Skip navigation
Prisoner Education Guide

Prison Legal News: June, 2009

View as PDF
Issue PDF
Volume 20, Number 6

In this issue:

  1. Cheney and Gonzales Indicted in Connection with Private Prison in Texas (p 1)
  2. Michigan Sex Offender Freezes to Death on Street As Housing Crisis Continues (p 5)
  3. Massachusetts DOC Settles PLN Censorship Suit (p 5)
  4. From the Editor (p 6)
  5. Pro Se Muslim Prisoner Reaches Religious Rights Settlement Agreement with Virginia Prison Officials (p 7)
  6. Washington DOC Pays Pro Se Prisoner $110,043 For Illegally Withholding Records (p 8)
  7. Lawsuits Challenge Prohibition on Prisoner Pen-Pal Services in Indiana, Florida (p 9)
  8. Texas Court of Appeals Upholds $42.5 Million Award Against Wackenhut / GEO Group (p 10)
  9. OIG Audit Finds Major Deficiencies with BOP Health Care (p 12)
  10. McNeil Island Prison Fined $28,400 for Improper Asbestos Removal (p 12)
  11. Jury Nullification: Power To The People (p 14)
  12. Cost of Defending Federal Death Penalty Cases on the Rise (p 14)
  13. As Economy Falters, Rehabilitative and Substance Abuse Programs Get the Axe (p 16)
  14. $1.4 Million Settlement in Three-Day Long Sexual Assaults of Alaska Prisoners (p 16)
  15. First Circuit Awards Defendant Costs Under FRCP 68; Plaintiff Rejected $10,000 Offer, Was Awarded $5,500 (p 18)
  16. Michigan Jail Officials Lied and Hid Documents in Lawsuit Over Prisoner’s Death (p 18)
  17. Racial Impact Statements: An Effort to Eliminate Legal Racism (p 20)
  18. BOP Settles Suit Over Telephone Access, Electronic FOIA Claims (p 20)
  19. Florida Judge Publicly Reprimanded for Trying to Ease Jail Overcrowding (p 21)
  20. $875,001 Verdict in Beating of Massachusetts Prisoner (p 22)
  21. New Trial and JNOV Denial Upheld in $15,545,000 Michigan Prisoner Sexual Harassment Case (p 22)
  22. $155,000 Settlement in Sexual Assault of Washington Jail Prisoner (p 23)
  23. Florida U.S. District Court Rescinds Policy Restricting Access to Plea Agreements (p 24)
  24. Alameda County, CA Settles Juvenile Detainee Strip Search Suit for $4.3 Million (p 24)
  25. Protecting Your Health & Safety (p 25)
  26. PLN Awarded Summary Judgment In FOIA Case Again (p 26)
  27. California Prison’s Drinking Water Cited for Excessive Arsenic Levels (p 26)
  28. Nevada Ramps Up Prisoner Deportations – Even Those Ineligible for Early Release (p 28)
  29. Indiana Court Denies Challenge to Monopolistic Prison Phone Contracts (p 28)
  30. Oregon Detainee Paid $30,000 for 90 Days Illegal Jail Confinement (p 29)
  31. Oregon Prison Romance Nets Probation/Community Service (p 29)
  32. Ohio Supreme Court Restricts Public Access to Court Records (p 30)
  33. Oregon Slow to Address Problems at Contract Juvenile Facilities (p 30)
  34. Empty Oregon Jail Has Cost $1.25 Million; Grand Jury Demands Humility and Creative Solutions (p 31)
  35. Texas Lawmakers “Surprised” Over Hiring of Non-Citizen Prison Guards on Work Visas (p 32)
  36. Florida Judge Criticizes State’s Efforts to Seize Prisoner’s Federal Civil Rights Judgment (p 32)
  37. California DOC Closes Prisoner Work/Restitution Center (p 33)
  38. Madoff Fraud Bankrupts JEHT Foundation, Hurts Criminal Justice Reform Efforts (p 34)
  39. Report Says New Mexico Prison Phone Companies Still Gouging Families (p 34)
  40. Michigan DOC Rehabilitation Programs Emphasize Education, Reentry Support (p 36)
  41. California DA Says Incarceration Rate a Measure of His Success – Despite Wrongful Convictions, Prosecutorial Misconduct (p 36)
  42. Sheriff “Hollywood Hewett” Sentenced to 16 Months (p 37)
  43. New York Jury Awards $1,400,006 to Former Prisoner for Beating by Guards; Punitive Damages Later Reduced (p 38)
  44. Missouri Court Reverses $244,636 Incarceration Cost Award Against Prisoner (p 38)
  45. $4.75 Million Settlement in Virginia Jail Construction Accident Case (p 39)
  46. Federal Prisoner Dies During Illicit Tryst With His Wife (p 40)
  47. Systemic Constitutional Violations at Ohio Juvenile Facilities Leads to Settlement in Class Action; Guards Attempt to Block Relief (p 40)
  48. Supreme Court Holds Failure to Report to Prison Not a Violent Felony Under ACCA (p 41)
  49. New Texas Prison Hospital Approved (p 41)
  50. California Lifers Housed Out-Of-State in Federal Witness Protection Program Entitled to Appear in Person at Parole Hearings (p 42)
  51. Colorado DOC Settles Suit Over Provision of Education Programs to Learning Disabled Prisoner (p 42)
  52. Florida Jail Supervisor Disciplined for Using Prisoner Labor for Brother’s Political Campaign (p 43)
  53. Oregon Prison Manager Indicted for Misusing Prison Credit Cards (p 43)
  54. Ninth Circuit: County Contractor that Counsels Bad-Check Writers Not Entitled to State Sovereign Immunity from Suit (p 44)
  55. Ninth Circuit Strikes Down BOP Regulation Precluding Early Release for Prisoners Who Complete Drug Treatment (p 44)
  56. South Carolina Prison Official Remained on the Job a Year After Indictment (p 45)
  57. Ninth Circuit: California Federal Habeas Petitioner Sufficiently Exhausts State Court Remedies When He Presents Facts Necessary to Support Constitutional Claim (p 46)
  58. Prisoner’s Free Speech Rights Violated by Legal Mail Opened Outside His Presence; Qualified Immunity Denied (p 46)
  59. $25,000 Settlement in Washington Detainee Contracting for TB in Seattle Jail (p 47)
  60. D.C. Circuit Reverses Dismissal of Deliberate Indifference Gallstone Claim (p 48)
  61. Sixth Circuit Upholds Conviction and Sentences for Jail Guards Accused of Abusing, Killing Prisoners (p 49)
  62. News in Brief: (p 50)
  63. Washington: Violation of Community Custody Conditions May Be Enforced While Offender Is Reincarcerated (p 52)
  64. Amnesty International Sources Given Journalistic Protection (p 55)

Cheney and Gonzales Indicted in Connection with Private Prison in Texas

Cheney and Gonzales Indicted in Connection with Private Prison in Texas

by Matt Clarke

On November 17, 2008, a Texas grand jury returned an indictment against then-Vice President Richard B. Cheney and former U.S. Attorney General Alberto Gonzales, charging Cheney with contributing to prisoner abuse in privately-run prisons and Gonzales with covering up the abuse by interfering with investigations.

The indictment named GEO Group (formerly Wackenhut Corrections), CCA and Cornell Corrections as unindicted co-actors. It stated that Cheney and the companies, in a for-profit scheme, neglected federal prisoners by allowing them to be assaulted by other prisoners and denying them proper medical care, among other allegations.

Cheney’s ties with the private prison firms were twofold: (1) his $85 million investment in the Vanguard Group, which “appears on the top ten list of companies that house Federal detainees that are being rounded up by ICE officials,” and (2) his position as Vice President, through which he exerted “a tremendous influence on ICE and has a say in how much ICE will pay the said private prison per diem.”

The grand jurors stated it was “appalling to find that numerous elected officials from different levels of our government throughout ...

Michigan Sex Offender Freezes to Death on Street As Housing Crisis Continues

Michigan Sex Offender Freezes to Death on Street As Housing Crisis Continues

by Jimmy Franks

On January 26, 2009, Thomas Pauli, 52, was found dead on the cold streets of Grand Rapids, Michigan. Pauli, a registered sex offender, was apparently the latest victim of stringent residency restrictions imposed on people convicted of sex-related crimes.
As in most states, Michigan law prohibits registered sex offenders from establishing a residence within 1,000 feet of a school, even for one night. This restriction includes homeless shelters, two of which reportedly turned Pauli away due to his sex offender status in the days prior to his death.

