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Prisoner Education Guide

Prison Legal News: July, 2008

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Volume 19, Number 7

In this issue:

  1. Not the Usual Suspects: The Politics of the Prison Boom (p 1)
  2. Arkansas Law Discloses Legislators’ Business Ties to State (p 13)
  3. From the Editor (p 14)
  4. PEW Public Safety Report: Prisoncrats Abuse Their Probation/Parole Violation Powers So As To Stymie Offenders’ Re-entry Into Society (p 15)
  5. Child Abuse Abounds in Wilderness and Boot Camp Programs (p 16)
  6. Squalor, Corruption Cause Cancellation of GEO Group’s TYC Contract (p 18)
  7. A Long Road Toward Reform: An Interview with John Boston, Director of the Prisoners’ Rights Project of the New York City Legal Aid Society (p 20)
  8. Compassionless Conservative Texas Judge Closes Court Promptly, Ensuring Execution (p 22)
  9. Once Again, Former Florida DOC Secretary Faces Liability in Prisoner Beating; Case Settled for $400,000 (p 24)
  10. Two BOP Guards, One Beaten Prisoner: One Guilty Plea, One Acquittal (p 25)
  11. “Hot Bunking” at Cook County Jail Could Violate Consent Decree (p 26)
  12. Out-going Kentucky Governor Issues 101 Pardons, Commutations (p 26)
  13. Wisconsin County Bans Profiteering in Jail Phone Contracts (p 28)
  14. Missouri Execution Nurse, Doctor Have Questionable Histories (p 28)
  15. Indicted California Sheriff Resigns to Fight Federal Corruption Charges (p 30)
  16. California DOC Federal Health Care Receiver Replaced (p 30)
  17. California Juvenile Parolees Entitled to Two-Step Revocation Process (p 32)
  18. $100,000 Settlement in Illinois Jail Guard’s Forced Oral Sex of Female Prisoner (p 32)
  19. California: Few Sex Predators Civilly Committed To Mental Hospitals, Despite Expanded Qualification Criteria (p 34)
  20. CCA Fined $140,000 for Early Release of Prisoners at FL Jail; Quits Contract (p 34)
  21. Infected Hand Mistreatment At Sacramento County Jail Settled For $100,000 (p 35)
  22. Georgia Sheriff, Judges, Other Officials Face Misconduct, Criminal Charges (p 36)
  23. Grand Jury Report, Four Nebraska Jail Guards Indicted in Prisoner’s Death (p 36)
  24. No Safety or Security for Maryland Prisoners (p 38)
  25. $150,000 Settlement in Pennsylvania Jail Prisoner’s Suicide (p 40)
  26. Ohio Prisoner Wins $4,525 Award For Assault By Guard (p 40)
  27. California DOC Stipulates to Removal of Visitor X-Ray Ma-chines, but Damages Appeal Dismissed (p 40)
  28. Washington State Sex Offender Vigilante Dies In Prison (p 41)
  29. $35,00 Settlement in Sexual Assault of Pennsylvania Female Prisoner by Guard (p 41)
  30. Ninth Circuit: Prisoner’s Eighth and Fourteenth Amendment Classification Claims Fail Sandin Test (p 42)
  31. Change in Texas Parole Law May Be Ex Post Facto Violation (p 42)
  32. News in Brief: (p 43)
  33. Ninth Circuit: Vested Retirement Benefits May Be Garnished to Pay Criminal Fines (p 44)

Not the Usual Suspects: The Politics of the Prison Boom

Throughout American history, politicians and public officials have exploited public anxieties about crime and disorder for political gain. The difference today is that these political strategies and public anxieties have come together in the perfect storm. They have radically transformed U.S. penal policies, spurring an unprecedented prison boom. Since the early 1970s, the U.S. prisoner population has increased by more than fivefold. Today the United States is the world’s warden, incarcerating a higher proportion of its people than any other country.

How did this happen? Why didn’t politicians from Republican Barry Goldwater to Democrat Bill Clinton face more public opposition to the proliferation of harsh talk and harsh penalties, like mandatory minimums, three-strikes laws, life sentences, and capital punishment? After all, public opinion polls show that Americans’ views of crime and punishment are not uniformly harsh. Indeed, it wasn’t until the early 1990s--two decades into the prison boom and just as the crime rate was plummeting--that the public identified crime as a leading national problem.

Liberal disillusionment with rehabilitation beginning in the 1970s together with attacks from the right and left on sen-tencing policy (notably indeterminate sentences) certainly provided major openings for penal policy to ...

