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Prisoner Education Guide

Prison Legal News: November, 2009

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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 beyond the book itself.

PLN is currently working on our next book project, a cite book of successful habeas corpus cases, that we hope to have ready for distribution around the beginning of the year. We are interested in publishing non fiction, self help, reference books aimed at prisoners which have useful information not readily available elsewhere which would be of interest to US prisoners. If you are a qualified author please send a one page letter of inquiry describing your proposal and qualifications for the project. PLN pays the most competitive royalties in publishing.

We continue to encounter censorship and harassment from prison officials. As the article in this issue of PLN notes, we have sued the Virginia prison system for censoring PLN and the books we distribute and we have several more in the process of being filed. If your subscription to PLN or books you have ordered ...

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 segregation--especially those in super segregation who are allowed only limited contact with any other human beings. For them, it can be a lifeline to sanity and a reminder that someone cares about them even if their entire environment has been structured to give them the opposite message.

Prison radio shows vary across the nation. Some feature nothing more than “shout outs,” the radio announcer reading a brief greeting to specific prisoners during a show that features music or perhaps a gospel message. The best-known prison radio show is hosted by Ray Hill on Pacifica station KPFT-FM at 90.1 MHz in Houston, Texas. That Friday night show--which reaches about one-fifth of the approximately 156,000 Texas prisoners--features an hour of talk about prison-related topics, often with guests from the criminal justice system, followed by an hour or more of phone-in messages from families and friends of Texas prisoners. As a ...

$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 on June 19, 2008.

Steven I. Paul was convicted of aggravated battery and sentenced to twenty years imprisonment following a fatal shoot-ing incident in 2002. On July 23, 2007, he filed a motion with the sentencing court requesting educational sentence credit. Paul complained that he had been denied educational credit for a second Associate’s Degree that he earned while incarcer-ated in 2006. The court denied Paul’s motion, relying on IDOC directive 05-29, which limits the award of educational credit to only one Associate’s Degree. Paul appealed.

At the time of Paul’s offense of conviction, Indiana law allowed prisoners to earn one year of educational credit for completing an Associate’s Degree. Educational credit was capped at the lesser of four years or one-third of the prisoner’s sentence, and could be achieved through the earning of multiple degrees.

In 2003, however, the state legislature changed the ...

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 Randall Lee Gerik, was prompted after they were strip searched at the McLen-nan County Jail following their separate arrests for drunk driving. Bradshaw and Gerik alleged that the jail’s policy of strip searching all arrestees violated the Fourth Amendment because the searches were performed without reasonable individualized suspicion that weapons or contraband would be discovered.

McLennan County moved for dismissal, arguing that its policy of strip searching all arrestees did not amount to a consti-tutional violation. The court disagreed.

For over 20 years, Judge Smith explained, the Fifth Circuit had recognized the particularly intrusive nature of strip searching pre-trial detainees, and had limited such searches to only those detainees arrested for “major offenses.”

Adopting the so-called minor/major offense inquiry, the Fifth Circuit had struck down as unconstitutional a Lubbock County jail policy that permitted strip searches of all arrestees regardless of the severity of their offenses. The appellate ...

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 torturing prisoners. Who knew that thirty years later I’d be too busy reading about torture in the Homeland to worry about what was going on over there. Needless to say, I’m humbler at 48 than I was at 18. Still, it was nice, once upon a time, to feel morally superior to a dictator in some obscure, benighted place: Uruguay, China, Romania, Chad.

In American Methods, a new monograph from venerable South End Press, author Kristian Williams has created a primer on torture in modern America. Using source material as varied as the Geneva Conventions, Stanley Milgram’s studies on obedience, and post-9/11 White House legal memoranda, Williams reveals an America in which torture has become a kind of new normal. As each new abuse scandal breaks, responsible parties gyrate through the motions of ignorance or denial, publicly distancing themselves personally from torture as an official policy ...

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 that which could have been imposed when Wallace committed his offense. Thus, the Act violated the state constitutional prohibition against ex post facto laws.

