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Prisoner Education Guide

Prison Legal News: November, 1991

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Volume 2, Number 11

In this issue:

  1. Washington Supreme Court Rules on Lifers (p 1)
  2. Caging America: The U.S. Imprisonment Binge (p 2)
  3. Prison System Increases Cell Integration to Avoid Fines (p 3)
  4. Abuses Continue at Ansar 3 (p 3)
  5. Pig Park Update (p 3)
  6. Unlawful Orders Cannot Be Enforced With Violence (p 4)
  7. Privacy Right Not To Be Viewed Naked by Opposite Sex Prison Guards (p 4)
  8. Right to Practice Religious Beliefs (p 4)
  9. Due Process Distinguished (p 5)
  10. Attention Former PAP Members (p 5)
  11. Reviews (p 5)
  12. Prison Guards: Victims or Villains? (p 5)
  13. Universal Suffrage: Give Us A Voice! (p 6)
  14. Sheriff Can't Release AIDS Test Results (p 6)
  15. Violent Crime Rate Up, Again (p 7)
  16. Editorial (p 7)
  17. Can't Search Visitor Leaving Prison (p 7)
  18. No Minimum Wages for Convicts (p 8)
  19. Search of Legal Files Violates Consent Decree (p 8)
  20. Mandatory Sentencing Flops in Florida (p 8)
  21. Passin' Gas (p 9)
  22. Letter from Germany (p 9)
  23. Pelican Bay News (p 9)
  24. Info on Free (p 10)

Washington Supreme Court Rules on Lifers

Washington Supreme Court Rules On Lifers

John Midgley, Attorney At Law

As most prisoners in the system now know, the Washington Supreme Court in August handed down its decision in the " lifer" case, In re Powell, et al., 117 Wn.2d 175 (1991). In Powell, four persons convicted of first degree murder before the advent of the SRA challenged application to them of SRA guidelines (through a 1989 Legislative enactment, SHB 1457) because such application increased the amount of time "lifers" had to serve before they became eligible for parole.

Under the law in effect at the time of the crime, lifers were eligible for parole after serving twenty consecutive years minus good time and upon getting a "certification" from the warden that they had been good and should be paroled. Under SHB 1457, the Indeterminate Sentence Review Board was required to set SRA-based minimum terms for lifers. Many of these ranges were longer than 20 years, in the cases of the petitioners in Powell, the terms ranged from about 25 to 31 years. Other "lifers" have had much longer terms set. Only after this longer than 20-year term is served will a "lifer" be considered for parole.

What this ...

Caging America: The U.S. Imprisonment Binge

By Patricia Horn

[The following is an edited version of an article reprinted from the September, 1991, issue of Dollars & Sense magazine. It was edited by Ed Mead.]

"The degree of civilization in a society can be judged by entering its prisons," Fyodor Dostoevsky once wrote. Look into California's San Quentin prison, Sing Sing in New York, or Angola Prison in Louisiana. All are bursting with record numbers of poor, jobless, uneducated, unskilled people - especially people of color.

Since the late 1970s the United States has locked up its citizens at an ever quickening pace, a course the National Council on Crime and Delinquency (NCCD) labels the "U.S. imprisonment binge." The number of people incarcerated in the United States shot up over 250 percent between 1970 and 1990. In 1990, the U.S. kept over 750,000 men and women locked up (not counting those in county and city jails), and the numbers grow daily. We are now the world's top jailer, surpassing the Soviet Union and South Africa.

Incarcerating more people doesn't stop crime. Even the fairest courts and the most just of prison systems only respond to crime, not prevent it. Most crime is ...

Prison System Increases Cell Integration to Avoid Fines

Faced with the threat of millions of dollars in fines, the Texas Department of Criminal Justice began increasing the number of racially integrated, two-person cells July 1.

Before July only about 2 percent of the system's 11,000 double cells were integrated; assignments were made on the basis of inmate preference.

