prisoner’s Right (p 29)
  25. Wrongful Death Suit Against LA County Jail Settles For $750,000 (p 30)
  26. Eighth Circuit Holds State Funding of Iowa Faith-Based Prison Unconstitutional (p 30)
  27. California Jail Settles Gender-Identity-Disorder Discrimination Suit (p 31)
  28. $35,000 Jury Award in Massachusetts Prisoner’s Assault by Guards (p 32)
  29. BOP Byline Prohibition Unconstitutional (p 32)
  30. Washington Pays $665,000 to Prisoner Injured In Racially Motivated Attack (p 33)
  31. Connecticut Prisons Begin 10% Deductions of Prisoner Monies (p 34)
  32. Vermont DOC: Nations Biggest Prison Dispenser of Psychotropic Medication (p 34)
  33. United States Sentencing Commission Approves Crack Reform For Federal Prisoners (p 35)
  34. Eleventh Circuit Condemns One-Sentence Qualified Immunity Denial Order (p 36)
  35. $25,000 Settlement in Miami False Arrest, Strip Search Suit (p 36)
  36. Seventh Circuit Rejects Federal Prisoner’s Necessity Defense (p 36)
  37. Some Australian Prisoners Entitled to Vote (p 37)
  38. Fourth Circuit Finds Virginia Prisoner’s Religious Exercise Claim Meritorious (p 38)
  39. Summary Dismissal of Court Access Claim Reversed (p 38)
  40. California: 1st Degree Occupied Burglary Doesn’t Bar Working in Licensed (p 40)
  41. Michigan Anti-Civil Rights Amendment Declared Unconstitutional (p 40)
  42. Prisoner’s Oral Complaints Worthy of First Amendment Protection; (p 41)
  43. News in Brief: (p 42)
  44. Bivens Action Inapplicable to Private Prison Employees (p 44)

The Poisoned Pen of Fort Lyon Prison

Bought by the state for a dollar, Fort Lyon is rich in history, asbestos, sick prisoners and trouble.

by Alan Prendergast

History Lesson #1

In 1829, William Bent headed west to join his older brother in the fur business. William was twenty years old, the son of a Missouri supreme court justice and, like his brother Charlie, who would one day be the first governor of the New Mexico Territory, he soon fell in love with the lawless vastness that would become southern Colorado.

After he hid two Cheyenne from their archenemy, the Comanches, William became a trusted friend of the Cheyenne nation. Their chief, Black Kettle, called him Little White Man. At 26, Bent married a Cheyenne woman; after her death, he married her sister. He built a log stockade not far from what is now Pueblo and then, using laborers from Mexico, a sturdier adobe fort on the eastern plains, a haven for travelers along the Santa Fe Trail.

For several years, Bent's Fort hummed with trade. Wagon trains, Indians, soldiers and buffalo hunters all came to do business with Bent and his partner, Ceran St. Vrain. But as the pace of settlement increased, relations with the ...

From the Editor

This month?s cover story examines the environmental woes, and history, of one old prison in Colorado. In many respects this is a microcosm of many prisons in the United States. The negative aspects of prisons on the environment itself, and on the prisoners housed in them, has rarely been explored or discussed by the media. We hope to change that and will continue reporting the environmental impact of mass imprisonment in upcoming issues of PLN. The cover story is by Alan Prendergast, longtime writer for Westword in Denver and one of the best reporters covering criminal justice issues in America today. We are pleased that Westword has allowed us to reprint the article and bring it to a wider audience outside Colorado.

As we start the New Year our goals include expanding PLN?s circulation to 8,000 subscribers. We are currently at 6,700. We have recently undertaken a major effort to expand our readership among women prisoners and that has been very successful. While PLN already had subscribers in almost all male prisons we could not say the same for women?s prisons. At this point PLN has subscribers in all women?s prisons in the country ...

Food Deprivation & Pink Clothing Imposed for Violating South Carolina Prison Rules

by David M. Reutter

South Carolina?s Commissioner of Corrections, Jon Ozmint, has embraced hardcore disciplinary methods to deal with prisoners who violate prison rules. Such punishments include depriving prisoners of food and requiring them to wear pink outfits.

The food deprivation has taken on a new twist. Rather than withholding food as a form of discipline, which is legally questionable, Ozmint has construed such sanctions to be a voluntary act by the prisoner. ?Our rule is simple ? any inmate is allowed to decline the opportunity (to eat, exercise, shower or have visits) by failure to comply with our reasonable requirements,? Ozmint wrote in a November 2006 e-mail to wardens and prison officials. ?Eating is a voluntary activity and any inmate may refuse to eat.?

Tyger River Correctional Institution prisoner Darrell Hunter found himself on the list for ?voluntary refusing? to eat due to his refusal to shave with a razor. Medical records indicated that Hunter, 26, was ?being denied any meals? for not shaving.

Hunter?s medical report stated, ?Note in log book on 11-2-06 from Capt. Alexander that inmates not in compliance with the grooming policy were not to be given a tray.? Hunter denied he was on ...

Largest Oregon Jail a Cesspool of Misconduct and Mismanagement, Report Finds; Sheriff Faulted and Under Fire

On November 1, 2006, the Multnomah County District Attorney?s (DA?s) Office in Portland, Oregon released a blistering 63-page report that found systemic, shocking problems in the state?s largest jail system. ?Conservative? in their findings, the two veteran prosecutors who served as investigators, John Bradley and Chuck French, found a system that was broken at virtually every level.