What began with Megan’s Law in New Jersey as an effort to provide local communities with information about sex of-fenders in order to protect potential victims has become, in the words of the Indiana Supreme Court, “something much greater.” No longer strictly tethered to the public-safety concerns over sex offender recidivism that prompted its enactment in 1994, the Indiana Sex Offender Registration Act (Ind. Code §§ 11-8-8-1 to 11-8-8-22) now imposes “a severe stigma on every person to whom it applies.”

For those affected by its provisions, the Act mandates registration, periodic re-registration (as often as every 90 days for some offenders), disclosure of public and private information, and updating of that information – all under threat of prosecution. Additionally, every registrant must acquiesce to an in-home ...

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 highest in the nation, and prisoner deaths increased again in 2007. Only Tennessee had a higher death rate among prisoners.

Despite those statistics, Mississippi Dept. of Corrections (MDOC) Commissioner Chris Epps said he had full confi-dence in the prison system’s private medical contractor, Pittsburgh, PA-based Wexford Health Sources, Inc., which has a $95 million three-year contract to supply medical services to MDOC prisoners. PLN has previously reported on the inept care provided by Wexford, similar to other for-profit prison medical companies such as PHS and CMS.

In December 2007, the Mississippi Legislature’s Joint Committee on Performance Evaluation and Expenditure Review (PEER) issued a report critical of Wexford. The PEER report indicated the company had failed to meet medical care standards required by its contract with the state. [See: PLN, Nov. 2008, p.20].

A recurring failure cited in the report was not providing timely access to medical treatment ...

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. He had been ar-rested earlier that evening and was under the influence of Phencyclidine (PCP), a hallucinogenic. Jail officials described Kirksey’s behavior as combative; they said the drug’s influence made him difficult to restrain.

“He was delusional .... And he was extremely powerful in his resistance,” said Sgt. Pete Maskunas, the Texas Ranger who investigated the case. “He literally lifts four officers off his body while being restrained in the restraint chair.” Kirksey, who was 5’11” and weighed 300 lb., reportedly was Tasered by jail staff, too.

Maskunas stated that as the effects of the drug appeared to wear off, Kirksey became calm and was subsequently taken to a less restrictive area to “alleviate some of the symptoms associated with PCP.” During his fifteen hours in jail, Kirksey was moved from the restraint chair to a padded room and eventually to a holding cell.

“They got him in ...

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 a Justice Reinvestment Initiative (JRI) project.

The JRI, developed with the assistance of the Justice Center of the Council of State Governments and the U.S. De-partment of Justice’s Bureau of Justice Assistance, emphasizes the expansion of substance abuse, mental health and intermediate sanction programs. The focus of the JRI is to assist people on probation or parole who are in danger of being sent to prison. The results in Texas were dramatic.

From 2007 to 2008, the state’s prison population increased by a remarkably low 529 prisoners. The projected population increase for that time period was 5,141 prisoners. During the same 24-month period, probation revocations resulting in re-incarceration dropped by 4% and returns-to-prison due to parole revocations declined 25%, while the parole approval rate rose from 26% to 31%.

In 2007, the Legislative Budget Board (LBB) had projected an increase in the prison population of 17 ...

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 initiated on November 13, 2007 pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997, following numerous complaints from state agencies and prisoners who had experienced the violations first-hand. Although the initial focus of the probe concerned issues related to medical care, mental health care and protection from harm, federal officials soon widened the investigation to include environmental and sanitary conditions at the two jails.

The inherent difficulty of such a complex investigation was compounded by the uncooperative attitude of Erie County officials, who denied investigators access to the detention facilities, staff and prisoners. CRIPA investigators noted that “the County’s denial of our request for access to Erie County inmates, even during regular visiting hours, is unreasonable and devoid of any legal or penological support. Prisoners have a First Amendment right to speak with government representatives about the conditions of their confinement and the ...

$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 housing for sex offenders in Conestoga Township. That decision didn’t sit well with the local community, so Armstrong moved three sex offenders – a convicted rapist released from prison after serving a 20-year sentence in Illinois, a male offender who had fondled a 15-year-old girl, and a man caught with child porn on his computer at work – into his own home in Marietta.

Armstrong said he had been assured by prison counselors and defense attorneys that the offenders were not a threat to anyone. Nonetheless, before they moved into his house, Armstrong’s wife and their 16-year-old daughter moved out, ostensibly to care for a sick relative. Whether that was a coincidence or because Armstrong was concerned for his family is unknown.