Arkansas Law Discloses Legislators’ Business Ties to State

Of concern to taxpayers should be the private business interests of their legislators. An Arkansas law enacted in 2007 requires disclosure of those interests when a lawmaker or his or her spouse owns at least 10 percent of a business that contracts with the state. Under the law, Act 567 (HB 2662), state agencies are required to disclose any current such contracts and those entered into within the past five years.

The law hit its mark. The largest business interest that has been disclosed involves a company controlled by Senator Percy Malone, an Arkadelphia Democrat and legislator since 1995 who is president and majority stock holder of W.P. Malone, Inc., which owns Pharmacy Care of Arkansas. The firm operates as Allcare Pharmacy.

Allcare provides prescription drugs and other medical services to prisoners in the Arkansas Department of Correc-tions through a subcontract with Correctional Medical Services (CMS). Malone declined to put a monetary value on the business that Allcare does with CMS, stating such information was “proprietary.”

Malone’s company engages in a significant amount of direct business with state agencies, too. For providing prescription drugs to 4,400 Medicaid recipients, Allcare was paid $2.89 million in the last ...

From the Editor

Every issue of PLN is filled with news, court rulings and investigative reporting on prisons and jails around the country. Periodically we like to bring readers political analysis of how and why the current phenomenon of mass imprisonment came about. The United States stands alone in the world today with the highest number, both as a percentage of its population and raw numbers, of prisoners. It is important to keep in mind that mass imprisonment is a relatively recent phenomenon. As recently as the mid 1970’s the US prison population was around 300,000 where it had remained largely unchanged since the mid 1920’s when records were first kept though the great depression, world war and social upheaval. Indeed, until the late 1960’s it was mostly white men who were in prison.

Criminologist Elliott Currie says that mass imprisonment is the most thoroughly implemented social experiment in US history and I tend to agree. Articles such as Marie Gottschalk’s on the cover of this month’s issue of PLN explores what changed and what happened so that the US became the world’s prison nation. We will bring readers similar stories in up-coming issues. If you ...

PEW Public Safety Report: Prisoncrats Abuse Their Probation/Parole Violation Powers So As To Stymie Offenders’ Re-entry Into Society

A November 2007 national study by the PEW Public Safety Performance Project concluded that the policy of returning parolees and probationers to custody for other than new offenses has the perverse effect of frustrating their reentry into society and their emancipation from the criminal justice system. This result is not merely anomalous, however, but is malevolently driven by prisoncrats’ (1) self-serving financial motivation to fill every available bed and (2) dark desire to clandestinely inflict continuing punishment on past offenders.

The purpose of the report is to provide guidance to criminal justice policy makers and practitioners when grappling with rising prison populations. The study focuses on the distinction between returns to custody solely for technical viola-tions of parole or probation (discretionary revocations) and returns for new offenses. Not lost on the authors was the sharp increase in technical revocations at a rate far exceeding that for new criminal commitments. The other key observation was that technical revocations paradoxically only thwarted the public objective of successfully reintegrating felons into society and getting them off prison rolls.

First, the report notes that some states appear to have a high rate of technical violations while others do not. Even within a state, large ...

Child Abuse Abounds in Wilderness and Boot Camp Programs

by Matt Clarke

On October 10, 2007, the U.S. Government Accountability Office (GAO)--a federal governmental entity that audits, evaluates and investigates for Congress--released a report on residential treatment programs (RTPs) entitled Concerns Regarding Abuse and Death in Certain Programs for Troubled Youth. The report revealed widespread incidents of sometimes fatal child abuse among the programs.

The numbers in the report are heart wrenching. Even though the GAO admitted that the report might not be comprehen-sive due to a lack of any national regulatory agency, Web site or clearinghouse for regulating the programs or reporting abuse of program participants, it found allegations of child abuse involving 1,619 staff members in 33 states occurred be-tween 1990 and 2007. These cases were discovered by searching the Internet for Web sites making child abuse allegations, reviewing the National Child Abuse and Neglect Data Systems, and reading relevant federal and state civil and criminal court documents. Because of the methodology of collecting information, it was impossible to tell the difference between public and private programs, so allegations involving both types of programs were presented together. The report also examined in de-tail ten cases where participants in private programs died and all legal ...

Squalor, Corruption Cause Cancellation of GEO Group’s TYC Contract

When Texas Youth Commission (TYC) ombudsman Will Harrell toured the privately-operated Coke County Juvenile Justice Center in Bronte, Texas on September 24, 2007, he found children sleeping on dirty bed sheets, walls covered with smeared feces, urine-stained walls around toilets, excrement in the shower area and reports of insects in the food.

