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Prison Legal News: November, 2009

Issue PDF
Volume 20, Number 11

In this issue:

  1. Pennsylvania County Prisons Mired in Conditions Litigation (p 1)
  2. $395,000 Settlement in Los Angeles Jail Prisoner’s Lung Infection Death (p 9)
  3. From the Editor (p 9)
  4. Prison Radio Beams Love, Hope and News through the Bars (p 10)
  5. $1.55 Million Awarded in Female Colorado DOC Prisoner’s Rape by Guard (p 12)
  6. Indiana DOC Directive Limiting Educational Credit to Only One Associate’s Degree Violates Ex Post Facto Clause (p 13)
  7. Texas Jail Strip Search Policy Unconstitutional (p 13)
  8. American Methods: Torture and the Logic of Domination, by Kristian Williams, South End Press, 279 pages (p 14)
  9. Indiana Supreme Court Holds Sex Offender Registration Act Unconstitutional When Applied Retroactively (p 14)
  10. Privatized Prison Medical Care in Mississippi Still Problematic (p 16)
  11. Texas Grand Jury Rules Jail Guards Not Negligent in Prisoner’s Death (p 18)
  12. Justice Reinvestment Initiative Eliminates Texas Prison Overcrowding (p 18)
  13. CRIPA Investigation Finds “Woefully Inadequate” Conditions in Erie County, NY Jails; Lawsuits Filed (p 20)
  14. $250,000 Awarded to Former New York Prisoner Wrongly Convicted by Falsified Evidence (p 22)
  15. Former PA Lawmaker Who Took Sex Offenders into His Home Files Suit Against Zoning Board (p 22)
  16. $170,000 in Settlements to Sacramento Jail Prisoner Sexually Abused by Guards (p 23)
  17. $1 Million Settlement in Washington DOC Staff Sexual Abuse Suit of Women Prisoners (p 24)
  18. U.S. Senator John Ensign, Author of Ensign Amendment, Falls From Grace (p 24)
  19. Former North Dakota State Psychologist Who Treated Sex Offenders Busted for Child Porn (p 25)
  20. $73,000 Settlement for Denial of Pain Medication to Wisconsin Prisoner (p 26)
  21. Revised List of ICE Detainee Deaths Still Incomplete, Updated Again (p 26)
  22. Colorado Officials Increasingly Rely on Lockdowns to Manage Prison Violence (p 28)
  23. California’s Lethal Injection Protocol Invalidated for Failure to Comply with APA (p 28)
  24. Medical Care Mismanaged at Orange County, California Jail (p 29)
  25. Divided Ninth Circuit Holds Prison Officials Entitled to Qualified Immunity for Prolonged Deprivation of Outdoor Exercise (p 30)
  26. 1 in Every 31 Adults Under Some Form of Correctional Restraint (p 30)
  27. California Death Row Court Monitoring Discontinued (p 31)
  28. PLN Sues Virginia DOC Over Censorship, Due Process Violations (p 32)
  29. Human Rights Study Shows That Decades Later Blacks Still Incarcerated More (p 32)
  30. Problems Persist at Lucas County, Ohio Jail (p 33)
  31. Questionable Kentucky Courthouse Construction Practices Lead to Court Official’s Resignation, Audit, Settlement (p 34)
  32. North Carolina Courts, Legislature Take Steps to Resume Executions (p 34)
  33. California Budget Cuts Lead to Closure of Two Parolee Residential Centers (p 35)
  34. Florida to Allow Exportation of Prisoners to Other States (p 36)
  35. Georgia Attorneys Abandoning Indigent Defendants (p 36)
  36. Massachusetts Prison Officials Assault Prisoner With Feces, Settle Lawsuit for $5,000 (p 37)
  37. Orange County Sheriff Sentenced to 5½ Years in Prison (p 38)
  38. Outgoing Mail Censorship Assessed Under Procunier, not Turner; Oregon Court Applies Wrong Standard (p 38)
  39. Ohio Prison Guards Party, Federal Stimulus Funds Save Their Jobs (p 39)
  40. $21 Million Jury Award for Illinois Wrongful Conviction (p 40)
  41. Oklahoma Legislators Not Considering Closing State Prisons, Unless They Are (p 40)
  42. Terms of Parole Injunction Supersede Conflicting Provisions of California Voter Initiative (p 42)
  43. Pennsylvania Private Juvenile Prison Scandal Results in Guilty Pleas (p 42)
  44. Florida Jail Death Ruled a Homicide; Investigations Pending (p 43)
  45. Indiana Sex Offender Residency Restriction Violates Ex Post Facto Clause (p 44)
  46. Former Mississippi DOC Chief Medical Officer Charged with Embezzlement (p 44)
  47. Wisconsin Courts Sealing Cases (p 44)
  48. Illinois Governor’s Failure to Act on Clemency Petitions Not Actionable (p 45)
  49. $5.9 Million Settlement in Philadelphia Jail Strip Search Class Action (p 46)
  50. Ninth Circuit: “Three Strike” Conviction Does Not Allow Use of Old Offenses for Impeachment Purposes in § 1983 Suit; Heck Does Not Bar Admission of Evidence (p 46)
  51. Texas Supreme Court: Prisoner May Appeal Despite Incomplete Indigence Affidavit (p 47)
  52. Black Drug Incarceration Drops 21.6%, White Rate Up 42.6%; Shift Driven by Decreasing Crack Cocaine Use, Increasing Meth Use (p 48)
  53. Refusal to Mail Nebraska Prisoner’s Artwork Violates First Amendment (p 48)
  54. News in Brief: (p 50)