Skepticism aside, finding housing for sex offenders can be a serious problem, as residency options are often severely limited due to state and local laws that restrict where ...

$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 other forms of “immorality.”

Ensign, in his second term as a Senator from Nevada, revealed on June 16, 2009 that he had had an 8-month extra-marital affair with Cynthia Hampton, a female campaign staffer married to Ensign’s former administrative assistant, Douglas Hampton.

Ensign claimed that his confession was prompted after Douglas Hampton tried to shake him down for hush money. However, it was later revealed that Ensign’s parents gave $96,000 to the Hamptons in April 2008, well before the scandal became known. It was further reported that Cynthia Hampton’s salary had doubled during the time of the affair, and that Ensign had helped her husband find lucrative consulting and lobbying jobs.

Senator Ensign was once a rising star in the Republican Party. Former chairman of the Republican National Senatorial Committee, he was promoted to head the Republican Policy Committee (RPC) in 2008, making him the fourth ...

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 worked at the State Hospital for more than two decades and claimed he became interested in child porn while treating sex offenders there. He had pleaded guilty last year to charges of receiving and possessing materials involving the sexual exploitation of minors. Investigators found he had downloaded thousands of pornographic pictures and more than 200 videos.

While his state job duties may well have proved to be his undoing, as Belanger claimed, no doubt his many years of public service also served him well when he was sentenced. Not only did federal prosecutors recommend a relatively light sentence – and he received just 7 of the possible 30 years he faced – but the judge, who claimed to rarely depart from sentencing guidelines in sex offender cases, did so for Belanger because he saw “some room for optimism and hope.” Unlike other defendants convicted of child pornography charges who don’t have ...

$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 ICE report of 66 detainee deaths between January 1, 2004 and November 2007. [See: PLN, Sept. 2008, p.30]. There are glaring inconsistencies between the two reports.

The more recent ICE list “adds the September 9, 2005 death of Tanveer Ahmad, also known as Ahmad Tanveer, 43, of Pakistan,” the Times reported. “Officials had maintained for months that no records of his death could be found, despite complaints that he had died after his severe and obvious symptoms of a heart attack went untreated for hours at the Monmouth County Correctional Institute in Freehold, New Jersey.”

Interestingly, the updated ICE list omits at least one previously-reported death. On August 21, 2008, Ana Romero Rivera was found hanging in a cell at the Franklin County Jail in Frankfort, Kentucky. Newspaper reports indicated that Rivera was being held for deportation, but “federal officials now disagree whether she was legally in immigration custody ...

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 incidents was a relatively modest 11 to 20 percent, the number of prison lockdowns increased over the same period of time by a remarkable 80 percent. Prison officials attributed the growing level of violence to a steep increase in the number of incarcerated gang members.

CDOC spokeswoman Katherine Sanguinetti reported that while Colorado’s prison population had increased by 42 percent over the past eight years, its gang population had grown at more than double that rate. According to Sanguinetti, over 9,300 prisoners, or approximately 40 percent of the state’s total prison population of 23,000, are identified as gang members or affiliates.

In his briefing to state legislators, Zavaras indicated that the number of prison lockdowns had increased from 82 in fiscal year 2006-07 to 148 in FY 2007-08; the number of prisoner-on-prisoner assaults during that period had increased from 369 to 441; and the number of ...

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 the public notice and comment requirements of the Administrative Procedures Act (APA). The invalidated protocol had been adopted after an earlier version was successfully challenged in federal court by Morales on Eighth Amendment grounds. See Morales v. Tilton, 465 F.Supp.2d 972 (N.D. Cal. 2006).

The purpose of OP 770 was to establish “appropriate guidelines” for the execution of condemned prisoners. The trial court granted summary judgment in favor of Morales and Sims, and enjoined prison officials from applying OP 770 unless the protocol was properly adopted pursuant to the APA. On appeal, the issue was whether OP 770 was in fact a regulation subject to the requirements of the APA.

In order to be subject to the APA, a regulation must first be a rule of “general application”; second, it must implement the law administered by the agency that adopted it. Only the first of these requirements ...

