Prison Legal News: February, 2010
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Volume 21, Number 2
In this issue:
- Swine Flu Widespread in Prisons and Jails, but Deaths are Few (p 1)
- Ineffective Attempts to Protect Texas Prisoner Were Sufficient (p 7)
- From the Editor (p 8)
- Preventable Sacramento County Jail Death Costs Taxpayers $1.45 Million (p 8)
- Free Rent for Some Washington State Parolees (p 9)
- A New Look at a Very Old Subject: The Uniform Collateral Consequences of Conviction Act (p 10)
- Arkansas Prisoner Awarded $625 for Refusing to Clean His Cell on the Sabbath (p 11)
- Three Years Later, CMS Still Fails to Meet Medical Standards in Delaware (p 12)
- Army Prisoners Isolated, Denied Right to Legal Counsel (p 14)
- Freedom Forum CEO Charles Overby’s Dark History with Corrections Corporation of America (p 16)
- Three Florida Guards Charged in Prisoner’s Beating (p 18)
- Washington State Makes Work Release Available to Disabled Prisoners; Monetary Payments to Class Members (p 19)
- Federal Judge Holds Texas Parole Board Coleman Hearings Unconstitutional (p 20)
- $6,000 Settlement in Illegal Arrest of Washington State Probationer (p 21)
- Denial of Medical Care Causes Two Riots at GEO Group Texas Prison (p 22)
- Special Treatment for Jewish Prisoners, Rappers Leads to Employee Discipline, Resignations at New York Jails (p 24)
- Maine Prison System’s Board of Visitors: Secret, Unaccountable and Co-Opted (p 26)
- Rikers Guards Charged With Using Juvenile Prisoners to Run Extortion Ring (p 28)
- Maryland: Parole Supervision Fee Likely Does More Harm than Good (p 29)
- Homelessness a Significant Problem for Released Prisoners (p 30)
- Department of Justice Releases Arrest-Related Death Statistics (p 30)
- Arizona Prisoner, Abandoned in Outdoor Cage, Bakes to Death (p 32)
- Massachusetts Sex Offender Registry Board Member Brags About Bias (p 33)
- Prison Supervisors Can be Liable for Guard’s Sexual Abuse (p 34)
- False Sense of Security: The Real Cost And Benefits Of The Adam Walsh Act (p 34)
- One of Every 11 Prisoners Now Serving Life Sentence (p 35)
- Wisconsin Enacts New Early Release Law (p 36)
- California Parents and Guardians Assessed Fees to Offset Juvenile Detention Costs (p 36)
- $325,000 Settlement in Michigan Jail Prisoner’s Ruptured Appendix Lawsuit (p 38)
- $245,000 Settlement in Michigan Jail Prisoner’s Death (p 38)
- Unprovoked Texas Cattle Prod Shocking More Than De Minimis Injury, Case Settles for $20,000 (p 39)
- Ohio Inspector General Finds Wrongful Acts by Prison System’s Assistant Director (p 40)
- PLN Prevails in Connecticut FOI Case; City Appeals (p 40)
- Judge Enjoins Collection of Cost of Incarceration Fees From Federal Prisoner in Washington State Prison (p 42)
- Settlement in Idaho Jail Condition Class-Action Suit (p 42)
- $2.1 Million Award in Excessive Force Death of California Prisoner (p 43)
- Wyoming’s Prison Industry Mushroom Farm Sold at Auction (p 43)
- Jury Awards $6,500 to California Prisoner for Negligence, Deliberate Indifference by Doctor (p 44)
- Settlement Promises Improvements at Baltimore City Jail (p 44)
- Tenth Circuit: Dismissal of Prison Newsletter Censorship Case Reversed in Part (p 45)
- Exposure to Freezing Cold More than De Minimis in Texas Retaliation Case (p 46)
- Ineligible Texas Prisoners Receive Federal Stimulus Checks (p 46)
- $50,000 Awarded to Florida Prisoner in Excessive Force Case (p 47)
- Head of California’s Prison System Arrested for Drunk Driving (p 47)
- Eighth Circuit Upholds $1,500 Award for Failure to Provide Kosher Diet; Grooming Restrictions Also Upheld (p 48)
- Remedial Sanctions Denied in Wisconsin Class-Action Jail Suit (p 48)
- Alabama Ends Policy Barring HIV+ Prisoners from Work Release (p 49)
- Third-Party Calling Disconnects at Jail Net $1.25 Million Settlement; Customers Get Nothing (p 49)
- News in Brief: (p 50)
- Failure to Raise Issue in Rule 50 Motion Prohibits Argument on Appeal; $214,000 Verdict Upheld (p 55)
- Four-Year Statute of Limitations Applies to § 1983 Claims Filed in Florida (p 55)
For hundreds of years the cramped, overcrowded and often filthy confines of dungeons, prisons, jails and other places of imprisonment have served as incubators for infectious diseases, which have killed more prisoners than any other single factor. Thus, the recent outbreak of H1N1 virus, commonly known as “swine flu,” had government officials very, very worried.