Faulting both Multnomah County Sheriff Bernie Giusto and the Board of County Commissioners (the Board), the DA investigators demanded immediate action. ?The questions we raise cannot be answered by saying nothing can be done,? their report stated. ?Necessary changes must be made.?

An Unprecedented Investigation

The unprecedented 4-month investigation by the DA?s office was requested by County Commissioner Lisa Naito in response to a rash of security lapses at the Multnomah County Detention Center (MCDC), culminating in the beating death of a pre-trial detainee by a cellmate with a long history of violence. [See: PLN, Dec. 2006, p.8].

The investigation began in July 2006 in conjunction with an annual review by the Corrections Grand Jury. Hundreds of witnesses provided testimony or were interviewed. Ultimately, many of the DA?s findings cited the same chronic problems criticized in past ...

Retired Canadian Football-Star-Turned-Prison-Official Faulted

Ron Stewart endeared himself to Canadian citizens during his years as a star halfback for the Ottawa Rough Riders. He later entered into public service where be served for 26 years, including as a prison oversight official, until he retired in 2004. It was recently revealed that the Canadian icon improperly collected as much as $325,000 in salary, vacation pay and job-related expenses.

In 1990 Stewart became the ombudsman for Canada?s federal prisons. A report by the Auditor General, released in November 2006, found that he missed more than 300 days of work between 1998 and 2004 even though he was paid for that time.

Stewart took trips to Canada?s Football Hall of Fame, to cities that hosted five Grey Cup games, and to his high school reunion; he even spent months in his country cottage, all at the taxpayers? expense.

?We were told by the employees in that office that this behavior had been going on for a while,? said Auditor General Sheila Fraser.

Government officials were able to trace much of Stewart?s activity through his cell phone use. What they found was that the former prison ombudsman was spending months on end at his ...

Texas Prisoners May Have Right to Extra Storage Space for Religious Materials

by Matthew T. Clarke

A Texas court of appeals held that state prisoners may have a right to extra storage space for religious materials.

Jeffery Balawajder, a Texas state prisoner, brought suit in state court against the Texas prison system (TDCJ), alleging that his right to free exercise of religion under the First Amendment to the U.S. Constitution and the Texas Religious Freedom Restoration Act (TRFRA), Texas Civil Practice and Remedies Code § 110.001, et seq., was violated when prison officials refused to allow him additional storage space for his religious materials.

Balawajder, who practices the Hare Krishna faith, alleged that he was required by his religion to study the Hare Krishna scriptures, which consist of ?several hundred volumes of books.? Under TDCJ Administrative Directive AD-03.42, the personal property a prisoner is allowed to possess, with the exception of a few noncombustible items, must be stored in a closeable metal storage container not to exceed two cubic feet in size (e.g., a cube with 1.25-foot dimensions), which was much too small for Balawajder to store his religious books.

Balawajder requested additional storage space for his Hare Krishna library. He suggested that TDCJ allow him to purchase ...

Audit Reveals Continuing “State of Chaos” at Hawaii Youth Prison

Audit Reveals Continuing "State of Chaos" at Hawaii Youth Prison

The Hawaii Youth Correctional Facility (HYCF) is in non-compliance with most of the American Correctional Association (ACA) "Standards for Juvenile Correction Facilities," according to a 2007 security audit.

HYCF, Hawaii's only secure juvenile prison, has come under intense scrutiny in recent years. In an August 2003 report, the American Civil Liberties Union of Hawaii (ACLU) found a pattern of egregious conduct and conditions that violated minimum constitutional standards. The ACLU filed a class action suit challenging those conditions in 2005. Also in 2005, the U.S. Department of Justice (DOJ) issued a report that cited the absence of policies and procedures at the facility, which resulted in a "state of chaos."

As previously reported in PLN the DOJ also filed a lawsuit, but in February 2006 "entered into a memorandum of agreement" requiring "the State to remedy conditions at the facility within three years." [See: PLN, March 2007, pp. 20, 28].

Further, in 2005, eight juveniles--six boys and two girls--escaped from HYCF. Five of those escapees were part of a single incident in July 2005.

Concern about the escapes prompted lawmakers to order the state Department of Public Safety ...

As New Regulations Limit Organ Transplants from Executed Chinese Prisoners; South Carolina Allows Organ Donations by Prisoners

In November 2006, China finally admitted that most of the human organs used to satisfy the burgeoning number of transplant-seeking foreigners came from executed prisoners.

?Apart from a small portion of traffic victims, most of the organs from cadavers are from executed prisoners,? Deputy Health Minister Huang Jiefu told a summit of transplant doctors. ?The current organ donation shortfall can?t meet demand.?

Jiefu?s statement was the first official acknowledgment that organs harvested from executed prisoners were the lifeblood of China?s prosperous transplant trade ?something that human rights activists and death penalty opponents have been saying for years. Since the 1980s, reports have surfaced alleging that foreigners were waiting less than two weeks for an organ donor after arriving in China, and that some prisoners were even ?executed to order? to match blood types.

Most of the organs went to wealthy foreigners willing to pay hefty sums for the transplants. In 2005, a British reporter was asked to broker organs to transplant patients in Great Britain; the asking price was $54,000 for a kidney and $84,000 for a liver. Other foreigners seeking Chinese organs come from Japan and the United States.

A Hong Kong resident identified ...

Utah Prisoner Kills Guard During Escape While on Medical Transport

by David M. Reutter

On June 25, 2007, a Utah state prisoner shot and killed a prison guard while escaping from a hospital where he had been taken to receive an MRI. The escape occurred at the University of Utah?s Orthopedic Clinic in Salt Lake City.

