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Prisoner Education Guide

Prison Legal News: August, 1991

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Volume 2, Number 8

In this issue:

  1. A Lesson From Japan (p 1)
  2. The United States Supreme Court: Petition for Writ of Certiori (p 2)
  3. Drug Profits Fund Prison (p 3)
  4. Walla Walla 'Lifers With Hope' (p 3)
  5. Mass. Corrections Policy "Disaster" Says Task Force (p 3)
  6. Texas Prison Officials Indicted (p 3)
  7. Mail Rejection Not Upheld (p 4)
  8. Informants Must Be Reliable (p 4)
  9. Prison Visitors May Not Be Searched Without Probable Cause (p 4)
  10. Prisoners Entitled to Exculpatory Evidence In Disciplinary Hearings (p 4)
  11. Legal Mail May Not be Read (p 4)
  12. Prisoners Must Be Fed (p 4)
  13. From The Editor (p 5)
  14. Magistrates May Hear Prison Cases (p 5)
  15. Grievance System Does Not Create Liberty Interest (p 5)
  16. Reviews (p 6)
  17. Justice for Jimmy Haynes? (p 6)
  18. PLN Banned in France (p 6)
  19. The Ex Post Facto Clause and Washington's Parole Board (p 7)
  20. California Prison Construction (p 8)
  21. Be a Rat or Else! (p 9)

A Lesson From Japan

The Japanese may arguably have the most effective justice system in the Western World. A glance at the accompanying graphs will readily verify this statement.

So what are the Japanese doing right? If one were to believe proponents of popular trends in the U.S., you'd think the Japanese must build a lot of prisons. They probably have harsher sentences, and none of that Constitutional molly-coddling of criminals that bogs down our courts. In short, punishment in Japan must be much more severe than in the U.S..... Wrong.

According to John O. Haley, (U.W. Professor of Law and East Asian Studies) in Mediation in Criminal Justice, (Sage Pub. 1989) the focus in Japan veers away from retribution and revenge. The main goal of the Japanese justice system is a restoration of peace between the victim, offender, and the community. This approach requires confession, remorse, and repentance from the offender. But it equally requires fairness, leniency, and absolution from the criminal justice system.

According to statistics published by the Supreme Court of Japan, in 1984 the median prison term of prisoners sentenced for all criminal offenses (combined) was 1-2 years; for homicide: 5-7 years; robbery: 3-5 years; arson ...

The United States Supreme Court: Petition for Writ of Certiori

The United States Supreme Court: Petition For Writ of Certioriari

by Wm. Daniel Ravenscroft, Atty. At Law


Overview:

The United States Supreme Court is the highest court in this country. It is also the final forum for appeal in the American Judiciary.

Its jurisdiction is defined by Article III of the U.S. Constitution and by Title 28 USC, sections 1251 through 1258.

In some cases, the court can bypass the lower courts' decisions (U.S. District Courts of Appeal) by accepting or granting certiorari. Title 28, USC, section 1251.

Hearing cases on appeal from the U.S. Courts of Appeal is found under Title 28 USC, section 1254. A party can appeal a decision which holds a state statute unconstitutional or violates a federal treaty or statute. Anything can be appealed which violates the federal constitution. Other review is by way of filing a Petition for Writ of Certiorari, or commonly called a "cert."

Usually, a party must appeal to the state's highest court prior to review in the U.S. Supreme Court and the court will not grant cert unless a federal question is raised. Additionally, and in most cases, you will file the petition as found ...

Drug Profits Fund Prison

The Justice Department Asset Forfeiture Fund has collected more than $1.5 billion in the last six years, including $460 million in cash and property in 1990, a 28 percent increase over 1989, according to U.S. Attorney General Thornburgh.

Since the forfeiture fund began in 1985, almost $500 million has gone to prison construction. Money is also distributed to federal, state and local law enforcement agencies and the Office of National Drug Control Policy.

"It is poetic justice when a drug dealer/s profits can be turned into effective weapons for law enforcement," Thornburgh said.

Walla Walla 'Lifers With Hope'

Here's one for you. How many remember Walla Walla's Lifers With Hope group? Well, there's a rumor floating around they might try to get back in business. I'm sure there are some of you that remember that this organization put 600 inmates, all lifers, outside the walls to work. They had great success in many of their endeavors. Could it be that they are interested in trying to get guys out of here after they have completed their 13.4 mandatory? It is a real bummer to keep hearing "We'll see you again in two years" from the Board. One of the Lifers With Hope program goals is to see that those lifers who have completed their mandatory sentence, in essence the 20 years they had been sentenced to by the court, make a smooth transition back into society. Their sole purpose in creating and developing this concept is to place those long-term lifers back into society with a minimum amount of stress and conflict. This transitional phase consists of lifers living, working studying and participating in various therapeutic programs once they are released. Anyone that is interested or may have some input on this ...