Pennsylvania County Prisons Mired in Conditions Litigation

by David M. Reutter

Whether or not a large number of lawsuits is indicative of management or operational problems at a prison or jail is a matter of debate that depends on one’s perspective – that is, which side of the fence you’re on. One thing is certain, though ...

$395,000 Settlement in Los Angeles Jail Prisoner’s Lung Infection Death

The Los Angeles County Sheriff’s Office paid $395,000 to settle a lawsuit claiming it provided inadequate medical treatment to a prisoner, causing his death. The claim was brought by the estate of Michael Buford.

When Buford, 32, was arrested on September 7, 2005, he complained of respiratory problems ...

From the Editor

As the holidays approach people should consider subscriptions to Prison Legal News or some of the books we distribute as holiday gifts. Some titles, like PLN’s first book publishing project, the Prisoners Guerrilla Handbook to Correspondence Programs in the US and Canada offers the possibility of self improvement far ...

Prison Radio Beams Love, Hope and News through the Bars

by Matt Clarke

Radio broadcasts aimed at prisoners are an uncommon media phenomenon in the United States. For prisoners incarcerated far from home with limited language skills and resources it can represent the only lifeline to family and the world outside the walls. Its importance is magnified for prisoners in ...

$1.55 Million Awarded in Female Colorado DOC Prisoner’s Rape by Guard

On February 3, 2009, default judgment was entered in a lawsuit filed against a Colorado prison guard who had raped and sodomized a female prisoner. Afterwards, several other individual defendants and the Colorado Department of Corrections (CDOC) agreed to settle the prisoner’s suit for $250,000, including attorney’s ...

Indiana DOC Directive Limiting Educational Credit to Only One Associate’s Degree Violates Ex Post Facto Clause

A directive issued by the Indiana Department of Corrections (IDOC) that limits the award of educational sentence credit to only one Associate’s Degree cannot be applied retroactively without running afoul of the ex post facto clause of the U.S. and state Constitutions, the Indiana Court of Appeals decided ...

Texas Jail Strip Search Policy Unconstitutional

O
n May 19, 2009, U.S. District Court Judge Walter S. Smith, Jr. denied a motion to dismiss filed by McLennan County, Texas in a suit challenging the constitutionality of the county jail’s policy of strip searching all pre-trial detainees.

The lawsuit, filed by William Robert Bradshaw and ...

American Methods: Torture and the Logic of Domination, by Kristian Williams, South End Press, 279 pages

Reviewed by David Preston

1979. How well I remember it. My freshman year at college. In an effort to expand my consciousness and do good in the world, I joined a campus human-rights group and wrote dozens of letters to repressive governments around the world, pleading with them to stop ...