Prisoner Curtis Allgier, 27, was transported to the clinic to receive treatment for lower back pain. ?After Allgier was treated and was changing back into his prison clothing, he attempted to escape,? a booking statement from the Salt Lake County Jail said. ?Officer Stephen Anderson then attempted to prevent the escape.?

Apparently, Allgier wrestled Anderson?s gun away from him and shot him in the head, killing him. Anderson, 60, was a 22-year veteran of the Utah Department of Corrections (UDOC). Allgier fled out the clinic?s front door with a gun in his hand; he carjacked a Ford Explorer, forcing the occupants out.

He then drove to a friend?s house and changed clothes. Salt Lake Police familiar with Allgier anticipated the move, and converged on the area. As they arrived Allgier was leaving, which caused a crash among three police cars trying to stop him. Allgier then led police on a ...

Oklahoma Jail Dodges $700,000 in Fines

On November 28, 2006, the Bryan County Jail in Oklahoma was fined $15,000 by a local judge for health inspection violations. Both the district attorney and jail officials were elated with the ruling.

The reason they were happy was because the jail had originally faced more than $700,000 in fines based on the inspector?s original report.

State Health Department inspector Alicia Dickerson cited the jail for 24 violations. Alarmed at facing almost three-quarters of a million dollars in penalties, county officials ran to District Attorney Emily Redman for help.

After the jail took the initiative to correct some of the problems, the court dismissed 13 of the 24 citations. The health department then reduced its request to $350,000 in fines, and the court required both sides to submit briefs to support their remaining claims.

The most serious violations cited by the health department included mattresses in the jail that fell below acceptable standards, sub par bedding and blankets, and a constantly wet floor in the laundry room.

The jail took a different approach in its defense. While briefly addressing the deficiencies cited by the health department, Assistant D.A. Greg Jenkins claimed a conflict of interest ...

CCA-Run Immigrant Family Detention Center in Texas Violates Settlement Conditions

by Matt Clarke

On April 9, 2007, a federal district court in Texas held that the conditions of confinement at a privately-run facility used by Immigration and Customs Enforcement (ICE) to hold families detained due to immigration issues violated the terms of a class-action settlement related to the detention of children.

Challenges to conditions at the T. Don Hutto Family Residential Center were raised in sixteen civil rights suits filed under 42 U.S.C. § 1983.
The plaintiffs were minor children who entered the United States illegally with their parents. Prior to 9-11, immigration detainees with families were released on bond and given a date to appear in court, which was referred to as the ?catch and release? policy.

After 9-11 and the creation of ICE under the Department of Homeland Security (DHS), immigration policies were tightened and immigration detainee families were incarcerated using separate facilities for men, women and children. In response to concerns about removing children from their parents, ICE developed the concept of family detention centers (FDCs). There are two FDCs; one in Berks County, Pennsylvania is a converted nursing home, while the other, the Hutto facility, located in Taylor, Texas, is a converted medium-security prison that ...

$195,000 Paid to Family of Slain Florida Prison Guard

by David M. Reutter

The Florida Department of Corrections (FDOC) has agreed to pay $195,000 to the family of murdered prison guard Darla Kay Lathrem, 38. PLN previously reported the incident. [See: PLN, April 2006, p.42].

Lathrem was killed during a failed escape on June 11, 2003. She ...

Los Angeles Jail Canteen Audit: Contractor Rakes In $640,213 Excess Profits

by John E. Dannenberg

Compass Group USA, Inc. doing business at the Los Angeles County Jail as Canteen Services (Canteen), was booked by the county auditor for extracting $640,213 in excess profits from its gross prisoner canteen revenues of $78 million between 2000 and 2005 and spending this sum on expenses not related to the county contract. This included wining and dining unidentified Sheriff?s department officials to the tune of $169,465. The $640,213 in disallowed deductions should have instead been booked as ?profit sharing? paid to the county for prisoner-benefit programs. Compass Group responded to the audit by claiming that it, an $8.4 billion corporation, actually underbilled the county for its corporate overhead, and was thus owed money.

Canteen?s five-year contract with the county jail provides that it shall return 31%; of net commissary sales to the county, as well as 50% of any profits in excess of a 6% target. Thus, the county exacts a 31% ?commission? for the privilege of doing business with them, plus incentifies the vendor to make excess profits. All of this cost basis, of course, simply goes to artificially jacking up the cost of canteen purchases to the ...

Alabama Corrections Commissioner’s Contempt Order Upheld

Alabama Corrections Commissioner's Contempt Order Upheld

Alabama's Supreme Court has affirmed a Montgomery County Circuit Court's order holding Alabama Department of Corrections (ADOC) Commissioner Richard Allen in contempt, with the threat of jail time. The order stemmed from a lawsuit filed by counties that sought to enforce a judicial stipulation to remove state-sentenced prisoners from county jails within 30 days.

A running dispute between ADOC and the counties has been ongoing since 1991. The dispute centers on ADOC's failure to remove state-sentenced prisoners from county jails, causing overcrowding at those facilities. In January 2004 the state Supreme Court affirmed an order requiring ADOC to remove a certain number of sentenced prisoners from the county jails each week. Once all of the state prisoners were removed from the facilities, ADOC was required to receive prisoners within 30 days of receiving their transcripts from the counties. See: Haley v. Barbour County, 885 So.2d 783 (Ala 2004).

By December 2005, however, the number of state prisoners in county jails had grown to more than 800 and the counties returned to court. On May 11, 2006 the Circuit Court held Allen in contempt and threatened to jail him if ...