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 medical care providers are poorly monitored; that doctors receive excessive payments; that transportation delays result in detainees routinely missing their medical appointments; that controlled substances are not adequately accounted for; and that conflicts of interest among staff have persisted for years – all to the detriment of the medical care that HCA is supposed to deliver.

The audit findings did not surprise at least one civil rights attorney who had previously sued the county, Richard Her-man, who remarked, “You’re better off in the prisons [for medical care] than you are in the Orange County Jail.” If his assessment is accurate, it is very telling; healthcare in California’s prison system is so grossly inadequate that it has been placed under federal receivership to ensure that prisoners receive constitutional medical treatment.

According to the audit, HCA’s record keeping is so poor that the agency cannot account for nearly $10 million ...

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 jury determination that prison officials had violated the Eighth Amendment by denying outdoor exercise to Gregory Norwood, a prisoner at CSP-Sacramento – a maximum-security prison – during four separate extended lockdowns which lasted for periods totaling over 12 months.

Norwood had filed suit under 42 U.S.C. § 1983. Finding that his rights were violated but he had suffered no harm, the jury awarded him no compensatory damages and $11 in nominal damages. The jury also provided $39,000 in punitive damages; the court later awarded attorney’s fees of almost $24,000.

On appeal, the defendants argued that the district court had erred in refusing to instruct the jury to give deference to prison officials’ security decisions. Noting that prison officials are indeed entitled to such deference, the Ninth Circuit held that the failure to give such an instruction was error as well as prejudicial. On that basis, the appellate court ...

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 with those on parole or probation there are 7.3 million adults under some form of correctional control. This amounts to 1 in every 31 adults in the nation.

The latest report, which will be reviewed here, details the incarceration rate for each state, looks at how money has been used to grow the nation’s prison system, the impact on public safety, and provides a strategy for safety and savings.

“The explosive prison growth of the past 30 years didn’t happen by accident, and it wasn’t driven primarily by crime rates or broad social and economic forces beyond the reach of state government,” states the report. “It was the direct result of sentencing, release, and other correctional policies that determine who goes to prison and how long they stay there.”

While the number of those in jail or prison grew by 274 percent over the last 25 ...

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 publications sent to Virginia prisoners.

According to PLN’s complaint, the VDOC has repeatedly censored PLN’s monthly publication, claiming it is “detrimental to the security, good order, discipline of the facility, or offender rehabilitative efforts or the safety or health of offenders, staff or others,” or because it “presents information geared toward a negative perception of law enforcement.”

However, VDOC officials have provided no explanation as to why PLN’s coverage of criminal justice issues is considered detrimental to security or rehabilitation, or casts law enforcement in a negative light. “The news is what it is,” said PLN editor Paul Wright. “We don’t make it up. We’re not an inflammatory publication.”

The VDOC’s censorship policy does not provide for timely and adequate notice that allows publishers, including PLN, to challenge such censorship. Further, the VDOC does not permit prisoners’ families or friends to purchase books or ...

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 from 2.8 to 5.5 times more than whites. It also showed that, in a state-to-state breakdown, the disparity was even greater.

Data gathered for the study came from the Federal Bureau of Investigation (FBI) Uniform Crime Reporting (UCR) Program. Human Rights Watch obtained UCR data detailing drug arrests by race and type of offense from 1980 thru 2006. Population data was obtained from the U.S. Census Bureau.

Between 1980 and 2007 the U.S. has incarcerated over 25.4 million adults on drug charges. Every year the number of arrests increased for both blacks and whites. But the increase for blacks increased by 4.8 times compared to only a 3.2 fold increase for whites.

HRW Research indicates that blacks and whites use drugs at roughly the same rate. Yet 33 percent of all drug arrestees in this country are black even though blacks only make ...

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 problem involving the Lucas County jail.

On October 14, 2008, following a five-day trial and 2½ hours of deliberations, a federal jury found Lucas County jail guard Seth Bunke guilty of three civil rights violations. He was found not guilty of two other charges related to beating prisoners.

One of Bunke’s convictions was for stopping and detaining a suspected drunken driver on March 13, 2007 and portraying himself as a police officer, when he was only a jail guard. The two other convictions were for assaulting prisoners on May 6, 2007 and July 11, 2007. Federal prosecutors proved that Bunke repeatedly kicked prisoner Jeffrey Jones in the head and side after a verbal altercation during a strip search. Jones had to be hospitalized for several days with a col-lapsed lung.