Indiana Supreme Court Holds Sex Offender Registration Act Unconstitutional When Applied Retroactively

In a courageous and controversial ruling, a unanimous Indiana Supreme Court held on April 30, 2009 that state statutes collectively referred to as the Indiana Sex Offender Registration Act, when applied to Richard Wallace, a child molester who had already served his sentence, imposed burdens that constituted additional punishment beyond ...

Privatized Prison Medical Care in Mississippi Still Problematic

by David M. Reutter

Anyone looking for evidence that privatized prison health care is a complete failure need look no further than Mississippi. In 2001, the per capita death rate for Mississippi prisoners was around the national average. By 2006, however, the state’s prison death rate was the second ...

Texas Grand Jury Rules Jail Guards Not Negligent in Prisoner’s Death

Despite a finding of homicide by the Dallas County Medical Examiner, an Angelina County grand jury ruled that jail guards involved in physically subduing a prisoner were not negligent in causing his death.

In November 2008, Thomas Joseph Kirksey, 28, died while in the custody of the Angelina County Jail ...

Justice Reinvestment Initiative Eliminates Texas Prison Overcrowding

by Matt Clarke

Despite a massive prison-building program in the 1990s, in 2007 the Texas legislature had to deal with an overcrowded prison system. Some lawmakers proposed including $523 million in the biennial budget for prison construction. Surprisingly, the legislature decided to reject that plan, instead appropriating $241 million for ...

CRIPA Investigation Finds “Woefully Inadequate” Conditions in Erie County, NY Jails; Lawsuits Filed

An investigation conducted by the Civil Rights Division of the U.S. Department of Justice uncovered significant civil rights violations at two New York detention facilities – the Erie County Holding Center (ECHC) and the Erie County Correctional Facility (ECCF), which house both pre-trial detainees and sentenced prisoners.

The investigation was ...

$250,000 Awarded to Former New York Prisoner Wrongly Convicted by Falsified Evidence

by David M. Reutter

A New York Court of Claims has awarded $250,000 to a former prisoner based on her claims of malicious prosecution and negligent supervision, after finding a State Police investigator had fabricated fingerprint evidence in her case.

The claimant, Shirley Kinge, was convicted in November 1990 ...

Former PA Lawmaker Who Took Sex Offenders into His Home Files Suit Against Zoning Board

Thomas E. Armstrong, a former tough-on-crime Pennsylvania lawmaker who took three registered sex offenders into his home in Marietta Borough, filed a lawsuit last year challenging a decision by zoning officials to force the offenders to move out.

Citing his Christian faith and belief in forgiveness, Armstrong had previously provided ...

$170,000 in Settlements to Sacramento Jail Prisoner Sexually Abused by Guards

California’s Sacramento County has paid $160,000 to settle a claim that a guard raped a prisoner. The settlement is in addition to a $10,000 payment out of personal funds paid by another guard for kissing the prisoner.

The suit claimed that lesbian guard Paula Sue Wood forced ...

$1 Million Settlement in Washington DOC Staff Sexual Abuse Suit of Women Prisoners

On June 12, 2009, the Washington State Department of Corrections (DOC) entered into a settlement agreement in a class-action lawsuit over staff sexual abuse of female prisoners which included $22,500 in attorney fees for future enforcement of the agreement. Without admitting any wrongdoing, the DOC also agreed to pay ...

U.S. Senator John Ensign, Author of Ensign Amendment, Falls From Grace

There is nothing like a good sex scandal to get things stirred up in Washington, and it’s even better when the scandal involves the likes of U.S. Senator John Ensign, a conservative Republican and member of the Pentecostal Church who for years has railed against pornography, promiscuity and ...

Former North Dakota State Psychologist Who Treated Sex Offenders Busted for Child Porn

Facing a sentence ranging from 5 to 30 years, Joseph Belanger, a North Dakota psychologist who treated sex offenders at the State Hospital in Jamestown, was sentenced on January 28, 2009 to 84 months in federal prison on child pornography charges, plus lifetime supervision following his release.

Belanger, 61, had ...