The action came 14 years after the state signed a consent decree to end racial bias in prison housing and work assignments and five months after the U. S. Justice Department said it would seek contempt fines of $20,000 a day if the state did not develop a suitable plan. The decree requires that the prison system integrate 20 percent of the double cells.

The Justice Department in February threatened to seek sanctions against prison officials for failing to integrate the cells as called for in the consent decree. At the time, federal lawyers said they were prepared to seek fines of $50,000 a day for each cell that was not integrated.

The integration will affect only general population inmates. Many inmates already are assigned to racially integrated, dormitory-style prisons.

Members of racial supremacist groups will not be housed with members of another race. Nor will ...

Abuses Continue at Ansar 3

Abuses Continue At Ansar 3

Ansar 3 is a detention camp built by the Israeli government 70 kilometers south of Beersheba to hold the prisoners of the Palestinian Intifada. It is in the middle of the Negev desert and holds 6,000 prisoners at any one time. The following information is based on an interview with Israeli lawyer Tamar Peleg, of the Israeli Human Rights Committee that appeared in the September 9, 1991, edition of Al Fajr, a Palestinian newspaper.

When asked about the medical situation at Ansar 3 Peleg stated it was not satisfactory. By law everyone entering the camp is supposed to get a check-up by a doctor but that usually does not happen. Some critical cases are sent to hospitals but it is a slow and lengthy process and sometimes requires intervention by a judge to be done.

The detainees also have a general boycott of the camp's clinic because members of the Israeli security services have demanded that detainees become informants in order to receive medical treatment. They allow some critical cases to get treatment but in general follow their boycott.

Peleg states that the camp administration is interested in stability in the camp and ...

Pig Park Update

Readers of PLN will recall that we have previously reported the fact that the Washington State Penitentiary (WSP) in Walla Walla has bought 40 plus acres from the department of Wildlife for $80,000 which will be used as an "employee park"

According to an August 22, 1991, story in the Walla Walla Union Bulletin 4 acres will be used as a park while other parts will be used for training purposes such as obstacle courses and such to help WSP guards work the fat off "to help correctional officers meet minimum physical fitness requirements."

A two-story house on the property is already being used for weapons training. The warden, James Blodgett voices plans to share the entire training area with other area law enforcement agencies.

We ask our readers to keep PLN informed of new developments at the pig park. Send clippings and other relevant information to Paul Wright or send to PLN at the Florida address.

Unlawful Orders Cannot Be Enforced With Violence

A female California state prisoner was ordered to submit to a strip search by male prison guards. She refused to be strip searched and was Tasered. She filed suit under the Fourth, Eighth and Fourteenth amendments.

The District Court applied an Eighth Amendment analysis and concluded the Fourth Amendment was not applicable. The Court held: "If the jury were to find that plaintiff was ordered to strip in front of males under the circumstances set forth in the undisputed and disputed facts plaintiff's refusal to do so could very well be a justifiable assertion of her Fourth Amendment rights. Force used to compel prisoners to comply with orders violative of those rights may well be found excessive. In other words, a prisoner can invoke a clearly existing constitutional right and say "no" to prison officials who are unjustifiably about to infringe on that right, without fear that force can be used with impunity in any event to compel her to give up that clearly established right."

The Court held that in 1988 the routine unclothed searches of prisoners by guards of the opposite sex violated the prisoner's well established right to privacy and right to be free from ...

Privacy Right Not To Be Viewed Naked by Opposite Sex Prison Guards

Privacy Right Not To Be Viewed Naked By Opposite Sex Prison Guards

A Colorado state prisoner filed suit under § 1983 claiming violation of his rights to due process and equal protection when he was placed in isolation at a medium security prison and then transferred to another prison. The plaintiff also claimed that his right to privacy was violated when he was forced to shower in an open shower stall while being observed by female prison officials. The defendants filed a motion to dismiss and the District Court denied it in part and granted it in part.

The Court held that neither the Constitution nor Colorado prison regulations created a liberty interest in being classified or kept at one prison over another.

