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Prisoner Education Guide

Prison Legal News: July, 2009

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Volume 20, Number 7

In this issue:

  1. Preserving the Rule of Law in America’s Jails and Prisons: The Case for Amending the Prison Litigation Reform Act (p 1)
  2. From the Editor (p 10)
  3. Ninth Circuit Flip-Flops: Denial of Washington Sex Offender’s Community Custody Release Held Unconstitutional, Then Constitutional (p 10)
  4. Texas Posthumously Exonerates Man Who Died in Prison (p 12)
  5. $226,000 Workers’ Comp Settlement for Pennsylvania Guard Scarred by MRSA (p 13)
  6. ADA Routinely Violated by Prisons in the case of Deaf Prisoners (p 14)
  7. The Illusion of Immigrant Criminality: Getting the Numbers Wrong (p 16)
  8. Florida Guard Convicted of Assaulting Prisoner (p 17)
  9. Supreme Court Holds Supervisory Officials Not Liable for Abuse of 9-11 Detainees (p 18)
  10. $30,000 Settlement in Milwaukee Jail Death (p 19)
  11. Former Oregon DOC Food Manager Abandons Wife to Federal Prosecution; Herding Sheep in Iran While on the Lam (p 20)
  12. UNICOR Robs Jobs from Private Sector; Prisoners Sue Over Working Conditions (p 21)
  13. Prisoner’s Right to Mail Announcement of Peaceful Demon-stration Trumps Purported Prison Security Claims (p 22)
  14. University of Arizona Releases Report on Women Immigration Prisoners (p 22)
  15. $500,000 Awarded to New York Prisoner Raped by Jail Guard; Vacated on Post-Trial Motion (p 23)
  16. Habeas Hints: Traverse Motion Responses (p 24)
  17. Sentencing Project Releases Report on Sentencing Policy and Practice (p 26)
  18. Oregon Jail Guards Lose Access to Porn Sites (p 27)
  19. New Mexico Abolishes Death Penalty; Similar Efforts Fail in Other States (p 28)
  20. Arkansas Sends Toxic Tech Trash to UNICOR Recycling Program (p 28)
  21. FBI Arrests Former Prisoner Indicted for Hacking Massachusetts Jail Computer (p 30)
  22. $4.6 Million Settlements in Death of Quadriplegic D.C. Prisoner (p 30)
  23. Strip-Searched Iowa Bush Protesters Awarded Damages at Trial, Re-Trial (p 31)
  24. Positive Correlation between Mental Illness and Prison Victimization (p 32)
  25. Santa Cruz County, Arizona Pays $3 Million in Strip Search Suit (p 32)
  26. $10,000 Verdict in Sexual Assault by Virginia Guard (p 33)
  27. Report Says Unfinished Prison Project Is Single Greatest Iraq Reconstruction Failure (p 34)
  28. Bureau of Justice Publishes Report on Sexual Misconduct at Juvenile Facilities (p 34)
  29. Ohio Limits Electronic Monitoring to Only Those Who Can Pay (p 35)
  30. Miami’s Sex Offender Bridge Encampment Continues to Grow (p 36)
  31. BOP Failed to Protect Female Prisoner Informant from Rape, Sexual Abuse by Guards (p 36)
  32. $3,200 Awarded to Indiana Jail Prisoner for Negligent Medical Care (p 38)
  33. New York Prisoner Awarded $5,000 for Assault by Cellmate (p 38)
  34. Postal Service Panics Over Sex Offender Participant in Christmas Program (p 38)
  35. PLN Files Suit Against Los Angeles County for Failure to Comply with Public Records Act (p 39)
  36. Survivor Manual, compiled and edited by Bonnie Kerness, illustrated by Todd Tarselli and other talented artists, 90 pgs. (p 40)
  37. Causal Link Established by Prison Officials’ Failure to Protect Prisoner from Specific Threats (p 40)
  38. $3.3 Million Settlement Fund Established in New Mexico Jail Strip Search Settlement (p 41)
  39. California Jury Awards Deaf Prisoner $5,000 for Failure to Provide Interpreter; $193,582 in Fees Awarded by Court (p 42)
  40. Former California DOC Worker Kept Confidential Prison Gang Files at Home (p 42)
  41. Louisiana Private Prison Warden Arrested for Malfeasance (p 42)
  42. Massachusetts Prisoner Awarded $550,307 in Attorney Fees and Costs in Unsanitary Conditions Case (p 43)
  43. California: Waiver of Private Psychotherapist-Patient Privilege an Unreasonable Condition of Parole (p 44)
  44. Oregon Teenage Girls Stage Brazen Escape Attempt (p 44)
  45. $75,000 Settlement for Shutting Off Water in Seattle Jail Prisoner’s Cell (p 44)
  46. $445,000 Settlement in Ohio Jail Prisoner’s Medical Death (p 45)
  47. Pennsylvania County Sex Offender Residency Ordinance Voided (p 46)
  48. State, Not County, Required to Pay Attorney Fees in Georgia Death Penalty Cases (p 46)
  49. $9,000 Award for Hawaiian Prisoners Bitten By Dogs at Oklahoma CCA Prison (p 47)
  50. Florida and Oregon Prison Employees Face Sex Charges (p 47)
  51. Fifth Circuit Rules Texas Parole Law Not Ex Post Facto (p 48)
  52. No Qualified Immunity for Pepper Spraying Alabama Prisoner; Case Settles After Remand (p 48)
  53. News in Brief: (p 50)
  54. $1,800,000 Settlement in Michigan Jail Prisoner Suicide Case (p 52)

Preserving the Rule of Law in America’s Jails and Prisons: The Case for Amending the Prison Litigation Reform Act

by Margo Schlanger and Giovanna Shay**

Prisons and jails pose a significant challenge to the rule of law within American boundaries. As a nation, we are committed to constitutional regulation of governmental treatment of even those who have broken society’s rules. And accordingly, many of our prisons and jails are run by dedicated professionals who care about prisoner welfare and constitutional compliance. At the same time, for prisons-closed institutions holding an ever-growing disempowered population-most of the methods by which we, as a polity, foster government accountability and equality among citizens are unavailable or at least not currently practiced. In the absence of other levers by which these ordinary norms can be encouraged, lawsuits, which bring judicial scrutiny behind bars, and which promote or even compel constitutional com-pliance, accordingly take on an outsize importance. Unfortunately, over the past twelve years, it has become apparent that a number of provisions of the Prison Litigation Reform Act (“PLRA”)1 cast shadows of constitutional immunity, contra-vening our core commitment to constitutional governance. The PLRA’s obstacles to meritorious lawsuits are undermining the rule of law in our prisons and jails, granting the government near-impunity to violate the rights of prisoners without fear of ...

From the Editor

The past few months have been very busy at PLN. In addition to publishing our first book, the Prisoners Guerrilla Handbook Guide to Correspondence Programs in the US and Canada, we have also been making significant administrative changes. We have changed the name of our non profit organization from Prisoners’ Legal News to the Human Rights Defense Center (HRDC). The HRDC will be our umbrella organization which will continue publishing Prison Legal News the magazine, Prison Legal News book publishing and any other publishing projects we may add in the future.

Most significantly, the HRDC is adding a litigation component to our organization which will be HRDC litigation. Thanks to the generosity of an individual donor, we have been able to hire a staff attorney to represent PLN in censorship litigation and also handle other select cases on behalf of other plaintiffs. Dan Manville, best known as the co author of the Prisoners Self Help Litigation Manual is one of the top prisoner rights attorney in the United States and he has agreed to be the first HRDC staff attorney. We welcome Dan on board. Dan was one of PLN’s earliest subscribers and represented us in our 1998 lawsuit ...

Ninth Circuit Flip-Flops: Denial of Washington Sex Offender’s Community Custody Release Held Unconstitutional, Then Constitutional

Ninth Circuit Flip-Flops: Denial of Washington Sex Offender’s Community Custody Release
Held Unconstitutional, Then Constitutional

by Mark Wilson

Illustrating the axiom that the law means whatever a judge decides it means, in a 2-to-1 decision, a panel of the Ninth Circuit Court of Appeals held that Washington state law creates a liberty interest in a prisoner’s early release to community custody. Two weeks later, however, one of the majority opinion judges died, a new judge was assigned to the panel, and the opinion was withdrawn. The new judge joined the previously dissenting judge to form a new majority, which held that Washington law does not create a liberty interest in community custody release.
In August 1999, 20-year-old Joseph Dale Carver was sentenced to 54 months in prison for his third child molestation conviction. He committed his first sex offense when he was 14 years old. While serving his current prison term he commit-ted 15 disciplinary infractions, including sexual harassment of a prison employee.