Mass. Corrections Policy "Disaster" Says Task Force

Mass. Corrections Policy "disaster" Says Task Force

Emphasizing that state spending on prisons has skyrocketed while taxpayer confidence in the level of public safety has plummeted, a joint Task Force of the Boston Bar Association and the Crime and Justice Foundation has warned that without radical change a criminal justice system that is " dangerously out of balance today will be out of control tomorrow."

The task Force on Justice recently released its findings in a report entitled Crisis in Corrections and Sentencing in Massachusetts. The report comes in the wake of the group's six-month investigation of corrections practices and policies in the Commonwealth.

"Aided and abetted by the media, we have spent years playing a high stakes game of self-deceit, bankrolled by the taxpayers of Massachusetts," said John Driscoll, Jr., president of the Boston Bar Association. "We have erroneously equated public safety with mandatory sentencing and the building of prisons. To stay on that course is to bankrupt the Commonwealth."

The report noted that spending by the Department of Corrections had increased by nearly 300 percent over the last decade.

Texas Prison Officials Indicted

The manager and bookkeeper at a Texas prison textile mill were indicted April 25 in Huntsville on charges of theft, official misconduct and engaging in organized crime. Authorities said the indictments stemmed from a two-yearlong scheme involving bid rigging and kickbacks on installation and service of prison textile equipment and the theft of commercial textile equipment and parts.

From: Corrections Digest

Mail Rejection Not Upheld

A Michigan prisoner sent another Michigan prisoner an educational brochure on how to study to be a paralegal. Michigan DOC officials rejected the brochure claiming prison rules prohibited "contractual agreements."

The district court ruled the brochure was entitled to First Amendment protection and found no security reason to justify withholding the brochure. The judge found the prison officials reasoning in rejecting the brochure to be "far fetched" and "wholly arbitrary." The court ordered the brochure delivered to the plaintiff and issued an injunction prohibiting prison officials from rejecting first class mail with information on correspondence schools. See: Eckford EI vs Toombs, 760 F.Supp 1267 (WD MI1991).

Informants Must Be Reliable

Albert Taylor is an Oklahoma state prisoner who filed a §1983 suit claiming his right to due process was violated when a prison disciplinary committee found him guilty of participating in a riot based on a statement from a confidential informant. The district court dismissed the complaint, later converted to a habeas corpus action, as being frivolous, finding that Taylor received all process he was due.

The Court of Appeals for the Tenth Circuit reversed and remanded finding that Taylor stated a cause of action because there was nothing in the record that indicated the reliability of the informants. At pages 701-702 the court examines the holdings of several circuits with regards to how the reliability of informants must be established. Without establishing the informant's reliability, the court ruled, no weight should be given to their statements. See: Taylor vs Wallace, 931 F.2d 698 (10th Cir. 1991).

Prison Visitors May Not Be Searched Without Probable Cause

The Sixth Circuit Court of Appeals has ruled that Tennessee prison regulations give Tennessee prisoners a due process liberty interest in prison visitation. The Court ruled that removing the visitation right in retaliation for the visitor refusing to submit to an illegal strip search, as a condition to visit the prisoner, was unconstitutional. See: Long vs Norris, 929 F.2d 1111 (6th Cir. 1991).

Prisoners Entitled to Exculpatory Evidence In Disciplinary Hearings

Prisoners Entitled To Exculpatory Evidence In Disciplinary Hearings

Four prisoners at the U.S. Penitentiary at Marion, IL., were accused of murdering another prisoner. They were infracted and found "guilty" of the murder at a prison disciplinary hearing. Prior to the hearing they had requested the reports and interviews with staff and prisoners concerning the death in order to prepare their defense. Their request was denied. They filed a petition for habeas corpus in federal court and the district court denied their habeas corpus, holding there was sufficient evidence to support the "guilty" finding.

The Court of Appeals for the Seventh Circuit reversed and remanded as it's prior rulings require disclosure of exculpatory evidence for prisoners accused of rules violations in prison disciplinary hearings. The Court of Appeals found that the district judge had erred by failing to review the entire file in camera to determine if any exculpatory evidence did in fact exist or not. The court also held that a prisoner does not waive his opportunity to receive exculpatory evidence solely because he exercises his option of not having a staff adviser. See: Campbell vs Henmnn, 931 F.2d 1212 (7th Cir. 1991).

