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Prisoner Education Guide

Prison Legal News: March, 2008

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Volume 19, Number 3

In this issue:

  1. From the Editor (p 1)
  2. Cheaper than Chimpanzees: Expanding the Use of Prisoners in Medical Experiments (p 1)
  3. Audit Reveals Problems with Maryland’s New Prisoner Health Care System (p 16)
  4. California DOC and Joint-Venture Contractor Owe Over $1.8 Million in Attorney Fees for Protracted Suit Granting Prison Workers Prevailing Wage (p 18)
  5. Georgia’s Prison Health System Squeezed by Increasing Population, Decreasing Staff Budget (p 20)
  6. San Antonio Sheriff Pleads No Contest to Corruption Charges, Resigns (p 22)
  7. Ohio Man Paid $1.5 Million for 26 Years' Wrongful Imprisonment (p 23)
  8. Philadelphia City Jails Under Federal Supervision, Again, Temporarily (p 24)
  9. A Pursuit of Prisoners’ Health and Safety A conversation with Elizabeth Alexander, director of the ACLU’s National Prison Project (p 26)
  10. Factor 8: the Arkansas Prison Blood Mining Scandal Movie review and Director Interview (p 28)
  11. Federal Court Grants Class Certification to Disabled Washington Prisoners (p 30)
  12. PLN Obtains Injunction Against Fulton County Jail in Censorship Suit (p 31)
  13. Who’s Monitoring Prison Medical Contract Requirements in New Jersey? No One (p 32)
  14. AT&T Settlement Includes Fines, Reimbursement for Overcharging Recipients of Phone Calls From Washington Prisoners (p 34)
  15. Massachusetts Jail Releases Prisoners to Meet Court-Ordered Population Levels (p 34)
  16. City Of San Leandro, California Pays $395,000 To Family Of Detainee Who Died After 21 Taser Shocks (p 35)
  17. Federal Prison Staff Are Law Enforcement Official For Purposes Of FTCA Claims (p 36)
  18. Federal Judges Convene Three-Judge Panel to Consider “Prisoner Release Orders” to Remedy California’s Prison Overcrowding; Upheld on Appeal (p 38)
  19. Los Angeles County Pays $2.8 Million For Failure To Protect Accused Child Molester In Jail (p 40)
  20. Love, Sex and Violence KO Oregon Deputies, Jailers and Prison Guards (p 40)
  21. News in Brief: (p 42)
  22. Privatized Medical Services Entangle Florida Sheriff in Litigation and Raises Costs (p 44)

From the Editor

This issue?s cover story reports the push to renew the use of prisoners as the test subjects for medical experiments and testing. If history repeats itself first as tragedy then as farce, we are still at the tragic stage.
The United States has a lengthy and sordid history of using prisoners for medical, military and other experiments. A practice that largely ended, but not completely, in the 1970s. The accompanying movie review of the documentary film Factor 8, on the blood mining practices of the Arkansas prison system until 1994 reports some of the reasons why the medical exploitation of prisoners is a bad idea. Sadly, at this juncture, PLN is one of the few organizations to oppose the use of prisoners as medical guinea pigs. We will report developments as they happen.

This issue continues our ongoing series of interviews with long time members of the prisoner rights legal community. Elizabeth Alexander, the director of the ACLU?s National Prison Project discusses her views on the prisoner rights movement and litigation over the past 30 years. We hope these interviews are informative to readers as well as inspiring to lawyers considering careers in public interest law. These are ...

Cheaper than Chimpanzees: Expanding the Use of Prisoners in Medical Experiments

by Gregory Dober

"It is the duty of the doctor to remain the protector of the life and health of that person on whom clinical research is being carried out." Declaration of Helsinki

In June 2006, the Institute of Medicine (IOM) issued a report on simplifying the current federal regulations for conducting medical research in prisons, which included recommendations to increase the use of prisoners as test subjects. The IOM's "definition of simplicity" is approximately two hundred pages long while the current regulations, included in the report, account for approximately four pages of the same font size, type and page length. 

An IOM Committee was formed in 2005 to investigate possible changes to the federal policies regarding biomedical research in prisons. Those regulations, codified at 45 C.F.R. 46, Subpart C (Research and Prisoners), are intended to protect prisoners as subjects in biomedical and behavioral research. The current regulations restrict researchers to four basic categories of research when using prisoner test subjects: 1) studies involving causes and effects of incarceration, 2) the prison as an institutional structure, 3) conditions affecting prisoners as a class, and 4) research on practices that have the intent and reasonable probability of ...

