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Prisoner Education Guide

Prison Legal News: October, 1991

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Volume 2, Number 10

In this issue:

  1. Getting Rid of the Board: Status of the Initiative Process (p 1)
  2. AIDS In Prison: The New Death Row (p 2)
  3. Remembering Attica Correction (p 2)
  4. From The Editor (p 4)
  5. In Total Resistance (p 4)
  6. Tacoma Court Commissioner Removed (p 4)
  7. Help Yourself Legal Information (p 5)
  8. Oregon Board Rules Held Ex Post Facto (p 5)
  9. Materials for Imprisoned Parents (p 6)
  10. Tim Anderson Free (p 6)
  11. Prisoner Allowed to Possess Petition (p 6)
  12. Search of Prison Visitors Without Probable Cause Illegal (p 6)
  13. Percentage of Black Prisoners Grows (p 7)
  14. Getting Counsel Appointed in Civil Rights Cases (p 7)
  15. FBI To Collect Records on Juveniles (p 7)
  16. Community Service Sentencing Found Effective (p 8)
  17. NCADP Conference in Seattle (p 8)
  18. Death Penalty Resources (p 8)
  19. Prison Repression in Spain (p 9)
  20. Notary Update (p 9)
  21. Resistance to Oppression (p 9)

Getting Rid of the Board: Status of the Initiative Process

Getting Rid Of The Board: Status Of The Initiative Process

By Ed Mead

Back in the February issue we told readers that the Prison/Community Alliance (P/CA) and the PLN editors were in the process of drafting sample legislation that would abolish the Board and turn its functions over to the courts. We mentioned our hope to launch a citizens' initiative campaign to get the proposed law on the statewide ballot in 1992. We have since written that proposed law, and we have also made progress toward getting it on the ballot. The draft law, is the form issued by the Code Revisors' Office, say:

"An ACT relating to the indeterminate sentence review board; and adding a new section to Chapter 9.95 RCW.

"BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON:

"NEW SECTION Sec. 1. A new section is added to Chapter 9.95 RCW to read as follows:

"(1) The indeterminate sentence review board shall set minimum term release dates for all inmates serving indeterminate sentences, except those who have legislatively mandated minimum terms. Minimum terms set by the indeterminate sentence review board and those imposed by statute shall stand as determinate sentences. Once ...

AIDS In Prison: The New Death Row

By Heather Rhoads

[Note: The following article originally appeared in the September 1991 issue of The Progressive magazine. It was edited for length by Ed Mead.]

Prison AIDS wards are being called the new death row. A 1987 study by the Correctional Association of New York found prisoners with AIDS to be dying at twice the rate of non-prisoners with AIDS. "Many prisoners with AIDS spend their last days in prison isolated and alone, far from their families and loved ones," says Cathy Potler, director of the Association's AIDS Prison Project.

The National Institute of Justice reports a 606 percent increase in confirmed AIDS cases in U.S. prisons and a sample of large jails from 1985 to 1989. AIDS is currently the leading cause of death in New York state prisons, where an estimated 9,000 of the state's 54,000 inmates are HIV positive. Health officials expect a surge in AIDS deaths among prisoners across the country.

The penal systems in New York, New Jersey, California and Florida have been hit the hardest by the AIDS crisis so far - states where poverty and IV-drug use have also reached epidemic proportions. The New Jersey Department of Corrections ...

Remembering Attica Correction

by Beryl P. Sanders, Community-Help Foundation Unlimited

I think I should first make a few points clear before I start. This article is to make a couple of corrections because this much needed newsletter gets into the hands of many readers. For fear that some will read the mentioned article and jump/react negatively, I personally felt the need to write the following.