California Prison Guards Lose Unlimited “Time Bank” For On-The Job Union Business

California Prison Guards Lose Unlimited "Time Bank" For On-The Job Union Business

by Marvin Mentor

The California Correctional Peace Officers Association (CCPOA) lost its bid to undo a cap on its contract provision permitting rank-and-file members to donate unused leave (minimum of two-hour increments) to fellow prison guards to cover their pay while they instead conducted official union business on the job. Referred to as the "release time bank" (RTB), the account accrued hours of donated paid leave (except sick leave)over the 2001-2006 term of the contract, subject to a 10,000 hour cap.

However, the CCPOA charged a whopping 122,387 hours -- 112,387 (over $3 million worth) in excess of the contract provision. [Some guards reportedly used so much RTB time on union business that for years they never worked their posts.] The Department of Personnel Administration (DPA) failed to catch this overrun until May 20, 2005, when it issued a cease-and-desist letter and ordered any guards doing such union business to instead return to their posts. The CCPOA replied that the 10,000 hour cap had been previously removed in a contract "side-letter," which was properly approved by the state Legislature. They submitted the DPA action ...

Lawsuit Against WI Supermax Settled for $475,000; General Population Prisoners Fill Beds

In January 2007, Wisconsin officials settled a federal lawsuit filed by a prisoner at the state?s former Supermax facility at Boscobel, now called the Wisconsin Secure Program Facility (WSPF). Canyon Thixton, who arrived at the maximum security prison in April 2001 when he was 17 years old, alleged he ...

No Criminal Wrongdoing Found in Overpayments to Florida Private Prisons

by David M. Reutter

In May 2007 the Florida Department of Law Enforcement (FDLE) issued a 22-page report which found that $12.7 million in overpayments to the state's private prison contractors did not result from an intent "to steal or defraud." PLN previously reported on this investigation, which was ordered by Gov. Charlie Crist after the overpayments were discovered by state auditors. [See: PLN, June 2007, p.32; Nov. 2007, p.38].

The private prison contractors involved, GEO Group (formerly Wackenhut Corrections) and Corrections Corporation of America (CCA), were under contracts supervised by the state's Correctional Privatization Commission (CPC). The Florida legislature created the CPC in 1993 to oversee limited privatization of the state's prisons. The commission was abolished in 2004 after numerous scandals; one of its executive directors was fined by the state Ethics Commission, while another is serving time in federal prison for embezzlement of CPC funds.

The FDLE report found that the legislature had reviewed the contracts and annual budgets, so nothing had been hidden. "There was no evidence that the budget requests were fraudulent or incomplete," the report stated. Nor was there any evidence "that any group or individual ever solicited or ...

Prisoner Crashes Jet Ski into Dock in Camden County, Georgia

On September 16, 2006, a Camden County, Georgia jail prisoner crashed a Sheriff?s Department jet ski into a private dock at Harriet?s Bluff on the Crooked River.

According to Sheriff Bill Smith, jail trustees were moving the jet skis from a private dock to a trailer at a public boat ramp when prisoner Anthony Van Lewis, 34, tried to turn between two docks. The inexperienced Van Lewis panicked and struck the dock, breaking his hip and leg. Jail trustees Carl Jason Hawkins, 25, and Daniel Murrell, 49, were also involved in moving the jet skis.

The sheriff was unable to explain the accident, saying only that he called the jail and ?asked them to get the skis out of the water? without specifying how that was to be accomplished. The Georgia Department of Natural Resources investigated and ruled the crash an accident caused by ?rider inexperience.? The Sheriff?s Department declined to comment on why the prisoners were unsupervised due to an ongoing investigation into the incident.

When the Camden County Commission questioned Sheriff Smith about the crash he went on the offensive, claiming the commissioners did not give him sufficient resources to operate without using prisoners in ...

Most Serious Sex Offenders in Boston Living in Homeless Shelters

Efforts in Massachusetts to keep a close eye on released sex offenders have apparently failed. Rather than having such offenders in stable living environments where law enforcement officials can monitor them, 65 percent of the state?s most dangerous sex offenders stay in homeless shelters. That figure is for Level 3 offenders, which is the state-defined category for those who have the highest risk of committing another sex crime.

The large number of sex offenders in homeless shelters begs the question of whether they are forced to live there because they are unable to find other suitable housing or if they are trying to evade registration.
Because of the transient nature of the shelter residents, it is difficult to determine whether they reside at the shelter or just say they live there.

That problem plagues police officials charged with verifying sex offenders? addresses. ?It does pose difficulties for us, because few people may know them in shelters and they leave during the day,? said Boston police Sgt. Detective Kim Gaddy. ?Sometimes we can?t find the individuals. You really have to do your homework.?

The Massachusetts Parole Board has 110 sex offenders under strict supervision who are prohibited from living ...

New York City Settles Prisoner-On-Prisoner Assault for $180,000

On October 23, 2006, the City of New York agreed to pay $180,000 to a prisoner who suffered facial injuries as the result of an attack by another prisoner.

City prisoner Ivan Miller, 34, claimed that on June 30, 1998, while imprisoned at the Brooklyn House of Detention he ...

Iowa Faith-Based Program Held Unconstitutional by 8th Circuit; Continues with Private Funding

Previously, PLN reported an Iowa federal district court ruling which held that the InnerChange Freedom Initiatives, a faith-based prison program that received state funding, violated the First Amendment?s establishment clause. [See: PLN, July 2006, pg.18]. As noted in this issue of PLN, that ruling was largely upheld on appeal.