$73,000 Settlement for Denial of Pain Medication to Wisconsin Prisoner

by Matt Clarke

On January 6, 2009, Wisconsin settled a lawsuit brought by a state prisoner who complained of guards preventing him from receiving his pain medication when he was in intense pain, then retaliating against him when he complained about it and filed a state court investigatory action.

Kenneth ...

Revised List of ICE Detainee Deaths Still Incomplete, Updated Again

At least 92 detainees died in immigration detention facilities between October 2003 and February 2009, according to an updated list compiled by Immigration and Customs Enforcement (ICE). The list, which was obtained by the New York Times in March 2009 following a Freedom of Information Act request, revises a previous ...

Colorado Officials Increasingly Rely on Lockdowns to Manage Prison Violence

According to statistics released by Colorado Department of Corrections (CDOC) Director Ari Zavaras in a briefing to state lawmakers in February 2009, state prisons saw an increase in levels of violence among prisoners in fiscal year 2007-08 relative to the levels reported the previous year.

Although the rise in violent ...

California’s Lethal Injection Protocol Invalidated for Failure to Comply with APA

Sustaining a legal challenge filed by prisoners Michael A. Morales and Mitchell Sims, both on death row, the California Court of Appeal has held that the state’s lethal injection protocol, contained in San Quentin’s Operational Procedure 770 (OP 770), is invalid because it was adopted without compliance with ...

Medical Care Mismanaged at Orange County, California Jail

A $36 million program designed to provide medical care to jail prisoners in Orange County, California is severely mismanaged, according to an internal performance audit. The audit found that the county Health Care Agency (HCA), which administers the jail’s medical program, produces unreliable data and statistics; that contracts with ...

Divided Ninth Circuit Holds Prison Officials Entitled to Qualified Immunity for Prolonged Deprivation of Outdoor Exercise

A divided Ninth Circuit Court of Appeals held that California prison officials were entitled to qualified immunity for denying outdoor exercise to prisoners during extended lockdowns, when the lockdowns were precipitated by assaults on staff and a series of brutal prisoner-on-prisoner attacks, including one homicide.

The appellate ruling reversed a ...

1 in Every 31 Adults Under Some Form of Correctional Restraint

by David M. Reutter

A 2008 report by the Pew Center on the States reported that for the first time that 1 in every 100 adults in the United States was confined behind bars.

In a March 2009 report, the Pew Center found that when you combine those behind bars ...

California Death Row Court Monitoring Discontinued

Almost thirty years after it began, federal court supervision over conditions at San Quentin’s death row – the nation’s largest, now housing 685 condemned prisoners – came to an end in April 2009.

A group of death-sentenced prisoners filed suit in 1979 complaining about filthy and decrepit conditions on death ...

PLN Sues Virginia DOC Over Censorship, Due Process Violations

On October 8, 2009, Prison Legal News filed suit in U.S. District Court against Virginia Department of Corrections (VDOC) Director Gene M. Johnson and other prison officials, claiming that the VDOC had violated PLN’s rights under the First and Fourteenth Amendments to the U.S. Constitution by censoring ...

Human Rights Study Shows That Decades Later Blacks Still Incarcerated More

In March 2009 a report by the Human Rights Watch (HRW) organization indicated that blacks continue to be arrested at disproportionately high rates in this country’s war on drugs.

The study spanned almost three decades and showed that from 1980 to 2007 blacks in the U.S. were arrested ...

Problems Persist at Lucas County, Ohio Jail

Last month, PLN reported that four officials with the Sheriff’s Office in Lucas County, Ohio, including Sheriff James Telb, had been indicted on federal charges related to the June 1, 2004 death of jail prisoner Carlton Benton. [See: PLN, Oct. 2009, p.48]. Apparently that is not the only ...

Questionable Kentucky Courthouse Construction Practices Lead to Court Official’s Resignation, Audit, Settlement

On February 25, 2009, after questions were raised about the failure of his office to fully insure courthouse construction projects, Garlan VanHook resigned from his position as executive director of the Dept. of Facilities for Kentucky’s court system. Adding intrigue to the mix, VanHook confirmed that his brother, Willie ...