Bill Merchut, who works at the Mel Trotter Mission in Grand Rapids, stated “We have to follow the law, but, ethically, it feels like we’re responsible.” Shelters that violate the residency restrictions face fines and loss of their license. In Pauli’s case, however, he lost his life.

Similar problems with sex offender restrictions have been widely reported in Dade County, Florida, where a “colony” of sex offenders has taken up residence under the Julia Tuttle Causeway to avoid violating a county ordinance that establishes a 2,500-foot exclusion zone around schools, daycare centers and playgrounds ...

Massachusetts DOC Settles PLN Censorship Suit

Effective May 12, 2009, the Massachusetts Dept. of Correction (MDOC) agreed to settle a First Amendment censorship lawsuit filed by PLN.

PLN brought suit in U.S. District Court on April 23, 2008 following repeated efforts over a 5-year period to be added to the MDOC’s approved vendor list ...

From the Editor

Our cover story this month examines the travails of Geo Corporation, the second largest private prison company in the world in the state of Texas. We recently noted their pullout from the state of Pennsylvania. Also in this issue of PLN is the Texas court of appeals ruling upholding a $42 million wrongful death verdict against Geo. We are not singling Geo out. They are neither better nor worse than their colleagues in the private prison industry. Since its inception in 1990 PLN has opposed the private prison industry. In doing so we have never claimed or argued that government prisons were somehow “better” or a panacea of some sort. Rather the comparison is between rotten apples and rotten oranges.

But as the cover story illustrates, government prison officials are not hiring politicians and giving them hundreds of thousands of dollars a year in “consulting fees” to push their “lock ‘em up agenda”. And when a prisoner dies because of short staffing, under trained guards or simple neglect, the warden at a government prison can’t expect to get a bonus for saving the company money. The most pernicious impact of the private prison industry has been its expansion of ...

Pro Se Muslim Prisoner Reaches Religious Rights Settlement Agreement with Virginia Prison Officials

Pro Se Muslim Prisoner Reaches Religious Rights Settlement Agreement with Virginia Prison Officials

by David M. Reutter

A pro se Virginia prisoner has entered into a settlement agreement with prison officials that provides him a $2,250 cash payment and a change in policies surrounding the provision to allow prisoners ...

Washington DOC Pays Pro Se Prisoner $110,043 For Illegally Withholding Records

Washington DOC Pays Pro Se Prisoner $110,043 For Illegally Withholding Records

The Washington State Department of Corrections (WDOC) will pay former Airway Heights Corrections Center prisoner Derek E. Gronquist $110,043 for mishandling his requests for public records. This represents the largest payout the WDOC has ever paid to ...

Lawsuits Challenge Prohibition on Prisoner Pen-Pal Services in Indiana, Florida

Lawsuits Challenge Prohibition on Prisoner Pen-Pal Services in Indiana, Florida

by David M. Reutter

To the extent that an Indiana Department of Corrections (IDOC) policy “denies prisoners the right to advertise for pen-pals and receive material so they can advertise for pen-pals, the [policy] violates the First Amendment to the United States Constitution,” contends a civil rights action filed by the American Civil Liberties Union (ACLU) on behalf of two Indiana prisoners.

The lawsuit, which seeks class action status, was brought after state prisoners Dana Woods and Earnest Tope had exhausted their administrative remedies claiming that IDOC Policy and Administrative Procedure No. 02-01-103 violates their right under the First Amendment to correspond with people outside of prison. Both had sought to place ads with PLN advertiser WriteAPrisoner.com to find freeworld pen-pals.

IDOC officials refused to let Woods and Tope receive any materials from WriteAPrisoner.com based on Policy 02-01-103’s prohibition on prisoners’ use of the mail to “solicit or otherwise commercially advertise for money, goods, or services,” which includes “advertising for pen pals.” The policy also prohibits receipt of mail from individuals or organizations that market such advertising services.

The suit was filed on December 24 ...

Texas Court of Appeals Upholds $42.5 Million Award Against Wackenhut / GEO Group

Texas Court of Appeals Upholds $42.5 Million Award Against Wackenhut / GEO Group

by Matt Clarke

On April 2, 2009, a Texas Court of Appeals upheld a jury award of $22,000,000 in actual damages and $20,500,000 in punitive damages against Wackenhut Corrections (now known as GEO ...

OIG Audit Finds Major Deficiencies with BOP Health Care

OIG Audit Finds Major Deficiencies with BOP Health Care

by Brandon Sample

A comprehensive audit by the Department of Justice’s Office of the Inspector General (OIG) found numerous problems with the provision and management of medical services by the federal Bureau of Prisons (BOP).

The OIG’s latest audit focused on the effectiveness of measures taken by the BOP to control medical treatment costs, the quality of medical care provided to federal prisoners, contract administration, and the monitoring of BOP health care providers.

Since fiscal year 2000, the BOP has undertaken twenty initiatives to control medical costs, which reached $736 million during fiscal year 2007. Some of those initiatives included charging prisoners a $2.00 co-pay for health care visits, increased use of tele-medicine, implementation of an electronic medical records program, and the adoption of a Patient Care Provider Team (PCPT). Under the PCPT model, each BOP prisoner is assigned to a physician’s assistant. This approach is designed to improve the consistency of treatment and eliminate so-called “practitioner shopping” by prisoners.

In general, the OIG applauded the BOP for its cost-containment efforts. However, the auditors found the BOP had failed to maintain cost-related data for each of its initiatives, making it ...

McNeil Island Prison Fined $28,400 for Improper Asbestos Removal

The McNeil Island prison in Washington state was fined $28,400 in July 2008 for two “willful” and seven “serious” violations related to three renovation projects in November and December 2007. The projects involved the removal of vinyl tile glued down with adhesive that contained asbestos. Eight prisoners, eight Department of Corrections employees and at least two flooring contractor crew members were exposed to asbestos-contaminated dust during the removal process.

Despite the fact that two of the supervisors involved in the projects had been previously certified for asbestos removal, fundamental precautions such as using a vacuum with a HEPA filter and water for dust suppression were not taken. Construction Maintenance Supervisor Gar Rodside had been first certified in 2000 and taken seven refresher courses, but he let his certification lapse. Plant Manager Tom Hili was initially certified in 2004 and had taken three refresher courses.

“All asbestos certification classes, for workers and supervisors, emphasize the use of water as a universal control of asbestos fibers,” said a state Department of Labor and Industries (L&I) report released in September 2008. “A certified asbestos supervisor should know the proper method of removing class 2 asbestos material.”

The L&I issued the ...

Jury Nullification: Power To The People

Jury nullification is power to the people. It’s a constitutional doctrine that allows juries to acquit defendants who are technically guilty, but who don’t deserve punishment. Does this sound like anyone you know?

As a former prosecutor, I think it sounds like many of the non-violent drug offenders whom I am responsible for locking up. I can’t take credit for all of the hundreds of thousands of people now in state and federal prisons for non-violent drug crimes but, as a Special Assistant United States Attorney in the District of Columbia, I prosecuted my share. Now, as a “recovering prosecutor,” I want to share a secret power with my fellow Americans --a power that ordinary people have-- that could help end the destructive “War on Drugs.”

The Fifth Amendment prohibits defendants from being tried for the same crime twice. This means that when a jury finds someone not guilty, there can never be a re-trial -- even if the judge disagrees with the jury’s verdict, or if there is compelling new evidence of guilt. The Supreme Court has ruled that this doctrine gives juries the power to nullify the law. If jurors believe the law is unjust ...

Cost of Defending Federal Death Penalty Cases on the Rise

The cost of defending federal death penalty cases has increased sharply since 1998, according to a preliminary report by the Judicial Conference Committee on Defender Services.

Congress first revived the federal death penalty in 1988, authorizing capital punishment for so-called “drug kingpin” murders. In 1994, Congress expanded the scope of the federal death penalty with the passage of the Federal Death Penalty Act, making some fifty crimes punishable by death.

The decision to seek death in a particular case has always rested with the Attorney General. However, prior to 1995, individual U.S. Attorneys retained the discretion to not seek the death penalty in death-eligible cases. That changed with the adoption of a uniform policy regarding the handling of death-eligible cases by the then Attorney General, Janet Reno.

Under Attorney General Reno, all death-eligible cases were required to be reviewed by the Attorney General, regardless of whether the U.S. Attorney believed death was an appropriate punishment. From time to time, this resulted in the certification of cases that local prosecutors did not believe warranted the ultimate penalty. Certification, however, could be ameliorated by local prosecutors through plea bargaining to a non-death sentence.