Washington Revised Code (RCW) § 9.94A.728(1)(b)(ii)(B)(I) bars early release for sex offenders, but § 9.94A.728(2)(a) allows sex offenders to be placed in community custody – i.e ...

Texas Posthumously Exonerates Man Who Died in Prison

by Matt Clarke

On February 6, 2009, Travis County District Judge Charlie Baird did what no other Texas judge had done before – he exonerated a dead man. Timothy Brian Cole, who died of asthma due to medical neglect while incarcerated in 1999, was declared innocent of the rape charges that sent him to prison.

On March 24, 1985, Michele Mallin, a Texas Tech University student, was raped by a chain-smoking black man when she was walking to her car at night. A series of similar rapes had occurred, and there was great pressure on the police to solve the case. Cole worked several blocks from the crime scene and looked similar to a composite sketch of the suspect; he was arrested and Mallin identified him as her rapist.

Cole, who had only a misdemeanor arrest record and was not identified as the perpetrator by any of the other rape victims, steadfastly proclaimed his innocence and wept over his misfortune while sitting in jail.

Listening to Cole’s suffering was another prisoner, Jerry Wayne Johnson, a chain-smoking black man who had been arrested for, and was later convicted of, two other sex crimes. He also had a history of similar offenses ...

$226,000 Workers’ Comp Settlement for Pennsylvania Guard Scarred by MRSA

A Pennsylvania prison guard who contracted a staph infection that caused facial scarring has settled a workers’ compensation claim for $226,000.

While employed at the Graterford Prison in 2003, guard Carol Snyder contracted an infection. She awoke on the morning of December 30, 2003 with facial swelling and went ...

ADA Routinely Violated by Prisons in the case of Deaf Prisoners

Over the last forty years, Congress has enacted numerous laws specifically designed to assure disabled individuals access to the programs, activities, services, public facilities and other resources available to the general population. This access was originally stipulated in the Bill of Rights, but made more specific by these newer laws and regulations. The most well-known of these are the Americans with Disabilities Act (ADA) and the Individuals with Disabilities Education Act (IDEA). Together, this legislation plus state statutes combine to embody the some of the best legislation for the disabled of any country in the world.

The tragedy is that federal, state and local officials, including law enforcement, blatantly ignore and fail to enforce these laws effectively, especially in three major areas. These are prisons (Musumerci, 2006; Terhue, 2004-2005; and Tucker, 1988), mental health facilities (Geer, 2003; Vernon & Leigh, 2007) and schools (Geer, 2003).

Recently the U.S. Supreme Court has held that states could be liable under Title II of the ADA for this kind of uncon-stitutional conduct (Musumerci, 2006). The cases involved were United States v. Georgia and Goodman v. Georgia, 126 S. Ct. 877 (2006).

In another case the court found that the state prison system violated ADA by inter alia failing to notify deaf prisoners about accommodations available under ADA, failing to give deaf prisoners the opportunity to access TDDs (deaf tele-phones) and visual alarms as well as the failure to provide interpreter services for educational and vocational classes, alcohol and drug counseling, medical and mental health treatment and disciplinary, grievance and parole hearings (Musumerci, 2006). Because these services were available to other prisoners and the prison failed to provide the accom-modations necessary to make them available to deaf prisoners, the prison was liable. (For other cases involving deaf people and laws relevant to them, see Musumerci, 2006).

This article will focus primarily on prisons and their deaf prisoners. However, much of the information has generality to all disabilities and to many other types of public facilities. The reason for the focus on deafness is because it is one of the least understood of all disabilities and the most neglected in prisons. This is due primarily to its invisibility. Other disabili-ties, such as cerebral palsy, amputations, crippling disorders, etc. are instantly identified and reacted to. In addition, partly because it is not visible, deafness is not seen as being as serious as other handicaps. However, in a prison environment, it is one of the most debilitating.

For readers of Prison Legal News, the reason deaf prisoners are of special interest is that they provide attorneys rep-resenting them not only the opportunity to help of group of prisoners in a desperate situation, but also a chance to sue for sizeable damages, including attorney’s fees, due to the rights that have been denied as a result of a failure of prisons to obey ADA regulations. In many cases these deaf prisoners’ rights were also violated during their arrests, interrogations, pleadings, sentencings, and/or trials (King & Vernon, 1999; Miller, 2001; Miller & Vernon, 2001; Vernon & Miller, 2005; Vernon, Raifman & Greenberg, 1006). [Editor’s Note: PLN has reported extensively on the rights of deaf and disabled prisoners in the past. A key issue is that the ADA and RA both have their own attorney fee provisions which are not capped by the Prison Litigation Reform Act, thus attorneys who prevail on ADA and RA claims for prisoners can bill their normal market rates.]

Prelingual Deafness and Prison

For any person who is deaf, prison is a horror. For example, even with hearing prisoners, their number one fear is that they will be raped; the second is that they will be killed (Ross & Richards, 2003). That both of these fears are justified is confirmed by the data on prison murder, rape and suicide (Human Right’s Watch, 2001). In a prison’s hostile, isolating and threatening environment, the possibility of psychological breakdown greatly increases. Some prisoners commit sui-cide. The problem is compounded by the paucity of mental health services in prisons and jails and the lack of training for correctional officers as to how to handle such cases.

While information supplied by the Human Rights Watch is not specific to the deaf population, these data and common sense would dictate the situation is much worse for prisoners who are deaf because they are far more vulnerable and subject to attack than hearing prisoners. One reason for this is that they are viewed as being unable to report instances in which they are victimized due to their communications limitations as outlined below (Miller, 2001; Vernon & Miller, 2005).

To understand why this is true, it is important to become familiar with some basic facts about prelingual deafness, i.e., deafness which has its onset at three years of age or younger. Because these individuals never heard language spoken or do not remember it if they heard it, most never learn to speak intelligibly. Just as you and I cannot speak Russian be-cause we have not heard it spoken, prelingually deaf individuals cannot speak English (Vernon & Andrews, 1990). For the same reason, most deaf people fail to master the syntax and the vocabulary of English.

Consequently, as a group they are extremely poor readers and have low educational levels. For deaf prisoners, the problem is even worse because many come from poor homes, attended inferior schools, and have a general history of deprivation. The consequences are exemplified by a study of 99 deaf prison prisoners conducted by Miller (2001). It is the largest in-depth study ever done of this kind of population.

Of these 99 prisoners, 76 lost their hearing before learning to speak or use language. Their mean educational achievement level when they entered prison as adults was second grade, seventh month. By federal government stan-dards, this means they were functionally illiterate. That is despite the fact that their IQ as measured by a performance IQ test was well within the average range (Miller, 2001) In fact, the IQs of deaf people in general are equal to those of hear-ing people even though their educational achievement levels are significantly lower (Vernon, 2005). This is because of the limitations deafness places on the acquisition of information.

The Burden of Being Deaf in Prison

In prison, the low educational levels of most deaf prisoners coupled with their restricted communication creates major problems. For example, they have severe limitations in understanding what people say to them. They have to depend on lipreading, which is greatly overestimated as a means of communication. Even under ideal conditions, for example, good lighting, face-to-face contact with the speaker, a speaker who articulates clearly, etc., good lipreaders can understand only about five percent of what is said to them (Vernon & Andrews, 1990).

In addition, the overwhelming majority of prelingually deaf people have speech that is unintelligible. Also, because their educational level is that of a second grader, they can communicate only simple messages by writing and understand equally simple messages by reading.

As a result of these limitations, their communication with detention facility employees, fellow prisoners, medical staff, and others is primitive at best. They cannot understand disciplinary hearings or present effectively their side of the story, nor do they understand the printed material on prison rules and regulations.

In sum, they are in an almost totally compromised position in the dangerous, treacherous environment of rape, abuse and violence that characterizes most prisons.