Audit Reveals Problems with Maryland’s New Prisoner Health Care System

Audit Reveals Problems with Maryland's New Prisoner Health Care System

by Michael Rigby

Maryland's new prisoner health care program remained understaffed in 2006, and the state Department of Public Safety and Correctional Services (DPSCS) has yet to implement promised drug treatment programs or an electronic database meant to better track prisoner records, an audit of the state's new system has revealed.

In the report, released on April 30, 2007, auditors from the Office of Legislative Audits noted "several significant areas of noncompliance" affecting prisoner medical care.

"We found a number of areas in which inadequate monitoring (by the state) appeared to lead to potential lapses in required medical coverage and certain required medical treatments," auditors wrote.

The audit was state's first independent investigation of the new system, which the DPSCS implemented in 2005 [see PLN, February 2006, pg. 14].

Under the previous system, for-profit prison medical providers were offered fixed-priced contracts for their services. With rising medical costs, however, these contractors balked at signing new contracts, claiming they weren't as profitable as they once were.

Prisoner activists also disliked the fixed-price system because it gave medical contractors an incentive to skimp on prisoner health care ...

California DOC and Joint-Venture Contractor Owe Over $1.8 Million in Attorney Fees for Protracted Suit Granting Prison Workers Prevailing Wage

by John E. Dannenberg

The California Court of Appeal, 4th District, has upheld the San Diego Superior Court’s award of $1,257,258.60 in attorney fees incurred during drawn-out litigation against the California Department of Corrections and Rehabilitation (CDCR) and CMT Blues (CMT), the CDCR’s joint venture contractor employing ...

Georgia’s Prison Health System Squeezed by Increasing Population, Decreasing Staff Budget

Georgia's Prison Health System Squeezed by Increasing Population, Decreasing Staff Budget

by David M. Reutter

With an increase in Georgia's prison population, the cost to provide medical care to prisoners has soared. Due to legislative budgetary restraints, the Georgia Department of Corrections (GDC) is finding it increasingly difficult to provide the required constitutional level of health care according to an August 2007 report by the Georgia Department of Audits and Accounts Performance Audit Operations (Auditor).

The report was a special examination of GDC's health care system, which follows a 2004 program evaluation by the Auditor's office. The audit report found that GDC's Office of Health Services (OHS) had "developed an extensive management control system to effectively manage all aspects of physical, mental, and dental health care." While problems are bound to exist in a complex system, the report concluded that "the quality of the inmate health care system is threatened by decreasing staffing levels that are a result of budget constraints."

The Auditor's 2007 report found the GDC had significantly reduced OHS's staff, which adversely impacted OHS's ability to manage all aspects of prisoner medical care. One effect of the staff reduction ...

San Antonio Sheriff Pleads No Contest to Corruption Charges, Resigns

by Matt Clarke

In August 2007, Bexar County, Texas Sheriff Ralph Lopez, 71, was indicted on three felony counts involving corruption. Lopez tendered his resignation on September 1, 2007, and two days later pleaded no contest to three misdemeanor charges in a deal that spared him from going to prison on state charges. He was fined $10,000; the plea bargain also required him to cooperate with state and federal authorities.

The resignation was part of the plea, as was the District Attorney?s agreement not to prosecute Lopez?s wife, Nancy, who was under investigation for helping to launder campaign contributions. On September 4, 2007, Bexar County Commissioners accepted the sheriff?s resignation.

The charges against Lopez resulted from his accepting an all-expense-paid golf vacation in Costa Rica from Louisiana-based Premier Management Enterprises in exchange for helping Premier get the lucrative Bexar County Jail commissary contract. He failed to report the trip and $600 in unrelated campaign donations.

On September 25, 2007, Lopez?s long-time campaign manager, John Reynolds, pleaded guilty to one count of third-degree felony theft related to his diversion of $32,000 in Premier money into his own accounts. Former Premier CEO Ian Williamson testified that ...

Ohio Man Paid $1.5 Million for 26 Years' Wrongful Imprisonment

In April 2007, an Ohio jury awarded $1.5 million to Plaintiff Gary James, who spent 26 years in prison for a robbery and murder he didn't commit.

James, now 54, and his friend, Timothy Howard, were arrested in 1976 and convicted of bank robbery and murder. Both men ...

Philadelphia City Jails Under Federal Supervision, Again, Temporarily

by David M. Reutter

A Pennsylvania federal district court has held that the conditions of confinement in the intake units at Philadelphia?s local police districts, the Police Administration Building (PAB), the Philadelphia Prison System (PPS) and the Curran Fromhold Correctional Facility (CFCF) were unconstitutional due to overcrowding. Following the ...