The Court held the plaintiff did state claim with regards to being put in segregation because the record was unclear as to whether it was segregation for punitive or administrative reasons.

Klein also stated a claim by alleging in his complaint that he was purposely singled out for harsher treatment than that accorded similarly situated prisoners. The Court also held that Klein had a limited privacy right not to be regularly watched by prison officials of the opposite ...

Right to Practice Religious Beliefs

Right To Practice Religious Beliefs

C.D. Mosier, an Oklahoma state prisoner, is a practitioner of Native American religious beliefs which prohibit him from cutting his hair. The Oklahoma DOC has a grooming code which requires that it's prisoners have short hair, however, exemptions can be granted for prisoners who document their religious beliefs. Mosier had an exemption at one prison but was transferred to another where his request for another exemption was denied. He then filed suit under § 1983.

The district court converted the defendants motion to dismiss into a motion for summary judgment which he granted for the defendant prison officials. The basis for the lower court's decision was that because Mosier was not a member of a religious organization his religious beliefs were not "sincerely held."

The Court of Appeals for the Tenth Circuit reversed and remanded. The court held that membership in a religious organization is not necessary for religious beliefs to be sincerely held.

The Court of Appeals did however note that since the Supreme Court's Turner v. Safely decision, prisoners have always failed in their challenges to prison dress and grooming codes on religious and other grounds. But the Court held ...

Due Process Distinguished

A mobile home park owner sued the city of Rocklin, California, over a rent control ordinance claiming it was taking his property without just compensation or due process. The District Court dismissed the complaint. The Ninth Circuit Court of Appeals reversed and remanded the case back to the lower court. While this is not a prison case, the due process analysis applies to all government actions and give a clear explanation about the differences between substantive and procedural due process.

At 956: "A claim for violation of procedural due process has two components. First, plaintiff must show that a protected property interest was taken. Second, it must show that the procedural safeguards surrounding the deprivation were inadequate.

'At 957: "Where, as here, the plaintiff alleges that the denial of due process consists of an official's arbitrary action, a claim for violation of substantive due process in undistinguishable from a claim for violation of procedural due process. Since the Supreme Court held in Zinermon that substantive due process claims are not subject to diversion to state court under Parratt, see 110 S. Ct. at 983, we need not consider whether the procedural due process claims, standing alone, would have to ...

Attention Former PAP Members

If you are a former member of the PAP or know the whereabouts of any past members, we'd appreciate hearing from you. Send any correspondence to: Jane Kuja, P.O. Box 507, Auburn, WA 98071.

Reviews

AUTONOMI is an English language magazine published in Denmark with an autonomous and anti-imperialist outlook. The latest issue, number 6, has articles on political prisoners in the U.S., an update on the trial of members of the Communist Workers Group in Denmark who were convicted of committing various robberies to finance third world liberation struggles, information on the political situation in Denmark, on feminism, on the upsurge of fascism in Germany and a communiqué by the Red Army Faction. Autonomi is free to prisoners. Write: Autonomi, Blagardsgade 12, 2200 Copenhagen N., Denmark.

CURE Newsletter, CURE is Citizens United for the Rehabilitation of Errants, a national organization. It publishes a four page newsletter on a quarterly basis. Generally it concentrates on legislation and other news that affects prisoners. Subscriptions/membership are $2.00 for prisoners, $10.00 for others. Write: CURE, 11 15th St. N.E., #6, Washington, D.C. 20002-8436.

CAPTIVE VOICE is a quarterly publication written by Irish Republican prisoners of war being held in British, Irish, European and American prisons. Each issue features news on the prison struggle being carried out by the various POWs, political analysis and commentary, cross word puzzles, artwork, quotes and letters from ...

Prison Guards: Victims or Villains?

Prison Guards: Victims Or Villains?