I'm a full supporter of the "Prisoners' Legal News" and have been for several months now. I've promoted the paper and through my efforts have motivated a number of others to subscribe; so, I'm not writing this article in any way to cause a damper on continued support of a very much needed newsletter, especially one that goes to prisoners/families of prisoners, etc, in many states. The September 1991 publication, "Remembering Attica: Twenty Years Later," by Ed Mead especially caught my attention because my group and I are "Prisoner Rights Advocates" here in the state of Washington. We have, and are still helping prisoners throughout the state to deal with many prison concerns. A lot of the issues are valid (documentation available). The jail/prison abuses happen much too often. Many affiliate groups ...

From The Editor

By Paul Wright

Welcome to another issue of PLN . Longtime readers of PLN may recall that PLN was banned by the Texas DOC in July of 1990 as they claimed we were not a "publisher." We appealed the decision and it was upheld by the DOC. In the last year we have gone back and forth with the TDC on this matter and I'm pleased to report that we finally prevailed and as of August of this year there is no longer a blanket ban of PLN . So I would like to welcome our Texas readers and subscribers back after this long absence.

As I write this the September issue still hasn't gone out yet so I don't know what the response will be to the usual plea for donations. Hopefully it will be a generous response. Our biggest expenses with PLN are the postage costs and the actual printing costs of copying each issue. We try to cut our costs as much as we can so we can continue to publish. Our copying costs are now averaging around 4¢ per page, for 40¢ a copy of PLN . We need to cut our copying costs as much ...

In Total Resistance

In Total Resistance is the newest (1991) abridged and revised edition of the writing and poetry of Leonard Peltier (Native American prisoner of war), Standing Deer and Bobby Garcia and others. It has updates on the efforts to secure Leonard's release from prison as well as letters and poems going back to the mid 70's. Leonard has been convicted of killing two FBI agents at the Pine Ridge reservation in South Dakota. He is an activist with the American Indian Movement and in prison has been a staunch defender of prisoner rights. The booklet gives a good portrait of both the native and prison struggles and is available for $4.00 from: Seattle Leonard Peltier Support Group, P.O. Box 2104, Seattle, WA 98101.

Tacoma Court Commissioner Removed

Mark Adams who has served on the state Court of Appeals in Tacoma for fifteen years was demoted in December of 1990 by the Courts four judges after learning that a judicial misconduct complaint had been filed against Adams. The complaint alleged that Adams put "his hands in his pants pocket in the presence of female court employees which they perceived as inappropriately touching his genitals; asking female court personnel to arrange dates for him; discussing with female court personnel his out of office dating activities; keeping a personal diary which included references to his personal sexual experiences and other behavior."

In 1982 Adams was charged with a misdemeanor offense of criminal trespass after being caught looking through a neighbors window, that was disposed of through a deferred prosecution. After the 1982 incident Adams was allowed to remain on the Court because the judges did not believe it would happen again and did not affect any decisions he made a[s] commissioner.

There are only seven court commissioners in the state. They wear black robes, hear motions and make decisions subject to review by judges.

To settle the complaint Adams agreed never to serve in any judicial position in any ...

Help Yourself Legal Information

By Paul Wright

Part of the purpose of PLN is to try to help prisoners help themselves when it comes to using the courts to extend democracy to all and to vindicate our civil rights. We pretty much concentrate on federal court rulings and actions, because they can be used in any federal court across the country, rather than state law that is binding only in that state. And we also consider the fact that many state courts are not responsive at all to prisoners complaints about prison conditions while the federal court § 1983 is the much used lawsuit of choice by prisoners because it provides the means for federal courts to review the deprivation of federal rights by state officials.

We get numerous requests for legal assistance from our many prison readers and non subscribers as well. Everything from "how do I file a lawsuit" to questions about specific practices by a state's criminal statutes. While we would love to be able to help everyone that writes to us the fact remains that Ed and I are still prisoners and in pretty much the same boat as the rest of our prison readers are in. Publishing PLN and ...

Oregon Board Rules Held Ex Post Facto

An Oregon prisoner challenged the application of newly adopted parole board rules to his case. He sought review of the board's action in the state Court of Appeals, saying the board should have applied the review rules that were in effect when he committed his offense, in 1985, not the rules adopted by the board in 1990.