His report also noted that some youths were confined in “malodorous and dark” solitary confinement for up to five weeks and only let out for showers. Several juveniles at the Coke County facility, which was described as a “violent cam-pus,” had requested to be placed in segregation for their own safety.

Prisoners at the juvenile center ranged in age from 13 to 21, and Harrell described them as “desperate” to lodge com-plaints during his visit. His investigators noticed that youths in solitary confinement were “educated” by teachers who slipped crosswords and math puzzles under the cell door.
His report also referred to the regular school program as a place where students simply sat in front of computers. “I usually leave these facilities sad,” said Harrell. “I left that one mad.”

What made his report so surprising was that the prison had operated for years without raising any eyebrows ...

A Long Road Toward Reform: An Interview with John Boston, Director of the Prisoners’ Rights Project of the New York City Legal Aid Society

For New York City attorney John Boston, law school was a calling of sorts.

“I went to law school because legal work seemed to be a viable way to mitigate the abuses of oppressive institutions, of which the criminal justice system was and is a prime example,” says Boston, who graduated from Vanderbilt University in the early-1970s, and moved to New York City in 1972 to attend law school at New York University. “I became involved in prisoners’ rights work in law school for that reason.”

After a brief post-university research job, he joined the Legal Aid Society, the nation’s oldest and largest provider of legal services to the indigent. According to its Web site, the organization provides free legal assistance to New Yorkers who live at or below the poverty line, and otherwise could not afford an attorney. Boston has worked at Legal Aid for 32 years, and today serves as director of the Prisoners’ Rights Project (PRP), where he supervises nine attorneys and three paralegals who advocate for prisoners’ rights and legislative reform in New York jails and prisons.

Prison Legal News interviewed Boston, 59, to discuss the Legal Aid Society and PRP, his work on prisoners ...

Compassionless Conservative Texas Judge Closes Court Promptly, Ensuring Execution

by Matt Clarke

Sharon Keller, 54, presiding judge of the Texas Court of Criminal Appeals, has come under sharp criticism for refusing to keep the court open twenty minutes past its usual closing time to permit a late filing.
The late filing request was to allow attorneys for a death-sentenced prisoner to submit an appeal based upon a decision issued by the U.S. Supreme Court on the same day their client was scheduled for execution.

Keller’s staunch, some say over-the-top, support of the death penalty has earned her the nickname “Killer Keller.” She has called the failure to execute convicted murderers “a human rights violation.”

At 10:00am on September 25, 2007, the U.S. Supreme Court announced it would review a challenge to the “triple cocktail” method of lethal injection raised by two death row prisoners in Kentucky. Texas uses the same method of execution.

Texas prisoner Michael Wayne Richard, 48, was scheduled to be put to death that same day. Working at break-neck speed, David Dow, a University of Houston professor and expert in capital murder law, prepared a 107-page ap-peal in Richard’s case. Dow was to e-mail the appeal to the Texas Defender Service ...

Once Again, Former Florida DOC Secretary Faces Liability in Prisoner Beating; Case Settled for $400,000

by David M. Reutter

The Eleventh Circuit Court of Appeals has held that the former warden of the Florida State Prison (FSP) was not entitled to qualified immunity in a civil rights suit brought by a prisoner who alleged his beating by guards was not an isolated incident, but that ...

Two BOP Guards, One Beaten Prisoner: One Guilty Plea, One Acquittal

Disparate outcomes resulting from charges brought against two federal prison guards accused of assaulting a prisoner reveal the public’s lackluster attitude toward such abuse. The charges stemmed from the Sept. 29, 2004 beating of prisoner John Clark, who was incarcerated at the Federal Correctional Institution in Greenville, Illinois.

A federal grand jury indicted Bureau of Prisons (BOP) guards Daniel Gordon and Eric Newsome in July 2006 for con-spiring to violate Clark’s civil rights and filing false reports. Newsome was also charged with lying to federal investigators.

According to the indictment, Newsome and an unindicted co-conspirator positioned their bodies to block the view of Clark’s cell. Gordon pretended to handcuff Clark through the cell door’s food slot, but deliberately dropped the cuffs in the cell. After the cell door was opened, Newsome, with some assistance from Gordon, hit Clark repeatedly with his fists and handcuffs, landing “an additional unjustified blow” after Clark was restrained. Knowing that Clark was injured and bleed-ing, Newsome and Gordon then left him handcuffed on the cell floor.