Review By Paul Wright

This is the title of one of two articles in the latest issue [o]f "Blueprint for Social Justice." Both articles are written by female former prison guards who describe their experiences working as guards in women's prisons. One of the authors is now a doctoral candidate at Yale, the other has written a book titled, "Prison Officials and their World. "

Basically the authors state: "Prisons, especially violent maximum security prisons, have a devastating effect on the lives and minds of those who work within them."

Dehumanizing attitudes and behaviors on the part of officers are consequences of their jobs, not characteristics that the vast majority of officers bring to their jobs. Attempts to portray officers as villains rather than victims distorts analysis of the prison world and deflects criticisms of prisons themselves.

The article also goes on to describe a study of 40 Massachusetts prison guards over a four year period. Most resigned within that period and all reported being unhappy about their jobs and the emotional devastation that it caused them, while those that stayed did so because they were from economically depressed communities and were unable to ...

Universal Suffrage: Give Us A Voice!

Universal Suffrage was originally created to provide assistance to those convicted in the American justice system in the defense of those constitutional rights that are supposed to exist, and in regaining those rights that have been unjustly lost. Our intention is not to offer "class action" suits to the courts that look nice and important in the press, but toss every situation into one wastebasket that the widely conservative "justice" system can eliminate in one motion; we want to go after each case that is defendable, and give each one its deserved "day in court."

Unfortunately, it is impractical to directly assist anyone with any case until we have an attorney to represent us at the location of the complaining inmate. It is a helluva task to line up an attorney for every prison, and we are wide open to all who will accept cases pro rate. Any reader who is such an attorney is invited to contact Universal Suffrage immediately. All readers who have personal attorneys who may consider such representation are encouraged to contact those attorneys and refer them to us. Please refrain from sending case material to our central office; save it for an attorney who can ...

Sheriff Can't Release AIDS Test Results

Sheriff Can't Release Aids Test Results

While awaiting transfer from a county jail to an Alabama prison, a convicted prisoner was given the opportunity to voluntarily submit to an AIDS test. he did so, but only after being assured by the county health officials that the results of such test would remain confidential. The inmate was later personally informed of the test results.

A lawsuit was later brought to compel the county health officials to release the results to the sheriff, alleging that the inmate was threatening to scratch, bite, claw, or hurt any individual that came into his cell. An Alabama appeals court has held that, under state statutory law, the county health department is vested with the sole discretion as to whether to divulge confidential test results to third parties.

The court rejected the argument that the sheriff had to receive the results in order to comply with his duty to protect the health and safety of the inmates entrusted to his care. The state provides a mechanism for the sheriff to notify the health authorities of the existence of reasonable cause to believe that an inmate has been exposed to or is afflicted with any sexually ...

Violent Crime Rate Up, Again

There was a sharp increase in violent crimes according to the final statistics for 1990 gathered by the FBI's Uniform Crime Reporting (UCR) program. The FBI reported murder and rape rates increased 9 percent last year, and robbery and aggravated assault rose 11 percent. The murder count reached an all-time high of 23,438.

The report said 49 percent of the murder victims were white, and 49 percent were black. More than half were related to or acquainted with their assailants. About one third of the murders resulted from arguments, and about one-fifth were the result of criminal activity such as robbery or arson. Firearms were the weapons used in about 60 percent of the murders.

The UCR also includes figures about law enforcement personnel. In 1990, city, county, and state police agencies reported employing more than 523,000 officers and about 191,000 civilians. On average, there were 2.2 full-time officers per 1,000 residents, up from 2.1 officers per 1,000 in 1989.

The number of officers feloniously killed in the line of duty last year was 65, the lowest figure since the FBI began collecting that statistic in the late 1960s. Sixty-seven cops were ...

Editorial

Editorial Comments

By Ed Mead

Welcome to another issue of our little newsletter. The first thing I want to do this month is extend a hearty expression of good wishes to one of our favorite outside readers, Jonathan Nelson, who is today serving 30 days in the Island County Jail for protesting the recent war in the Middle East. More than a hundred thousand died, not for any great principle, but rather to protect the greater profits of the big oil companies. We salute all those who struggled against this unjust war.