Sign Language and Access

If introduced to the prison setting, American Sign Language (ASL) and interpreters who know ASL could provide deaf prisoners with access to much of what their deafness otherwise denies them. Most people who acquired their deafness in the first 15 or 16 years of their life learn sign language. They use it to communicate with each other, just as hearing peo-ple use English.

Sign Language interpreters, plus assistive devices such as vibrating alarm clocks, hearing aids, special telephones, video phones, flashing alarm devices, etc. can give deaf people basically the same access to information, basic human rights, educational services, mental health counseling, hospital care, drug therapy, prison rules and regulations, religious services, etc. that hearing prisoners have. It is this access that is promised disabled prisoners in the Bill of Rights, ADA, IDEA, and other civil rights legislation that is being so blatantly denied them in state, federal and local prisons and jails. By bringing to the attention of the court this failure to implement these laws in the case of deaf prisoners, damages can be obtained for deaf prisoners and fees will be awarded to their attorneys. Of equal importance, these cases can be costly to the prison and will result in their correcting the injustices, which is far less damaging than ignoring them as is now the case.

References

Geer, SS. (2003) When “equal” means “unequal”—and other legal conundrums for the deaf community. In C. Lucas (Ed.) Lan-guage and the Law in Deaf Communities (pp. 82-167) Washington, DC : Gallaudet University Press

Human Rights Watch (2003) Ill Equipped: U.S. Prisons and Offenders with Mental Illness. New York: Human Rights Watch

Human Rights Watch (2001) No Escape: Male Rape in U.S. Prisons. New York: Human Rights Watch

King, N. & Vernon, M. (1999) Unique legal issues facing deaf defendants. The Florida Defender, VII, #1, pp. 11-15

Miller, K.R. (2001) Forensic issues of deaf offenders. Unpublished doctoral dissertation. Lamar University, Beaumont, TX

Miller, K.R. & Vernon, M. (2001) Linguistic diversity in deaf defendants and due process. Journal of Deaf Studies and Deaf Educa-tion, 6, #3, pp. 226-234

Musumerci, M.B. (2006) Confronting sentences that silence: The Americans with Disabilities Act”s effective communications man-date for prisoners and probationers who are deaf. Journal of Poverty Law and Policy, 39, #11, pp. 627-638

Ross, J.I. & Richards, S.C. (2002) Behind Bars. Indianapolis Indiana: Alpha Books
Tucker, B.P. (1988) Deaf prison prisoners: A time to be heard. Loyola of Los Angeles Law Review. Pp. 1-71

Vernon, M. (2008) Fifty years of research on the intelligence of deaf and hard-of-hearing children. A review of he literature and dis-cussion of implications. Journal of Deaf Studies and Deaf Education, 10 #3.

Vernon, M. & Andrews, J.E. (1990 Psychology of Deafness: Understanding Deaf and Hard-of-hearing People. New York: Longman Press

Vernon, M. & Leigh, I.W. (2007) Mental health services for people who are deaf. American Annals of the Deaf, 152, #4, pp. 374-381

Vernon, M. & Miller, K. (2005) Obstacles faced by deaf people in the criminal justice system. American Annals of the Deaf, 150, #3, pp. 283-291

Vernon, M.; Raifman, L.J.; Greenberg. S.F.; Montiero, B. (2001) Forensic pretrial police interviews of deaf suspects: Avoiding legal pitfalls. Journal of Law and Psychiatry, 24, pp. 43-59

The Illusion of Immigrant Criminality: Getting the Numbers Wrong

Immigrants aren’t a crime problem. “The foreign-born commit considerably fewer crimes than the native-born,” as President Herbert Hoover’s National Commission on Law Observance and Enforcement concluded in 1931 (National Lawyers Guild Quarterly, 10/39; Immigration Policy Center, Spring/07). While noncitizens now make

up more than 8 percent of the U.S. population, the available evidence indicates that they account for no more than 6 or 7 percent of the people incarcerated for crimes in the United States, less than 170,000 of the 2.3 million prisoners currently in our federal, state and local penal systems—not including some 30,000 immigrants in administrative detention on any given day awaiting deportation. (Politics of Immigration, 4/2/08, 5/7/08).

Why, then, do so many people believe in the myth of immigrant criminality?

One reason is the mainstream media’s habit of giving inflated estimates for the number of immigrants in prison. Ten percent of U.S. prisoners are “immigrant criminals eligible for deportation,” the New York Times told us (3/28/08), citing a “top federal immigration official.” An Indiana University economist has calculated that undocumented immigrants “commit 21 percent of all crime in the United ...

Florida Guard Convicted of Assaulting Prisoner

On January 16, 2009, a federal jury in Jacksonville, Florida found a former state prison guard guilty of a federal felony civil rights violation for assaulting a prisoner in August 2005.

The prisoner, who was not named, allegedly feigned illness by lying on the floor of his cell at Florida State Prison in Raiford. Guard Paul G. Tillis responded by filling a bottle with near-boiling water and pouring it on the prisoner’s chest. Tillis then denied medical treatment to the prisoner, who suffered second-degree burns as a result of the assault.

“It is important that corrections officers realize they may not use their positions of authority to inflict physical harm on inmates as punishment,” said Acting Assistant Attorney General Loretta King. “While the vast majority of law enforcement officers carry out their difficult duties in a lawful and professional manner, the Department of Justice will continue to vigor-ously prosecute those who cross the line and commit this type of unlawful act.”

In fiscal year 2008, the Criminal Section of the Department of Justice’s Civil Rights Division filed the largest-ever number of federal criminal civil rights cases in a single year, and had the second-highest number of official misconduct ...

Supreme Court Holds Supervisory Officials Not Liable for Abuse of 9-11 Detainees

by Matt Clarke

On June 14, 2007, the Second Circuit Court of Appeals affirmed in part and reversed in part a district court’s denial of the government’s motion to dismiss a lawsuit alleging abuse of pre-trial detainees at the Brooklyn Metropolitan Detention Center (MDC) following the September 11, 2001 attacks. However, the Supreme Court reversed that ruling on May 18, 2009, and remanded the case for further proceedings.

Javaid Iqbal, a Pakistani national, was detained in a roundup of foreign Muslim males in the New York area shortly af-ter 9/11. He had false identity papers and was arrested and placed in MDC. There, he alleged, solely due to his religion and national origin, he was held in a newly-created Administrative Segregation Maximum Security Special Housing Unit (ADMAX SHU), which was created for prisoners “of high interest.”

According to Iqbal, to be designated “high interest” a detainee merely had to be a Muslim male of Arab, North African or West Asian origin. Conditions in ADMAX SHU were much harsher than those in the MDC’s general population, or in the “normal” SHU. Prisoners were only released from ADMAX SHU after the FBI cleared them of any ties to ...

$30,000 Settlement in Milwaukee Jail Death

The City of Milwaukee and other city officials settled a case involving a man who died in jail for $30,000. The case was published in April 2008. Felix Hopgood, 38, was arrested for shoplifting in July 2003. About 2½ hours after his arrest, while awaiting processing in the “bullpen ...

Former Oregon DOC Food Manager Abandons Wife to Federal Prosecution; Herding Sheep in Iran While on the Lam

Oregon Department of Corrections (ODOC) Food Services Administrator Farhad “Fred” Monem and his wife, Karen, accepted over $1.3 million in bribes and kickbacks in the worst public corruption scandal in Oregon’s history. [See: PLN, Aug. 2008, p.1].

While contemplating a plea bargain that required significant prison time, Fred fled on July 1, 2007, abandoning his teenage son and wife of 25 years – a wife who would then be forced to suffer the consequences of their crimes alone.

On November 19, 2008, Karen Monem pleaded guilty to one count of money laundering for setting up three bank ac-counts in her mother’s name to launder the bribery payments. She hid $163,000 in the accounts, making deposits under $10,000 to avoid triggering bank reporting requirements.

As part of her plea, Karen agreed to cooperate with prosecutors in their continuing investigation. She also agreed to forfeit $700,000 to the federal government that was seized from the Monems’ home and bank accounts, plus three vehi-cles. Oregon received half of that amount, another $163,000 from the sale of two vacation homes, and half of Fred’s ODOC retirement account.

Additionally, a Los Angeles food broker and three of ...