A Pursuit of Prisoners’ Health and Safety A conversation with Elizabeth Alexander, director of the ACLU’s National Prison Project

A Pursuit of Prisoners' Health and Safety: A conversation with Elizabeth Alexander, director of the ACLU's National Prison Project

by Todd Matthews

Thirty-seven years ago, Elizabeth Alexander graduated from Yale Law School and planned to enter the field of welfare law. When her husband was offered a teaching job Madison, Wisconsin it changed the course of her legal career. "The only job I could find available was a part-time clinical position at the University of Wisconsin Law School," she recalls. Alexander supervised students in a program that provided services to prisoners at the maximum security state hospital. "The place was extraordinarily, psychologically abusive to the people confined there," she says. What's more, a contract between the organization and the institution precluded any legal action.

That experience shaped her interest in law. Specifically, she wanted to focus on the health and safety of prisoners in America.

In 1981, she was offered a position at the National Prison Project (NPP) in Washington, DC, a program of the American Civil Liberties Union. Twenty-six years later, Alexander, 62, is the NPP's executive director.

The organization, which was created in 1972, employs five full-time staff attorneys and has an annual operating budget ...

Factor 8: the Arkansas Prison Blood Mining Scandal Movie review and Director Interview

Filmmaker Kelly Duda’s first documentary, Factor 8: the Arkansas Prison Blood Scandal, chronicles the decades of abuse towards prisoners and patients from blood mining in search of profits. Traveling back to his home state of Arkansas , Duda comes face-to-face with the bureaucrats in government and business ready to kill to cover up the scandal. Indeed, Duda interviews several whistleblowers who are afraid for their lives due to the interview, some sleeping with loaded shotguns at their headboards and others expecting to receive lockdown time in prison for their crime of uncovering the truth.

Involving an international scheme of selling HIV+ and Hepatitis infected blood from the Cummins Unit prison in Arkansas to Continental Pharma Cryosan Inc. in Canada for use as the blood-clotting agent, Factor VIII. While international attention to the issue has been pronounced, the American press has been hesitant to address the story, presumably because of its controversial nature involving, among others, the former Governor of Arkansas and later US President Bill Clinton.

This straight-for-the-throat film sometimes seeks to explain more than it can, which is understandable given its scope of a scandal ranging from knowledge of Hepatitis and HIV infected blood in the 1970s to the thousands ...

Federal Court Grants Class Certification to Disabled Washington Prisoners

On August 10, 2007, the U.S. District Court for the Western District of Washington granted class certification to a group of disabled prisoners who were not allowed to participate in work release programs due to their disabilities.

Plaintiff Rickey Peralez claimed in his federal civil rights suit that he was denied admittance to a work program based solely on his disability.
He had been sentenced to 20 months in the Washington Department of Corrections (WDOC). Under WDOC policy, prisoners within 180 days of their release dates are eligible for work release programs.

The work release programs are highly desirable; prisoners placed in such programs are allowed to obtain jobs in the community, thereby earning wages comparable to workers in the free world. They can also obtain needed documents such as driver?s licenses and Social Security cards.

Moreover, since the WDOC attempts to place work release prisoners near their hometowns, they are able to reestablish familial relationships ? which research has shown is crucial to reintegration following release and reducing recidivism rates.

Peralez, who suffers from a degenerative bone disease known as Hereditary Rheumatoid Arthritis and is often confined to a wheelchair, was denied admittance to the work release program ...

PLN Obtains Injunction Against Fulton County Jail in Censorship Suit

On February 4, 2008 the U.S. District Court for the Northern District of Georgia (Atlanta Division) granted a preliminary injunction in a lawsuit filed by Prison Legal News over censorship at the Fulton County Jail.

PLN brought suit against Fulton County and Sheriff Myron Freeman on October 22, 2007 due to a mail policy that prohibited prisoners from receiving any books, magazines or newspapers other than religious materials. The same policy had been challenged in federal court in 2002 and found to be unconstitutional, yet the jail continued to enforce the policy and PLN subscriptions delivered to the facility were rejected and destroyed. [See: PLN, Dec. 2007, p.30].

At a January 31, 2008 court hearing, the defendants ?conceded that the old mail policy that was in effect? at the time the suit was filed was unconstitutional. However, because Sheriff Freeman had since instituted a new mail policy that allowed prisoners to receive publications, the County claimed the motion for preliminary injunctive relief was moot. PLN argued an injunction was necessary to prevent the jail from reverting to the old policy.

Applying the four-prong test set forth in Horton v. City of St. Augustine, 272 F.3d 1318, 1326 ...