That discretion was eliminated in 2001 with ...

As Economy Falters, Rehabilitative and Substance Abuse Programs Get the Axe

As Economy Falters, Rehabilitative and Substance Abuse Programs Get the Axe

by Mark Wilson

Facing the worst economic crisis since the Great Depression, states are slashing rehabilitative criminal justice programs in a desperate attempt to save money. Critics contend, however, that this is a shortsighted approach that will lead to increased crime rates and associated costs in the long run.

Juvenile offenders are among the hardest hit groups affected by recent budget cuts. Tennessee, South Carolina, Kentucky, Virginia and other states have responded to declining tax revenues by reducing juvenile justice spending by up to 30 percent.

According to a 2008 survey by the American Correctional Association, five states reported cuts to their juvenile justice budgets totaling over $62 million. Youth advocates predict that as the recession deepens, such cuts will become more widespread. [See: PLN, April 2009, pp.8-9].

As counseling services and group homes are closed, America’s youngest offenders are being shifted from rehabilitative programs to juvenile facilities and sometimes even to adult prisons, with predictable results. “If you raise a child in prison, you’re going to raise a convict,” noted South Carolina Juvenile Justice Director Bill Byars.

Byars is credited with converting the state’s juvenile justice ...

$1.4 Million Settlement in Three-Day Long Sexual Assaults of Alaska Prisoners

$1.4 Million Settlement in Three-Day Long Sexual Assaults of Alaska Prisoners

by David M. Reutter

Two male Alaska prisoners who were sexually assaulted by other prisoners have reached a $1.4 million settlement in a lawsuit filed against prison officials. The incident occurred at the Yukon Kuskokwin Correctional Center ...

First Circuit Awards Defendant Costs Under FRCP 68; Plaintiff Rejected $10,000 Offer, Was Awarded $5,500

First Circuit Awards Defendant Costs Under FRCP 68; Plaintiff Rejected ?$10,000 Offer, Was Awarded $5,500

by Mark Wilson

The First Circuit Court of Appeals has awarded a defendant costs under Federal Rule of Civil Procedure (FRCP) 68, after a prisoner rejected a joint settlement offer of $10,000 ...

Michigan Jail Officials Lied and Hid Documents in Lawsuit Over Prisoner’s Death

Michigan Jail Officials Lied and Hid Documents in Lawsuit Over Prisoner’s Death

by David M. Reutter

On the eve of trial, a Michigan U.S. District Court adjourned a civil rights suit to reopen fact finding in the case. That rare development resulted after it was revealed that officials at the Lenawee County Sheriff’s Department concealed statements in an internal affairs investigation and gave false testimony in a lawsuit over the death of a prisoner at the county jail.

The adjournment occurred on December 23, 2008 in a federal suit filed by the family of 45-year-old Yolanda Flores, a diabetic heroin addict who died after guards refused to give her insulin, even when she had it delivered to the jail. Another prisoner said Flores had begged for her medication, but guards placed it outside her cell door where she couldn’t reach it.

During discovery depositions, jail officials testified under oath that they had turned over all documents relative to Flores’ December 13, 2006 death, that no internal investigation had been conducted, and that they did not know Flores needed medical attention.

Meanwhile, attorney David A. Robinson, who represents former Lenawee County jail prisoner Aaron Borck in an unrelated lawsuit, was ...

Racial Impact Statements: An Effort to Eliminate Legal Racism

Racial Impact Statements: An Effort to Eliminate Legal Racism

by Gary Hunter

Barack Obama’s election to the White House has many citizens convinced our country is closing its racial divide. Perhaps we are. But the disproportionate number of black Americans that fill our nation’s prisons testifies to the fact that we still have a long way to go.

Marc Maur, Executive Director to The Sentencing Project and author of Race to Incarcerate explains in his latest thesis why the incorporation of racial impact statements prior to the passage of prison legislation would be an effective tool in reducing racist sentencing practices while simultaneously improving the entire legal process.

From arrest to parole law, enforcement legislation has both a direct and collateral effect on all citizens. Yet, in certain instances the “war on drugs” has effectively become a war on African-Americans. Michael Tonry, author of Malign Neglect - Race, Crime and Punishment in America, writes that “[a]lthough disadvantaged young people of all races and ethnicities have been affected by the drug wars, the greatest attention has been on Hispanics and blacks,” which has “forseeably and unnecessarily blighted the lives of hundreds of thousands of young disadvantaged black Americans and ...

BOP Settles Suit Over Telephone Access, Electronic FOIA Claims

The Bureau of Prisons (BOP) has agreed to settle another lawsuit brought by PLN contributing writer, Brandon Sample.The settlement resolves several disputes between Sample and the BOP. Sample had complained, for instance, that the call prompt announced over the prisoner telephone systems requiring called parties to push the number five before being connected violated his First Amendment rights.

Sample had attempted to contact various government agencies via telephone, but the agencies could not accept his calls because they were answered by an automated telephone answering system (ATAS). ATASs are incapable of pushing “5.” The BOP agreed to settle the push “5” issue by allowing Sample to contact several different pre-designated government agencies using a normal telephone.

The BOP also agreed to resolve Sample’s claim that the BOP was in noncompliance with 5 U.S.C. § 552(a)(2) of the Freedom of Information Act (FOIA). Under § 552(a)(2), government agencies are required to post various records on the Internet in their FOIA public reading room. Records that are required to be posted include “final opinions…made in the adjudication of cases.” 5 U.S.C. § 552(a)(2)(A).

Sample alleged that each grievance response the BOP ...

Florida Judge Publicly Reprimanded for Trying to Ease Jail Overcrowding

On May 6, 2009, the Florida Supreme Court publicly reprimanded a St. Lucie County judge who had tried to do something about overcrowding at the county’s jail.

Earlier this year, following a two-day hearing, the Judicial Qualifications Commission (JQC) found Judge Clifford H. Barnes guilty of creating an appearance of impropriety, advocating a position that benefited a third party while sitting as a judge, making unfounded public attacks on the judiciary and other public officials, and demeaning the integrity and independence of the judiciary.

In affirming the JQC’s decision, the Supreme Court held that Barnes had “clearly crossed the line between what is appropriate and what is not” when he filed a petition for mandamus in an appellate court to ease the jail’s overcrowding problem. Chief Justice Peggy Quince reprimanded him for undermining public confidence in the judiciary by criticizing other judges and public officials, and for advocating for defendants.

After Barnes was elected in 2005, another judge requested that he be removed from the criminal division because he was inappropriately setting or reducing bonds to relieve jail overcrowding. When Barnes was removed from the criminal division, he filed the petition for a writ of mandamus. It ...

$875,001 Verdict in Beating of Massachusetts Prisoner

by David M. Reutter

Finding that a guard at Massachusetts’ Suffolk County House of Correction (SCHC) had violated a prisoner’s Eighth Amendment rights and committed assault and battery, a federal jury awarded the prisoner $875,001 in damages.

The 121-page complaint in this U.S. District Court action named ...

New Trial and JNOV Denial Upheld in $15,545,000 Michigan Prisoner Sexual Harassment Case

New Trial and JNOV Denial Upheld in $15,545,000 Michigan Prisoner Sexual Harassment Case

by Matt Clarke

On January 27, 2009, the Michigan Court of Appeals upheld a trial court’s denial of a motion for judgment nonwithstanding the verdict (JNOV) or a new trial in a case that resulted ...

$155,000 Settlement in Sexual Assault of Washington Jail Prisoner

$155,000 Settlement in Sexual Assault of Washington Jail Prisoner

Washington State’s King County Jail has paid $155,000 to settle a lawsuit brought by a female prisoner who was sexually assaulted by two guards.

While imprisoned at the Jail between August 25, 2004 and April 1, 2005, prisoner Jennifer ...

Florida U.S. District Court Rescinds Policy Restricting Access to Plea Agreements

Florida U.S. District Court Rescinds Policy Restricting Access to Plea Agreements

by David M. Reutter

The Chief Judge for the U.S. District Court for the Southern District of Florida has entered an order that rescinds a previous policy of limiting access to plea agreements in criminal cases. The former interim policy restricted public access by not making plea agreements available online; rather, they could only be viewed in person at the clerk’s office. [See: PLN, May 2008, p.41]. The new policy makes all plea agreements filed on or after February 20, 2009 publicly available online.