UNICOR Robs Jobs from Private Sector; Prisoners Sue Over Working Conditions

It is already hard enough for free world workers to hold down a job without having to compete with UNICOR, the prison labor arm of the federal Bureau of Prisons. But that is exactly what a group of more than 300 Pennsylvania employees are going through. The workers, employed by private defense contractors, face layoffs as UNICOR expands its market share of helmet production for the Department of Defense (DOD).

Created in 1934 with the aim of rehabilitating federal prisoners through work opportunities, UNICOR uses cut-rate prison slave labor to provide services and manufacture furniture, clothing and other assorted goods for the federal gov-ernment. Prisoners are paid as little as $.23 an hour and sometimes work twelve- to fourteen-hour shifts.

In late 2007, UNICOR upped its market share of producing military helmets to 50 percent by invoking the mandatory source rule, which requires federal agencies to first turn to UNICOR when making contracting decisions. As a result, more than 300 workers who make helmets for private defense contractors like BAE Systems in Pennsylvania may lose their jobs.

“I’m outraged,” said U.S. Rep. Paul Kanjorski, who represents the 11th District of Pennsylvania. “BAE Systems is be-ing forced to cut ...

Prisoner’s Right to Mail Announcement of Peaceful Demon-stration Trumps Purported Prison Security Claims

On October 21, 2008, the U.S. District Court for the Eastern District of California upheld a state prisoner’s First Amendment right to send mail after his letters to several media agencies were blocked by prison authorities. The letters asked the media to announce a peaceful demonstration by prisoners against California’s Three Strikes law and double-celling at Corcoran State Prison.

The then-California Dept. of Corrections (CDC) argued that such an announcement would encourage unrest at Cor-coran and other facilities, and that CDC staff had a legitimate security interest in censoring the letters. Prison officials ar-gued the letters promoted an unlawful association, which trumped any right to send mail. The district court disagreed, find-ing the unlawful association claim was speculative since the demonstration was to be peaceful, and holding the emphasis on the association issue was misplaced. Thus, censoring the prisoner’s mail violated his First Amendment rights.

In 2003, Corcoran prisoner Bryan E. Ransom, representing a grassroots organization called the Black Nationalist Prison/Community, sent a press-release letter to KMPH-TV in Fresno (near Corcoran) and to Berkeley radio station KPFA, announcing his position as the Founding President/Minister of the “National Plantation Psychosis Awareness Committee” (NPPAC). He also ...

University of Arizona Releases Report on Women Immigration Prisoners

by Matt Clarke

In January 2009, the Southwest Institute for Research on Women (SWIRW) and the Bacon Immigration Law and Policy Program of the University of Arizona published a report on women held in Arizona immigration prisons. It dealt with three locations: Central Arizona Detention Center (CADC) and Pinal County Jail (PCJ), both of which are in Florence, and Eloy Detention Center (EDC) in Eloy. CADC and EDC are privately operated by Corrections Corporation of America under contract to Immigration and Customs Enforcement (ICE). All three are in small, remote desert towns far from the cities of Phoenix or Tucson.

The research was conducted by SWIRW researchers and trained law students who interviewed current and former prison-ers and attorneys, paralegals and social workers who work with the immigration prisoners. ICE, PCJ and CCA refused to allow their personnel to be interviewed.
Immigration prisoners are awaiting completion of an administrative process, not awaiting trial on criminal charges. Nonetheless, they are often treated worse than prisoners being held for felonies in the same prison.

“Few people realize that we are locking up huge numbers of immigrants every day and holding them for months and, in some cases, years at a time. They ...

$500,000 Awarded to New York Prisoner Raped by Jail Guard; Vacated on Post-Trial Motion

A New York federal jury awarded a woman $500,000 in a lawsuit claiming that her constitutional rights were violated when a guard forcibly raped her. The verdict, however, found the sheriff was not guilty of negligence, and the award was later vacated by the district court.

On December 17 ...

Habeas Hints: Traverse Motion Responses

This column is intended to provide “Habeas Hints” to prisoners who are considering or handling habeas corpus peti-tions as their own attorneys (“in pro per”). The focus of the column is on habeas corpus practice under AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.

POINTS AND AUTHORITIES IN SUPPORT OF THE TRAVERSE

Short of an Evidentiary Hearing, which is granted in very, very few habeas corpus cases, by far the most critical stage for the Petitioner on federal habeas corpus case is the filing of the Traverse and supporting documents, the most impor-tant of which is the “Points and Authorities (hereafter “Ps&As”) in Support of the Traverse”.

Ironically, the Habeas Corpus Rules do not even mention the word “Traverse”, referring to it instead as the “Reply”, and suggesting that it is optional rather than required. (See Habeas Rule 5(e) [“The petitioner may submit a reply to the respondent’s answer or other pleading within a time fixed by the judge.”].) Nevertheless, the local rules of almost every District Court use the phrase “Traverse”, and in the vast majority of cases, the Petition does make it to the Traverse stage, but no further, before it is dismissed. Therefore, the Traverse is absolutely essential to staying alive on habeas corpus, because it is only through the Traverse and supporting documents that the Petitioner can persuade the judge that his or her case is one of those few that should be granted an Evidentiary Hearing instead of being dismissed outright.

Procedurally speaking, the Traverse responds to the Attorney General’s Answer, and comes into play when: (1) The court determines that the Petition is in the proper format, does not contain any obviously unexhausted claims, and orders the Attorney General to file a response to the Petition; and (2) The Attorney General (“AG”) concludes that the Petition is not subject to a Motion to Dismiss based on some potentially fatal procedural defect (the most common being a statute of limitations violation or failure to exhaust all federal habeas corpus claims in the state’s highest court). Where both of these criteria have been met, the AG will file an Answer and supporting Ps&As, and will use the latter to try and convince the District Court to dismiss the case on the basis that the petitioner has failed to comply with AEDPA, which requires a showing that the state court’s previous rejection of the petitioner’s habeas corpus claim(s) was either contrary to, or re-sulted from an unreasonable application of, U.S. Supreme Court law.

Simply stated, is the Petitioner’s job at the Traverse stage to rebut the showing made by the AG in the Answer, and to persuade the federal judge that the petitioner’s habeas case has enough merit that it is one of those few (less than 1%, statistically) that merits an Evidentiary Hearing rather than an outright dismissal. If the petitioner succeeds in doing so, counsel will be appointed, and the petitioner will get a chance at the hearing to prove, by a preponderance of the evidence (51% or more), that a violation of the Constitution occurred, and that this fundamental rights violation, more likely than not, affected the jury’s verdict. On the other hand, if the Traverse is unsuccessful, the Petition will be “dis-missed with prejudice”, which means – barring the very unlikely prospect of a successful appeal – the end of the road on habeas corpus.

The actual “Answer” and “Traverse” themselves are nothing more than pleadings of a couple of pages in length, which use legal jargon to set forth the general contentions of the parties.
Although it’s necessary to file the “Traverse” to respond to the contentions in the Answer, this is relatively easy to do (see, e.g., the sample form in my California Habeas Handbook), and there’s not much strategy involved in doing it. Here, instead, the focus is on the supporting Ps&As, which is where the parties lay out the legal and factual arguments that are either going to persuade the judge to order an Evi-dentiary Hearing or to permanently dismiss the case without any hearing.

Typically, the Ps&As which the AG files in support of the Answer will run around 20-25 pages in length, and will con-tain the following sections: (a) a Procedural History of the case (aka “Statement of the Case”, which summarizes the de-cisions made in all previous courts, starting with the trial court), (b) a Statement of Facts (summarizing the facts which led to the conviction and sentence in the state court), (c) a Legal Argument section, and (d) a “Conclusion”. The Legal Argument section is the guts of the Ps&As, and it will usually start with a “Standard of Review” sub-section summarizing the general legal standards which guide the court in ruling on the Petition. This section will then go on to attack each of the petitioner’s habeas corpus claims on the merits, usually in separate sections bearing roman numerals, one for each claim. The Conclusion will wind up with a very brief statement of the relief that the AG is seeking, which in almost all cases is that the Petition be dismissed with prejudice because of the failure to state a claim that complies with AEDPA’s requirements.

In responding to the AG’s Ps&As with a Ps&As in support of the Traverse, I draw on briefing skills that I have honed over 35+ years of habeas and appellate practice in hundreds of cases. There are, however, some basic strategies which I use, and for you pro-pers who have already taken on the challenge of representing yourselves on habeas corpus, con-sider the following “Habeas Hints” as you draft your own documents.