The new board rule being challenged was not merely a procedural change, the court held, as "application of the rules in effect in 1990 eliminated petitioner's opportunity to have his prison term reduced..." "Accordingly," the Court said, "application of [the new rules] to petitioner is contrary to the ex post facto clauses."

Washington state's recently adopted board rules, as well as board rules in the federal system and many other states, may suffer from a similar constitutional defect. See: Williams v. Board of Parole 812 P.2d 443 (Or. Appl. 1991).

Materials for Imprisoned Parents

Materials For Imprisoned Parents

The Clearinghouse at Pacific Oaks has a large number of publications and materials available at very low costs that deal with children who have parents in prison and prisoners with children. Many of the materials are bilingual (English and Spanish) and deal with everything from the legal rights of imprisoned parents, to getting public assistance, Parenting handbooks, different studies on prisoners with children, mothers in prison, life after prison, etc. For more information and their catalog, write to: The Center For Children of Incarcerated Parents, 5, 6 Westmoreland Place, Pasadena, CA 91103 or call (818) 397-1300.

Tim Anderson Free

PLN readers may recall previous stories concerning Tim Anderson. Tim was convicted in 1979 of bombing the Hilton hotel in Sydney, Australia in a failed assassination attempt of the Indian prime minister, killed instead were a policeman and two sanitation workers. In 1986 Tim was released from prison and cleared of the charges after further investigation revealed fabricated police reports and a complete lack of reliable evidence. Tim received a large sum of compensation for the seven years he spent in prison. Then in 1989 he was again arrested and charged with the same crime using the same detectives and jailhouse informants. Tim was convicted and again sent to prison. On June 6, 1991, the Australian Court of Criminal Appeal overturned the conviction and acquitted him stating the governments case was "fragile," "unreliable in significant respects" and that the whole proceeding was fundamentally unfair. For more information on what's happening in the Australian criminal justice system write: Framed, P.O. Box K365, Haymarket, NSW 2000, Australia.

Prisoner Allowed to Possess Petition

Prisoner Allowed To Possess Petition

A New York state prisoner at Attica was infracted after prison guards found and confiscated a petition complaining of prison conditions in his cell. The prisoner was infracted for possessing the petition even though no prison rule or regulation banned or prohibited possession of petitions. Richardson filed suit in U.S. district court claiming violation of his first amendment right to petition government officials and his right to due process of law that he be given prior notice of prohibited or banned conduct.

The District Court agreed with the prisoner on several counts. The Court found that Richardson's right to due process was violated because he was infracted and punished for an activity which was not banned or prohibited. The Court also denied the prison officials motion for qualified immunity. See: Richardson v. Coughlin, 763 F.Supp 1228 (SD NY 1991).

Search of Prison Visitors Without Probable Cause Illegal

Search Of Prison Visitors Without Probable Cause Illegal

Lenora Daugherty is the wife of a Tennessee prisoner who was subjected to a visual body cavity search and a search of her vehicle in 1988 as a condition to be able to visit her husband, no contraband was found during the searches. Daugherty filed suit in U.S. District Court claiming violation of her Fourth Amendment right to be free from unreasonable searches and seizures.

The defendant warden filed a motion for summary judgement on a qualified immunity defense claiming that Daugherty's right to be free from body and vehicle searches without probable cause was not clearly established in 1988. The District court ruled such rights were clearly established and denied the motion. The warden appealed.

On appeal the Sixth Circuit Court of Appeals affirmed the lower court ruling that the warden was not entitled to qualified immunity. At pages 784-787 the courts analyzes a number of cases involving searches of prison visitors that all required individualized reasonable suspicion before such a search could be carried out. See: Daugherty v. Campbell, 935 F.2d 780 (6th Cir. 1991)

Percentage of Black Prisoners Grows

Percentage Of Black Prisoners Grows

In mid-July, 1991, the U.S. Department of Justice released a study titled Race of Prisoners Admitted to State and Federal Institutions, 1926-86. The results of the study are no big surprise. In 1926 78% of state and federal prisoners were white, 21% black, and 1% were listed as other. Then, year by year, the percentage of confined white prisoners dropped while that of black prisoners regularly increased. By 1986 only 55% of state and federal prisoners were white, while 44% were black (those listed as "others" remained at 1%).