Their concerns were heightened on June 11, 2009, the day when the World Health Organization declared that a global pandemic of swine flu was underway. While the mainstream media has focused on the threat that H1N1 poses to the general public, health officials are also concerned about the risk of a major outbreak in prisons. Last May, the Centers for Disease Control (CDC) created interim guidelines to address the problem of swine flu in correctional settings.
Although prisons and jails by their nature are isolated and contained, infectious diseases spread quickly once they enter the prisoner population. “It’s a perfect breeding ground,” said Sheriff James DiPaola of Middlesex, Massachusetts.
As noted by the CDC, “correctional institutions pose special risks and considerations due to the nature of their unique environment. Inmates are in mandatory custody and options are limited for isolation ...
by David M. Reutter
Gregory Moore was incarcerated at the Beto Unit for sex offenses when a guard used the state’s sex offender registry to publish a list of prisoners who had been convicted of sex crimes, and urged reprisals against them. Beto guards brought copies of the list to work and distributed it to prisoners. Multiple assaults against sex offenders at the facility followed, resulting in a month-long lockdown.
During the lockdown, Moore received death threats and filed a life endangerment claim stating that a gang of prisoners had initiated a plan to “eliminate all sex offenders on the Beto Unit,” and that two named prisoners were part of the group. He also said he had overheard threats specifically directed against him. Moore was attacked by one of the prisoners he had identified about three months later. Before then, he was in and out of transient lockdown housing three times while four life endangerment claims were investigated. He was twice recommended for transfer by Unit Classification ...
The Fifth Circuit Court of Appeals reversed a district court’s denial of summary judgment to prison officials who had failed to safeguard a Texas state prisoner, saying their ineffective attempts to protect him were sufficient.
The lack of adequate health care in the bulk of the nation’s prisons and jails amply illustrate the complete lack of a preventive health care program in or out of prisons. Like many diseases, swine flu is preventable and conversely, without adequate safeguards it can and does spread quickly through a confined, overcrowded, malnourished population. Prisons and barracks have long been the incubators of modern disease and it is sad to see the political actions of government employees who put the public at risk of serious pandemics rather than simply treating all citizens who are sick or at heightened risk of illness.
While we are on the subject of disasters ...
February is traditionally the height of cold and flu season in the United States and this month’s cover story probably proves the axiom that if America catches cold, prisons catch pneumonia. Swine flu has been in the news quite a bit lately including its effects in prisons and jails. Which is interesting since, all things considered, it has killed relatively few people in the US and fewer still in detention facilities while other chronic illnesses, like diabetes, AIDS, hypertension, hepatitis and MRSA kill far more prisoners each year.