North Carolina Courts, Legislature Take Steps to Resume Executions

The North Carolina judiciary and legislature have both taken steps to clear the way to resume executions, which have remained dormant in the state for the past three years.

On May 1, 2009, a split North Carolina Supreme Court held that the N.C. Medical Board had overstepped its authority ...

California Budget Cuts Lead to Closure of Two Parolee Residential Centers

In a questionable effort to save money, the State of California has closed two parolee residential centers in Los Angeles and returned the 74 non-violent offenders housed at those facilities back to prison. Scott Kernan, undersecretary of the California Dept. of Corrections and Rehabilitation (CDCR), justified the closures by noting ...

Florida to Allow Exportation of Prisoners to Other States

by David M. Reutter

Florida lawmakers have handed a victory to the private prison industry by passing a bill (SB 1722) that allows Florida prisoners to be exported to out-of-state facilities, which are mostly privately-operated. When Governor Charlie Crist signed the bill into law in June 2009, Florida joined 15 ...

Georgia Attorneys Abandoning Indigent Defendants

by David M. Reutter

For almost 50 years, following the Supreme Court’s 1963 decision in Gideon v. Wainwright, criminal defendants have had a constitutional right to legal representation. However, Georgia lawmakers have decided that as a result of the state’s budget shortfall and cuts to public defender services ...

Massachusetts Prison Officials Assault Prisoner With Feces, Settle Lawsuit for $5,000

In January 2009, Eric Bargoot, a Massachusetts prisoner who suffers from post-traumatic stress disorder and panic disorder, as well as a heart condition, settled his § 1983 lawsuit for damages arising from events in September 2004, during which time the defendant prison officials locked him in a shower stall overnight, assaulted ...

Orange County Sheriff Sentenced to 5½ Years in Prison

Orange County Sheriff Sentenced to 5½ Years in Prison

by Gary Hunter

“I need a sheriff I can trust. Lying will not be tolerated in this courtroom, especially by the county’s highest-ranking law enforcement officer.”

That was what U.S. District Court Judge Andrew J. Guilford told former Orange ...

Outgoing Mail Censorship Assessed Under Procunier, not Turner; Oregon Court Applies Wrong Standard

The Ninth Circuit Court of Appeals has reversed a district court’s dismissal of an Oregon prisoner’s outgoing mail censorship suit, finding that the “dismissal relied on an incorrect legal standard.”

Oregon State Penitentiary (OSP) prisoner Jacob Barrett attempted to mail a series of letters to his mother and ...

Ohio Prison Guards Party, Federal Stimulus Funds Save Their Jobs

by David M. Reutter

Only weeks before ordering $640 million in spending cuts, Ohio Governor Ted Strickland paid more than 800 employees of the Ohio Department of Rehabilitation and Correction (DORC) to attend a “Year End Review” celebration at the state fairgrounds. A few months later, the federal stimulus package ...

$21 Million Jury Award for Illinois Wrongful Conviction

by David M. Reutter

In June 2009, an Illinois federal jury awarded $21 million to a former prisoner who served 11-1/2 years for a murder he didn’t commit. The basis of the claim was that Chicago police detective Reynaldo Guevara, a gang crimes specialist, had framed Juan Johnson ...

Oklahoma Legislators Not Considering Closing State Prisons, Unless They Are

by Matt Clarke

On April 7, 2009, Oklahoma State Senate President Pro Tem Glenn Coffee was accused of asking the Oklahoma Department of Corrections (DOC) to conduct a study analyzing the cost of closing certain state prisons and using private, for-profit facilities to house prisoners formerly held in those DOC ...

Terms of Parole Injunction Supersede Conflicting Provisions of California Voter Initiative

In the latest chapter of a 15-year-old class-action lawsuit, a U.S. District Court held that the passage of Proposition 9 by California voters on November 4, 2008 could not override a stipulated permanent injunction entered four years earlier for the purpose of reforming the state’s parole revocation procedures ...