Bunke was taken into custody after the verdicts were read. He was sentenced on March 9, 2009 to 48 ...

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, was employed by a company involved in 24 of the state’s 35 pending courthouse building projects, which are part of an $880 million construction initiative.

According to the company, Codell Construction, Willie VanHook was not working on any courthouse projects; not surprisingly, Garlan VanHook denied any conflict of interest as a result of his brother’s employment. Garlan, a residential architect, had been hired to run the Dept. of Facilities by former Kentucky Supreme Court Chief Justice Joseph E. Lambert after he designed Lambert’s personal residence.

In his role as facilities director for the Administrative Office of the Courts (AOC), Garlan VanHook had overseen the construction of dozens of new courthouses. While state law requires general contractors to insure 100 percent of each project they are hired to complete, the AOC’s practice was to allow construction firms to bond only 5-6 percent of the project costs. In ...

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 by issuing a position statement which threatened to discipline doctors who participated in executions (beyond merely being present and pronouncing death). The Court held that the Medical Board’s position statement “directly contravenes the specific requirement of physician presence [at executions]” under state law. See: North Carolina Department of Correction v. North Carolina Medical Board, 675 S.E.2d 641, 363 N.C. 189 (N.C. 2009).

Following the Supreme Court’s ruling, state lawmakers attempted to statutorily undercut the basis for the Medical Board’s action, by amending a pending bill to prohibit professional discipline against medical personnel who participate in executions. The bill, dubbed the Racial Justice Act, also contained controversial provisions that would permit condemned prisoners to argue, based on statistics from prior cases, that imposition of the death penalty was racially motivated; a successful showing of racial bias would allow a judge to invalidate a death ...

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 that the centers, operated by Volunteers of America (VOA), had three dozen empty beds. He explained that the CDCR, ordered to cut $800 million from its budget, could no longer afford to fund a program that was not operating at full capacity. Kernan did not say why, if the prison system is at almost 200% of its population capacity the work release centers were empty.

While it is true that closing the centers will save the state $500,000 in contractual payments this year, the long-term wisdom of the decision is less certain. For example, it costs the state nearly twice as much ($97 per day) to house an of-fender in prison as it does to place the same prisoner in a VOA residential center ($50 per day). Further, VOA residents are employed, and one-third of their income is used to reimburse the state for housing and related costs. Another ...

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 other states that permit their prisoners to be housed far from home en masse.

“It’s a safety valve,” said the bill’s sponsor, Republican State Senator Victor Crist (no relationship to the governor). “This is not a mandate. It’s a passive safety net.” That safety valve, said Governor Crist, is available in case the state needs to avoid releasing prisoners early due to overcrowding.

Whether and when Florida begins shipping prisoners out-of-state will depend on how long the economic downturn continues. In late 2008, Florida became the third state to reach a prison population in excess of 100,000 prisoners. Currently there are 106,000 available beds in the state prison system, with over 5,000 unused. A 3,300-bed facility in Suwannee County was built but has not been opened due to budgetary constraints.

Budget problems caused the Florida legislature to end planned prison construction to meet ...

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, the right to counsel is discretionary. Consequently, lawyers who are not being paid for their services are abandoning indigent clients.

The Georgia Public Defender Standards Council (GPDSC) is overwhelmed with a backlog of unpaid attorney bills. The main problem involves lawyers who are appointed in “conflict” cases, which typically involve multi-defendant prosecutions in which a public defender can represent only one of the defendants due to conflict-of-interest rules. Private attorneys are then assigned to represent co-defendants.

Lawyers used to gladly accept such cases. “But they haven’t been paid in years,” said GPDSC member David Dunn. “They won’t take the cases anymore. No one wants to take them anymore.” Also exasperating is that judges are letting the attorneys withdraw, allowing defendants to remain without counsel.

In addition to the unpaid attorney fees in regular criminal cases, the bills for death penalty prosecutions are stacking up. There are at least ...

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 County, California Sheriff Mike S. Carona just before sentencing him to 5½ years in prison, two years supervised release and a $125,000 fine.