Habeas Hints:

Remember, and keep reminding the court, that the purpose of the Traverse is merely to obtain an Evidentiary Hear-ing, not to win the case outright.

In modern times, virtually no habeas corpus Petition is ever successful unless the court first grants an Evidentiary Hearing. Under AEDPA, a hearing is required if: (1) the petitioner alleges facts which, if true, would entitle him to relief on habeas corpus; (2) the state court has not, after a full and fair hearing, reliably found the facts, and (3) the Petition does not consist solely ...

Sentencing Project Releases Report on Sentencing Policy and Practice

by Matt Clarke

In February 2009, The Sentencing Project released a report on developments in sentencing policies and practices in 2008. The report notes that, with 2.3 million prisoners, 5 million citizens on parole or probation and a worldwide economic crisis, sentencing reforms to reduce the prison population have gained in importance. This is easily understood: “since 1990, state corrections expenditures have grown by an average of 7.5% per year” making it “a substantial contributor to the budget problems faced in many states.”

Arizona enacted SB 1476, allowing the Adult Probation Services of a county to retain up to 40% of the savings asso-ciated with a reduction in probation revocations. Kentucky, with HB 406, permitted certain prisoners within 180 days of release to be incarcerated at home, allowed persons incarcerated due to technical parole violations to receive credit for time spent on parole and made prisoners completing drug or education programs eligible for a 90-day earned discharge credit. With SB 2136, Mississippi reduced the percentage of a sentence a prisoner convicted of certain nonviolent crimes had to serve and, with HB 494, allowed compassionate parole for terminally-ill prisoners convicted of nonviolent crimes regardless of amount of time served ...

Oregon Jail Guards Lose Access to Porn Sites

Guards at the Multnomah County Detention Center (MCDC) couldn’t be trusted to stay off Internet porn sites during work hours, so Sheriff Bob Skipper pulled the plug effective December 1, 2008.

Rampant, improper use of the Internet at the jail came to light in 2007 when a guard boasted on an online gaming site that he beat a prisoner without provocation, breaking his eye socket. An investigation revealed that the guard, David B. Thompson, had accessed the gaming website from his work computer more than 1,700 times during the previous eight months. [See: PLN, March 2009, p.25].

While examining a computer hard drive during an unrelated investigation, MCDC officials discovered that three guards had separately used the computer more than a year earlier to look at pornographic images, said Chief Deputy Ron Bishop, who manages the jail. An investigation is pending.

MCDC administrators recently began using new software to track Internet use by sheriff’s department employees. Ac-cording to Bishop, the software showed some people were spending far more time surfing the Internet for personal rea-sons than previously suspected. “Is it potentially impacting productivity? The answer is yes,” he admitted.

Under a new policy that took effect ...

New Mexico Abolishes Death Penalty; Similar Efforts Fail in Other States

by David M. Reutter

“Regardless of my personal opinion about the death penalty, I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime,” said New Mexico Gov. Bill Richardson, upon signing a bill to repeal the state’s death penalty.

The repeal becomes effective July 1, 2009, but will not affect the two prisoners currently sitting on New Mexico’s death row. For crimes committed after July 1, the maximum sentence will be life without the possibility of parole.

Gov. Richardson, who formerly supported capital punishment, said that signing the bill was the “most difficult deci-sion” of his political life, but that “the potential for ... execution of an innocent person stands as anathema to our very sen-sibilities as human beings.”

After visiting the state prison that houses the death chamber and touring the maximum security unit where life-sentenced prisoners will be housed under the new law, Richardson said, “My conclusion was those cells are something that may be worse than death. I believe this is a just punishment.”

As of the day he signed the bill, Richardson’s office ...

Arkansas Sends Toxic Tech Trash to UNICOR Recycling Program

by Matt Clarke

A number of counties in Arkansas have been sending their toxic electronics waste, including broken computers and televisions, to Federal Prison Industries, Inc. (UNICOR), the industry program for the U.S. Bureau of Prisons (BOP).

UNICOR uses prisoners at a federal facility in Texarkana, Texas to process the electronics trash, which contains toxic materials such as mercury, cadmium and lead. The Pulaski County Solid Waste Management District (PCSWMD), which also collects electronics waste from Jefferson, Perry, Prairie, Saline and Wodruff counties, sent 217 tons to the UNICOR program last year. The nine-county Upper Southwest Solid Waste Management District sends 15 tons a year. Fayetteville sent its 17 tons of electronics waste to Washington County, which in turn shipped it to Texarkana.

Questions arose after a November 9, 2008 60 Minutes report revealed that some American companies had illegally exported electronics trash overseas, which was linked to soil pollution in Guiyu, China. Terry Whiteside, a UNICOR fac-tory manager in Texarkana, refused to answer questions about whether UNICOR exported electronics waste, referring all inquiries to the BOP.

However, BOP spokesperson Felicia Ponce declined to answer questions on the subject. PCSWMD deputy director Carol Bevis said Whiteside had told her ...

FBI Arrests Former Prisoner Indicted for Hacking Massachusetts Jail Computer

On November 5, 2008, the FBI arrested Francis G. Janosko, 42, for hacking into a computer at the Plymouth County Correctional Facility (PCCF) while he was incarcerated at the Massachusetts jail.

A previously-sealed indictment was handed down a week before the arrest; however, the FBI was unable to apprehend Janosko because he had been on the run since his release on bond in May 2008. He was caught after the FBI traced an e-mail Janosko sent to a jail employee, which led to his capture in North Carolina.

The federal indictment charged Janosko with one count of aggravated identity theft and one count of intentional damage to a protected computer. He was accused of exploiting “a previously unknown idiosyncrasy” in legal research software that jail prisoners were allowed to use.

The software was supposed to limit prisoners’ computer access to legal research only, but Janosko was able to ac-cess the Internet and other programs on the jail’s network from October 1, 2006 through February 7, 2007. He was caught when he attempted to access “an important jail management program” using a bogus username and password.

Janosko allegedly downloaded two short video clips, digital photographs of two jail employees and ...

$4.6 Million Settlements in Death of Quadriplegic D.C. Prisoner

by David M. Reutter

When 27-year-old Jonathan Magbie entered the District of Columbia Jail to serve a 10-day sentence, he was a quadriplegic confined to a mouth-operated wheelchair. Four days later he was dead.

D.C. Superior Court Judge Judith E. Retchin sentenced Magbie to jail after he pleaded guilty ...

Strip-Searched Iowa Bush Protesters Awarded Damages at Trial, Re-Trial

by Matt Clarke

On June 4, 2008, a federal jury in Iowa awarded $750,000 to two political protesters who were arrested at the direction of the Secret Service, taken to jail and unlawfully strip-searched. After the court ordered another trial, a second jury awarded damages in the reduced amount ...

Positive Correlation between Mental Illness and Prison Victimization

In September 2008, the Center for Behavioral Health Services & Criminal Justice Research (the Center) published its Policy Brief regarding a recent survey conducted to determine the quality of life for prisoners in New Jersey’s Department of Corrections (DOC). The survey was funded by the Prison Rape Elimination Act of 2003 and authored by Rutgers University Professors Nancy Wolf, Ph.D., and Jane Seigal, Ph.D., along with Center statistician, Jing Shi, M.S. A random sample of approximately 7,500 male and female adult prisoners was selected from 13 male institutions and one female institution. The purpose of the survey was to determine the prevalence of physical and sexual victimization in New Jersey prisons and their correlation with mental illness. Although there is an across-the-board correlation between mental illness and abuse, the survey concluded “physical victimization was more common than sexual victimization among both male and female inmates.”

One disturbing trend uncovered in this study was the increased prevalence of victimization among prisoner who re-ported a history of sexual or physical abuse prior to age 18. In point of fact, both male and female prisoners who reported a pre-adult history of sexual victimization were shown to have a two ...

Santa Cruz County, Arizona Pays $3 Million in Strip Search Suit

On November 25, 2008, following two days of negotiation mediated by retired Pima County, Arizona Superior Court Judge, Honorable Lawrence Fleishman, the parties involved in a Class Action complaint regarding unconstitutional strip searches reached a satisfactory settlement, which now is subject to approval by an Arizona district court.