The systemic failure of medical care at California’s Sacramento County Main Jail (SCMJ) resulted in a prisoner’s avoidable death that has cost taxpayers $1.45 million. For years, SCMJ’s healthcare system has been severely deficient – yet jail officials continue to use the county ...
by David M. Reutter
As of mid-August 2009, 31 prisoners had been approved by prison officials to receive the rent subsidies, which will be paid directly to their landlords in monthly installments of up to $500 each over a three-month period. By the middle of 2011, as many as 700 early-release prisoners are expected to benefit from the program at a cost of about $955,000. This still represents a substantial savings over their cost of incarceration, which is approximately $100 per day.
According to The Herald newspaper in Everett, Washington, more than 1,200 prisoners were held past their early-release dates in 2008, which effectively cost the state $13.5 million. The feasibility of the rent subsidy program is based on the need to reduce those costs by releasing prisoners who are otherwise eligible but do not have a place to stay or the ability to rent one. One of the conditions of ...
Due to a roughly $9 billion state budget deficit, the Washington State legislature approved a plan to offer 90-day rent subsidies for selected prisoners who are eligible for early release. The program is expected to save taxpayers an estimated $1.5 million over the first two years of its implementation.
In the past twenty years, a relentlessly punitive political environment has given rise to a wide-ranging network of collateral penalties and disqualifications that isolate and stigmatize those convicted of crime long after the sentence imposed by the court has been fully served. As Jeremy Travis, President of John Jay College, has noted, “In this brave new world, punishment for the original offense is no longer enough; one’s debt to society is never paid.” However, a new act approved in July 2009 by the Uniform Law Commission (ULC) promises to provoke a lively discussion in state legislatures nationwide about how to reconcile collateral consequences with pragmatic data-driven crime reduction strategies.
The ULC has worked to advance uniformity of state laws for over a century. Originally created in 1892 by state governments with the encouragement of the American Bar Association, the ULC determines what areas of the law should be uniform from state to state, and drafts statutory text to propose for enactment to state legislatures. While some commissioners serve as state legislators, most are practitioners, judges, and law professors.
The Uniform Collateral Consequences of Conviction Act (UCCCA) represents the first comprehensive effort by a mainstream law ...
by Margaret Colgate Love1
Levester Gillard, a practicing member of the New Testament House of Prayer ...
On April 13, 2009, U.S. District Court Judge Harry F. Barnes adopted a magistrate’s report and recommendation that found an Arkansas prisoner should be awarded $625 after being punished for refusing to work on the Sabbath.
Despite federal oversight of its prison medical care, Delaware “continues to have a great deal more to achieve before it comes into substantial compliance with all provisions of the MOA” (Memorandum of Agreement) the state entered into with the U.S. Department of Justice.
That was the conclusion drawn in the fifth semi-annual report by Joshua W. Martin III, the independent monitor who oversees healthcare in Delaware’s prison system. The report was released on September 29, 2009.
PLN previously reported on the inept medical treatment provided to Delaware prisoners by the state’s contractor, Correctional Medical Services (CMS). [See: PLN, Dec. 2005, p.1; Dec. 2006, p.24]. That coverage included details about an outbreak of flesh-eating bacteria and the case of prisoner Anthony Pierce, who had a massive brain tumor that led to his death (Pierce’s condition was so obvious that he was called “The Brother With Two Heads”).
PLN also reported on the MOA when it went into effect in December 2006, and on the monitor’s previous semi-annual reports. [See: PLN, July 2007, pp.8 and 10; Feb. 2008, p.24; Nov. 2008, p.10].
While Delaware has made progress in ...
by David M. Reutter
Afghanistan war resister Travis Bishop has been held largely “incommunicado” in the Northwest Joint Regional Correctional Facility at Fort Lewis, Washington.
Bishop, who is being held by the military as a “prisoner of conscience,” according to Amnesty International, was transported to Fort Lewis on September 9, 2009 to serve a 12-month sentence in the Regional Correctional Facility. He had refused orders to deploy to Afghanistan based on his religious beliefs, and had filed for Conscientious Objector (CO) status.
Bishop, who served a 13-month deployment to Iraq and was stationed at Fort Hood, Texas, was court martialed by the Army for his refusal to deploy to Afghanistan. Given that he had already filed for CO status, many local observers called his sentencing a “politically driven prosecution.