The more than 100% increase in the ratio of black to white prisoners (21% black in 1926 and 44% black in 1986) cannot be explained by general population trends. The number of blacks relative to the general population was about the same in both years, 10% in 1926 and 12% in 1986.

Copies of the above report can be obtained from the Justice Statistics Clearinghouse, U.S. Department of Justice, Box 6000, Rockville, MD 20850.

Getting Counsel Appointed in Civil Rights Cases

Getting Counsel Appointed In Civil Rights Cases

By Paul Wright

The vast majority of prisoner rights cases are initiated and filed by prisoners representing themselves. This is due to a variety of reasons but the primary one is that most prisoners are poor and cannot afford an attorney to represent them in court on civil claims.

28 U.S.C. § 1915 (d) allows the federal district court to request an attorney to represent an indigent plaintiff in a civil action. The Supreme Court recently held that "request" means just that, that a judge cannot order a lawyer to represent someone. While there are no funds available for the court to hire an attorney to represent an indigent, 42 U.S.C. § 1988 provides that winning plaintiffs in civil rights cases can be compensated for costs and attorneys fees. Many state bar associations have strong pro bone programs where member attorneys donate a certain amount of time a year to represent poor people, be it the homeless, prisoners, low income tenants, etc., so in most cases if a judge asks an attorney to represent an indigent they will find one.

Whenever you file a civil rights suit it's a good ...

FBI To Collect Records on Juveniles

FBI To Collect Records On Juveniles

The U.S. Justice Department has plans to authorize the FBI to gather juvenile offense records from the states. Law enforcement officials and prosecutors generally expressed support for the proposal.

Current Justice Department rules allow the FBI to collect juvenile offenses records only in cases where the youth was tried as an adult. The new proposal, announced in the June 5 issue of the Federal Register, would authorize the bureau to accept records about offenses committed by youth who were adjudicated in juvenile court.

Most of the public comments were in opposition to the rule. The complaints were that the rule undermines the long history of treating juvenile offenders differently from adults, that it is too loosely written and would allow records to be kept on minor offenses, and that FBI files on juvenile offenders could hamper any efforts by the youths to obtain employment or otherwise become law-abiding members of society.

The rule would purportedly exclude non-serious offense records, but "it would in fact allow retention of records pertaining to such incidents as school yard fights and shoplifting," said Lenore Gittis, attorney in charge of the New York Legal Aid Society's Juvenile ...

Community Service Sentencing Found Effective

Requiring criminal offenders to perform a certain number of hours of community service is a sentencing option that can be administered effectively and which appears to produce recidivism rates no worse than those produced by terms of incarceration, according to a study by Malcolm M. Feely and Richard Berk of the University of California School of Law at Berkeley.

In view of the significant cost savings of community service sentencing compared to jail terms (the average monthly cost for imprisonment was $1,416, compared to $97 for community supervision), it perhaps should be expanded to include higher-risk offenders, the researchers recommended.

Community services is an increasingly popular sentencing option, especially as courts look for alternatives to overcrowded prisons and jails Feeley and Berk noted. By the mid-1980s, approximately 9 percent of all federal offenders on probation were serving terms of community service, they said. But community service sentencing is "largely an untested idea subject to few careful evaluations."

The single biggest problem with community service sentencing is that the court must rely on work performance reports from the agencies for which the offenders work. Many of the agencies that take on offenders "do not want to assume a law enforcement ...

NCADP Conference in Seattle

NCADP Conference In Seattle

The National Coalition to Abolish the Death Penalty (NCADP) will be holding it's annual convention in Seattle on Friday, November 1st through Monday, Nov. 5, 1991. The conference will be held at the Meany Hotel in the University District and will have a number of workshops that include topics such as: Women and the death penalty, Coping with death penalty crazy politicians, Understanding the legal process, learning the game at your state legislature and more. For information on attending, contact Teresa Mathers at (206) 623-1302.