Pennsylvania Private Juvenile Prison Scandal Results in Guilty Pleas

by Matt Clarke

On June 9, 2009, attorney Robert J. Powell of Hazeltown, Pennsylvania pleaded guilty to charges related to an illegal scheme involving two for-profit juvenile facilities – PA Child Care in Luzerne County and Western PA Child Care in Butler County.

Powell was charged with one count of withholding ...

Florida Jail Death Ruled a Homicide; Investigations Pending

The Florida Medical Examiner’s Office called the March 31, 2009 in-custody death of 62-year-old Nicholas Christie at the Lee County Jail a homicide, finding that restraint methods and pepper spray were contributing factors in his death.

“You could tell immediately there was something wrong with the guy,” said jail ...

Indiana Sex Offender Residency Restriction Violates Ex Post Facto Clause

Indiana’s “residency restriction statute,” which prohibits sex offenders from living within 1,000 feet of a school, youth center or public park, violates the ex post facto clause of the state constitution as applied to sex offenders convicted before the law’s enactment, the Indiana Supreme Court held on ...

Former Mississippi DOC Chief Medical Officer Charged with Embezzlement

Dr. Kentrell Liddell, 35, was arrested on May 21, 2009 and charged with 13 counts of embezzlement. She was taken into custody at her current job at the Madison County Medical Center in Canton, Mississippi, and booked into the Hinds County Jail.

Officials would not divulge the details that led ...

Wisconsin Courts Sealing Cases

by David M. Reutter

A basic principle of the American court system is that the public has a right to know what happens in the nation’s courtrooms. In Wisconsin, however, that principle has been compromised to protect certain parties in court proceedings, including at least one prison guard.

In ...

Illinois Governor’s Failure to Act on Clemency Petitions Not Actionable

In March 2008, U.S. District Judge Joan B. Gottschal held that persons seeking executive clemency in Illinois have a protected liberty interest in having their petitions decided within a reasonable time by the governor. However, that ruling was reversed by the Seventh Circuit Court of Appeals just over a ...

$5.9 Million Settlement in Philadelphia Jail Strip Search Class Action

Philadelphia's prison system has agreed to pay $5.9 million to settle the claims of class members in a class action lawsuit alleging their rights were violated as the result of a strip search policy. The settlement does not include attorney fees, which are to be determined later, and ...

Ninth Circuit: “Three Strike” Conviction Does Not Allow Use of Old Offenses for Impeachment Purposes in § 1983 Suit; Heck Does Not Bar Admission of Evidence

Ninth Circuit: “Three Strike” Conviction Does Not Allow Use of Old Offenses for Impeachment Purposes in § 1983 Suit; Heck Does Not Bar Admission of Evidence

by John E. Dannenberg

In a case of first impression, the Ninth Circuit U.S. Court of Appeals held that when defending against a prisoner ...

Texas Supreme Court: Prisoner May Appeal Despite Incomplete Indigence Affidavit

by Matt Clarke

On May 16, 2008, the Supreme Court of Texas held that an indigent prisoner whose indigence was uncontested may proceed with an appeal despite deficiencies in his affidavit of indigence.

Lawrence Higgins, a Texas state prisoner, filed suit in state district court alleging that county jail officials ...

Black Drug Incarceration Drops 21.6%, White Rate Up 42.6%; Shift Driven by Decreasing Crack Cocaine Use, Increasing Meth Use

The number of people incarcerated in state prisons for drug offenses has increased an astronomical 1,150 percent since 1980, increasing from 40,000 to 500,000 prisoners, according to Bureau of Justice Statistics cited in a research paper by The Sentencing Project (TSP). The number of people now incarcerated ...

Refusal to Mail Nebraska Prisoner’s Artwork Violates First Amendment

A Nebraska district court has held that prison officials violated a prisoner’s First Amendment right to send and receive mail when they refused to let him mail his drawings. The court’s ruling came on a motion for judgment as a matter of law following a three-day jury trial ...

News in Brief:

Alabama: In September 2009, criminal defense attorneys in Birmingham donated 2,700 rolls of toilet paper, soap and other supplies to the Jefferson County Jail when they learned officials were severely rationing those items. The jail was reportedly allowing prisoners no more than three strips of toilet paper per day ...