The policy change is a defeat for the U.S. Department of Justice (DOJ), which pushed for a nationwide policy of secrecy to protect its snitches and informants. The DOJ stated it was concerned about websites that post information on informants, such as www.whosarat.com, “for the clear purpose of witness intimidation, retaliation, and harassment.”

The Southern District Court had implemented an interim policy restricting public access to plea agreements after the Judicial Conference of the U.S. Courts, through its Committee on Court Administration and Case Management, asked “each court to consider adopting a local policy that protects information ...

Alameda County, CA Settles Juvenile Detainee Strip Search Suit for $4.3 Million

Alameda County, CA Settles Juvenile Detainee Strip Search Suit for $4.3 Million

by John E. Dannenberg

In July 2008, Alameda County, California settled a class-action civil rights suit brought by former juvenile detainees of the Alameda County Jail for $4,286,600. The suit was brought on behalf of ...

Protecting Your Health & Safety

Book review by Brandon Sample

The murky waters of prisoner self-representation just got a little easier to navigate with the arrival of the second edition of Protecting Your Health & Safety, A Litigation Guide For Inmates.

Published by the Southern Poverty Law Center and distributed by PLN, Protecting Your Health & Safety is an easy to read, plain language guide prisoners can use to identify and litigate federal civil rights claims against prison officials.

Written by Robert E. Toone and edited by PLN columnist Daniel Manville, Protecting Your Health & Safety dedicates over 100 pages to the different kinds of constitutional and statutory violations prisoners frequently encounter while incarcerated. Topics discussed include the First to Fourteenth Amendments, the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, the Americans with Disabilities Act, and the Rehabilitation Act.

Each issue, whether it may be First Amendment retaliation or a violation of the Equal Protection Clause, is addressed in laymen’s terms and supported by case citations from federal district courts, federal courts of appeal, and the United States Supreme Court. Difficult concepts like deliberate indifference are simplified in just seven pages, giving you what you need to know to make out a ...

PLN Awarded Summary Judgment In FOIA Case Again

On March 26, 2009, U.S. District Judge Reggie Walton entered summary judgment for PLN in an ongoing battle between Prison Legal News and the BOP over the release of certain records.

In 2003, PLN submitted a Freedom of Information Act (FOIA) request to the BOP for “all documents showing all money paid by the Bureau . . . for lawsuits and claims against it . . . between January 1, 1996 . . . and . . . July 31, 2003.” This covered a wide range of documents including copies of verdicts, settlements, claims, and complaints filed in each case. In addition, PLN requested a fee waiver for its request.

The BOP denied PLN’s request for a fee waiver. After the Department of Justice’s Office of Information and Privacy affirmed the BOP’s decision, PLN brought suit against the BOP. On June 26, 2006, Judge Walton granted summary judgment for PLN, ordering the BOP to provide PLN with the requested records without costs. See: Prison Legal News v. Lappin, 436 F.Supp.2d 17 (D.D.C. 2006).

Thereafter, the BOP provided PLN over 10,000 pages of records related to its request. Many of the documents that were produced, though, were heavily redacted, rendering most of the disclosures ...

California Prison’s Drinking Water Cited for Excessive Arsenic Levels

California Prison’s Drinking Water Cited for Excessive Arsenic Levels

by John E. Dannenberg

Whenever prisoners at California’s Kern Valley State Prison (KVSP) watch the classic 1944 movie Arsenic and Old Lace, they have to swallow hard. That’s because the drinking water supply at KVSP was cited in December 2008 by the state Department of Public Health (DPH) for contamination that exceeded twice the maximum allowed levels of arsenic, a cumulatively poisonous heavy metal.

Although KVSP Warden Anthony Hedgpeth notified all staff and prisoners that there was no current danger, one can’t help remembering the movie’s little old ladies’ plot to poison their victims by spiking their wine with minute portions of arsenic over time. And it doesn’t inspire confidence to observe KVSP staff drinking bottled water while prisoners must begrudgingly quaff arsenic-contaminated well water. DPH ordered KVSP to come into compliance with the current federal standards by February 2009 or obtain approval for an extension. Hedgpeth notified KVSP prisoners that a new arsenic treatment system was planned for June 2009.

Contaminated prison drinking water is not uncommon. [See: PLN, Nov. 2007, p.1, Prison Drinking Water and Wastewater Pollution Threaten Environmental Safety Nationwide]. However, arsenic contamination is often overlooked because ...

Nevada Ramps Up Prisoner Deportations – Even Those Ineligible for Early Release

Nevada Ramps Up Prisoner Deportations – Even Those Ineligible for Early Release

by Matt Clarke

In an attempt to reduce prison overcrowding and save money, Nevada has expanded its efforts to deport incarcerated non-citizens, including those not eligible for early release.
Nevada began its deportation program in 2007 when 100 parole-eligible prisoners signed an agreement not to contest their deportations if the Pardons Board would grant them parole. Those prisoners were then turned over to ICE, transported to the border in Arizona and returned to Mexico.

The program’s success caused state officials to seek additional prisoners to deport. Those eligible for parole were scheduled for hearings, while those not immediately eligible for parole were nonetheless referred to the board for review. In the course of the past fiscal year, another 600 Nevada prisoners were transferred to ICE to begin deportation proceedings.

Still, 1,720 prisoners with ICE holds remain in the Nevada prison system, or about 13.2% of the state’s prison population. They are not eligible for the deportation program, which is limited to nonviolent prisoners with little or no prior criminal history.

Nevada Supreme Court Justice James Hardesty, a member of the Pardons Board, strongly supports the program ...

Indiana Court Denies Challenge to Monopolistic Prison Phone Contracts

by John E. Dannenberg

The Indiana Court of Appeals has rejected a class-action suit brought by families and friends of prisoners who challenged prison telephone contracts as monopolistic and prison phone rates as oppressive. The appellate court held that it was not illegal for the Indiana Department of Corrections (IDOC) and the Marion County Sheriff to enter into monopolistic contracts, and that the phone rates were reasonable.

Chanelle Alexander and family members, friends and attorneys of prisoners who paid for collect calls from IDOC facilities and the Marion County Jail filed suit to stop excessive billings from the sole-source telephone service providers. They claimed that state law prohibited such sole-source contracts, and that the excessive phone rates were the result of this state-sponsored monopoly.

In 1995, the Marion County Sheriff contracted with Ameritech for a two-year renewable contract wherein the company would install and maintain at least 222 prisoner phones at no cost. In return, Ameritech guaranteed the county 40% of gross revenues from the phones plus a signing bonus of $524,000. The payments were to be placed in the Marion County Jail Commissary Trust. There were no contractual limits placed on phone rates.

Separately, the IDOC contracted with ...

Oregon Detainee Paid $30,000 for 90 Days Illegal Jail Confinement

Oregon Detainee Paid $30,000 for 90 Days Illegal Jail Confinement

The State of Oregon and Multnomah County have paid a man $30,000 to settle his suit for 90 days of illegal confinement.

Ira Robinson was detained in the Multnomah County jail to face criminal charges. Oregon’s speedy trial ...

Oregon Prison Romance Nets Probation/Community Service

Oregon Prison Romance Nets Probation/Community Service

A prison romance earned a female Oregon prison contractor a felony conviction, probation and 80 hours of community service.

Fifty-seven-year-old Sharon Simovic was a contractor at the Columbia River Correctional Institution (CRCI), a minimum-security prison in Portland, Oregon. As the prison’s Education Coordinator, she helped prisoners plan course work to earn high school equivalency diplomas (GEDs).

The Oregon Department of Corrections (ODOC) began investigating Simovic when prisoner and staff reported suspicions about the way she behaved with her clerk, Joshua Dennison, a 32-year-old prisoner.

Ultimately, investigators discovered notes passed between them and letters mailed “in extremely large quantity,” said Don Ress, a Multnomah County deputy district attorney who prosecuted Simovic. No physical relationship was revealed, so Simovic was convicted of only Official Misconduct in the First Degree, rather than being prosecuted under Oregon’s new custodial sex abuse statute.

Source: The Oregonian.

Ohio Supreme Court Restricts Public Access to Court Records

by David M. Reutter

The Ohio Supreme Court has approved new rules that allow state courts to restrict public access to court documents or entire case files if deemed necessary.

The new rules, which have an effective date of July 1, 2009, are codified in Rules 44 to 47 of the Rules of Superintendence for the Courts of Ohio. The public access rules begin with the usual definition of terms before stating that a “court or clerk of court shall make a court record available by direct access, promptly acknowledge any person’s request for direct access, and respond to the request within a reasonable amount of time.”