Who’s Monitoring Prison Medical Contract Requirements in New Jersey? No One

Who's Monitoring Prison Medical Contract Requirements in New Jersey? No One

by David Reutter

PLN subscribers often read reports about the effects of privatized prisoner health care and the spread of privatization to prison and jail systems throughout the nation. These real-life stories of prisoner deaths, maimings and suffering occur even when the corrections agency has a contract that describes the services to be performed and, often, ways to determine performance standards and impose penalties for failure to meet those standards. In the face of grossly deficient health care despite such oversight, one is led to ask: Who is overseeing the provision of privatized prison medical services?

That question was recently answered as it relates to the contract between the New Jersey Department of Corrections (NJDOC) and Correctional Medical Services (CMS) for prison dental care. The New Jersey Office of Inspector General (OIG) found that the NJDOC's Assistant Commissioner of Administration (ACA) was responsible for overseeing CMS's compliance with its contract.

The OIG found that despite the ACA's knowledge that CMS had missed contract deadlines for provision of services, the NJDOC did not impose penalties on the company. In other words, no one took any remedial ...

AT&T Settlement Includes Fines, Reimbursement for Overcharging Recipients of Phone Calls From Washington Prisoners

AT&T Settlement Includes Fines, Reimbursement for Overcharging Recipients of Phone Calls From Washington Prisoners

by Michael Rigby

Telephone service provider AT&T has agreed to reimburse the families and friends of Washington prisoners who were overcharged on collect phone calls made from two state prisons during a four month ...

Massachusetts Jail Releases Prisoners to Meet Court-Ordered Population Levels

A modified consent decree order entered by a Massachusetts federal district court has resulted in the release of at least 100 prisoners from the Worcester County House of Correction (WCHC).

The order came in a class action lawsuit filed by WCHC prisoners in 1989 that complained of overcrowding and other unconstitutional conditions of confinement. The court?s July 23, 2007 order and a revised Nov. 8, 2007 order modified the original consent decree by increasing the jail?s permissible population level due to additions that had expanded bed capacity; however, the WCHC remained severely overcrowded.

According to the Massachusetts Department of Corrections, the WCHC has a rated capacity of 822 prisoners. ?The jail is at 190 percent capacity and a public safety crisis is upon us,? said WCHC Deputy Superintendent Jeffery R. Turco.

A requirement for the WCHC to meet a 1,451 prisoner population cap by October 1, 2007 resulted in the early release of approximately 100 prisoners who were either awaiting trial or had completed 50 percent of their sentences. The releasees were either set free on personal recognizance or equipped with devices for electronic, GPS, or radio frequency monitoring by the sheriff?s office or probation department ...

City Of San Leandro, California Pays $395,000 To Family Of Detainee Who Died After 21 Taser Shocks

The two minor children of Jose Perez settled his wrongful death action with the City of San Leandro, California in May 2007 for $395,000. While the children?s mother was also included in the settlement, the bulk went into a trust to support the children.

Jose Perez, Jr., the ...

Federal Prison Staff Are Law Enforcement Official For Purposes Of FTCA Claims

by Dan Manville

Federal prisoners are no longer able to sue pursuant to the Federal Tort Claims Act (FTCA) for property that was negligently lost or destroyed by federal prison staff. In Ali v. Federal Bureau of Prisons, 128 S.Ct. 831 (2008), the United States Supreme Court held that federal prison staff are considered "law enforcement officials" and are entitled to sovereign immunity for such claims.1

Prisoner Ali was transferred from U.S. Penitentiary - Atlanta to U.S.P. Big Sandy. As part of the transfer process, Prisoner Ali turned two duffle bags of personal property over to the transferring staff so that the property could be inventoried, packed and shipped. Ali's bags arrived a few days after he did. Upon inspecting his property, he noticed that several items were missing; mostly his religious items, which he valued at $177. He exhausted FTCA's administrative process before filing a lawsuit claiming a violation of the FTCA, 28 U.S.C. §§ 1346, 2671 et seq. Both the district court and appellate court found that Ali's claim was barred by the exception in § 2680(c) for property claims against law enforcement staff. The Supreme Court accepted ...

Federal Judges Convene Three-Judge Panel to Consider “Prisoner Release Orders” to Remedy California’s Prison Overcrowding; Upheld on Appeal

Federal Judges Convene Three-Judge Panel to Consider "Prisoner Release Orders" to Remedy California's Prison Overcrowding; Upheld on Appeal

On July 23, 2007, two United States District Court judges in the Northern District and Eastern District of California simultaneously issued orders finding that overcrowding appeared to be the root cause of continuing constitutional violations of California state prisoners' rights to adequate medical and mental health care. The judges further ordered that under the provisions of the Prison Litigation Reform Act (PLRA), they were convening a three-judge court that would permit them to issue "prisoner release orders" to remedy the constitutional violations.