Death Penalty Resources

By Paul Wright

With the NCADP conference being held in Seattle this is a good chance for citizens to learn more about the death penalty and its inherent injustice. One of the often overlooked aspects of the death penalty is that in the criminal law field death penalty litigation is at the cutting edge where new decisions and court opinions are being made that affect all criminal defendants, not just those actually facing the death penalty. The U.S. Supreme Court in particular has used death penalty cases to roll back what had been considered well established rights and it is continuing to do so.

In many ways the death penalty is a microcosm of the criminal justice system as a whole, with the racially disproportionate number of minorities facing the death penalty, the virtual absence of the wealthy from death row, and the horrible conditions most prisoners must live in while awaiting the death penalty. Recent years have seen a restoration of the federal death penalty and then its expansion to a whole new area of offenses, even those that do not involve the loss of life. Right now 36 states have the death penalty and Nebraska and Massachusetts ...

Prison Repression in Spain

Prison Repression In Spain

The prison Meco is 30 kilometers from Madrid. It is a maximum security super prison where torture is most of ten practiced against the prisoners. Currently they have stopped beating prisoners a little but there is all kinds of problems, such as censorship of mail, communication with friends and even family members. All of this has been complained of to the Judge for Prison Vigilance but the judge always, except for a rare occasion or tow, rules in favor of the prison directors, that is how "justice" functions here in Spain.

The situation in the prisons here has not changed, we [Editors note: political prisoners] are still dispersed and some prison officials are trying to hire social prisoners to murder political prisoners. All of this is being done with the governments consent. But it has turned out badly for them as the majority of social prisoners are on our side and an organization of social prisoners, which includes the most militant prisoners and those in control units, that is to say, like us, have issued a communiqué threatening to kill any prisoner that harms a political prisoners.


Jose Jimenez Fernandez
Penitentiary Hospital
Madrid, Spain

Notary Update

I'm writing in response to the letter from Lucasville, Ohio, about notarization. I'm copying this as I have it written down in my legal file: Prison Law Monitor, 3PLM, February 1981 - Expense of notarizing statement can be avoided.

Also includes ideas that are easily seen as more important for incarcerated vets than others. One such idea is the following which can eliminate the necessity of finding a notary public, often not readily available in prison.

It is usually a good idea to send sworn, notarized statements of witnesses or applicants to the review boards. However, notary publics are not always available and usually charge a fee for their services.

Congress passed a law in 1976 (28 U.S.C. § 1746) that says if a statement and if the signature is accompanied by the language noted below, then the statements will have the same "force and effect" of a sworn statement. Whenever a notary public is not available so that a sworn statement can be submitted, include the following sentence and then sign it.

I declare, under penalty of perjury, that the foregoing is true and correct. Executed on (fill in the date). I also write 1976 (28 U ...

Resistance to Oppression

Resistance To Oppression

The struggle to maintain principles that we live our lives by. The conscious support of our political beliefs in the face of calculated deterrence. Refusal to conform to standards set by the controlling parties, despite coercion. Any political prisoner, politicized social prison or POW knows what this is about. I live in a very repressive environment, a control unit prison in America's gulag archipelago. A prisoner's rights activist, anarchist, anti-imperialist north American prisoner. I face constant tactics geared to undermine my beliefs, integrity and attitudes. The stability is resistance, constant, unyielding, and timeless. We who live the resistance are never going to compromise our positions. The struggle today requires unity and communication between people in prison, the streets and other countries. Fascist influence has manifested itself in the form of policed states and peoples' rights are under constant attack by the new Supreme (travesty) Court conservatives. Resistance is survival of who I am. Sell-outs live the lies that would cause endless sorrow to one who believes in his self and cause. Resistance is the life blood, oppression the Angel of death.


T.F.
Crescent City

 

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