Court records are presumed to be open to the public, and except for a request for bulk distribution the requestor has the option “to have a court record duplicated on paper.” If the records are obtained for commercial use, a policy may be adopted by the court or clerk that limits the number of court records provided per month. The term “commercial” is to be narrowly construed and “does not include news reporting, the gathering of information to assist citizens in the understanding of court activities, or nonprofit educational research.”

In responding ...

Oregon Slow to Address Problems at Contract Juvenile Facilities

Oregon Slow to Address Problems at Contract Juvenile Facilities

by Mark Wilson

Oregon officials knew of significant problems at two Oregon Youth Authority (OYA) contract facilities for months before taking action.

The Kirkland Institute for Child and Family Study (“Kirkland”) is a secure facility in Burns, Oregon under contract to accept juvenile offenders in OYA custody. The state Department of Human Services also contracts with Kirkland to house teenage boys who are rejected by family foster homes and group homes.

With just two licensing specialists responsible for overseeing all 240 child care facilities in Oregon, including Kirkland, site visits occur just once every two years. Even then, the specialists have little authority. “Short of suspending their license, we have no alternative kind of remedy,” admitted Erinn Kelley-Siel, interim director of Oregon’s Children, Adults and Families Division.

During a Kirkland site visit, Licensing Coordinator Monika Kretzschmar discovered significant deficiencies. Some Kirkland staff members had been convicted of crimes – though the state and Kirkland refused to provide details – while others lacked qualifications for their positions.

Medication logs revealed that some teens had not received their prescribed medications or were issued someone else’s pills. One juvenile was hospitalized after Kirkland ...

Empty Oregon Jail Has Cost $1.25 Million; Grand Jury Demands Humility and Creative Solutions

Empty Oregon Jail Has Cost $1.25 Million; Grand Jury Demands Humility and Creative Solutions

by Mark Wilson

The Wapato Jail in Multnomah County, Oregon was completed in 2004 at a cost of $58 million, but has sat empty ever since because the county can’t afford to operate the facility.
On December 18, 2008, a Special Corrections Grand Jury issued a report calling the never-used 525-bed jail an embarrassment, and recommending that the county offer a reward to anyone who offers a viable solution.

“Year after year, nothing seems to get done and budget constraints always seem to be the reason,” the report stated. Given that budget deficits won’t be improving anytime soon, the county must get creative, said grand juror Vickie Cogill.

“It’s costing $25,000 a month for basically mowing the lawn,” Cogill noted. “That’s ridiculous for me as a taxpayer.” To date, maintenance on the vacant jail over the past four years has topped $1.25 million, with another $379,000 earmarked for the next fiscal year.

“We strongly believe that the issue of the ongoing maintenance fee ... should not be an issue with which the 2009 Corrections Grand Jury needs to deal,” ...

Texas Lawmakers “Surprised” Over Hiring of Non-Citizen Prison Guards on Work Visas

by Matt Clarke

Texas has 112 prisons and employs 23,700 guards – which is 2,600 shy of the number authorized by the state legislature. The shortage of prison staff is not new and neither is the state’s use of non-citizens as guards. The Texas Department of Criminal Justice (TDCJ) has a large number of immigrant employees, especially from Nigeria and Mexico, who were hired after they obtained permanent residency status; e.g., the prized “green card.”

What is new is the TDCJ’s recent admission to having hired at least 34 foreign guards on work visas. Over the past decade, the number of immigrant guards has greatly increased. For example, a decade ago there were a half-dozen Nigerian guards working at the TDCJ’s Ramsey Unit; currently, entire shifts are largely composed of Nigerians, who make up a significant minority on other shifts.

The prevalence of hiring non-citizen prison guards is well known to Texas’ 156,000 prisoners. Immigrant guards bring with them a host of potential problems, such as limited English language skills and cultural differences that can lead to misunderstandings and confrontations. They can also reflect a greater propensity for violence or corruption that is more ...

Florida Judge Criticizes State’s Efforts to Seize Prisoner’s Federal Civil Rights Judgment

Florida Judge Criticizes State’s Efforts to Seize Prisoner’s Federal Civil Rights Judgment

by David M. Reutter

In a concurring opinion that affirmed the imposition of a “civil restitution” lien of $50 per day for a prisoner’s cost of incarceration, a Florida appellate court judge said he was “troubled” by the actions of the Office of the Attorney General.

While incarcerated at Florida’s Santa Rosa Correctional Institution, Carlos Green filed a federal lawsuit against prison and medical staff related to a cell extraction in which he was beaten and pepper sprayed, then denied adequate medical care. He prevailed at trial against two prison guards and was awarded $180,000. The guards appealed to the Eleventh Circuit, which affirmed the verdict. [See: PLN, Sept. 2006, p.16].

One month after the unsuccessful appeal, the Attorney General’s office filed a “motion for imposition of civil restitution lien judgment” in Green’s criminal case in state court. The court rejected Green’s opposition to the motion and entered a lien of $273,750 in “restitution” for the 5,475 days Green was expected to serve on his 15-year sentence at the statutory rate of $50 per day, pursuant to Fla. Stat. § 960.293.

Florida’s Second ...

California DOC Closes Prisoner Work/Restitution Center

California DOC Closes Prisoner Work/Restitution Center

The California Department of Corrections and Rehabilitation (CDCR) has closed an innovative program that placed nonviolent prisoners in a community work-release center so they could earn money to pay restitution to their victims. Although the closure was a consequence of the state’s budget crisis, CDCR deputy press secretary Gordon Hinkle said he didn’t know how much money would be saved.

The work-release prisoners at the California Restitution Center in Los Angeles included two women from rural Shasta County. Mary Vanatta had a three-year prison sentence for embezzling over $200,000 from Northern Rehabilitation and Respiratory. Virginia Moye was serving two years for stealing $85,000 from two Salvation Army thrift stores that she managed. Shasta County District Attorney Erin Dervin called the center a “good program. ... We didn’t get back a tremendous amount of money they owed, but we did get some. It’s better than nothing.”

One-third of the prisoners’ earnings went to restitution. Another third went to the state, while the final third was paid to the work-release prisoners. The Center housed up to 100 prisoners who were employed at regular day jobs in Los Angeles but returned to the facility ...

Madoff Fraud Bankrupts JEHT Foundation, Hurts Criminal Justice Reform Efforts

Madoff Fraud Bankrupts JEHT Foundation, Hurts Criminal Justice Reform Efforts

by Matt Clarke

Wall Street mogul Bernard Madoff’s $50 billion Ponzi scheme has led to the closure of a New York-based charity devoted to reducing the booming prison population while maintaining public safety. The Justice, Equality, Human dignity and Tolerance (JEHT) Foundation shut down at the end of January 2009 after it lost its operating capital, which was invested with Madoff’s firm.

“I’m not sure people will ever appreciate what [JEHT] did to make our streets safer and make the country safer,” said Kansas Department of Corrections secretary Roger Werholz. He should know, as his department received a $4.7 million grant from JEHT for a pilot program to help former prisoners find jobs, housing and transportation. The program is credited with reducing recidivism by 33% and allowing Kansas to delay new prison construction. All but $700,000 of the grant had been paid to the Kansas DOC before the foundation was forced to close.

JEHT donated $6 million to Michigan for a similar anti-recidivism program, the Michigan Prisoner Reentry Initiative, and had approved $1.6 million in new funding that was lost as a result of Madoff’s fraud ...

Report Says New Mexico Prison Phone Companies Still Gouging Families

Report Says New Mexico Prison Phone Companies Still Gouging Families

by Dave Maass

The phone is ringing; you pick it up. An operator announces it’s a collect call – your spouse, sibling, child – from prison. Will you accept the charges?

Good luck finding out what those charges will be.

Family members of prisoners complain of 45-minute waits for customer service operators and billing statements that never arrive. The rates vary wildly depending on the institution – from $2 to $6 per 15-minute slot, plus a dollar for every finished call. Some companies charge $6.95 surcharges for credit card transactions, others require $50 minimum deposits into a prisoner’s phone account, some charge another $15 to get unused balances back.
All in all, rates for long-distance calls within New Mexico are “not just or reasonable,” New Mexico Public Regulation Commission Utility Analyst John J Reynolds concludes in his Jan. 23, 2009 testimony in a rate case that has been going on since 2007. He also says the companies may be breaking the law.

“You hear reports of folks ending up with four or five, six, $700 a month in phone bills from detention facilities before they realize how big ...

