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Prisoner Education Guide

Prison Legal News: December, 1991

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Volume 2, Number 12

In this issue:

  1. Monroe's Struggle Against Double Celling (p 1)
  2. Court Supports Supervisory Liability Claim (p 2)
  3. Written Findings of Disciplinary Hearing Held Inadequate (p 3)
  4. Prisoners May Not Be Subjected to Freezing Temperatures (p 3)
  5. Executions Report Issued (p 3)
  6. Prison Law Libraries Must Keep All Books Current (p 4)
  7. The Criminalization of Poverty (p 4)
  8. From The Editor (p 5)
  9. New York Prisons Profiled (p 6)
  10. Oklahoma Must Provide Adequate Funds for Its Public Defenders (p 6)
  11. Consent Decree Creates a Liberty Interest (p 7)
  12. Prison Guards May Not Be Fired for Testifying on Prisoner's behalf (p 7)
  13. Guards Liable for Harassing Searches of Cell (p 7)
  14. Prison Tobacco Sales Are Not Punishment (p 7)
  15. No Liberty Interest in Prison Jobs (p 8)
  16. Civil Commitment (p 8)
  17. Evidence Must Be Presented at Disciplinary Hearing (p 8)
  18. Letters From Readers (p 9)

Monroe's Struggle Against Double Celling

Monroe's Struggle Against Double Celling: A Status Report

By Ed Mead

A flood of new rumors have been flying hot and heavy on the double celling status here at the Reformatory in Monroe. Some of these reports say there has been a negative change in the district court's order barring double bunking; other rumors claim that judges in the U.S. Circuit Court of Appeals have "leaked" that they intend to rule against prisoners; and still another piece of gossip has it that the state is going to ignore the federal court order and just go ahead and double us up anyway, declaring some sort of emergency condition to give their contempt of court a fig leaf of legitimacy. What is the real story? I'll try to tell it as best I can. But first let me put the situation in a political context, and then explain a bit of history about this litigation, for those of you who are new to the never-ending legal drama known locally as the Collins v. Thompson case.

A term we hear often in both legal circles and in the establishment press is "finality of litigation." This catch phrase is usually ...

Court Supports Supervisory Liability Claim

James Johnson, a prisoner at the Cummins Unit of the Arkansas Department of Corrections, appealed from the district court's dismissal of his §1983 complaint. The complaint alleged that Johnson suffered an inguinal hernia, which was diagnosed in January 1984. The prison doctor recommended surgery to repair the hernia, and said it should take place immediately. The private company providing medical services to the prison, Health Management Associates (HMA), repeatedly put off the surgery until August, creating serious health problems for Johnson.

In his complaint Johnson alleged that the supervisory authority of Warden Sargent and DOC Director Lockhart over the medical staff of the prison made them subject to liability for deliberate indifference to his and other inmates' serious medical needs. The magistrate recommended the dismissal of the complaint against Sargent and Lockhart, who the magistrate concluded could not be held responsible because "respondeat superior is not applicable to §1983 actions."

On appeal Johnson argued that because Sargent and Lockhart were charged with supervisory authority over the medical system of the Cummins Unit they therefore are directly liable under section 1983 for their failure to properly supervise, direct, and control the prison's medical system and staff.

The Court of ...

Written Findings of Disciplinary Hearing Held Inadequate

An Illinois prisoner launched a 1983 challenge to the prison disciplinary hearing committee's finding of guilt on several infractions, including one charging him with conspiracy to murder a Unit Manager. The civil rights complaint alleged a number of constitutional infirmities in the disciplinary process, but only one issue was found valid. The U.S. District Court held that the disciplinary hearing's summary, the reasons relied upon in reaching its finding of guilt, did not contain an adequate justification for its finding of guilt. The committee's summary said:

"Based upon the statements by reporting employee and from investigative report that revealed that Washington was the legal coordinator of the Black Gangster Disciples at the time and did attend meetings that discuss (sic) the planning and attack of Robert Taylor, committee is satisfied violations did occur."

In reviewing the committee's findings the court said the summary did not state the evidence relied upon in determining the prisoner's guilt. Instead, it relies on general findings and conclusory statements of the type prohibited by the due process clause of the federal constitution. "Rather than pointing out the essential facts upon which inferences were based," the court said, "the committee ...

Prisoners May Not Be Subjected to Freezing Temperatures

In 1982 outside temperatures at the Stateville prison in Illinois plunged to 22 degrees below zero with a wind-chill factor of 80 degrees below zero. The heating system in a cell block with 300 men malfunctioned and frigid air circulated through the cell blocks through broken windows, with ice forming ...