There was no indication as to what prompted the assault, though Clark had previously flooded his cell and reportedly had mental health problems.

Gordon agreed ...

“Hot Bunking” at Cook County Jail Could Violate Consent Decree

In December 2007, to alleviate the problem of prisoners sleeping on the floor due to chronic overcrowding, Illinois’ Cook County Jail started “hot bunking.” The practice entails prisoners taking turns sleeping in the same bed in shifts. Each prisoner uses a bunk for 8 hours, then turns it over to another prisoner.

“It doesn’t reduce the population, but it gets people up off the floor,” said Sheriff’s Department spokeswoman Penny Mateck. “Each inmate has their own bedding. So the bedding is changed each time a new person sleeps in the bunk.” It was not mentioned whether mattresses are sanitized when the bedding is changed. Failure to sanitize can be a contribut-ing factor to the spread of staph infections such as MRSA, which runs rampant in many prisons and jails, including Cook County’s.

Cook County’s hot bunking initiative is a pilot program that involves 144 of the more than 9,700 prisoners at the facil-ity. Sheriff’s officials say the prisoners volunteered to take part. Coerced would be a more correct term, though, as the participants were bribed with extra showers, television and out-of-cell time. All of the participating prisoners are convicted misdemeanants rather than pre-trial detainees ...

Out-going Kentucky Governor Issues 101 Pardons, Commutations

In December 2007, during his last hours in office, out-going Kentucky Gov. Ernie Fletcher made state history by issuing 101 sentence commutations or pardons. While some of those acts of executive clemency appear to be meritorious, others smack of cronyism.

One of Fletcher’s commutations converted Jeffrey Devan Leonard’s death sentence to life without parole. Leonard was convicted for the 1983 murder of a store clerk. His case sparked controversy because his trial lawyer, Fred Ra-dolovich, was indicted on perjury charges for falsely claiming he had prior experience in four death penalty cases.

Radolovich actually had no experience as the lead attorney in a capital case, and his representation of Leonard was grossly deficient; he admitted he did not even know his client’s name during the trial.
Prosecutors dropped the per-jury charge in exchange for Radolovich’s law license. Leonard’s appeals were fully exhausted and he was awaiting an execution date at the time his sentence was commuted. Fletcher’s general counsel, David Fleenor, said “we’re not go-ing to execute somebody who clearly was denied a basic right.”

Nine Kentucky lawmakers wrote letters supporting the pardon application of Burgess Harrison Yonts, son of state Rep. Brent ...

Wisconsin County Bans Profiteering in Jail Phone Contracts

On September 20, 2007, the Board of Supervisors for Dane County, Wisconsin enacted an ordinance amending the way the county contracts for jail telephone services. The ordinance requires that jail phone contracts (1) must not generate revenue to the county and (2) must be awarded to the lowest bidder consistent with public safety.

In addition to telephone contracts, the jail’s commissary and laundry services were similarly protected from price gouging. The only exception to the county’s amended contract requirements was for fees “associated with security of the jail or electronic monitoring for release programs.”

The county currently contracts with Inmate Calling Solutions, Inc.
(ICSI), which pays the county 57% of profits gener-ated from phone calls made by prisoners at the jail. Under ICSI’s contract, the phone calls cost an unconscionable $4.25 for the initial connection plus $.50 per minute, resulting in an $11.75 charge for a 15-minute call. The county’s jail phone revenue has amounted to almost $1 million annually.
County Supervisor Dave de Felice noted the county had become “addicted to this money,” and said “We’ve lost our moral compass and direction for a million bucks a year.”

Proponents of the ordinance ...

Missouri Execution Nurse, Doctor Have Questionable Histories

by John E. Dannenberg

A Missouri nurse employed by the state’s execution team was hired by federal officials to participate in the execution of mass killer Timothy McVeigh at Terre Haute, Indiana in 2001. However, before the nurse could leave the state he had to get permission – from his probation officer.

Nurse David L. Pinkley, 45, was charged in 1998 with felony aggravated stalking and first-degree tampering with prop-erty. Unhappy about a relationship between his estranged wife and another man, he had vandalized the man’s vehicle, flat-tened his mailbox, smashed windows in his house and left voice messages threatening him and his family. Pinkley later pled guilty to two misdemeanor counts of stalking and tampering, for which he was sentenced to two years supervised probation and fined $750. After completing the term of probation his case was to be sealed.