The complaint ...

$10,000 Verdict in Sexual Assault by Virginia Guard

On October 20, 2008, a Virginia federal jury awarded a former Pittsylvania County Jail prisoner $10,000 in a lawsuit that claimed a guard had “sexually molested, harassed, and assaulted” her. The suit alleged that jail guard Hank Hazelwood violated Sheril Ann Carr’s Eighth and Fourteenth Amendment rights while ...

Report Says Unfinished Prison Project Is Single Greatest Iraq Reconstruction Failure

by Matt Clarke

On February 2, 2009, Stuart W. Bowen, Special Inspector General for Iraq Reconstruction, released a report on the United States’ appropriation of $50 billion for rebuilding efforts in Iraq.
The report, titled Hard Lessons: The Iraq Reconstruction Experience, blamed many of the problems encountered in reconstruction projects on pre-war planning that was “blinkered and disjointed,” and on poor security in the post-war phase.

“Why was an extensive rebuilding plan carried out in a gravely unstable security environment?” asked Bowen, who served under former President George W. Bush in various capacities. “This question underscores an overarching hard lesson from Iraq: Beware of pursuing large-scale reconstruction programs while significant conflict continues.”

Although there was a fragile improvement in the security environment in Iraq, the report criticized the U.S. occupation forces for having “neither the established structure nor the necessary resources to carry out the reconstruction mission it took on in mid-2003.” The report also noted that “U.S. reconstruction managers were overwhelmed by the challenges of building in a war zone” and hampered by “weak unity of command and inconsistent unity of effort,” which resulted in a high rate of personnel turnover and lack of cooperation among government ...

Bureau of Justice Publishes Report on Sexual Misconduct at Juvenile Facilities

The Bureau of Justice Statistics (BJS) released a report on the prevalence of sexual misconduct and violence at juvenile residential facilities. The report, entitled Sexual Violence Reported by Juvenile Correctional Authorities 2005-06, is in accordance with the Prison Rape Elimination Act of 2003 (PREA). The PREA requires the BJS to collect data on the incidence and prevalence of sexual violence and misconduct in adult and juvenile correctional facilities nationwide.

The BJS conducted the 2005 Survey of Sexual Violence (SSV) between January 1 and June 15, 2006 and the 2006 SSV between January 1 and June 31, 2007. The surveys included state juvenile correctional systems and local or private juvenile facilities and were designed to measure the number of youth-on-youth (YOY) sexual violence as well as staff-on-youth (SOY) sexual misconduct and harassment. All fifty states plus the District of Columbia reported for state facilities and a representative sample was drawn from the local and privately operated facilities.
Only three states – Montana, New Hampshire and Wyoming – reported no allegations at all.
Each year, more than 2,000 allegations are recorded at juvenile facilities. About 57% of reported allegations were YOY and the remaining 43% were SOY. For both 2005 and 2006 there ...

Ohio Limits Electronic Monitoring to Only Those Who Can Pay

If you’re convicted in Ohio and can afford to pay, you may be able to obtain release on electronic monitoring. If not, you can serve your time in the Corrections Center of Northwest Ohio (CCNO). That is the new policy adopted by CCNO to deal with a projected $200,000 budget shortfall.

“We formalized that we need only paying customers to get through this financial crisis,” said Jim Dennis, CCNO’s ex-ecutive director. “The judges cooperated with us and started giving us people that could pay, which severely limited the debt we were going to have.”

The electronic monitoring program allows people convicted of misdemeanors and minor felonies to work while they serve their sentences. The program had 1,203 participants enrolled in 2008. The problem cited by CCNO is that about one-quarter of those persons were unable to pay the $10 per day cost for electronic monitoring or the $15.50 per day cost for GPS monitoring.

The program has a 2009 budget of $460,000, of which $228,000 is from state grants and $232,000 is pro-jected to be paid by the participants. That budget is predicated on a monthly average of 100 to 120 people ...

Miami’s Sex Offender Bridge Encampment Continues to Grow

by David M. Reutter

Population: 52. That’s how many sex offenders have been forced to live under the Julia Tuttle Causeway in Miami, Florida as of March 2009. In late 2007, the population was only 19. [See: PLN, June 2008, p.1].

With city and county laws creating restricted residency zones, the number of sex offenders who reside under the causeway bridge is bound to continue growing. The strict laws forbid sex offenders from living within 2,000 or 2,500 feet of schools, day cares, parks, playgrounds and school bus stops. The bridge is the only place available for many released sex offenders in Dade county.

“We have talked to them, they demonstrate that they’re looking, but they just haven’t been able to find anything. There’s so many restrictions in that area of Florida,” remarked Jo Ellyn Rackleff, a Florida Dept. of Corrections spokes-woman. “It’s just a situation that’s unsolvable at this point.”

Officially, the state of Florida does not require sex offenders who have completed their sentences to live in such squalid conditions, but parole officers tell them they can either stay under the bridge or return to prison. “They check us ...

BOP Failed to Protect Female Prisoner Informant from Rape, Sexual Abuse by Guards

The federal Bureau of Prisons (BOP) was “woefully deficient” in failing to protect a female prisoner from sexual abuse by BOP guards, U.S. District Court Judge Cecilia M. Altonaga concluded in November 2008, following a bench trial in a suit filed under the Federal Tort Claims Act (FTCA). Ultimately, though, the BOP escaped liability as the prisoner’s claims were barred by the statute of limitations.

A 34-year-old lesbian prisoner informant, identified in court documents as “S.R.,” made multiple trips from the Federal Correctional Institution in Danbury, Connecticut to the Federal Detention Center (FDC) in Miami, Florida between 2002 and 2005 to testify on behalf of the government at drug-trafficking trials. Her stays at FDC-Miami were less than pleasant: S.R. claimed she was sexually assaulted and raped by four BOP guards – Damioun Cole, Charles Jenkins, Antonio Echeverria and Isiah Pollock III.

Jenkins, Echeverria and Pollock, for example, would not let S.R. use the telephone, obtain clean clothes or read the newspaper until she masturbated for them, placed objects inside her vagina and allowed them to digitally penetrate her. Cole, on the other hand, reportedly raped and sodomized S.R. over a dozen times.

In December 2003 ...

$3,200 Awarded to Indiana Jail Prisoner for Negligent Medical Care

On December 2, 2008, a federal jury awarded Richard Petrig, a former prisoner, $3,200 for negligent medical care.

Petrig was attacked by his cellmate while incarcerated at the Posey County Jail in Indiana. After the attack, Petrig told jail officials that he needed help. He was seen by a ...

New York Prisoner Awarded $5,000 for Assault by Cellmate

A New York Claims Court awarded a prisoner $5,000 for being assaulted by his cellmate. The Court found that prison officials knew or should have known that a threat existed and they failed to act to prevent it.

While incarcerated at the Upstate Correctional Facility, prisoner Michael Gonzalez was ...

Postal Service Panics Over Sex Offender Participant in Christmas Program

by Matt Clarke

On December 18, 2008, just a week before Christmas, the U.S. Postal Service abruptly suspended its decades-old Operation Santa Claus, a holiday program in which volunteers sift through children’s letters addressed to Santa, “adopt” one or more letters, and then provide gifts to needy children.

The reason for the suspension? A Maryland postal worker recognized a registered sex offender who was participating in the program. Postal Service employees confronted Carl Elmer Ranger, 68, who said he was genuinely trying to do a good deed. Ranger had pleaded guilty to a charge of sexual abuse of a minor in 2000.

Postal authorities confiscated the letter, which contained the child’s name and address, and informed the child’s fam-ily of the incident. They then canceled Operation Santa Claus nationwide, including the New York program which receives 500,000 letters a year.

The Postal Service acknowledged that there had never been a problem with the program before. Nonetheless, in 2006, it began requiring participants to fill out a form and provide identification.

Initially no explanation was given to people who appeared at post offices wanting to take part in the program. A sign merely stated that, for ...

PLN Files Suit Against Los Angeles County for Failure to Comply with Public Records Act

As part of ongoing research, PLN submitted a public records request to the Los Angeles County Sheriff’s Department on January 29, 2008, seeking records related to settlements and verdicts resulting from tort, overdetention and civil rights claims involving both jail prisoners and employees.