District Court Judge Robert Pratt stayed his order pending an appeal but ruled that all state funding for the program must be discontinued. Judge Pratt also ordered InnerChange to repay $1.5 million in state funds it had received under its contract with the Iowa Department of Corrections (IDOC).

While the case was on appeal the IDOC reached an agreement to allow the InnerChange program to complete the last year of its three-year contract at the Newton Correctional Institution (NCI), using private funding.
InnerChange also agreed that it could not discriminate on the basis of race or ethnicity, and must protect the rights of gays and lesbians.
?They have to open it up for everybody to have an opportunity,? said IDOC spokesman Fred Scaletta.

InnerChange, which is run by Virginia-based Prison Fellowship, had operated at NCI since 1999; it serves 145 prisoners who spend their days working, participating in ...

Hawaii Youth Prison Financial Audit Finds Excessive Overtime/Leave Abuses

A 2007 financial audit of the Hawaii Youth Correctional Facility (HYCF) found significant overtime costs and sick leave among guards, with 35 percent of gross compensation being earned through overtime pay in fiscal year 2004-2005.

Intense scrutiny of HYCF, the state?s only juvenile detention facility, prompted the Hawaii State Legislature in 2006, to request that the State Auditor conduct a financial audit of HYCF.

Auditors noted that in 1986, an HYCF audit found that its ?corrections policies and practices lacked clarity and consistency and failed to provide an adequate framework for effective program management.?
Additionally, ?Hawaii?s legislation created ambiguity in the roles and responsibilities of the three departments directly involved in providing services at? HYCF.

A May 2006 operational audit ?found that the Office of Youth Services has not provided? HYCF ?with adequate guidance and support to carry out its mission.? Additionally, ?the facility has left many critical positions vacant or temporarily filled, conducted job performance evaluations only sporadically, and has no formal or systematic training program.? See: Management Audit of the Hawaii Youth Correctional Facility,? Report No. 06-03 (May 2006).

The 2007 financial audit assessed selected fiscal issues such as sick leave, overtime, ward trust accounts, and ...

Eighth Circuit Upholds Arkansas Jailer’s 78-Month Sentence for Brutalizing Prisoners

Eighth Circuit Upholds Arkansas Jailer's 78-Month Sentence for Brutalizing Prisoners

The Eighth Circuit U.S. Court of Appeals upheld the criminal conviction of an Arkansas jailer for violation of the civil rights of two prisoners whom he beat maliciously and sadistically. The court found the evidence more than sufficient, even though the injuries suffered were not exceptionally grave.

Jody Ray Miller, supervisor at Arkansas' Craighead County Jail, was convicted of brutally beating two prisoners upon their booking. On March 29, 2004, Miller struck handcuffed non-aggressive prisoner Climmie Jones in the head with a closed fist. When Jones fell to the ground, Miller kicked and stomped Jones with his boots, calling Jones "a nigger." Miller instructed jailer Arlen Whitley to write a "good [i.e., false] report," which he did. But Whitley later confessed to the Sheriff.

On April 1, 2004, Miller similarly beat a handcuffed nonviolent Terry O'Neil, kicking him (while he was lying on his stomach) in the head and chest. Miller exhorted, "I bet you won't ever fuck with the police anymore." Again, Miller directed that a false "good report" be written.

Other jailers who witnessed Miller's behavior stated that there was no legitimate ...

Self-Defense: A New Jersey Prisoner’s Right

Self-Defense: A New Jersey Prisoner's Right

A New Jersey Superior Court, Appellate Division, has held that a prisoner has a right to self-defense while incarcerated. Thus, a hearing officer must make specific findings when a self-defense theory is asserted.

The ruling came in an action filed by Michael DeCamp, who was held at the South Woods State Prison. Because he is a transsexual who has undergone breast implants, but has not completed the surgical process to change his physical gender, DeCamp claimed he was the subject of sexual harassment by prisoner Walter Keresty.

DeCamp had reported to a prison social worker and to Internal Affairs that Keresty had been harassing him. On September 1, 2005, DeCamp approached a guard and told him Keresty ?slammed his head into the concrete, and then tried to jam his tongue down his throat.? Both prisoners received a disciplinary infraction for fighting.

Keresty told guards the fight was staged to get DeCamp moved to another housing area. The hearing officer found Keresty was the aggressor and his actions were explicitly sexual in nature. Keresty received ten days detention, 180 days loss of commutation time, and 180 days of administrative segregation.

The Superior Court held ...

Wrongful Death Suit Against LA County Jail Settles For $750,000

The surviving family of an untreated and mistreated mentally unstable diabetic prisoner who died at the Los Angeles, California (LA) County Jail settled their wrongful death lawsuit against the county and LA Sheriff?s officials for $750,000 in May 2007.

Ramon Gavira was arrested on July 6, 2002 for ...

Eighth Circuit Holds State Funding of Iowa Faith-Based Prison Unconstitutional

On December 3, 2007, a three-judge panel of the U.S. 8th Circuit Court of Appeals held that partial state funding of a religious-based prison program in Iowa was unconstitutional.

The Court further held that InnerChange, a division of Prison Fellowship Ministries, was not obligated to repay $1.5 million it has received in state funding since the program began in 1999.

The Eighth Circuit decision is the latest in a string of rulings in 2007 that prohibit using government money to promote religion, said George Washington University law professor Robert Tuttle, who is an expert on faith-based initiatives.