Investigative reporters from the St. Louis Post-Dispatch dug into state and federal records and determined that both ju-risdictions were aware of Pinkley’s criminal history. Pinkley had told his probation officer what he was doing in Indiana, and showed him a business card for the Terre Haute penitentiary’s warden, Harley G. Lappin (now director of the Federal ...

Indicted California Sheriff Resigns to Fight Federal Corruption Charges

Orange County, California Sheriff Michael Carona, 52, resigned his post on January 14, 2008 to fight corruption charges. As a result of his leaving office he became eligible to receive pro bono legal assistance from a Los Angeles-based law firm – a potentially multimillion dollar benefit he was unable to accept while a public employee.

Carona, a thirty-two year veteran law enforcement officer in his third term as Orange County Sheriff, was indicted on October 30, 2007 by a federal grand jury on seven counts of conspiracy, witness tampering and mail fraud. The felony charges relate to his 1998 election campaign, in which he allegedly accepted $350,000 in gifts, loans and compensation in exchange for political favors and cronyism.

Carona’s wife, Debra, and his alleged mistress, attorney Debra Victoria Hoffman, face related charges. Carona had appointed his wife to the Orange County Fair Board of Directors, and had appointed Hoffman, who is accused of covering-up bribes, to the State Advisory Group on Juvenile Justice Delinquency Prevention and the California Council on Criminal Justice.

Two of Carona’s former associates, Assistant Sheriffs Don Haidl and George Jaramillo, have agreed to testify against him.

Haidl, who solicited donations for Carona’s ...

California DOC Federal Health Care Receiver Replaced

by John E. Dannenberg

Robert Sillen, the scrappy Receiver appointed by a U.S. District Court to fix California’s ailing prison healthcare system, was replaced on January 23, 2008 by J. Clark Kelso, former Chief Information Officer for Governor Arnold Schwarzenegger.

U.S. District Judge Thelton Henderson, who announced the change in a court order, felt that a new skill set was needed following Sillen’s sometimes abrasive strong-arm techniques that were necessary to deal with the prison system’s deeply entrenched bureaucracy. Judge Henderson opined that more contemporary and collaborative skills were appropriate to bring the already commenced changes to completion.

While Sillen had decades of experience as a healthcare administrator, Kelso, a law professor, has experience fixing Cali-fornia’s governmental information technology program. Sillen had quickly recognized the problems attending the state prison system’s abysmal healthcare – a lack of doctors, nurses, medical equipment, clinics and, most importantly, anyone who cared – and shook the California Dept. of Corrections and Rehabilitation (CDCR) to its foundation to force improvements. The situation when he was appointed Receiver included 66 preventable deaths per year plus countless thousands of cases of delayed or inadequate medical care. Pharmacy services were chaotic among CDCR ...

California Juvenile Parolees Entitled to Two-Step Revocation Process

by John E. Dannenberg

The U.S. District Court for the Eastern District of California has held that the rights of California juvenile parolees were violated by the single-hearing revocation process used by the Juvenile Parole Board (JPB). Nevertheless, the court declined to require the initial revocation hearing to be held within ten days as it did for adult parole violators in Valdivia v. Davis, 206 F.Supp.2d 1068 (E.D. Cal. 2002). [See: PLN, Jan. 2003, p.16].

In September, 2006, L.H. and three other juveniles filed a class action complaint under 42 U.S.C. § 1983 and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, claiming that the JPB’s policies and practices denied them due process of law in the parole revocation process. Among other issues, they claimed that the JPB’s policy of not provid-ing two hearings (a preliminary hearing and a revocation hearing) – and indeed, not even providing one hearing for up to 60 days – violated the seminal principles set forth by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972), Gagnon v. Scarpelli, 411 U.S. 778 (1973) and Mathews v. Eldridge, 424 U.S. 319 (1976 ...

$100,000 Settlement in Illinois Jail Guard’s Forced Oral Sex of Female Prisoner

To settle a prisoner’s equal protection claim based upon sexual harassment, Illinois’ Tazewell County has agreed to pay the prisoner $100,000. The same prisoner also had consensual sex with another off-duty guard, resulting in his firing.

The basis for the lawsuit involved events that occurred on July and ...

California: Few Sex Predators Civilly Committed To Mental Hospitals, Despite Expanded Qualification Criteria

by John E. Dannenberg

Even though California widely expanded the potential pool of violent sex predator (SVP) prisoners who could be forced into mental hospitals after completing their criminal sentences, and despite spending $27 million to screen and evaluate thousands of newly eligible candidates, the state hasn’t committed any of them in the first year.