Carona was indicted on multiple corruption charges in October 2007. Almost a year and a half passed before he finally went to trial. In late 2008, jurors began hearing testimony from 60 witnesses in court proceedings that lasted two months. [See: PLN, Feb. 2009, p.1].

Carona first came to prominence in 2002 when a search for the killer of 5-year-old Samantha Runnion attracted national media attention. Photogenic and charismatic, he quickly cemented his place as the top lawman for the nation’s fifth largest sheriff’s department by promising voters that criminals would not be coddled.

But it wasn’t long before Carona himself was under investigation. He was forced to resign in January 2008 amid an array of federal charges that included conspiracy, mail ...

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 grandmother. Guards read and confiscated the letters because Barrett described prison officials in “vulgar and offensive racist language.” He was disciplined for the content of his letters and sanctioned to “a loss of good time, revocation of certain privileges, and other punitive measures.”

Barrett sued in federal court, alleging that the censorship violated his rights under the First Amendment. “Acting without the benefit of any substantive briefing from the parties, the district court reasoned that the prison had a ‘legitimate penological interest...’ in preventing Barrett from using ‘crude and racist language’ that outweighed any countervailing First Amendment interest,” the Court of Appeals noted.

The district court then dismissed, sua sponte, with prejudice, for failure to state a claim. Barrett sought reconsideration under Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800 (1974) and its progeny, but the court denied his motion without comment.

The Ninth Circuit reversed, reminding ...

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 saved the jobs of more than 400 prison employees that were going to be cut due to budget shortfalls.

The three-hour Year End Review celebration on December 5, 2008 featured holiday decorations, hors d’oeuvres, awards and appearances by state big wigs, including Governor Strickland. State prisoners were used to cater the event. Not only were DORC employees paid their regular wages for attending, costing Ohio taxpayers approximately $60,000, they also were reimbursed for travel time and expenses if they drove from outlying parts of the state.

Strickland was unapologetic. “It was more than a party; it was an employee-recognition event,” he said. “I think it’s quite appropriate for morale to have people come together for morale and recognition purposes.”

Perhaps Strickland’s true intent was a going-away party for prison employees who would soon face the loss of their jobs. Just two weeks after the party, on ...

$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 prisons. Senator Coffee is a known advocate of prison privatization.

The study, issued by DOC Director Justin Jones, concluded that it would cost the state over $23 million to close the Oklahoma State Reformatory (OSR) at Granite, the James Crabtree Correctional Center (JCCC) at Helena, and the Mack Alford Correctional Center (MACC) at Stringtown.

A breakdown of the costs for closing OSR included $1.5 million for private prison beds, $2.5 million for DOC employee severance pay, $1.4 million in annual “mothball” maintenance and $3 million due to the loss of the prison farm. Further, the economic loss for the Granite area would be about $12.2 million in payroll, $72,000 in prison canteen sales tax and $120,000 in payments to the Quartz Mountain Regional Water Authority.

The cost for closing JCCC was $9.5 million. Additionally, Helena would lose $10.7 million in payroll plus ...

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. The court had previously found, in Valdivia v. Davis, 206 F.Supp.2d 1068 (E.D. Cal. 2002) [PLN, Jan. 2003, p.16], that the revocation procedures violated parolees’ due process rights under the Fourteenth Amendment.

After Proposition 9 passed last year, the plaintiff class in Valdivia moved to enforce the terms of the permanent injunction (“P.I.”) against conflicting provisions of newly-enacted section 3044 of the California Penal Code. The state, in turn, cross-moved to have the terms of the P.I. modified so that, to the extent there was any conflict with section 3044, the will of California voters would take precedence.

In a relatively straightforward opinion, the district court found there were several areas in which section 3044 and the P.I. plainly conflicted. First, section 3044 provides fewer procedural protections to parolees in the revocation process than does the P.I. For example, it fails to ...

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 information about a crime and two counts of being an accessory after the fact. He has not yet been sentenced, but according to his plea agreement will receive 5½ years in prison. He also will be fined $500,000 and must forfeit his corporate jet and an ocean-going yacht christened “Reel Justice.” See: United States v. Powell, U.S.D.C. (M.D. Penn.), Case No. 3:09-cr-00189-EMK.