?The main thing it does is reaffirm the obligation of government not to fund programs that intermingle secular and religious content,? said Tuttle. ?The federal government has come to terms with that over the last year. Even when it has won cases, there hasn?t been a single decision that would allow government to intertwine secular and religious content.?

In February 2003 Iowa prisoners and Americans United for Separation of Church and State filed suit in the U.S. District Court for the District of Iowa challenging the state?s partial funding of the program. In 2005 the district court found ...

California Jail Settles Gender-Identity-Disorder Discrimination Suit

by John F. Dannenberg

Orange County and its Sheriff, Michael Carona, settled a discrimination suit brought by a prisoner whom they denied treatment for Gender Identity Disorder (GID). They now provide such individuals specialized medical treatment for their disorders, educate Sheriff's staff on, and extend outreach to, the Lesbian ...

$35,000 Jury Award in Massachusetts Prisoner’s Assault by Guards

$35,000 Jury Award in Massachusetts Prisoner's Assault by Guards

A jury awarded a prisoner at the Massachusetts Correctional Facility at Walpole $35,000 for guards' negligence for failing to intercede to stop an excessive use of force.

After one guard began assaulting and beating prisoner Kenneth S. Bernstein ...

BOP Byline Prohibition Unconstitutional

by David M. Reutter

A Colorado federal district court has held the Bureau of Prisons (BOP) regulation that provides a prisoner may not "publish under a byline" violates the First Amendment. The Court's order prohibits the BOP from punishing any prisoner for violating that regulation.

The Court's order comes in an action filed by Mark Jordan, a prisoner at the BOP's Administrative Maximum Unit in Florence, Colorado. The regulation at issue, 28 C.F.R. §540.20(b), provides that "the inmate may not act as reporter or publish under a byline." The BOP punished prisoners publishing under a byline in the "news media," which is defined as newspapers, news magazines, national and international news services, and TV and radio news programs.

Jordan, a prolific writer who has written and submitted for publication manuscripts, essays, letters to the editor, fiction and nonfiction, was found by BOP officials to have violated the byline rule when an article in Off! magazine appeared with his byline. As a result, he was found guilty in a disciplinary hearing of "Unauthorized Contact with the Public." He was infracted again when Off! published another article, but this time under Jordan's religious birth ...

Washington Pays $665,000 to Prisoner Injured In Racially Motivated Attack

On May 30, 2007, the State of Washington agreed to pay $635,000 to a black prisoner who was injured in an attack by white prisoners. The white prisoners were members of a ?Security Threat Group?. The plaintiff was also allegedly a member of a black prison gang, the Black ...

Connecticut Prisons Begin 10% Deductions of Prisoner Monies

The Connecticut Department of Corrections (CDOC) has put into effect a new state law that creates savings accounts for prisoners. The new law, which took effect July 1, 2007, allows CDOC to automatically deduct 10 percent of any funds that are deposited to a prisoner?s commissary account.

The law is touted as a way to reduce recidivism. ?The savings account is a great idea because the re-entry phase is very important,? said state Rep. Michael Lawler. ?Obviously, the vast majority of people are leaving prison with nothing.?

The deduction allows a prisoner to save a maximum of $1,000. After reaching that threshold, the CDOC will continue to deduct 10 percent of all monies the prisoner receives, but deposit it into the State?s general fund to reimburse the state for costs of incarceration.Apparently the notion of reentry and preventing recidivism maxes out after $1,000.

Critics contend most prisoners will never be able to save $1,000. The pay in CDOC prisons ranges from 75 cents per day to $1.75 per hour. ?If you could come out [with] $1,000, it just sounds like you?d have to be in there for years,? says former prisoner ...

Vermont DOC: Nations Biggest Prison Dispenser of Psychotropic Medication

Vermont DOC: Nations Biggest Prison Dispenser of Psychotropic Medication

It is not questioned by those familiar with the population of America's prisoner system that prisons have become the main provider of mental health services since the nation dismantled its psychiatric hospital system. The question, however, is what is a reasonable percentage of prisoners that should be on psychotropic medication?

While there is no clear answer to that query, it is clear that Vermont leads the nation in the percentage of its prison population taking such medications. In 2006, about 46 percent of Vermont prisoners were on psychotropics of some sort. The next-closest state, according to Vermont Department of Corrections (VDOC) mental health director Dr. Susan Wehry, had 24 percent of its prisoners on such drugs.

Seroquel is one heavily prescribed drug in the Vermont prison system. It is an anti-psychotic drug designed for people dealing with schizophrenia or bipolar disorder. Its possible side effects include high blood sugar, which can lead to diabetes. Its manufacturer, AstraZeneca, says it can also cause tardive dyskinesia, which is "uncontrollable movements of the face, tongue, or other parts of the body" that can become permanent.

An Associated Press freedom of information request found ...

United States Sentencing Commission Approves Crack Reform For Federal Prisoners

On December 11, 2007, the day after the Supreme Court affirmed a judge?s decision to sentence below the guideline range based on the unfairness of the crack cocaine sentencing disparity, the United States Sentencing Commission voted to make retroactive its recent guideline amendment on crack cocaine offenses. The USSC?s decision now makes an estimated 19,500 persons in federal prison eligible for a sentence reduction averaging more than two years. Releases are subject to judicial review and will be staggered over 30 years.

?The Commission?s decision marks an important moment not only for the 19,500 people retroactivity will impact, but for the justice system as a whole,? stated Marc Mauer, Executive Director of The Sentencing Project.
?Today?s action, combined with the Court?s decision yesterday, restores a measure of rationality to federal sentencing while also addressing the unconscionable racial disparities that the war on drugs has produced.?