Not surprisingly, part of the problem is the bureaucracy, which has caused a backlog. Each commitment must go through a court trial, per California’s Welfare and Institutions Code §§ 6600 et seq. While prosecutors are busily filing the cases, it often takes a year to get to trial. Another factor is that despite the new (2006) law vastly enlarging the pool of po-tential candidates, few of those coming due for release meet the definition of an SVP. Stated another way, while many more sex offenders are included in the expanded class requiring screening and evaluation - 35 listed crimes versus 7, earlier - none who were not previously identified have yet been fingered. Whereas the earlier criteria looked only at those who had multiple crimes against multiple victims, the new law requires just one crime. However, psychologists note that some disorders can only be diagnosed from ...

CCA Fined $140,000 for Early Release of Prisoners at FL Jail; Quits Contract

The nation’s largest private prison firm, Corrections Corporation of America (CCA), has once again upset county officials by repeatedly failing to control vital jail operations. The company responded by discontinuing its contract to operate the facility.

On November 1, 2007, a CCA worker prematurely released nine prisoners from the Bay County, Florida jail’s substance abuse program before their sentences had expired. Upon CCA’s discovery of the mistake, the prisoners were notified and each agreed to return to finish their jail terms.

The Bay County Commissioners fined the company $140,000 for the mistaken early releases, an amount equivalent to 1 percent of the monthly $1.4 million paid to the company for operating the facility.

“This is a jail and it needs to be run like one,” said Commissioner Mike Nelson. A report by the county contract monitor found the incident resulted from poor judgment by CCA staff, broad booking procedures and inadequate staffing. CCA was also cited for allowing several hours to pass before informing the contract monitor that the incident had occurred. “It shouldn’t have happened ...” explained Nelson. “What I am really upset about is that there was a 7-hour delay before anyone at ...

Infected Hand Mistreatment At Sacramento County Jail Settled For $100,000

The County of Sacramento, California settled a federal civil rights lawsuit brought against county jail staff for failure to properly treat the injured hand of a prisoner. While the $100,000 settlement was less than the prisoner’s $156,000 in medical bills, after the billing was sorted out, most ...

Georgia Sheriff, Judges, Other Officials Face Misconduct, Criminal Charges

In November 2007 a federal grand jury issued an indictment charging Clinch County, Georgia Sheriff Winston C. Peterson, 62, with perjury, using forced prisoner labor and extorting former jail prisoners.

Peterson’s indictment marked the second time in the past year that a Georgia Sheriff was charged while in office. Berrien County Sheriff Gerald W. Brogdon pled guilty last August to a charge of illegal sale of a firearm to a felon. On April 10, 2008 he was sentenced to five years probation and ordered to pay a $2,000 fine.

Peterson had been Clinch County Sheriff since 1988. In 2000, he began charging prisoners at his jail $18 a day for room and board. From November 30, 2000 to November 21, 2004, Peterson collected about $30,000 from 475 prisoners. The funds were remitted to the County Commission.

Prisoners who were unable to pay the fees were forced to sign promissory notes before release; those notes stated they could be re-incarcerated for failure to pay. County officials agreed on April 14, 2006 to refund the jail fees plus pay $30,000 in attorney fees to settle a federal lawsuit brought by two former prisoners. See: Williams v. Clinch County ...

Grand Jury Report, Four Nebraska Jail Guards Indicted in Prisoner’s Death

by David M. Reutter

Finding there was probable cause that four guards at Nebraska’s Omaha Police Detention Unit (OPDU) failed to render medical care to a prisoner which contributed to his death, a Douglas County grand jury indicted the guards on charges of official misconduct – a Class II misdemeanor. The grand jurors also found the city culpable, calling the situation at the jail “inadequate,” “irresponsible” and “appalling.”

The grand jury was convened to look into the death of Alexander Simoens, who was arrested on September 7, 2007 on suspicion of felony driving during suspension. Simoens, 47, did not exhibit or indicate any medical problems upon arrest and said he was not taking any medications.

After being booked into OPDU, however, Simoens began moaning, begging for help for stomach pain and vomiting blood. Jail employees ignored his pleas and refused to provide medical care. Guard Joachim Dankiw, a 17-year veteran, reportedly told Simoens to “Go ahead, lay down and die.”

It was not until September 9, when Simoens lost consciousness after writhing in pain in his cell, that an ambulance was finally called. By then it was too late. Simoens died two days later. The grand jury found the cause ...

No Safety or Security for Maryland Prisoners

Twenty-five guards have been fired amid allegations that they beat prisoners at two Maryland prisons.