Federal prosecutors say Powell helped two former Luzerne County juvenile court judges, Mark A. Ciavarella, Jr. and Michael T. Conahan, send juvenile offenders to the private facilities for minor crimes that did not warrant imprisonment, often when the juveniles were not represented by attorneys. The county paid millions to the private facilities to incarcerate juvenile offenders, and the judges reportedly received about $2.6 million in bribes and “finder’s fees” – first for their help in getting the facilities built and then ...

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 prisoner Ken Cutler, who was housed in a cell close to Christie. “He didn’t know where he was.” Guards repeatedly pepper sprayed Christie, then restrained him in a chair and put a spit mask on him.

“While he was sitting in the chair, they sprayed him two more times,” recalled Cutler. “This guy sat in the restraint chair, which seemed like over an hour, and his whole head was turning purple and almost blue.... He was gasping.” Christie, who complained of chest pains, was taken to a hospital where he died two days later.

His death certificate listed brain damage caused by lack of oxygen after a cardiac arrest, low blood pressure due to heart failure, and stress from the restraint and pepper spray as causes of death. A Deputy Chief Medical Examiner re-ported Christie’s death as a homicide but noted that was a medical, not legal, term ...

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 June 30, 2009.

Anthony W. Pollard was convicted of a sex offense in 1997. On July 1, 2006, Indiana’s residency restriction statute took effect. Pollard, who already owned and lived in a home located within 1,000 feet of a school, was charged with violat-ing the statute.

The charges against Pollard were dismissed on ex post facto grounds by the trial court, and the Court of Appeals affirmed. The Indiana Supreme Court agreed to review the case given its public importance.

In a unanimous decision, the Supreme Court affirmed the lower courts. In assessing whether the residency restriction statute was punitive, the Court considered seven factors. The first factor, whether the law imposed an affirmative disability or restraint, indicated the statute had a punitive effect, the Court concluded.

“Although the statute does not affect ownership of property, it does affect one’s freedom to live on one’s own ...

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 to Liddell’s arrest or the amount of money she is accused of stealing. She had been employed as the Chief Medical Officer for the Mississippi Dept. of Corrections (MDOC) since September 2004.

In May 2008, her last month with the MDOC, Liddell presented the Hinds County Board of Supervisors with a detailed account of the medical budget for county prisoners.

“She presented herself as a true professional,” said Supervisor Peggy Calhoun. “You could tell she’s very intelligent and she knows her field. All the board members were impressed.”

But Liddell’s good impression on the board members wasn’t enough to deter the State Attorney General’s office from investigating her activities while she was employed at the MDOC – an investigation that led to her subsequent arrest. Attorney General Jim Hood said his office’s investigation came at the request of prison officials.

“You’re always disappointed when ...

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 2006, the Wisconsin Circuit Court Access (WCCA) advisory committee found that circuit judges have the authority to seal a case or its documents. To do so, the judge must first determine that the reasons for sealing court records out-weigh the public’s right to access those records. “Given the strong state policy favoring openness,” the committee stated, “documents or cases are only rarely sealed.”

Yet one court considered it necessary to seal a case involving a prison guard to protect his reputation and career. The guard and a prisoner were involved in a fight, and both were criminally charged. While the dismissal of the charges against the guard was sealed, the prisoner’s dismissal was not.

The guard’s attorney said the sealing was necessary because prison employees are “vulnerable to specious accusations [by prisoners] under current law.” Yet the Wisconsin State Journal, which reported the disparate treatment of the ...

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 year later, in April 2009.

Stephanie Bowens and other individuals sought executive clemency under the Illinois Constitution, Illinois Compiled Statutes (Ill.Comp.Stat.) and Illinois Administrative Code from then-Governor Rod Blagojevich. After Blagojevich failed to take action on their clemency petitions following recommendations from the Illinois Prisoner Review Board, Bowens and eight other clemency applicants filed suit under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, seeking an injunction requiring the governor to make a decision on their petitions, for good or bad, within a reasonable period of time.

Bowens and the other plaintiffs alleged a protected liberty interest under the due process clause in receiving such a decision, based on the mandatory language of 730 Ill.Comp.Stat. § 5/3-3-13(d) – which provides that “[t]he Governor shall decide each application” for clemency. Blagojevich moved to dismiss the suit for failure to state a claim.