The Sentencing Project estimates that once the sentencing change is fully implemented, there will be a reduction of up to $1 billion in prison costs. African Americans comprise more than 80% of those incarcerated for crack cocaine offenses.

The Commission sets the advisory guideline range that federal judges ...

Eleventh Circuit Condemns One-Sentence Qualified Immunity Denial Order

The Eleventh Circuit Court of Appeals has reversed an Alabama federal district court?s order denying jail officials? motions to dismiss on qualified immunity ground, admonishing the district court for only entering ?one sentence orders denying? the motions.

Kevin Danley sued under 42 U.S.C. § 1983, alleging ?he was subjected to excessive force and then denied medical treatment when, as a pretrial detainee, detention officers sprayed him with pepper spray? while he was a pretrial detainee in the Lauderdale County Detention Center. The district court?s orders ?perfunctorily stated? it had considered the defendants? motions to dismiss and was ?of the opinion defendants? motions are to due be denied.?

The Eleventh Circuit said it has admonished, many times, district courts that fail to contain sufficient explanations of their rulings to allow meaningful appellate review. While the Eleventh Circuit could review the record and applicable case law to render a reasoned decision on qualified immunity, ?this is the responsibility of the district court in the first instance.?

The district court?s order was reversed with instructions to enter a reasoned order. See: Danley v. Allen, 480 F.3d 1090 (11th Cir. 2007).
On Remand the district court again denied the ...

$25,000 Settlement in Miami False Arrest, Strip Search Suit

While driving in Florida?s Miami-Dade County, a 32-year-old female was pulled over for allegedly following another car too closely. The Miami-Dade County police officer arrested her for an outstanding warrant for driving with an invalid driver?s license.

She was arrested in front of her daughter and grandmother, detained ...

Seventh Circuit Rejects Federal Prisoner’s Necessity Defense

Seventh Circuit Rejects Federal Prisoner's Necessity Defense

The Seventh Circuit found that a federal prisoner had failed to prove the requisite elements of the "necessity" defense in a prison weapon possession prosecution.

In 1992, David Sahakian was sentenced to 360 months in federal prison and was confined at the United States Penitentiary at Marion, Illinois (USP-Marion), "a federal maximum security prison with a well documented history of violence." See, e.g., United States v. Tokash, 282 F.3d 962, 966 (7th Cir. 2002) and Caldwell v. Miller, 790 F.2d 589, 592-93 (7th Cir. 1986).

During the late 1990s, the Aryan Brotherhood (AB) and the DC Blacks were rival gangs at USP-Marion. The AB "maintained a running oral 'hit list' of black prisoners that, if encountered, should be attacked and/or killed." AB members "and associated gangs such as the 'Dirty White Boys,' carried 'shanks' in their rectal cavities" to avoid detection by guards.

On May 18, 1999, Dirty White Boys members Richard McIntosh and Carl Knorr stabbed black prisoner Terry Lamar Walker to death in front of two USP-Marion guards. During the ensuing investigation, an AB/Dirty White Boys associate turned informant. He identified Sahakian as an AB ...

Some Australian Prisoners Entitled to Vote

The High Court of Australia has held that a 2006 law prohibiting prisoners serving a sentence of less than three years from voting was invalid under the Commonwealth Constitution.

The special action before The High Court challenged the Commonwealth Electoral Act amendment of 2006. Prior to that amendment, prisoners serving three years or more were not entitled to vote. The amendment provided that any prisoner serving a sentence of imprisonment was not entitled to vote.

In finding that the amendment violated sections 7 and 24 of the Commonwealth Constitution, The High Court upheld the pre-2006 legislation prohibiting prisoners with sentences longer than three years from voting, holding that it remained in force and was valid. The 2006 amendment, however, was struck down as an invalid law.

The Court awarded the plaintiff half of her costs. See: Vicki Lee Roach v. Electoral Commissioner and Commonwealth of Australia, HCA 43 (2007).

Fourth Circuit Finds Virginia Prisoner’s Religious Exercise Claim Meritorious

Fourth Circuit Finds Virginia Prisoner's Religious Exercise Claim Meritorious

by Michael Rigby

The U.S. Fourth Circuit Court of Appeals vacated and remanded a district court?s grant of summary judgment to prison officials who had denied a Virginia prisoner access to special Ramadan meals and religious services.

In 2002, Jack Lee, warden of Virginia's Keen Mountain Correctional Center, instituted a policy detailing procedures for the observance of Ramadan, the Muslim holy month, during which adherents fast during daylight hours and attend special pre-dawn and post-sunset services.

According to the policy, prisoners approved to participate in the fast would receive special meals in the prison chow hall. The policy further stated that any prisoner caught eating during daylight hours would be barred from participating in the fast and, by extension, the morning prayer service.

In 2002, Ramadan ran from November 5 through December 4. Six days into the holy month, on December 11, prisoner Leroy Lovelace, who described his interactions with prison staff as "contentious," was denied his special evening meal. Staff informed him that his participation had been discontinued because Officer K. Lester had submitted an incident report alleging he had seen Lovelace eating in the prison ...

Summary Dismissal of Court Access Claim Reversed

The Seventh Circuit Court of Appeals reversed a lower court?s sua sponte dismissal of a prisoner?s access-to-courts lawsuit for failure to state a claim. The appellate court also held that the prisoner was entitled to amend his complaint.

Indiana prisoner Kenneth Marshal filed a handwritten, pro se complaint in federal court on June 25, 2003. He alleged that prison officials implemented a restrictive law library policy which diminished his library access. He claimed that his inability to prepare for a May 29, 2003 court proceeding resulted in denial of ?credit time? to which he was entitled.