The Maryland Department of Public Safety and Correctional Services (DPSCS) initially terminated the employment of eight guards on April 4, 2008. Another nine were fired a week later. All had been employed at the Roxbury Correctional Institution (RCI), a medium-security 1,750-bed facility. The firings followed accusations that they used excessive force against a group of prisoners in the aftermath of a prison disturbance in early March.

Guards at the nearby North Branch Correctional Institution were also accused of assaulting prisoners after they were transferred from RCI. Eight North Branch guards were placed on administrative leave on March 27, 2008 pending the out-come of an investigation; they were subsequently fired in April.

DPSCS Secretary Gary D. Maynard said not all of the 25 guards were accused of beating prisoners; some were thought to have lied to investigators, others were accused of covering up for co-workers and some were suspected of fail-ing to intervene.

Prisoner Beatings

According to an unnamed source, tensions were high at RCI on March 6 after a member of the prison gang Dead Man Inc. struggled with a guard who was escorting ...

$150,000 Settlement in Pennsylvania Jail Prisoner’s Suicide

Pennsylvania’s Luzerne County Correctional Facility (LCCF) has agreed to pay the family of a prisoner who committed suicide $150,000. The family contended LCCF was deliberatively indifferent to the risk that prisoner Luke Blumer, 19, posed to himself.

Blumer was known to be suicidal, showing that tendency by attempting ...

Ohio Prisoner Wins $4,525 Award For Assault By Guard

On May 12, 2007, the Court of Claims of Ohio issued a judgment in favor of an Ohio state prisoner awarding him $4,525 for an assault by a guard.
Daniel Booth, an Ohio state prisoner, was working in the kitchen at Southeastern Correctional Institution when he became involved in ...

California DOC Stipulates to Removal of Visitor X-Ray Ma-chines, but Damages Appeal Dismissed

by John E. Dannenberg

On November 20, 2007, the California Court of Appeal dismissed an appeal filed by a group of Lancaster State Prison visitors who sought damages for being subjected to Secure 1000 X-ray machines whenever they visited prisoners at the facility. The Secure 1000 is a low-level “backscatter” device that uses X-rays to penetrate a few centimeters into the skin, producing a computer image of the body that includes breasts, genitalia and folds of skin.

Whenever the machine displayed suspicious shadows, such as feminine hygiene products, breast implants, brassieres or diapers, visitors were subjected to a full strip search. A visitor who refused such searches was denied access to the facility and put on a list to be searched upon future visits.

Gail Wisely and a group of other prisoners’ wives (plaintiffs) filed suit against the state, the Department of Corrections and Rehabilitation (CDCR) and prison officials both for injunctive relief (i.e., removal of the X-ray machines), as well as damages under state law (California Civil Code 52, et seq.) and federal law (42 U.S.C. § 1983).

The defendants eventually entered into a stipulated agreement to remove the machines and to obtain approval before ordering any ...

Washington State Sex Offender Vigilante Dies In Prison

On April 15, 2007, Michael Mullen, 36, the Washington State prisoner convicted of having committed vigilante murders of two registered sex offenders, was found dead in his cell at the Stafford Creek Corrections Center near Aberdeen, Washington. Mullens was alone in his cell when he died and the death was deemed a suicide.

In 2005, Mullens murdered two Washington State registered sex offenders whose addresses he discovered through the Whatcom County online sex offender registry. [PLN Feb. 2006, p. 40]. He said he was angered by another Washington State registered sex offender’s commission of three murders and sex offenses against two children in Idaho. After the vigilante murders, before he turned himself in a week later, Mullens sent a list of sex offenders he intended to kill to local newspapers.

Mullens was sentenced to 44 years in prison, but had said he would welcome the death penalty so he could beat the man who committed the Idaho offenses into the afterlife and hold him accountable for his crimes. Mullens had recently written the Seattle Times and stated that during his arrest and trial he had just wanted to die. He also complained of having been moved from prison to ...

$35,00 Settlement in Sexual Assault of Pennsylvania Female Prisoner by Guard

The Pennsylvania Department of Corrections (PDOC) has settled a female prisoner’s federal lawsuit that claimed she was sexually assaulted by two male guards and videotaped naked by a female guard for $35,000.

The settlement came in the case of prisoner Lisa Lambert, for events that occurred in 1993 ...