Legal Mail May Not be Read

Legal Mail May Not Be Read

A Florida prisoner filed suit under § 1983 after a letter from his attorney, addressed to him and marked "legal mail," was opened and read in his presence by a prison guard. The guard confiscated the letter and an attached newspaper clipping. The letter was returned to the prisoner two weeks later.

Prison officials lost the case at trial and on their appeal the 11th Circuit Court of Appeals upheld the juries verdict finding that the prisoners right to unread and uncensored attorney client mail was well established. See: Lemon vs Dugger 931 F.2d 1465 (11th Cir. 1991).

Prisoners Must Be Fed

Alvin Cooper was a pre-trial detainee in Texas and filed a § 1983 suit claiming that jail guards were refusing to feed him. The officials did not deny the allegation but claimed Cooper wasn't fed because he refused to appear fully dressed at all meals. The district court dismissed the suit for failure to state a claim on which relief could be granted under Fed.R.Civ.P.12 (b)(6).

The Court of Appeals for the Fifth Circuit vacated and remanded the case finding that Cooper did state a claim for violation of his due process rights even if there was a regulation mandating prisoners be fully clothed before they were fed. The court found that depriving prisoners of food is a form of corporal punishment strictly limited by the eighth Amendments ban on cruel and unusual punishment.

The court also ruled the jail officials were not entitled to qualified immunity because it had long been the law in the Fifth Circuit that prisoners are entitled to adequate food. See Cooper vs Sheriff, Lubbock County, Texas, 929 F.2d 1078 (5th Cir. 1991).

From The Editor

By Paul Wright

Welcome to another issue of PLN . As I write this, I just saw on the news that Thurgood Marshall, the first and only black person to sit on the U.S. Supreme Court, is resigning due to age and health reasons. Mr. Marshall was always a friend of prisoners and consistently opposed the death penalty and the expansion of police and government powers. He was the last Supreme Court justice appointed by a democratic president in 1967. With his resignation the right wingers will have a solid majority in the Supreme Court and we can expect to see a greater and faster erosion of prisoners rights and the rights of citizens before the government onslaught under guise of it's "war on drugs." Mr. Marshall's resignation only dramatizes a trend that began almost ten years ago when Reagan began appointing justices to the Supreme Court. It is ironic that nowadays justices appointed by Nixon and Ford are viewed as "moderates" and "liberals." With decision after decision coming out of the Supreme Court limiting the rights of workers, women, prisoners, the poor and disadvantaged, citizens accused of illegal actions, etc., it is becoming obvious that the dire ...

Magistrates May Hear Prison Cases

A unanimous Supreme Court ruled that 28 U.S.C. § 636 (b) (1) (B) authorizes the nonconsensual referral to Magistrates for hearing and recommended findings of all prisoner petitions challenging conditions of confinement This ruling allows federal judges to refer to magistrates all prisoners' petitions for habeas relief or relief for damages and injunctive relief under 42 U.S.C. § 1983. See: MaCarthy v. Bronson, _____US_____, 111 S. Ct. 1737 (1991).

Grievance System Does Not Create Liberty Interest

A federal prisoner brought a Bivens action against the prison warden and case manager for denying him access to the prison grievance system. The district court granted summary judgment to prison officials and the court of appeals affirmed.

The court of appeals for the 8th Circuit ruled that prison regulations providing for an administrative remedy do not in and of themselves create a liberty interest in access to that procedure when the claim underlying the grievance involves a constitutional right. The prisoner's right of access to the courts is not compromised by the prison officials refusal to entertain the grievance and the prisoner can file suit directly in court. See: Flick v. Alba, 932 F.2D 729 (8th Cir. 1991).

Reviews

PWA-RAG is a quarterly newsletter edited and published by prisoner James Magner. The title is an abbreviation for "Prisoners With AIDS-Rights Advocacy Group." Its primary purpose is to advocate for the rights of prisoners with AIDS, AIDS related Complex (ARC) and that are HIV positive. They offer educational materials on AIDS, pen pal referrals and lobbying of U.S. legislators to improve treatment and care of prisoners in American prisons. Starting with their June issue PWA-RAG should be available in Spanish and French as well as English.

The last copy of PWA-RAG is 30 pages long and filled with information on AIDS, it's effects on prisoners, health care in prisons, resources for prisoners and letters to the editor. PWA-RAG subsists on donations so send what you can afford to receive it. Write: PWA-RAG, P.O. Box 2161, Jonesboro, GA 30237.