Executions Report Issued

Eleven states executed 23 people last year, the U.S. Justice Department's Bureau of Justice Statistics (BJS) announced on September 29th. The Bureau said as of December 31, 1990, there were 2,356 people being held on death row in 34 states. Between 1976, when the U.S. Supreme Court reinstated the death penalty, and last December 31, there had been 143 executions by 16 states.

According to the Bureau's annual capital punishment survey, 244 persons received death sentences throughout the U.S. last year, and 101 persons who had been previously sentenced to death had those sentences vacated by appellate or higher court decisions. Seven death row inmates died during the year. The number of persons under sentence of death at year-end was five percent higher than at the end of 1989.

"Since the Supreme Court's decision in 1976 there have been 3,834 persons who have been under a death sentence, " said Steven Killingham, bureau director. "The 143 persons executed represent 3.7 percent of those defendants who were at risk of being executed during the period," he noted.

All of the death row inmates being held last December 31 had been convicted of a ...

Prison Law Libraries Must Keep All Books Current

One of the questions presented in this case was whether a prison law library must keep current (update) those books that they are not constitutionally required to have. The case arose when prisoners initiated litigation, pursuant to 42 U.S.C. 1983, over the adequacy of the law library at the Washington State Reformatory. During the trial it was determined that the prison had a complete set of United States Code Annotated, but they only updated those volumes of the set listed on the American Association of Law Libraries' (AALL's) minimum requirements list. The trial court ordered that all books in the law library be maintained, including the entire set of U.S.C.A. The state then appealed.

The Ninth Circuit Court of Appeals upheld the ruling of the lower court. The appellate court used the following language in reaching its conclusions:

"...this circuit has not established specific minimum requirements that a law library must satisfy in order to provide adequate access (citations omitted). Because there is not constitutionally mandated minimum materials list, the district court cannot be said to have abused its discretion in issuing an injunction on requiring that all the materials at the WSR law ...

The Criminalization of Poverty

The Criminalization Of Poverty

By Sabina Virgo
Sabina Virgo is an activist in the Los Angeles area. The following is an edited version of a speech given in L.A. on International Human Rights Day, December 8, 1990.)

An anonymous poet in the 1700s once wrote, "The law will punish a man or woman who steals the goose from off the hillside, but lets the greater robber loose, who steals the hillside from the goose."

Talking about "the greater robber" seemed particularly appropriate in the midst of the biggest financial rip-off in the history of this country. I thought about the billions of dollars the Savings & Loan criminals stole, and about how most of them will get away with it. I thought about the complete insanity of how we define crime in our society.

" Steal $5 you're a thief, steal $5 million - you're a financier." Thirty percent of the wealth of this country is controlled by one-half of one percent of the people. Eighty percent of the wealth is controlled by ten percent of the people. I think that's a crime.

I looked up the word "crime." Crime was defined as "an act which is against the law." Crime applies particularly, the dictionary said, to an act that breaks a law that has been made for public good. Crime in one country, it continued, " may be entirely overlooked by the law in another country, or may not apply at all in a different historical period." That was interesting. What that really said was that concepts of "crime" are not eternal. The very nature of crime is social, and is defined by time and by place and by those who have the power to make the definitions; by those who write the dictionaries, so to speak.

The more I thought about that, the more profound it became. The power to define is an awesome power. It is the power of propaganda. It is the ability to manipulate our ideas, to limit our agenda, to mold how we see, and to shape what we look at. It is the power to interpret for us the picture we see when we look at the world. It is the power to place a frame around that picture; to define where it begins and ...

From The Editor

By Paul Wright

Welcome to the December issue of PLN . When you receive this issue the whole commercialized Christmas season will be in full swing. So in the spirit of giving, if you haven't donated to PLN yet this is a great time to do so. If you have donated in the past this is a good time to renew your support for PLN. PLN is supported entirely by donations from its readers, it is that money that makes it possible for us to print and mail each issue of PLN. We need your support to continue publishing PLN and keep up our work.

We are still looking for someone in the Seattle area that has access to a photocopier that can copy about 300 issues of PLN a month at cost or less. If you or anyone you know is able to help us out with this please contact either Ed or myself as this would be a big help in cutting our printing costs (our basic expenditures are printing and postage as everyone involved in PLN' s production is an unpaid volunteer).