By holding Bishop incommunicado, the military violated Bishop’s legal right to counsel, a violation of the Sixth Amendment ...
The military’s treatment of Army prisoners is “part of a broader pattern the military has of just throwing people in jail and not letting them talk to their attorneys, not let visitors come, and this is outrageous. In the civilian world even murderers get visits from their friends,” according to civil defense attorney James Branum.
Charles L. Overby is a man who leads dual lives; a man who has each foot planted firmly in two very different worlds. In one world he is a champion of the free press. In the other, he is one of a group at the helm of a corporation that has worked hard to limit freedom of information and the ability of the press to inform the public.
In one world he is chief executive officer of the Freedom Forum and the Newseum – located in Washington D.C., blocks from the Smithsonian and the Capitol Building – which literally has the First Amendment etched into its 75-foot marble edifice. He is a Pulitzer Prize-winning editor and reporter, former vice president of news and communications for Gannett Co. Inc., and former management committee member of both Gannett and the company’s flagship paper, USA Today.
Overby, according to his Freedom Forum biography, also serves on the board of the Horatio Alger Association of Distinguished Americans and is a member of the foundation board at his alma mater, the University of Mississippi.
What Overby’s Freedom Forum biography fails to disclose is that in his other world he sits on the board of ...
Three Florida prison guards have been arrested and charged in the December 16, 2008 beating of a handcuffed prisoner at the Charlotte Correctional Institution (CCI). The criminal proceedings can be viewed as a fulfillment of Florida Department of Corrections (FDOC) Secretary Walter McNeil’s vow to prosecute rogue employees. [See: PLN, Dec. 2009, p.22].
Absent the submission of an incident report by a nurse, the beating of prisoner Jerome Williams, 23, would have gone unnoticed as a standard use of force. The combination of the guards’ falsified reports and their intimidation of Williams with the threat of future assaults is typical of such incidents.
What the guards did not count on was nurse Maryann Henry ignoring an admonition to “[b]e careful what you say and write because there are officers here that will find out where you live and what you drive.” Initially, Henry gave a witness statement that did not mention the beating. The next day, however, she broke the “code of silence” by filing a report with CCI’s colonel, which triggered an internal investigation.
Williams was having mental health issues on the night of the assault; a psychological emergency was declared ...
by David M. Reutter
Represented by the Seattle law firm of Budge and Heipt, WDOC prisoner ...
The Washington Department of Corrections (WDOC) agreed to a settlement in a class action lawsuit alleging violation of the Americans with Disabilities Act (ADA) that results in not only a policy change but monetary payments to class members.
On August 6, 2009, a federal judge ruled that hearings held by the Texas Board of Pardons and Paroles (BPP) to determine whether onerous sex offender conditions should be imposed on parolees not convicted of sex offenses had violated a parolee’s right to procedural due process.
Ray Curtis Graham, a Texas state parolee, filed a civil rights suit pursuant to 42 U.S.C. § 1983 in U.S. District Court after the BPP placed “condition X” sex offender requirements on his parole supervision even though he had not been convicted of a sex offense. A jury trial was held.
During the trial, former BPP general counsel Laura McElroy testified that the BPP’s policy was allowable under previ-ous federal court decisions. An exasperated U.S. District Court Judge Sam Sparks told the jury, “The lady is wrong. She is stating issues of the law that are wrong.” The BPP objected that Judge Sparks had improperly influenced the jury. He agreed, admitted he “was out of bounds,” and declared a mistrial.
The mistrial didn’t stop Sparks from issuing an order stating that Graham had been denied due process. Sparks noted that in Coleman v. Dretke, 395 ...
by Matt Clarke
The claim involved the probation violation arrest of Kenneth Butler. When he reported to the community corrections office on January 23, 2008, as required, he was advised that his probation officer, Andrea Maldonado, wanted him to check ...