Michigan DOC Rehabilitation Programs Emphasize Education, Reentry Support

Michigan DOC Rehabilitation Programs Emphasize Education, Reentry Support

by Matt Clarke

In 1998, Michigan passed a law requiring most prisoners without a high school diploma to earn a GED before being released on parole. That law has since been copied by other states, but most merely purport to give enhanced parole consideration to prisoners who earn a GED. Currently, about half of the 50,000 prisoners in the Michigan Department of Corrections (MDOC) do not have a high school diploma. On an average day, 10,000 to 11,000 prisoners are taking GED classes. Many more are on a waiting list.

The MDOC spends about $32 million (1.6%) of its $2 billion annual budget on academic and vocational education. In studies of released prisoners, the combination of earning a GED and receiving vocational training has been proven to lower recidivism rates.
“It’s one of the wisest ways we spend taxpayer money,” said MDOC spokesman John Cordell. “Better-educated individuals make better choices.”

National studies have shown that education is the only type of prison program that consistently reduces recidivism, with higher education positively correlated to a greater reduction in recidivism rates. Studies have also shown that prisoners who ...

California DA Says Incarceration Rate a Measure of His Success – Despite Wrongful Convictions, Prosecutorial Misconduct

California DA Says Incarceration Rate a Measure of His Success – Despite Wrongful Convictions, Prosecutorial Misconduct

by Gary Hunter

Ed Jagels, District Attorney for Kern County, California, is concerned that his ratings have slipped from first to third. Not his ratings in the polls or even his popularity rating among members of the public; rather, Jagels is upset that two other California counties are sending more people to prison than his office.

“We tend to measure our performance by the per capita prison commitment rate,” he said. “We’ve always been at the top until the last three years.” Jagels has served as the county’s top prosecutor since 1983; he is also a former president and director of the California District Attorney’s Association.

Kern County topped the charts from 2000 to 2004, sending 31 per 10,000 citizens to state lockups. In 2007 that number dipped to 27.5 per 10,000.

Since 1983, California’s prison population has grown from 40,000 to 171,000. The estimated price tag for housing a state prisoner is about $46,000 per year; thus, Kern County alone costs taxpayers around $103.5 million annually. Nor does that price tag include the cost ...

Sheriff “Hollywood Hewett” Sentenced to 16 Months

Sheriff “Hollywood Hewett” Sentenced to 16 Months

by Mark Wilson

Like a moth to a flame, North Carolina Sheriff Ronald Hewett had a fatal attraction to television cameras and the bright spotlight. In the end, “Hollywood Hewett’s” mistress betrayed him, exposing the flamboyant crime fighter as just another hypocritical, corrupt public official.

During 14 years as sheriff, Hewett routinely staged news conferences to discuss not-so-newsworthy events and he made appearances at every high profile, public Brunswick County event. When his popularity and distinctive crime fighting techniques caught the eye of a filmmaker who wanted to create a documentary about the man behind the badge, Hewett couldn’t resist the temptation.

The image that developed, however, could not have been what Hewett envisioned.
Dozens of subordinates described Hewett as a sheriff who ordered his officers, on county time, to do landscape and construction work on his house, campaign for him and engage in other misdeeds. Female employees reported that the self-proclaimed church-going man made sexual comments to them. Many others described a man who mixed alcohol and sleeping pills and responded to crime scenes intoxicated.

When a federal grand jury began investigating Hewett in December, 2006, he instructed his deputies to assert ...

New York Jury Awards $1,400,006 to Former Prisoner for Beating by Guards; Punitive Damages Later Reduced

New York Jury Awards $1,400,006 to Former Prisoner for Beating by Guards; Punitive Damages Later Reduced

by David M. Reutter

A New York federal jury awarded $1,400,006 to a former prisoner in a lawsuit alleging two beatings by state prison guards. The U.S. District Court ...

Missouri Court Reverses $244,636 Incarceration Cost Award Against Prisoner

Missouri Court Reverses $244,636 Incarceration Cost Award Against Prisoner

by Mark Wilson

The Missouri Court of Appeals has concluded that a factual dispute as to whether the state had “good cause” to seek reimbursement of incarceration costs barred summary judgment in an action brought against a state prisoner.

Under the Missouri Incarceration Reimbursement Act (MIRA), Sections 217.825 to 217.841 R.S.Mo., the state is authorized to “seek reimbursement for incarceration costs if it has good cause to believe that an offender has sufficient assets to allow recovery of not less than 10% of the estimated costs of his care for two years.”

The appellate court held that good cause is a condition precedent to filing a MIRA petition, citing State ex rel. Nixon v. Koonce, 173 S.W.3d 277, 283-85 (Mo.App. 2005). If that condition is not met, “the state cannot seek reimbursement. This threshold requirement serves as a cost-effective limitation on the state’s authority to seek reimbursement only when there is an expectation of reasonable return.”

Bernie Farmer had been incarcerated in the Missouri Department of Corrections (MDOC) since 1988. On October 5, 2006, the state sought to recover incarceration costs ...

$4.75 Million Settlement in Virginia Jail Construction Accident Case

$4.75 Million Settlement in Virginia Jail Construction Accident Case

On June 26, 2008, Electric Power Systems, Inc. (EPS) entered into a $4.75 million settlement in a lawsuit brought by electrician Larry Shifflett, 53, who was seriously injured during construction of the River Regional Jail.

Shifflett was working on ...

Federal Prisoner Dies During Illicit Tryst With His Wife

Desmond A. Greene, a prisoner at the Big Sandy federal prison in Martin County, Kentucky, was in his bunk just after midnight on October 5, 2008. But at 1:12 a.m. his wife, Susan A. Witherspoon, was banging on the front door of the facility telling guards that Greene was unconscious and unresponsive in her car.

A guard and two prisoners rushed to the vehicle and applied CPR in an attempt to resuscitate Greene. Although one of the prisoners was a doctor, their efforts were unsuccessful and Greene was pronounced dead at a local hospital at 2:08 a.m.

Hospital officials attempting to extract Greene’s blood, in order to determine his cause of death, noticed what appeared to be semen on his body. Greene had been housed at the Big Sandy prison’s satellite camp, a minimum-security facility with no fence where prisoners reportedly sneak out for late-night rendezvous with visiting paramours.

Witherspoon told prison officials that she and Greene had been visiting in the prison parking lot. But an investigation revealed that her first 911 call came from a nearby motel.
Witherspoon made a second call from prison property at about the time she called the ...

Systemic Constitutional Violations at Ohio Juvenile Facilities Leads to Settlement in Class Action; Guards Attempt to Block Relief

Systemic Constitutional Violations at Ohio Juvenile Facilities Leads to Settlement in Class Action; Guards Attempt to Block Relief

by Brandon Sample

The Ohio Department of Youth Services (ODYS) has agreed to settle a class action lawsuit brought on behalf of all juvenile offenders incarcerated in the ODYS.

Problems with the Ohio juvenile detention system first came to light in 2003 after 14 guards at the Scioto Juvenile Correctional Facility (Scioto) were indicted for sex abuse and violence against minors at Scioto. Four guards were convicted or pled guilty to sexual abuse while another pled guilty to assault after slapping and punching a youth.
In December 2004, S.H. and other incarcerated minors at Scioto sued ODYS on behalf of all minors at Scioto. The Plaintiffs alleged that they were subjected to grossly unconstitutional conditions of confinement ranging from inadequate medical health care to endemic violence. For instance, the complaint alleged that Scioto staff physically and sexually abused minors at Scioto and arbitrarily placed them in isolation as punishment.

In March of 2005, the Civil Rights Division of the U.S. Department of Justice (DOJ) opened an investigation into the Scioto prison. On May 7, 2007, the DOJ published its findings ...

Supreme Court Holds Failure to Report to Prison Not a Violent Felony Under ACCA

Supreme Court Holds Failure to Report to Prison Not a Violent Felony Under ACCA

A defendant’s failure to surrender to serve a prison sentence is not a “violent felony” under the Armed Career Criminal Act (ACCA), the U.S. Supreme Court held on January 13, 2009.

Deondery Chambers pleaded guilty to a federal charge of being a felon in possession of a firearm. At sentencing, the government asked for a 15-year mandatory prison term, arguing that Chambers had three prior convictions that qualified under the ACCA as a “serious drug offense” or “violent felony.”

One of the convictions the government relied on, for “failing to report to a penal institution,” stemmed from Chambers’ failure to show up for weekend confinement at a county jail as part of a 1998 robbery and battery conviction. The U.S. Attorney’s office argued that Chambers’ failure to report to prison constituted a violent felony.