Two months ago, in our September issue, my article titled "Remembering Attica" was published. The following month we printed a criticism of that article that was submitted by Beryl Sanders. There were other criticisms, too. First there was my factual error of saying Jesse Jackson was on the Attica observer team. He was not. During 1974 I worked for the Attica Brothers Legal Defense Committee in Buffalo, New York. I met Jesse Jackson during a national demonstration held in support of the Attica Brothers during that period. Somehow, I transposed Jackson's presence at the demonstration to his being present on the observer team. That's what happens ...

Can't Search Visitor Leaving Prison

Prison officials suspected that an inmate's minor sister had been smuggling marijuana in to him during her regular visits. An officer was posted to watch the inmate and his sister during the next visit. He did not see them pass anything. At the close of the visiting period, a female correctional officer took the visitor to a private room where she was stripped to her underwear and searched. The search included feeling underneath the visitor's brassiere. Nothing was found during the search.

The visitor sued the officer and various prison officials for a violation of her fourth amendment right to be free of unreasonable searches. The trial court entered partial summary judgment for the plaintiff visitor and prison officials appealed.

The U.S. Court of Appeals for the Eighth Circuit affirmed. While the court had earlier, in Hunter v. Auger, 672 F.2d 668 (8 Cir. 1982), held that there was a prison visitor exception to the search warrant requirement, it found that the exception did not apply in this case.

"The scope of an exception to the warrant requirement is defined by the rationale of the exception," the court commented. In this case, the search occurred when ...

No Minimum Wages for Convicts

No Minimum Wages For Convicts

Prisoners are not entitled to minimum wages or overtime pay, according to a federal appeals court.

Prisoners who worked in the plasma program operated by a private company (Cutter Biological) on prison grounds sued, asserting that they were covered by the Fair Labor Standards Act and entitled to minimum wages and over-time pay for this work.

Two members of the three judge panel disagreed with the inmates on the grounds that Congress simply couldn't have conceived of extending the Fair labor Standards Act coverage to inmates. Also, they ruled that inmates didn't meet the traditional "employer-employee" relationship test used to determine FLSA coverage. The third member of the panel disagreed, opening the door for more challenges on this ground. Gilbreath v. Cutter Biological, 931 F.2d 1320 (9 Cir. 1991).

Search of Legal Files Violates Consent Decree

Search Of Legal Files Violates Consent Decree

A prisoner at the Iowa State Penitentiary filed a federal civil rights complaint in which he contended that the search of his legal papers by guards, outside his presence, violated a consent decree entered into between prisoners and their captors. The district court ...

Mandatory Sentencing Flops in Florida

Mandatory Sentencing Flops In Florida

Florida offers a classic example of how mandatory sentencing laws and large-scale incarceration of drug offenders can produce an unbalanced correctional system and possibly reduce public safety, according a new study by the National Council on Crime and Delinquency (NCCD), the San Francisco-based criminal justice research group.

"The legacy of Florida's drug wars and mandatory sentencing practices is a very chaotic and ineffective prison system where very little treatment, supervision or punishment is being administered," NCCD Vice President James Austin said in a recently issued report. "It is the worst of both worlds when nonviolent, petty property and drug offenders are sentenced inappropriately to prison while dangerous criminals are released early."

Using statistics gathered by the U.S. Justice Department and the Florida Department of Corrections, Dr. Austin made a case that Florida went overboard with mandatory sentencing laws and incarceration of drug offenders. In 1989, Florida prisons admitted nearly 6,000 offenders convicted of cocaine possession, for example. As a result of the tougher laws, state prison admissions more than quadrupled during the 1980s, from about 10,000 in 1980 to nearly 44,000 in 1989.

To accommodate the demand on the prison ...