The State of Washington paid $6,000 to settle a wrongful imprisonment claim.
On December 12, 2008, a riot erupted at the GEO Group-run Reeves County Detention Center (RCDC) in Pecos, Texas, which houses federal immigration detainees. The uprising was triggered by the death of a prisoner who had received inadequate medical care. A second, more serious riot at the ...
by Matt Clarke
Rabbi Leib Glanz sought and obtained permission to perform a bar mitzvah ceremony at the Tombs for the son of Tu-via Stern, a notorious public figure recently captured after he jumped bail and spent almost 20 years on the run. Stern had fled to Brazil after being indicted in connection with a $1.7 million financial scam. He was sentenced in March 2009 to 2½ to 7½ years.
The catered bar mitzvah took place in the jail’s gymnasium on December 30, 2008 and included sixty guests, a local singer and a band. Guests were served kosher food on real china with metal knives and forks, and were allowed to keep and use their cell phones. Metal utensils and cell phones are a violation of jail security policies.
Stern was permitted to dress in street clothes, and those who attended the event were entertained by popular Orthodox singer Yaakov Shwekey. Jail guards reportedly ...
Five corrections employees at the Manhattan Detention Complex in New York City, also called “the Tombs,” were disciplined after it was learned that the jail chaplain in charge of Jewish affairs threw a lavish six-hour party for an Orthodox Jewish prisoner. Two of those employees later resigned.
Many prison problems have persisted or gotten worse for years. So why hasn’t the Maine State Prison Board of Visitors, the blue-ribbon panel of five citizens appointed by the governor to oversee the way the prison is run, corrected at least some of the problems? This is a recurrent question among people concerned with prison issues.
To look into this question is to have a glimpse into a black hole of officialdom. The Board of Visitors, first set up 78 years ago, is composed of officials who generally meet in secret and rarely — if ever — challenge the administrators they oversee. The board didn’t even get around to writing and giving to the Legislature its legally required annual reports for the past four years until Juy 29, 2009, after the Phoenix asked to see them ...
The state prison in Warren has been hammered in recent months by a prisoner murder and other violence, a prisoner hunger strike, legislative investigations exposing mismanagement and poor guard morale, and a request by human-rights groups for a federal probe of prisoner mistreatment. Most recently, the state Corrections commissioner, Martin Magnusson, told legislators that budget cuts have reduced staff to a precariously low level.
On January 22, 2009, Rikers Island, New York guards Michael “Mack” McKie and Khalid “Nel” Nelson were charged with enterprise corruption after it was learned they were using a group of prisoners to enforce discipline and extort other offenders at the Rikers facility for juveniles. A third guard, Denise “Mama ...
In 1991, as part of a national trend to charge those convicted of crime with the costs of their punishment, Maryland enacted a law obligating parolees to pay a fee of $40 for each month they remained on parole supervision. The purpose behind the fee was to generate revenue to finance general state operations -- not the parolee’s actual supervision.
For the sample of 7,524 parolee cases analyzed by the Brennan center report, supervision fees averaged $743, but ranged as high as $5,600. In nine out of ten cases, the parolee failed to fully repay this debt upon discharge from parole, largely because of significant hurdles in obtaining and maintaining employment. Indeed, while they face a multitude of financial obligations -- including child support, drug ...
In a 2009 report by the Brennan Center for Justice, a think tank and public interest advocacy group at New York University School of Law, the authors conclude that the state of Maryland’s assessment of a $40 monthly parole supervision fee is “a penny-wise, pound-foolish policy” that likely does more harm than good to society’s interests in fostering public safety and reducing the burden on taxpayers arising from the costs of incarceration.
On August 8, 2008, the U.S. Bureau of Prisons (BOP) discharged disabled prisoner Michael R. McHone from FCI Edgefield in South Carolina to spend his first night at a motel. The next day – a Saturday – a prison employee drove McHone to Asheville and dropped him off in front of the Western Carolina Rescue Mission at 10 a.m. The Mission didn’t open until 4 p.m., so the BOP worker pushed McHone two blocks in his wheelchair to A-Hope, a day care program for medically needy indigents. A-Hope is open until noon on Saturdays.