In Plata v. Schwarzenegger, U.S. District Judge Thelton E. Henderson granted the prisoner plaintiff class' motion to create the panel due to clear and convincing evidence that overcrowding was causing irreparable harm by preventing even the court-appointed healthcare Receiver from bringing medical care in the California Department of Corrections and Rehabilitation (CDCR) into constitutional compliance. Such a finding was both necessary and sufficient under the PLRA, 18 U.S.C. § 2626(a)(3), to permit the court to take this drastic step.

The court carefully analyzed § 3626(a)(2)(A) to circumscribe its powers to only such cases ...

Los Angeles County Pays $2.8 Million For Failure To Protect Accused Child Molester In Jail

An accused child molester who was savagely beaten by other prisoners after Los Angeles (LA) Men?s Central Jail officials negligently placed him in communal housing won a $2.8 million settlement from LA County.

Jose Beas, 38, was babysitting a young girl who complained to her parents that he ...

Love, Sex and Violence KO Oregon Deputies, Jailers and Prison Guards

On August 16, 2007, in separate incidents, two Clackamas County, Oregon sheriff?s deputies were arrested on job-related criminal offenses.

Deputy Bryan Lavigne, 36, used excessive force on a juvenile by strangling him during an arrest on July 15, 2007. Other officers witnessed the incident and reported it to supervisors. The eight-year sheriff?s department veteran was placed on administrative leave the next day; he was then charged with assault, unlawful chokehold and official misconduct. The teenager, whose name and age were not released, did not require medical attention. On Nov. 2, 2007, Lavigne pleaded guilty to the chokehold charge and was sentenced to 14 days in jail and 2 years probation.

Deputy Donald Mainero, 31, resigned when colleagues reported he had engaged in a sexual relationship with a 17-year-old female police cadet.
Mainero, who had been with the sheriff?s department since 2004, was charged with official misconduct, sexual abuse and contributing to the sexual delinquency of a minor. The sexual delinquency charge was dropped at the request of the victim, who told the court she loved Mainero and planned to marry him. The former deputy pleaded guilty to a charge of official misconduct on November 29, 2007. He ...

News in Brief:

Alabama: On December 1, 2007, Elizabeth Franklin, 54, a guard at the Julia Tutwiler Prison for Women fell 15 feet out of a guard tower and died.

Brazil: On November 18, 2007, prisoners at the Maceio Detention Center in the state of Alagoas tried to escape. After a shoot out with police jail prisoners rioted and burned parts of the jail. Five prisoners were killed and 70 injured by the time guards regained control of the jail. The jail was designed for 40 prisoners and held 300 at the time of the uprising.

Delaware: On December 7, 2007, Daniel Sosa, 29, a prison guard at Young Correctional Institution in Wilmington was sentenced to two years probation after pleading guilty not third degree assault charges for beating prisoner William Malachi on February 21, 2007, and then trying to cover it up. Fellow prison guard Stephan Bruckner also pleaded guilty to covering up the attack and was also sentenced to probation. After beating Malachi and breaking his jaw the guards attempted to intimidate him into not reporting the assault. Had a prisoner broken a guard?s jaw during an assault it is unlikely they would have been sentenced to probation.

Florida: On ...

Privatized Medical Services Entangle Florida Sheriff in Litigation and Raises Costs

Proponents of privatization of prison services tout it as a way to not only save governmental entities money, but to remove them from legal entanglement. Officials in Florida?s Sarasota County Sheriff?s Office (SCSO) are not realizing those supposed benefits for its medical care contract.

Since 2002, the SCSO had had a contract with Prison Health Services (PHS) to provide medical services to prisoners in its jail. That contract was worth $2.4 million yearly. With the contract expiring on October 1, 2007, Sheriff Bill Balkwill decided to solicit bids in May 2007 rather than negotiate an extension with PHS. He was expecting bids to be about $2.5 million, which was the amount set aside in SCSO?s budget.

When the bids were opened in June, SCSO officials were taken aback. ?We were in sticker shock,? said Major Skip Rossi, SCSO?s finance director. All the bids were over $3 million.

PHS? bid was $738,138 over budget. Armor Correctional Services was $831,234 over budget, and a third bidder was $1.3 million higher. The three year bid from Amor was lower than PHS? bid. Four days after the bids were unsealed, it was recommended all bids ...

 

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