Ninth Circuit: Prisoner’s Eighth and Fourteenth Amendment Classification Claims Fail Sandin Test

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals, applying the “atypical and significant hardship” test of Sandin v. Conner, 515 U.S. 472 (1995), affirmed a U.S. District Court’s (N.D. Cal.) ruling that denied relief from an allegedly unconstitutional prison classification decision. The Court also affirmed the denial of claims regarding participation in an in-house prison publication, but remanded on an unrelated First Amendment claim.

James Myron, a prisoner at Salinas Valley State Prison, raised six complaints related to “oppressive conditions” of confinement. The district court initially dismissed two of the claims because Myron had demonstrated no physical injury resulting from “overcrowding.”

In the published portion of its ruling, the Ninth Circuit affirmed the lower court’s dismissal of Myron’s complaint regard-ing his restrictively high security classification level, holding that no liberty interest attached to that classification. This Fourteenth Amendment-based finding was predicated upon the standard in Sandin v. Conner that requires proof of condi-tions amounting to “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”

Here, the appellate court found that Myron’s newly-assigned Level IV security housing was not more onerous than his ...

Change in Texas Parole Law May Be Ex Post Facto Violation

by Matthew T. Clarke

The Fifth Circuit Court of Appeals has held that a change in Texas parole laws requiring a two-thirds majority vote of the entire board for certain prisoners may violate the Ex Post Facto clause when applied retroactively to prisoners whose crimes occurred prior to the change in the law.

Richard Delaney Kyles, a Texas state prisoner, was convicted of capital murder and sentenced to life in prison in 1975. Under the law in effect at the time he committed the crime, Kyles was required to receive a simple majority vote of a parole panel to be released on parole after serving a minimum twenty years in prison. In 1993, the Texas legisla-ture enacted a law requiring prisoners with capital life sentences or sex offense convictions to receive a two-thirds su-per-majority of the entire parole board before being released on parole. In 1995 the Texas Parole Board began apply-ing the statute retroactively.

Kyles became eligible for parole in 1995. Twice he received two out of the first three parole board votes, but did not receive a super-majority of the entire board. After exhausting state remedies he filed a civil rights action pursuant to 42 U.S.C ...

News in Brief:

Alabama: On September 26, 2007, Leigh Cochran, 33, a guard at the Houston County Jail was sentenced to five years probation after pleading guilty to felony custodial sexual misconduct and two misdemeanor counts of promoting prison contraband.

California: On February 23, 2008, 21 prisoners were injured, one seriously, in a fight between prisoners at the Geo Corporation run minimum security Desert View Modified Community Correctional Facility in Adelanto. No reason was given in media accounts of the incident in part because Geo would not return media calls.

Georgia: On February 11, 2008, Albany lawyer William Keenan was sentenced to five years in prison for giving his client, Dareon Varner, a 14 inch hack saw blade during an attorney visit. Keenan plead guilty to furnishing a prisoner with a dangerous weapon and conspiracy to escape. Varner had been facing charges of armed robbery, aggravated assault and possessing a firearm during a felony and he was subsequently convicted and sentenced to 25 years in prison after he was caught with the hacksaw blade.

Indiana: On February 8, 2008, prisoners at the Pendleton Correctional Institution seized and held one of the maxi-mum security prison’s housing units for 2 hours before guards stormed ...

Ninth Circuit: Vested Retirement Benefits May Be Garnished to Pay Criminal Fines

The Ninth Circuit U.S. Court of Appeals, sitting en banc, held that the federal Mandatory Victims Restitution Act of 1996 (MVRA) trumps the anti-alienation provisions of the Employee Retirement Income Security Act of 1974 (ERISA), so as to permit the government to garnish the personal portion of a prisoner’s retirement benefits to satisfy a criminal restitution order.

Raymond Novak was convicted of federal crimes against his employer and sent to prison. Because his crimes involved fraud of $3.36 million, he was ordered to pay restitution in that amount. The government sought to attach his legitimately earned retirement benefits from an earlier employer to satisfy the restitution amount.

In tension were two federal statutes: MVRA, which provides for attachment of any property to pay such fines (18 U.S.C. § 3613, et seq.), and ERISA, which contains provisions shielding retirement plans from such attachment (“anti-alienation”). Al-though MVRA was enacted long after ERISA, this did not necessarily imply the repeal of ERISA’s retirement-income protec-tions. Further complicating the matter was the fact that individual employers might draft retirement plans with different language, thus limiting attachment efforts.

MVRA permitted such attachments of assets “notwithstanding any other federal law.” The question ...


Federal Prison Handbook



Disciplinary Self-Help Litigation Manual



Federal Prison Handbook




Disciplinary Self-Help Litigation Manual