A-Hope personnel observed McHone’s debilitated condition. He was so disabled that he couldn’t move his own wheelchair or speak clearly. “It was pretty easy to take one look at him and know he wasn’t going to be able to take care of himself, even in a shelter,” said A-Hope staffer Bryan Landis. “He was bad. I don’t care what crime he committed. He didn’t deserve to be treated like that,” added John Hairston, another A-Hope employee.
McHone had just finished a four-year sentence for aiding and abetting an escape in 1990. BOP ...
by John E. Dannenberg and Alex Friedmann
The Bureau of Justice Statistics recently released statistics on state and local law enforcement arrest-related deaths for the years 2003 to 2006. Although Georgia, Montana and Maryland failed to respond to the survey and Nevada and Wyoming only provided information for one year, the statistics showed that there were 2,686 arrest-related deaths from 2003-2006. 1,540 were homicides by law enforcement officers.
The major causes of arrest-related deaths for all three years was homicide by law enforcement (57.3%), drug/alcohol intoxication (11.8%), suicide (10.8%), accidental injury (6.8%) and illness/natural causes (5.2%). Males made up 95.8% of the deaths. 43.3% were white, 31.8% black and 21.1% Hispanic. The age group with the greatest percentage of deaths was 25-34 (29.7%), followed by 35-44 (27.4%) and 18-24 (19.2%). 56.2% of the suicide deaths and 45.5% of the illness deaths were Whites. Blacks led deaths by drug or alcohol intoxication (39.6%) and accident (42.7%).
California led all states in the number of arrest-related deaths in 2003-2006 (465), followed by Texas (380) and Flor-ida (277). The deaths were regionally concentrated in the West (938 ...
by Matt Clarke
“It is intended to be temporary,” Arizona Dept. of Corrections (ADC) interim director Charles Ryan said of the outdoor cages. “It is not intended to be a place where [prisoners] are held for an inordinate amount of time.” However good those intentions, they did little to prevent Marcia Powell’s senseless death.
Powell, who was mentally ill, had been placed in the outdoor cage while she was waiting to be transferred to another cell. According to prison regulations, prisoners are not to be left in the cages for more than two hours and should continuously receive water; further, the cages are not to be used as punishment. ADC officials insisted Powell was provided with water, though that was disputed by other prisoners who said guards either ignored or mocked her when she ...
On May 19, 2009, Arizona state prisoner Marcia Powell, 48, collapsed after being left in an unshaded outdoor chain-link cage for four hours under a scorching summer sun. She later died. Temperatures at the Arizona State Prison Complex-Perryville had reached as high as 107 degrees that afternoon. The guards responsible for watching Powell as she slowly baked to death sat in a control room just 20 yards away.
In one post he wrote, “It’s always a mistake when people testify because they always get destroyed in cross examination.”
“But it’s so entertaining,” responded fellow hearing examiner Mel Maisel. Lynch also referred to some of the attorneys who represented sex offenders as “crazy” and “incompetent,” and said, “It’s always awkward when I see one of my pervs in the parking lot after a hearing.”
Defense attorneys took exception to Lynch’s blatantly unprofessional approach to his new job. “This is not entertain-ing, these are people’s lives we’re talking about,” stated attorney Eric Tennen. “He’s expressing opinions about how these hearings have been conducted, essentially showing that he’s made up his mind before they’re finished.”
Undoubtedly, sex offenders are not high on anyone ...
Tyson Lynch is a hearing examiner for the Massachusetts Sex Offender Registry Board; his job responsibilities include determining which convicted sex offenders pose a threat to the community. Yet it wasn’t long after he was hired in October 2008 that Lynch began to brag openly on Facebook, an on-line social networking site, about the “great satisfaction” he gets from badgering the offenders he is supposed to objectively assess.