JERICHO NEWSLETTER is a monthly newsletter published by prisoner Micheal Stephens, now in Arizona. The last issue is 5 pages long with articles on private prisons, letters to the editor, a poetry page and pen pal ads. For future editions Micheal is looking for writers to contribute to a legal news page and to a page for women prisoners ...

Justice for Jimmy Haynes?

Justice For Jimmy Haynes?? ?

By John Perotti

On February 9, 1984, Jimmy Haynes, a black prisoner, was beaten and then murdered by 12 white guards at the Southern Ohio Correctional Facility (SOCF) al Lucasville, Ohio. The cause of death was a crushed windpipe after one guard held a PR-24 stick ...

PLN Banned in France

PLN Banned In France

By Paul Wright

PLN reader Jean Marc Rouillain, a political prisoner in France, has written and informed us that the April, 1991, issue of PLN (which just happened to have his article about the worsening prison conditions in France and the hungerstrike he and other prisoners were on as a result of this) had been banned from the French prison system as being "subversive." Jean Marc received all 11 issues of PLN prior to this without incident, but then, none of those had articles about abuses in the French prison system.

It is ironic that this incident of censorship should take place while the French are celebrating the bicentennial of the French Revolution with it's slogan of "Liberty, Equality and Fraternity" which was marked by the storming of the Bastille, a prison in Paris. These actions by French prisoncrats fall into the pattern we have already observed: as long as it's other prisoncrats being exposed or written about everything is fine, as soon as the lime light of publicity from PLN falls on them though the publication immediately becomes "subversive," a "threat to security," "inflammatory," etc. Of course the abuses being reported are invariably ...

The Ex Post Facto Clause and Washington's Parole Board

By Ed Mead

Akins and another prisoner filed a civil rights complaint in federal court (pursuant to 42 U.S.C. § 1983) alleging that the Georgia parole board's application of recently adopted rules to their cases violated their constitutional rights, specifically their substantive due process rights under the fourteenth amendment and the ex post facto clause. The district court denied relief and the prisoners appealed. The U.S. Court of Appeals for the Eleventh Circuit reversed, Akin vs Snore, 922 F.2d 1558 (11 Cir. 1991), holding that the denial of an annual parole reconsideration hearing, resulting from a new board rule that granted such reviews only every eight years, violated the ex post facto clause with respect to inmates who, when their crimes were committed, were entitled to annual reconsideration hearings.

The big question in the case was whether the rule change was substantive or merely procedural, a distinction that can be quite elusive. The court decided that "[t]he elimination of a parole reconsideration hearing does not simply alter the methods employed to determine whether an otherwise eligible inmate is granted parole. A parole consideration hearing is ... an important component of a prisoner's parole eligibility. The ...

California Prison Construction

Ruth Cashmere

Recently studies have shown that the United States has the world's highest incarceration rate. The United States has 426 prisoners per 100,000 population.

Over the past 10 years, the state of California has experienced the greatest increase in state prison population surpassing others throughout the country. The California inmate population in 1979 was 22,500, and has dramatically grown to 100,000.

In 1988 the California Department of Corrections listed an average incarceration rate of 177 inmates per week. California currently has 34,000 more state prisoners than New York, the second largest system in the country.

As California schools have experienced severe budget cuts, the 100,000th inmate was locked into a system which is increasing more rapidly than any other state program. California has a $4.5 billion prison construction budget, with seven new prisons planned. In 1986, the previous governor of the state of California proposed an aggressive program to build more prisons. It was believed by this administration that the solution for an alleged increase in crime was to incarcerate more of the population. Recommendations to increase alternative sentencing programs and to develop community correctional facilities were not met with a great ...

Be a Rat or Else!

Be A Rat Or Else!

This all started back in November 1986, a couple of weeks after the decision in Toussaint v. McCarthy 801 F.2d 1080 (9 Cir. 1986) [prisoners can be placed on administrative segregation status for little or no reason]. Myself and a couple hundred other people were transferred from the general population of old Folsom to ad seg at the new Folsom. I nor anyone else were actually given a rules violation report, but we were all accused of basically the same thing - gang association. And by virtue of that association were guilty of all the serious things that usually takes place in prisons. All based on informant information. I went to a classifications committee twice at new Folsom. The second time I went I was told that if I would tell all I knew about prison gangs, and my involvement and submit to a polygraph test, I could go back to the population. They actually put this in chrono (report).

I went to the parole board in 1987 and the board told me I could not participate in any programs unless I would "debrief" them on all I knew and took this polygraph test. Otherwise ...

 

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