Before the defendants were served, on September 3, 2003, Marshall sought leave to amend his complaint to (1) name previous Doe defendants; (2) increase his damages request; (3) demand a jury trial; and (4) attach several exhibits and affidavits. His petition ?also contained new factual allegations that suggested a claim for retaliation.?

On November 24, 2003, the district court issued a single-sentence order denying Marshall?s motion to amend. On December 18, 2003, the court dismissed Marshall?s action pursuant to the screening provisions of 28 U.S.C. § 1915A(b)(1), finding that Marshall had failed to state a viable claim ...

California: 1st Degree Occupied Burglary Doesn’t Bar Working in Licensed

California: 1st Degree Occupied Burglary Doesn't Bar Working in Licensed
Community Care Facilities

Convicted felons suffer many civil disabilities, even after discharge from custody and post-release supervision. In California, a person whose criminal past includes a "crime against a person" is precluded from working in a state-licensed community care facility. (Cal. Health & Safety Code §§ 1502(a), 1522(c)(3) and 1522(g)(1)).

The California Court of Appeal, First District, held that the crime of first degree burglary when a non-accomplice is home (an "occupied burglary"), while clearly a serious offense (Calif. Penal Code § 667.5(c)), is not "a crime against a person" for the purpose of excluding felons from employment at licensed community care facilities.

Jane Doe and Mary Glesmann had been denied employment by Rita Saenz, Director of the Department of Social Services, solely because a check of their criminal backgrounds revealed convictions for first degree burglary. Saenz also denied the applicants' request for a no-crime-against-a-person exemption to their statutory preclusion from working in community care facilities.

The San Francisco Superior Court found for the plaintiffs and the Court of Appeal affirmed. The appellate court also affirmed that another plaintiff, who had been convicted of second-degree ...

Michigan Anti-Civil Rights Amendment Declared Unconstitutional

by John E. Dannenberg

The U.S. District Court for the Eastern District of Michigan declared unconstitutional a March 2000 amendment to Michigan?s Elliot-Larson Civil Rights Act (ELCRA), which had stripped prisoners from protection against discrimination. This important ruling, which is being appealed by the state, found Michigan?s zeal to declare ?open season? on discrimination against prisoners to be as fundamentally violative of the U.S.
Constitution?s Equal Protection Clause as was Colorado?s bigoted statute prohibiting any taxpayer-paid governmental effort that would protect homosexuals ? a law that was struck down by the U.S. Supreme Court in Romer v. Evans, 517 U.S. 620 (1996).

The ELCRA was originally interpreted by the Michigan Court of Appeals to include prisoners under its umbrella of protection. (See: Neal v. Michigan Dept of Corrections, 232 Mich.App. 730 (1998)). In response to Neal, the distraught Michigan Legislature amended the ELCRA in 2000 to expressly declare ?the original intent of the legislature that an individual serving a sentence of imprisonment in a state or county correctional facility is not within the purview of this act.?

The plaintiffs, female prisoners, who were supported in amicus curiae briefs by the Michigan ACLU ...

Prisoner’s Oral Complaints Worthy of First Amendment Protection;

Prisoner's Oral Complaints Worthy of First Amendment Protection; 
$1 in Damages and $1.50 in Fees Awarded

The Seventh Circuit Court of Appeals has held that a prisoner's oral complaints about matters of "public concern" that are designed to "urge a change of any prison policy" are ...

News in Brief:

Argentina: On November 5, 2007, 29 prisoners died in a fire at the maximum security prison in Santiago del Estero. The fire was set to distract guards from an escape attempt and quickly spread. Most of the victims died of smoke inhalation. No escapes occurred. Riot police restored order after almost 200 relatives of prisoners tried to break through barricades into the prison.

Arizona: On October 17, 2007, Elsa Gutierrez, 33, a guard at the men's prison in Yuma was charged with sexually assaulting a male prisoner.

California: In September, 2007, Christina Rojas, 25, and Imelda Radillo, 22, were arrested by Merced police on charges they had used stolen credit cards to fund phone accounts for prisoners in the Merced county jail. In July the women had carried out a protest outside the jail where they wore mock orange jail jumpsuits to show solidarity with the jail prisoners after guards had stormed four cells and brutally beaten the prisoner occupants and shot them with bean bag rounds and rubber pellets.


Prosecutors claim the women activists are members of the Norteños street gang and have sought gang enhancements against them. The women could not be reached by the media for ...

Bivens Action Inapplicable to Private Prison Employees

The Fourth Circuit Court of Appeals has held that individual employees of a privately-operated prison are not subject to Eighth Amendment liability under a Bivens action. Before the Court was the defendants' appeal of a North Carolina federal district court's denial of the defendants? motion to dismiss.

Ricky Lee Holly, a prisoner at Rivers Correctional Institution, a privately-operated prison run by the GEO Group, Inc. under contract with the Federal Bureau of Prisons, alleged the defendants had failed to provide him with adequate medical care since his arrival at Rivers in August 2002.

Holly is a diabetic. He contended that medical staff ignored his complaints that his insulin dosage was insufficient, resulting in frequent black-outs. He also alleged his complaints led to retaliation in the form of being locked in the medical unit for twenty-four days with a threat that he would remain there until he completed his sentence. Holly sought to establish liability under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Bivens held that a "violation of [the Fourth Amendment] by a federal agent acting under color of his authority gives rise to a cause of action for damages ...

 

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