Before ...

$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 are expected to reach $2 million.

The lawsuit includes persons who were strip searched at one of Philadelphia’s jails between April 23, 2003, and Oc-tober 9, 2007. The class is expected to contain around 38,000 people, divided into two subclasses.

The subclasses distinguish between people who were not “charged with certain violence, drug, and/or weapons (VDW) related misdemeanor charges … (2) were charged with bench warrants and/or probation violations where the un-derlying charge was a VDW misdemeanor charge, or (3) had convictions for felonies and/or VDW misdemeanor charges predating the date of their admission,” and those who had VDW related charges.

Both subclasses will receive a payment if they file a claims form. For those not charged with VDW offenses, they will re-ceive a “pro rata share” of $5,170,000 which cannot exceed $3,000 per class member. Those charged with VDW offenses receive a ...

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’s excessive force civil rights lawsuit, prison officials could not impeach the prisoner with evidence of his three prior convictions (which were more than 10 years old) by arguing that his current prison sentence, enhanced under California’s Three Strikes law, extinguished the 10-year exclusion provided by Federal Rules of Evidence § 609(b).

The Court of Appeals further held that the district court could not bar the prisoner’s use of evidence that was contrary to his underlying disciplinary conviction, because Heck v. Humphrey, 512 U.S. 477 (1994) did not create a rule of evidence exclusion.

Gary Simpson was serving a five-year term for robbery, enhanced by the Three Strikes law with an additional 13 years for having three prior felonies. Two years into his sentence, he had an altercation with prison guards after they ordered him to remove a covering from his cell window. As often occurs in ...

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 were negligent in failing to protect him from an attack by another prisoner. The court dismissed his suit for lack of prosecution. Higgins appealed, but failed to pay the filing fee or file a timely affidavit of indigence. He filed an untimely affidavit that did not comply with Texas Rule of Appellate Procedure (TRAP) 20.1(b), after the Court of Appeals requested the filing fee. The appellate court dismissed his appeal because the affidavit was untimely and insufficient. Higgins filed a petition for review with the Texas Supreme Court.

The Supreme Court reversed the dismissal, holding that an appeal may not be dismissed for a formal procedural de-fect without giving the party an opportunity to correct the defect. The case was returned to the appellate court. See: Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898 (Tex. 2006).

The Court of Appeals then sent Higgins a ...

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 for drug offenses exceeds the 1980 prison population for all offenses.

Interestingly, between 1999 and 2005 – the most recent data available – state drug offense incarcerations remained virtually unchanged, rising less than 1 percent from 251,200 to 253,300, TSP reported. Yet, the racial composition of state drug offenders shifted dramatically.

Today, two-thirds of drug offenders in state prisons are African American or Latino. Even so, between 1999 and 2005, the number of African American drug offenders dropped 21.6 percent from 144,700 in 1999, to 113,500 in 2005, the study found. In 2005, African Americans represented 12 percent of all drug users, but 34 percent of those arrested, and 45 per-cent of those incarcerated for a drug offense, down from 57.6 percent incarcerated in 1999.

During the same period, Latino state drug confinements remained steady, dropping only 1.9 percent from 52,100 in 1999 to ...

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. Officials said the county’s financial crisis required the jail to make significant spending cuts, including prisoners’ basic hygiene items.

Arizona: On September 25, 2009, defense attorney David DeCosta, 42, was charged with various crimes for trying to smuggle heroin and methamphetamine into the Maricopa County Jail. DeCosta attempted to pass the drugs to his client, Jesse Alejandro, during a court appearance on September 18. Alejandro’s girlfriend, 19-year-old Emilee Keen, also was charged. DeCosta admitted that Keen had performed sexual favors for him prior to his attempt to smuggle the drugs. Ja-son Keller, Alejandro’s former attorney, pleaded guilty to promoting prison contraband and faces 3 to 12 ½ years in prison; he admitted to smuggling cell phones and drugs to Mexican Mafia prisoners in 2008.

California: On September 10, 2009, the Sacramento County Sheriff’s Department arrested three prisoners for an at-tempted escape from the downtown jail. Items ...

 

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