Over Chambers’ objection, the district court applied the ACCA enhancement based on his failure to report and sentenced him to 15 years. The U.S. Court of Appeals for the Seventh Circuit affirmed; however, the U.S. Supreme Court granted certiorari and reversed.

“We conclude that the crime ...

New Texas Prison Hospital Approved

On January 16, 2009, Texas lawmakers announced that the state will convert a dormant 59-year-old federal medical center into a prison hospital for the Texas Department of Criminal Justice (TDCJ). The five-story, 100-bed Thomas T. Connally Veterans Affairs Medical Center has not been used in six years.

“We are anxious to see these doors open again and have a lot of jobs, good-paying jobs, professional jobs, to bring some stimulus back, some life back to Marlin and Falls County,” said State Senator Kip Averitt. Attempts to obtain approval to convert the hospital from an unused federal facility into a state prison hospital have been in the works for two years.

The Texas legislature approved $3 million for the project in 2007, and another $500,000 was appropriated in 2008. The TDCJ is seeking $18.7 million in 2009 to complete the funding of the conversion project; no date has been set for the opening of the new prison hospital.

Sources: www.news8austin.com, www.gritsforbreakfast.com

California Lifers Housed Out-Of-State in Federal Witness Protection Program Entitled to Appear in Person at Parole Hearings

by John E. Dannenberg

The California Court of Appeal (Third District) held that California prisoners sentenced to life with the possibility of parole, who are housed in out-of-state facilities in the federal witness protection program, are entitled to appear personally at their parole hearings. To the extent that parole board regulations conflict with controlling state statutes, the regulations were disapproved as void.

J.G. is a California prisoner incarcerated out-of-state in the federal witness protection program. Although convicted in California of seven murders, three counts of conspiracy to commit murder and numerous other violent felonies, he is eligible for parole. His prison record indicated considerable rehabilitation, and he wanted to demonstrate that record, plus his aged condition, to the Board of Parole Hearings (BPH) by his personal attendance at his parole hearing. However, although J.G. was afforded a telephonic appearance he was not allowed to attend the hearing.

In denying his request to attend, the BPH cited regulations 15 CCR §§ 2367(d)(1) and (d)(2), which limit physical attendance for “multi jurisdiction prisoners,” a general category of interstate transfers that J.G. argued did not apply to him. Rather, he relied on the federal witness protection program statute ...

Colorado DOC Settles Suit Over Provision of Education Programs to Learning Disabled Prisoner

Colorado DOC Settles Suit Over Provision of Education Programs to Learning Disabled Prisoner

The Colorado Department of Corrections (CDOC) has agreed to settle a lawsuit brought by a prisoner who was denied the right to participate in educational services due to her learning disability.

Maureen Martin, a Colorado state prisoner ...

Florida Jail Supervisor Disciplined for Using Prisoner Labor for Brother’s Political Campaign

A supervisor at Florida’s Broward County Jail has been disciplined for using prisoner labor and county property to assist his brother’s political campaign.

Sgt. Alan Rainey was assigned to oversee the county jail farm when his brother, Jeff, was a Republican candidate for the District 1 County Commission. On June 14, 2008, Sgt. Rainey had prisoners load a jail farm trailer with containers filled with iced-down drinks.

While on his way to Sand Point Park for a fundraiser to benefit his brother’s campaign, another car ran a red light and hit the trailer that Sgt. Rainey was transporting, causing minor damage. Sgt. Rainey’s supervisors would not have learned about the incident if it wasn’t for the accident, which resulted in a police report.

Jeff’s bid for the Commission seat failed in the primary. Meanwhile, Broward County Sheriff Jeff Parker took disciplinary action against Sgt. Rainey for conduct unbecoming an officer and misuse of department equipment, and imposed a 40-hour suspension without pay and reassignment to supervisory duty at the main jail facility.

In September 2008, Parker rejected a grievance filed by the Coastal Florida Police Benevolent Association on behalf of Sgt. Rainey.

“I know that you personally regret what has ...

Oregon Prison Manager Indicted for Misusing Prison Credit Cards

Oregon Prison Manager Indicted for Misusing Prison Credit Cards

A former manager at a minimum-security prison in Salem, Oregon has been indicted for improperly using prison credit cards.

Kenneth C. Robertson, 46, began working for the Oregon Department of Corrections (ODOC) in 1988. According to prison spokeswoman Susi Hodgin, he had been employed as a physical plant manager at the Santiam Correctional Institution since 2004.

Robertson resigned in September 2008 following an ODOC internal affairs investigation that revealed he had used prison credit and gas cards for his personal use, said Don Abar, a Marion County Deputy District Attorney. Results of the investigation were turned over to the state police.

Robertson was arraigned in Marion County Circuit Court last November on theft and official misconduct charges; he is scheduled to go to trial on June 24, 2009.

Source: Statesman Journal

Ninth Circuit: County Contractor that Counsels Bad-Check Writers Not Entitled to State Sovereign Immunity from Suit

by John E. Dannenberg

The Ninth Circuit U.S. Court of Appeals has ruled that a private firm hired by a California county to run a diversion program for bad-check writers was not immune from suit under a claim of state sovereign immunity.

California law authorizes District Attorneys to offer a diversion program for bad-check writers in lieu of formal criminal prosecution (CA Penal Code §§ 1001.60-67), a service that can be contracted to private companies. To this end, the Santa Clara County District Attorney (DA) hired American Corrective Counseling Services (ACCS) to operate the county’s § 1001.60 bad check diversion program. To qualify for the program, an offender must cover the bad check, complete a course and pay applicable collection and administrative fees. For its efforts, ACCS collects a $100 class fee, other costs and late charges, plus 60% of all administrative fees.

ACCS’s contract with the county denominates ACCS as an “INDEPENDENT CONTRACTOR” (emphasis in original), and notes that “nothing within this agreement shall be construed as creating a relationship of employer or employee, or principal and agent, between the County of Santa Clara and ACCS.” The contract further requires ACCS to indemnify the county and ...

Ninth Circuit Strikes Down BOP Regulation Precluding Early Release for Prisoners Who Complete Drug Treatment

Ninth Circuit Strikes Down BOP Regulation Precluding Early Release for Prisoners Who Complete Drug Treatment

by Brandon Sample

The U.S. Court of Appeals for the Ninth Circuit held that the federal Bureau of Prisons (BOP) violated the Administrative Procedures Act (APA) in promulgating a regulation that precludes up to one year of early release for certain offenders who complete the BOP’s Residential Drug Abuse Program.

The appellate court’s decision came in a consolidated appeal from habeas corpus petitions filed by Charles Arrington and 17 other current and former prisoners at the Federal Correctional Institution in Sheridan, Oregon. The plaintiffs alleged that the BOP’s promulgation of 28 C.F.R. § 550.58(a)(1)(vi)(B) was “arbitrary and capricious” because prison officials had failed to provide sufficient rationale for their decision to categorically exclude from early release those whose current offense is a felony and “involved the carrying, possession or use of a firearm.”

In denying the prisoners’ habeas petitions, the district court found that the BOP had provided two rational reasons to support the regulation: (1) the increased risk that offenders with convictions involving firearms might pose to the public and (2) the need for uniformity ...

South Carolina Prison Official Remained on the Job a Year After Indictment

South Carolina Prison Official Remained on the Job a Year After Indictment

The deputy director over medical and health services for the South Carolina Department of Corrections (SCDOC) was suspended without pay in November 2008. His suspension, however, came more than a year after he was indicted on felony fraud charges.

SCDOC deputy director Russell H. Campbell, Jr., 40, was charged on November 14, 2007 with providing false information to Auto-Owners Life Insurance Company on an insurance application, including details related to his “father’s address and health condition.” Campbell defrauded the company to obtain a $50,000 payment on a life insurance policy for his father, who died in March 2005.

Although Campbell was initially indicted in November 2007, one of the charges was later dropped by prosecutors to obtain an indictment with slightly different language. The new indictment was issued on October 15, 2008.

The SCDOC said it was investigating why it did not learn of the initial indictment until November 18, 2008. “As soon as the Department of Corrections became aware of the indictments or any criminal charges against Russell Campbell, he was suspended,” said SCDOC spokesman Jon Gelinas. The state Attorney General’s office is supposed ...