Passin' Gas

Here at the Washington State Penitentiary's Intensive Management Unit (IMU) there is no end to the mental and physical torture being inflicted upon the inmates. The latest of which are the new use of force tactics being used by IMU staff since the placing of mentally ill inmates in IMU. These new tactics consist of large and dangerous quantities of a highly potent chemical agent called Oleoresin Capsicum. This chemical agent is highly used in IMU now for almost little or no reason at all. Any and all inmates refusing to come out of their cell every 72 hours for a "Mandatory Security Check" will be removed by IMU staff because of security reasons of course.

The worst part about the use of this chemical agent is that it affects other inmates living in the immediate vicinity, that have done nothing wrong. This has been pointed out to Supt. James Blodgett, and the Director of Prisons Larry Kincheloe, but they have no concerns about the unnecessary and wanton infliction of pain they cause. Yet they acknowledge that the smallest amount of this chemical agent can be felt. Myself and a few other inmates are taking steps in filing civil ...

Letter from Germany

Letter From Germany

I can't understand why these pigs have no courage to oblige their own masters to share the lot with them, instead harassing prisoners. I've read also the story about the T-shirt that the pigs didn't want to give to Paul. Pigs are like little children who fear a punishment after small error...It is in fact good to organize the "social" prisoners although I myself can't see any difference between kidnapped or captured (political or social) human beings. We were supporting some German PP's during their hunger strike in 1989. These RAF prisoners are betraying now each other for personal gain. The self-consciousness is the most important thing that a human being has to realize no matter if he has been kidnapped of not. Consciousness can in jail be developed only through self education. First, prisoners have to refuse any form of cooperation or treason with their kidnappers. No matter how long the kidnapping takes. Some not-kidnapped people have more difficulties than many prisoners. Prisons are fascist institutions in which the ruling classes legalize slavery and destroy their enemies. The so-called "social prisoners" are those who face slavery and must therefore fight ...

Pelican Bay News

Hello from Pelican Bay State Prison - SHU. I have some legal news. The following prisoners, Bwana Millon, James X. Williamson, Thomas Fetters, and Nicholas X. Delamat have joined in a writ of mandamus petition in state superior court, county of Del Norte (case no. 91-141-X). The prisoners are African (Millon, Williamson, Delamar) and a North American anti-imperialist (Fetters) and have joined as co-petitioners to address lack of medical care, a futile administrative appeals system, and physical and verbal abuse by correctional officers. The struggle continues as author of this letter has been verbally threatened by law library personnel, and copies of this 50 page plus legal document were mixed-up when photocopied. Issues in the writ include direct violations of petitioner's civil and human rights. This control unit is so filled with abuses and corruption that a federal investigation appears warranted.

I am appealing to the progressive community to write to the human/civil rights and governmental agencies of your choice about conditions at Pelican Bay State Prison Security Housing Unit.

I have been trying to use the justice system. Pro se is a tough road but I am learning. PLN is very informative and also a boost to the ...

Info on Free

Info on FREE

Salutation and congratulations.... Yesterday I received my first copy of the Prisoners' Legal News, a victory all the same. I was impressed. [PLN only recently overturned a statewide ban on the newsletter in Texas.]

I have been active in several ongoing litigations here [a women's prison in Texas] and am pleased to announce Mrs. Anna Dobbyn's new efforts in an organization called FREE (Freedom Restoration through Encouragement & Education). This is another attempt to bring the Texas prisoncrats to justice for their ongoing violations. They are gathering citizens to lodge a lawsuit charging the Texas Prison System with fraud under the RICO Act. They need detailed grievances and/or reports from prisoners to back up their theories, as well as more citizen plaintiffs. It looks favorable. They can be contacted at: FREE, 204 Elmo Avenue, San Antonio, Texas 78225-2140; (817) 923-3178 [No collect calls, please]. Although Texas based, I encourage all to consider this prospect. I will of course keep the PLN advised as best I can.

I must close, I really just wanted to congratulate all those who were active in having the PLN "approved," or at least no longer denied, in Texas. My best regards to all.

K.B., Gatesville, Texas

 

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