Until 2007 the county posted such settlement and verdict information on its website, but it now does so only sporadically. The decision to shroud the outcome of these cases in secrecy by not making them publicly available online was decried at the time by the media and government watchdog groups.

The Office of County Counsel, which represents the Sheriff’s Department, initially argued that some of the documents requested by PLN may be exempt from disclosure, and that it was not “reasonably possible” to conduct a search for the records. Despite a November 2008 follow-up letter from PLN expressing a willingness to work with the county, none of the requested records were produced.

PLN filed suit on March 3, 2009 against Los Angeles County, the Office of County Counsel and the Sheriff’s Depart-ment, to ensure that county officials comply with California’s public records act. The lawsuit notes that pursuant to state law, “public records ...

Survivor Manual, compiled and edited by Bonnie Kerness, illustrated by Todd Tarselli and other talented artists, 90 pgs.

Book review by Sundiata Acoli

This is a Survivor Manual by survivors—so it can’t get much more real than that. Most of its contributors have spent many years in Control Units, some are still there while others have been back and forth multiple times.

A Control Unit, Control Prison, Supermax or SHU is by whatever name a Long-term Lock-down Unit designed to isolate, punish and preferably to break prisoners, sometimes maiming or killing them in the process. Control Units are serious business and are not to be taken lightly so that any valid information on how to survive them is valuable indeed. This small booklet provides that.

Each contributing man, woman or child tell in their own words how they survived or how to survive Control Units: the domestic Abu Ghraibs and Guantanomos that dot American. soil. Their stories tell not so much of the day to day atrocities of the Control Unit, though enough of its horrors are adequately described and artistically illustrated therein, but mainly they tell how to survive, how to come out perhaps bruised and definitely changed but with one’s core intact, oftentimes stronger than when one first entered or maybe even weaker ...

Causal Link Established by Prison Officials’ Failure to Protect Prisoner from Specific Threats

The Eleventh Circuit Court of Appeals held that two Florida prison officials could be held liable under 42 U.S.C. § 1983 for failure to act upon a prisoner’s request for protection when he specified the nature of the threat.

Before the Court was the appeal of Everglades Correctional Institution (ECI) prisoner Miguel V. Rodriguez, who was stabbed in the back and chest by Latin Kings “enforcer” Arnold Cleveland. Rodriguez’s Eighth Amendment claim hinged upon the failure of Assistant Warden Raymond Kugler and Colonel Charles Johnson to act on his request to protect him from gang members.

While on Close Management (CM) at ECI in early 2001, Rodriguez learned that gang members at ECI wanted to kill him for renouncing his gang membership. Kugler and Johnson were already aware Rodriguez was on CM for assaulting another prisoner and for gang activity. Rodriguez was stabbed within hours of being released into general population on April 10, 2002.

The district court granted summary judgment to Kugler, holding that Rodriguez’s complaints did not contain “specific facts” to show Kugler had subjective knowledge of the risk of harm. The claim against Johnson proceeded to trial. After Rodriguez presented his case, the ...

$3.3 Million Settlement Fund Established in New Mexico Jail Strip Search Settlement

A $3.3 million settlement fund has been established in a class action lawsuit alleging an unconstitutional blanket strip search at the Valencia County Detention Center (VCDC) in New Mexico violated the rights of the class. VCDC was operated under contract by private prison vendor Cornell Companies, Inc.

The lead ...

California Jury Awards Deaf Prisoner $5,000 for Failure to Provide Interpreter; $193,582 in Fees Awarded by Court

A state court jury has awarded $5,000 to a deaf prisoner against the County of Los Angeles for failing to provide him with a sign language interpreter while he was in jail. The jury, however, found no liability for the same claim brought against the City of Torrance.

When ...

Former California DOC Worker Kept Confidential Prison Gang Files at Home

A former typist for the California Dept. of Corrections and Rehabilitation (CDCR) was convicted of having confidential prison gang files in her Sacramento home. The files also included the names and social security numbers of 5,500 state employees.

Convicted of theft in November 2008, Rachel Rivas Dumbrique (Rivas) was sentenced to one year in county jail plus five years probation. She was also ordered to pay $122,000 in restitution to cover the Department of Consumer Affairs’ costs in taking steps to protect state employees against any resultant identity theft.

Rivas was married to CDCR prisoner Edward Dumbrique. She met Edward, a Mexican Mafia gang member doing life for murder, when she served as an alternate juror in a 2005 trial where he was acquitted of assaulting a prison guard. She was hired by the CDCR in March 2006, and worked there for six months before transferring to another state job position.

While she was at the CDCR, Rivas downloaded a personnel roster and e-mailed it to a private account, “dumbri-que.luv.” When suspicious Consumer Affairs investigators raided her house looking for the roster, they also found four other documents stamped “confidential” in her bedroom closet. Those highly sensitive ...

Louisiana Private Prison Warden Arrested for Malfeasance

Leroy Holiday, Sr., 55, a regional warden for LaSalle Management Company, LLC (LMC), a private prison firm, was released on $5,000 bond after being arrested and booked into the LaSalle Parrish Jail in November 2008.

According to LaSalle Parish Sheriff Scott Franklin, Holiday was charged with improperly using prisoners and employees at a minimum-security prison for personal purposes. Franklin said Holiday had been charged with only one count of malfeasance, but his office had enough evidence to charge him with 40 additional counts and the investigation was ongoing.

Holiday was the warden of the LaSalle Correctional Center (LCC) in Urania, Louisiana, where the malfeasance is al-leged to have occurred. He also oversaw LMC-managed facilities in Catahoula, Concordia and Ouachita parishes.

LCC is run in cooperation with the sheriff’s office, which retains the ability to hire and fire employees and commission them for law enforcement. However, Franklin said Holiday was an employee of LMC, and referred questions about his employment status to company officials. Franklin also noted that Holiday’s law enforcement commission had been re-voked and he would not be allowed back on LCC grounds.

Source: www.thetowntalk.com

Massachusetts Prisoner Awarded $550,307 in Attorney Fees and Costs in Unsanitary Conditions Case

On December 30, 2008, a Massachusetts state court awarded a former prisoner $547,566 in attorney fees and $2,741 in costs and litigation expenses in a civil rights action in which the plaintiffs were awarded only nominal damages.

Stephen Doherty and ten other Massachusetts state prisoners filed a civil ...

California: Waiver of Private Psychotherapist-Patient Privilege an Unreasonable Condition of Parole

The California Court of Appeal (2nd District) agreed with a superior court that it was unreasonable for a parole officer to insist that a parolee must, as a condition of parole, waive his confidential privacy privilege with his private psychotherapist.

Reynaldo Corona was released on parole in May 2006 after serving 3 years for molesting his stepdaughters over a span of several years. He was given five special conditions of parole: (1) attend the parole outpatient clinic, (2) participate in programs specific to his offense history as directed by his parole officer, (3) participate in an approved psychiatric treatment program, (4) participate in the sexually violent predator program, and (5) submit to any psychological or physio-logical assessment to assist in treatment planning and parole supervision due to his prison psychological history.

Corona asserted he followed all of those conditions to minimize his chances of reoffending, and also retained a pri-vate psychotherapist specializing in sex offenders.

Six months later, Corona’s parole officer asked him to sign a privilege waiver permitting his private therapist to share information with parole officials. Corona was told he must sign the waiver if he wanted to continue seeing the private therapist. He declined and instead ...

Oregon Teenage Girls Stage Brazen Escape Attempt

A bold and bloody escape attempt from an Oregon lockup sent three guards to the hospital. In a stunning twist, the masterminds behind the well-planned, brazen attempt were not hardened criminals, but rather a group of eight teenage girls ranging from 13 to 17 years old.

Close to midnight on December 20, 2008, several girls staged a fight in a 19-bed dormitory at the Oak Creek Youth Correctional Facility in Albany, according to Oregon Youth Authority spokeswoman Perrin Damon.

When three male guards entered the dorm to break up the fight, they were ambushed. “The kids rushed them,” Damon said. “They had weapons and overpowered them. ... They had weapons fashioned from everyday things.” Damon refused to describe the weapons but said they were used as clubs.

The guards fled to another building as the girls entered the recreation yard, where they attempted to flee through a gate, according to Damon. “They never breached the perimeter,” she said, because a pair of high fences prevented their escape.