Ninth Circuit: California Federal Habeas Petitioner Sufficiently Exhausts State Court Remedies When He Presents Facts Necessary to Support Constitutional Claim

Ninth Circuit: California Federal Habeas Petitioner Sufficiently Exhausts State Court Remedies When He Presents Facts Necessary to Support Constitutional Claim

by John E. Dannenberg

A California state prisoner challenging a prison disciplinary conviction first pursued his state habeas corpus petition through the highest state court, the California Supreme Court. However, his inartful pro se pleadings were later deemed in his federal habeas petition to have been insufficient to provide the state courts with any factual basis for relief, and his federal petition was therefore dismissed.

The Ninth Circuit reversed on appeal, finding the petition cited state law, federal constitutional authority and federal case law in support of the claim of denial of a witness in the disciplinary hearing, which put the California courts on sufficient notice of the legal theory and facts applicable to that theory.

California state prisoner Michael Davis, serving nine years for burglary, was infracted for allegedly committing a battery on staff. The incident occurred in the kitchen where Davis worked, when he was found cooking his own food on the kitchen grill and ordered to stop. He allegedly refused, copped an attitude and sloshed a 6-inch “hotel pan” full of hot cooking oil onto the kitchen ...

Prisoner’s Free Speech Rights Violated by Legal Mail Opened Outside His Presence; Qualified Immunity Denied

Prisoner’s Free Speech Rights Violated by Legal Mail Opened Outside His Presence; Qualified Immunity Denied

by David M. Reutter

The Eleventh Circuit Court of Appeals held that prison officials who open legal mail outside of a prisoner’s presence are not entitled to qualified immunity in a lawsuit alleging that such conduct violates the prisoner’s free speech rights.

While incarcerated at the Georgia State Prison (GSP) from 2002 to 2007, Jamil Al-Amin received correspondence marked “legal mail” from his wife Karima, who is a licensed attorney practicing in Atlanta. In April 2002, a letter from Karima marked legal mail was accidentally opened outside Jamil’s presence. The mailroom supervisor, Sanche M. Martin, informed GSP Warden Hugh Smith that Jamil had received “mail of a personal nature” from his attorney-wife.

Prison officials ordered Jamil to submit a list of his attorneys, but he did not list his wife. In August 2003, Jamil filed a grievance requesting that all mail from attorneys addressed to him be opened in his presence, including mail from Karima. Smith denied the grievance. A grievance appeal resulted in GSP staff being instructed to “treat all mail from Karima as legal, privileged mail and to open it in [Jamil’s] presence ...

$25,000 Settlement in Washington Detainee Contracting for TB in Seattle Jail

Washington State’s King County Jail has paid $25,000 to settle a pretrial detainee’s claim that he contracted tuberculosis while held at the jail.

While held at the Jail from November 2003 through January 2004, Jason Perez contracted tuberculosis from another detainee. As a result, he sustained a ...

D.C. Circuit Reverses Dismissal of Deliberate Indifference Gallstone Claim

The U.S. Court of Appeals for the D.C. Circuit reversed the dismissal of a prisoner’s civil rights action alleging inadequate medical care.

Herbert Brown, a prisoner in the District of Columbia (District), was incarcerated at the notorious Lorton Correctional Facility from 1991 to 1997. While at Lorton he had numerous health problems that included headaches, constipation, loss of appetite, yellowed eyes, and pain in his chest, stomach, lower back and penis. Medical staff improperly diagnosed Brown or ignored his requests for treatment. As a result, he suffered an inflamed liver, jaundice and a “medley of other maladies.”

Brown was finally diagnosed by a doctor as having gallstones; he was ordered transferred immediately to a hospital for surgery. However, for the next sixty days prison officials refused to comply with the doctor’s order, even in spite of Brown’s continued complaints of pain. Instead, prison officials sent him to the hospital only after he was again diagnosed with gallstones and ordered transferred immediately. At the hospital, surgeons removed 18 gallstones from Brown’s urinary tract.

Upon his return to Lorton, Brown continued to complain of similar problems. Nevertheless, over the next several months medical staff refused to ...

Sixth Circuit Upholds Conviction and Sentences for Jail Guards Accused of Abusing, Killing Prisoners

Sixth Circuit Upholds Conviction and Sentences for Jail Guards Accused of Abusing, Killing Prisoners

by Brandon Sample

On February 4, 2008, the U.S. Court of Appeals for the Sixth Circuit upheld the conviction and sentences of two Wilson County, Tennessee jail guards accused of conspiring to violate the civil rights of prisoners.

Patrick Marlowe was a leader at the Wilson County Jail, just not a very good one. Marlowe, the evening shift supervisor, led himself along with co-workers Tommy Shane Conatser and Gary Hale to federal prison for conspiring to sadistically abuse – and even kill – the very prisoners they were supposed to safeguard. [See: PLN, February 2006, p.1].

Following the beating death of a prisoner at the hands of Marlowe and Hale, an investigation revealed evidence that a group of evening shift guards, led by Marlowe, would “strike and kick” prisoners who were “loud, obnoxious or uncooperative.” To conceal their misdeeds, the guards would deny the prisoners medical care and prepare false reports regarding the incidents.

They would even go so far as to keep a tally of the prisoners Marlowe struck hard enough to render unconscious, called the “knock-out list.” That list had ...

News in Brief:

Arizona: On May 2, 2009, more than 2,000 protesters marched on the Maricopa County Jail in Phoenix to protest Sheriff Joe Arpaio’s illegal immigration policies. The protestors were joined by musician and political activist Zack de la Rocha, formerly of the band Rage Against the Machine. The protestors were met by about 50 Arpaio supporters.
Protestors and supporters yelled and waved signs at each other from across the street, but were otherwise peaceful. While protesters gathered around a stage to listen to speeches by local activists, Sheriff Arpaio, never one to pass up an opportunity to hear himself talk, made an impromptu speech in support of his policies. He said he was not intimidated by the protest and was proud of the work his department does. “We treat everybody with dignity,” Arpaio said. “We have nothing to hide.” Sadly, the routine beatings, brutality and murder of Maricopa County jail prisoners elicit no protests, and Arpaio remains the most popular elected official in Arizona.

California: On May 3, 2009, Luis Patino, a spokesman for the Office of the Receiver for California Prison Health Care Services, said a prisoner at the Centinela State Prison was diagnosed with a probable case ...

Washington: Violation of Community Custody Conditions May Be Enforced While Offender Is Reincarcerated

Washington: Violation of Community Custody Conditions May Be Enforced While Offender Is Reincarcerated

The Washington State Supreme Court held that a prisoner who had been released on “community custody,” but who violated his terms of release and was reincarcerated pending new criminal charges, could not have his pre-trial jail time count against his community custody term. Moreover, being incarcerated did not immunize the prisoner from sanctions for having violated conditions of his community custody release.

Amel W. Dalluge, 17, was prosecuted on two third-degree rape charges. Following his release from prison he was placed by the Washington Department of Corrections (WDOC) on one year’s community custody, which included various restrictive conditions.

Dalluge was later arrested and jailed for being involved in an altercation while on community release. Additionally, the WDOC infracted him for violating his terms of community custody and imposed an extra 60 days confinement. Dalluge filed a personal restraint petition (PRP) alleging that WDOC had lost its authority to infract him when he was re-arrested, and therefore could not punish him administratively.

The state Supreme Court accepted Dalluge’s PRP under the lenient standard of a complaint alleging unlawful restraint. However, it declined to find that WDOC’s power ...

Amnesty International Sources Given Journalistic Protection

Amnesty International Sources Given Journalistic Protection

A New York federal judge held that sources used by Amnesty International (Amnesty) in drafting a report on conditions of confinement at the Metropolitan Detention Center (MDC) in Brooklyn, New York were entitled to the same protection as journalistic sources.

The district court’s ruling occurred in a lawsuit against MDC officials over the monitoring of attorney-client meetings at MDC. The suit was filed by MDC detainees who had been arrested in a sweep of “suspects” following the 9-11 attacks.

The defendants in the case had issued broad subpoenas to the New York Times and Amnesty seeking information, recordings and documents related to their conversations with the plaintiffs and plaintiffs’ lawyers, as well as any research materials used in preparing articles and reports on conditions at MDC.

The defendants claimed they needed this information to prove that the plaintiffs knew about the monitoring of the attorney-client meetings so long ago that the three-year statute of limitations would bar their suit. The Times filed a motion for a protective order.

Amnesty disclosed some information with the permission of one plaintiff, but declared the rest confidential and objected to its production. The defendants filed a motion to ...


 

Federal Prison Handbook

 



 

Prisoner Education Guide side

 



 

Federal Prison Handbook

 



 


 

Prisoner Education Guide side