A number of readers have written and asked why PLN didn't publish any articles ...

New York Prisons Profiled

A prisoners' advocacy group in New York City on September 27 released a profile of the state and city inmate population and found a pattern of minority offenders being increasingly locked up for nonviolent crimes.

The Correctional Association of New York said there are more than 57,000 inmates in state prisons, up from 12,500 in 1973 and 28,500 in 1983. It noted blacks make up a disproportionate half of the prison population, while representing just 12.4 percent of the state population. Hispanics make up about 32 percent of the inmate population and just 10 percent of the state population.

Robert Gangi, who heads the association, said the most prominent aspect of the prisoner profile was the high rate of offenders imprisoned in 1990 who were convicted of nonviolent crimes. According to Gangi, 60 percent of those sent to state prisons last year were nonviolent offenders, up from 30 percent in 1983. "Those statistics reflect a shift in law enforcement resources away from focusing on apprehending and jailing violent offenders," Gangi said. "We think it is a misguided policy."

"Many of the nonviolent people could be handled alternatively through a combination of drug treatment programs, alternative punishments ...

Oklahoma Must Provide Adequate Funds for Its Public Defenders

In a highly significant case the 10th Circuit Court of Appeals ruled that by failing to adequately fund it's appellate public defenders the Oklahoma State Legislature deprives prisoners of their right to due process and equal protection of law under the federal constitution.

Robert Richards filed a Pro Se § 1983 action seeking declaratory and injunctive relief. In his suit he claimed that with only five full time lawyers handling non capital appeals for indigent Oklahoma prisoners it usually takes three years or more before an appeal is filed in the state court of appeals. While a prisoner that can afford private counsel can get his appeal filed within a matter of months.

The district court dismissed the suit by stating there was insufficient showing of substantial and immediate irreparable injury to give Richards standing to file suite.

The Court of Appeals for the 10th Circuit reversed and remanded the lower court. The court of appeals held that because Richards seeks injunctive and declaratory relief, not reduction of his sentence or reversal of his conviction, that §1983 is the appropriate means for him to use, the court also held Richards had standing to pursue his claim. See: Richards v. Bellmon ...

Consent Decree Creates a Liberty Interest

Consent Decree Creates A Liberty Interest

Stephen Rodi, a Rhode Island state prisoner filed suit under § 1983 claiming he had been put in administrative segregation without cause, notice or opportunity to be heard. The district court dismissed the complaint for failure to state a claim and on appeal the Court of Appeals for the First Circuit vacation the dismissal and remanded to the lower court for further proceedings.

The court of appeals held that a consent decree entered into by the Rhode Island DOC and prisoner plaintiff's (it had been a class action suit) in 1972 which set forth "emergency" conditions for prisoners to be put in ad seg, did in fact create a liberty interest, enforceable under § 1983, for Rodi to stay out of ad seg. Once the liberty interest has been created by the state the state must abide by its procedural protections.

At pages 26-29 the court goes into a lengthy discussion on how consent decrees, once entered into by both parties, are enforceable contracts. The state had argued that individual prisoners did not have an enforceable liberty interest because the ad seg rules in question were "court created" and thus "involuntary." The court said these ...

Prison Guards May Not Be Fired for Testifying on Prisoner's behalf

Prison Guards May Not Be Fired For Testifying On Prisoner's Behalf

Salvatore Ziccarelli was employed as a guard at the Cook County (Chicago) jail in Illinois. While there he became acquainted with a prisoner facing the death penalty. Ziccarelli voluntarily appeared, while off duty, on behalf of the defense to testify about the defendant's character in the death penalty phase of the trial. The jail had an unwritten policy that prohibited guards from testifying about job related matters unless they were subpoenaed. The jail fired Ziccarelli when it learned he had voluntarily testified on behalf of a prisoner.

Ziccarelli filed suit under § 1983 claiming violation of his 1st Amendment rights. On cross motions for summary judgment the court ruled in favor of Ziccarelli.

Judge Marovich held that Ziccarelli's testimony on behalf of a prisoner facing the death penalty was, literally, "a matter of life and death" involving a matter of political, social and community concern and that the jail had no clear rationale or reason for discharging him.

The court also commented about it's suspicions of the jails "unwritten policy" barring court testimony of it's employees. The court noted there was no relationship between Ziccarelli ...