Albany police and Linn County sheriff’s deputies were called to help restore order. Officers maintained a presence outside the fences, while others took the girls back into custody. Meanwhile, the three guards were ...

$75,000 Settlement for Shutting Off Water in Seattle Jail Prisoner’s Cell

Washington State’s King County Jail has settled a pre-trial detainee’s claim that he was unconstitutionally punished. The Jail settled the matter for $75,000. The basis of the claim was a guard shutting off the water in the prisoner’s cell for 30 hours.

Sidney Charles Randall was ...

$445,000 Settlement in Ohio Jail Prisoner’s Medical Death

Ohio’s Hancock County Jail agreed to pay $445,000 in the death of a prisoner. The settlement provides no liability of wrongdoing in the April 26, 2006 death of prisoner Lisa Waddell.
The suit was brought by Waddell’s daughter. Waddell was found unresponsive in her cell on April ...

Pennsylvania County Sex Offender Residency Ordinance Voided

by David M. Reutter

On March 20, 2009, a Pennsylvania federal district court held that an Allegheny County ordinance which restricted where sex offenders could live was in conflict with state law, and thus was invalid.

The plaintiffs in this case were a group of sex offenders whose residency was affected by the county ordinance. Their complaint alleged the ordinance violated various constitutional guarantees, the Fair Housing Act and state law. Under the ordinance, sex offenders who are required to register under what is commonly known as Megan’s Law cannot live within 2,500 feet of any child care center, school, public park or public recreation facility.

The county published a map on its website indicating where sex offenders could and could not reside. The vast major-ity of the county, and virtually all of the City of Pittsburgh, fell within an area of restricted residency. Permissible areas were generally confined to outlying, suburban communities.

After each party in the lawsuit complied with the district court’s order to file summary judgment pleadings, the court rendered its decision. In Pennsylvania, under the Home Rule doctrine, municipalities can enact local governance ordi-nances without express authorization by state statute, so long as ...

State, Not County, Required to Pay Attorney Fees in Georgia Death Penalty Cases

On March 9, 2009, the Georgia Supreme Court affirmed a lower court’s order holding the Georgia Public Defender Standards Council (“Council”), in contempt for refusing to pay two defense lawyers in a death penalty case.

The Supreme Court’s unanimous decision involves the Council’s failure to pay $68,946.61 to attorneys Michael Garrett and J. Randolph Frails for defending Willie W. Palmer, who had been retried for capital murder. The Council, a state agency, contended that because Palmer had been indicted prior to enactment of the statute that created the Coun-cil, the cost of his representation should be borne by Burke County, where the trial was held.

In 1997, Palmer was sentenced to death for the murder of his estranged wife and her 15-year-old daughter. His con-viction was overturned in 2005 when it was discovered that prosecutors had failed to disclose a $500 payoff to the state’s key witness. A new trial was ordered. The trial court appointed Garrett, who employed Frails as co-counsel, after the Council’s director informed the court “that all attorney’s fees and expenses would be paid by the Council.”

Palmer was again convicted and sentenced to death. Following the retrial ...

$9,000 Award for Hawaiian Prisoners Bitten By Dogs at Oklahoma CCA Prison

On October 31, 2008, a Hawaiian state court awarded $3,000 each in damages to three Hawaiian prisoners who were bitten by dogs while incarcerated at a private prison in Oklahoma.
Jonathan K. Lum, John Daffron and Frank Frisbee are Hawaiian state prisoners who were incarcerated at the Diamond Back ...

Florida and Oregon Prison Employees Face Sex Charges

On November 7, 2008, prison guard Geno Lewis Hawkins was arrested by the Florida Department of Law Enforcement (FDLE) and the Inspector General’s Office of the Florida Department of Corrections (FDOC) on a charge of sexual battery.

In August 2008, FDLE and FDOC initiated a joint investigation of Hawkins, a 43-year-old Corrections Corporation of America (CCA) employee, for having a sexual relationship with a female prisoner at the Gadsden Correctional Facility.

Hawkins was charged with one count of sexual battery and booked into the Leon County Jail without bond. His prose-cution is still pending.

In an unrelated case, Oregon Department of Corrections groundskeeper Paul William Golden, 37, was arrested on January 16, 2009 for sexually abusing six female prisoners at the Coffee Creek Correctional Facility.

Golden worked as a landscaper at Coffee Creek from October 2004 until his April 2008 resignation, and supervised prisoner work crews. He was arraigned on 31 counts of custodial sexual misconduct, rape and supplying contraband, ac-cording to Lt. Gregg Hastings, a spokesman for the Oregon State Police. Golden has pleaded not guilty; his trial is set for June 23, 2009.

These are only two of numerous cases involving sexual abuse by prison staff nationwide ...

Fifth Circuit Rules Texas Parole Law Not Ex Post Facto

The U.S. Fifth Circuit Court of Appeals ruled that a Texas parole law created in 1993, but applied retroactively to capital offenders in 1995, was not ex post facto.

Billy Ray Wallace was sentenced in December 1981 for the crime of capital murder. At the time of his offense, Wallace was under a parole law that required him to obtain two votes from a three-member panel in order to make parole.

In 1993, as part of Texas’ get-tough-on-crime initiative, the legislature created an 18-member parole panel and re-quired newly-convicted capital offenders to obtain a minimum of two-thirds approval (12 votes) to make parole. In its origi-nal wording, Senate Bill 1067 of the 73rd Texas legislature was prospective. However, in 1994, on its own initiative, the parole board began to apply the law retroactively.

When Wallace came up for parole he received two favorable votes from board members in his region. However, as the voting continued he did not receive the twelve votes required under the 2/3 approval rule as it was being applied by the board.

Wallace filed a writ of habeas corpus in state court, which was denied without a written order. He then filed a habeas ...

No Qualified Immunity for Pepper Spraying Alabama Prisoner; Case Settles After Remand

by David M. Reutter

The Eleventh Circuit Court of Appeals held that pepper spraying a prisoner, keeping him in a small cell for longer than necessary to gain his compliance, and not allowing him to decontaminate properly or receive medical care after being sprayed can constitute excessive force and deliberate indifference to serious medical needs. The appellate court also held that jail supervisors could be liable for failing to prevent this practice where they had notice through reports and complaints concerning the guards involved in the abusive pepper spraying.

When Kevin B. Danley was arrested on July 11, 2004 for driving under the influence, he was taken to Alabama’s Lauderdale County Detention Center and placed in a communal cell that had no toilet. Upon asking the guards to use the bathroom, Danley was taken to a small 5x7’ cell that had an “unsanitary” toilet with no toilet paper and no running water.

After he finished Danley asked jail guards Ruby Allyn, Jeff Wood and Steve Woods if he could have some toilet paper to wipe himself. Allyn told Danley to watch his profanity-laced mouth, to shut up, and to get back in the small cell. He pro-tested that he ...

News in Brief:

Alabama: In April 2009, two unnamed Walker County jail guards were suspended with pay pending an investigation into a female prisoner’s claim that she was raped by a male prisoner who had been temporarily transferred from state prison to the jail to attend a funeral. Sheriff John Mark Tirey said his office was investigating whether malfunctioning equipment or employee negligence was responsible for the male prisoner gaining access to the female prisoner’s cell. Tirey said he expects the male prisoner will be charged with sexual abuse.

California: On May 1, 2009, former jail guards Daniel Lindini, Roxanne Fowler and Ralph Contreras were scheduled to appear in court for a pretrial hearing on murder charges. They are charged with murder and related crimes after beating prisoner James Moore to death in the Bakersfield jail on August 15, 2005 while Moore was handcuffed and shackled. Contreras failed to appear at the hearing and a bench warrant was issued for his arrest. Lawyers for the three defendants asked for yet another continuance, even though the case has been rescheduled numerous times. Trial was set to begin on May 11.

Florida: On April 22, 2009, Gainesville resident Victoria Thorp, 19, was arrested ...

$1,800,000 Settlement in Michigan Jail Prisoner Suicide Case

On January 1, 2008, the defendants in a Michigan federal civil rights action involving the suicide of a jail prisoner settled the case for $1,800,000, the largest jail suicide settlement in Michigan history.

Tatisha Grant, 23, was arrested by River Rouge, Michigan police officers at about 2:00 ...

 

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