Guards Liable for Harassing Searches of Cell

Guards Liable For Harassing Searches Of Cell

Although searches of a prisoners' cell do not violate the fourth amendment, they can be "punishment" under the eighth amendment. Searches of a prisoner's cell conducted in order to harass the prisoner in retaliation for exposing the misconduct of a guard constitute ...

Prison Tobacco Sales Are Not Punishment

David Steading, an Illinois state prisoner filed suit under § 1983 claiming violation of his 8th amendment rights because prison officials had failed to provide a smoke free environment for all Illinois prisoners. The district court dismissed the suit and the court of appeals for the 7th district affirmed it.

Steading had sued the tobacco company that sold the tobacco to the Illinois DOG. The Court ruled that the tobacco company was not a "state actor" for § 1983 purposes just because it sold a product to the government.

The court of appeals analyzed Steading's claim under the Supreme Court's Wilson v. Seiter test where the prisoner plaintiff must show an intent to punish on the part of prison officials. The Court reasoned that because secondary tobacco smoke is common in offices, restaurants, etc., around the world "punishment" is not intended or taking place.

The court qualified its opinion by noting that the medical consequences of secondary tobacco smoke do not differ from other medical problems and prison officials deliberate indifference" to prisoners tobacco smoke related problems can still give rise to an 8th amendment violation. See: Steading v. Thompson, 941 F.2d 498 (7th Cir. 1991).

No Liberty Interest in Prison Jobs

No Liberty Interest In Prison Jobs

The 7th circuit in an en bane ruling held that neither the due process clause nor Illinois statutes create a protected liberty interest in a prisoner holding one prison job over another.

Phillip Wallace is an Illinois state prisoner employed as a prison tailor earning $100 a month. Wallace was removed from this tailor job after homemade liquor was found in the tailor shop. He was then employed as a prison clerk earning $30 a month. Wallace contended that his removal was improper because he was never infracted for misconduct and Illinois administrative statutes provide for job removal in a disciplinary case only after certain steps are taken. The district court dismissed the case finding no process was due to Wallace before being removed from his job.

On appeal the 7th circuit (en bane) affirmed dismissal. The court held that before due process protections are available a citizen must first show a "legitimate claim of entitlement" to the liberty or property at stake. The court ruled Wallace had no such right in his tailor job and goes into a lengthy discussion of due process protections and rights available to prisoners.

Two judges strongly dissented ...

Civil Commitment

by Carrie Roth, Prison/Community Alliance

The Special Commitment Center (SCC) is a block of prison cells in the Special Offenders Center (SOC) in Monroe, WA. Eleven men are now housed in the prison under the Civil Commitment law passed in 1990. Although the center is in a prison owned by the Department of Corrections (DOC), the Department of Social and Health Services (DSHS) is actually in control of the SCC.

The civil commitment law was written to indefinitely incarcerate men due to fear they may reoffend. No proof of current dangerousness needs to be brought before the jury. There need not be any current offense or even a subtle threat of reoffending. All you need to be referred for civil commitment is a sex offense in your records. You do not have to be doing time now on a sex offense. If you have ever had a sex offense on your record you are a candidate for civil commitment.

There are numerous flaws in this law. It denies the right to due process and is used to retry a man on his original crimes. The law was written so vaguely that there are no set guidelines for the courts ...

Evidence Must Be Presented at Disciplinary Hearing

Evidence Must Be Presented At Disciplinary Hearing

Eddie Griffin, a Pennsylvania state prisoners was infracted for possessing a fermented beverage. Prison guards destroyed the liquid in question prior to the disciplinary hearing. At the hearing Griffin was found "guilty" solely on the basis of the guards infraction report. Griffin then ...

Letters From Readers

More On Plight Of The Young

This letter is in response to a letter to the editor printed in the September issue of the PLN, titled "Plight Of The Young. "

The thing with brother Barry Massey, in particular - the U.S. judicial systems sanctioning of his life sentence without the possibility of parole for the killing of a Tacoma man - will never be understood if we leave it to emotions (or our subjective feelings). For years now, many state legislatures have been passing statutory laws that permit the courts to try, convict and sentence youth offenders (of Barry Massey's age and the like) to prison for life (or a practical life sentence). Some think that the legislature's action in this respect is chiefly caused by the public outcry for severe penalties to punish youths who commit gruesome crimes.

Very few (if any) individuals see the drive toward severe penalties as it relates to youth offenders as a part of the state prisondome's scheme to privatization. I think it is. I think that the trend toward privatization of U.S. prisons represents an acute crisis in capitalism. And, if I'm correct, the capitalists are banking on using ...


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