In denying a motion to dismiss, the U.S. District Court for Massachusetts held on July 1, 2009 that prison supervisors could be held liable for the sexual abuse of a prisoner because they failed to train, supervise and investigate claims concerning repeated rumors of a guard’s sexual misconduct.
While at Massachusetts’ South Middlesex Correctional Center (SMCC), prisoner Christina Chao had 50 to 100 sexual encounters with guard Moises Ballista from mid-2003 to May 2004. State law presumes that prisoners cannot consent to such encounters under any circumstances. Ballista was later criminally prosecuted, and Chao, who was released from prison in 2004, filed suit seeking damages.
Chao alleged in her complaint that the numerous sexual encounters occurred without detection and that Ballista had sexual relations with at least one other prisoner. While rumors of the sexual misconduct resulted in Ballista being reassigned to other duties at the prison, the abuse continued.
In fact, “after or about the time of these rumors surfaced,” Chao was transferred to SMCC’s third floor, where Ballista was “regularly posted” from 11:00 p.m. to 7:00 a.m., providing him with easier access to her. Other guards allowed ...
by David M. Reutter
The AWA is the latest effort by lawmakers to “get tough” on sex offenders. The AWA expands registration requirements to more offenses, applies retroactively to offenders convicted before its enactment, increases the amount of information about offenders on registries, requires offenders to post their picture online and makes an offender’s failure to comply a crime punishable by at least a year imprisonment.
But who is the law really protecting children from? The vast majority of all sex offenses in the United States are committed by individuals who know the victim; only seven percent are committed by strangers. On top of that, most who commit sex offenses are first time offenders, which means they are not on a registry to begin with.
What good are registries then? Not much. If you are politician, they make it seem like you are doing something about child predators. But ...
The Adam Walsh Act (AWA) was enacted by Congress in 2006 with much fanfare. Proponents argued that the law, which requires the establishment of a national sex offender registry, would help protect children from predators. But according to a recent report from the Justice Policy Institute, the AWA has actually had the opposite effect.
The report notes that legislators have expanded the types of offenses that result in a life sentence and established a wide range of habitual offender laws that subject a growing proportion of defendants to potential life terms. The authors note how the politics of fear has largely fueled the increasing use of life without parole (“LWOP”) sentences, an increasing willingness to impose life sentences on juveniles, an increasing reluctance on the part of parole boards and governors to release parole-eligible life prisoners and how, as a consequence, the population of life prisoners is both growing and aging, with ever-increasing costs to society. With a wealth of data, they drive home the point that racial and ethnic minorities serve a disproportionate share of life sentences. (In an appendix concerning the methodology ...
In a July 2009 report by The Sentencing Project, a national non-profit organization engaged in research and advocacy on criminal justice policy issues, Ashley Nellis and Ryan S. King examine the consequences of the expanding use of life sentences in America and make recommendations for changes in law, policy and practice to address what the authors believe are the principal deficiencies in the sentencing of people to life in prison.
When Wisconsin Governor Jim Doyle signed legislation to grant early release to certain prisoners, he just couldn’t win. “It went too far,” said Republicans. “It didn’t go far enough,” retorted his fellow Democrats. What in fact Governor Doyle did was authorize a new form of parole.
Wisconsin effectively eliminated its discretionary parole system in 1999, when truth-in-sentencing legislation was passed that required prisoners to serve their entire sentence followed by mandatory post-release “extended supervision.” This caused the state’s prison population to increase by 14% between 2000 and 2007; it now stands at about 23,000 pris-oners. The population was projected to increase another 25% by 2019, costing the state $2.5 billion in additional prison construction and operating costs.
This budget-busting projection motivated Governor Doyle, the Chief Justice of the State Supreme Court, the Republi-can Assembly speaker and the Democratic Senate president to commission the non-partisan Justice Center of the Council on State Governments to analyze the causes of Wisconsin’s prison population growth.
The Center found that a main factor was long prison terms for technical parole violators, which was estimated to cost the state $99 million annually. The Center, which had successfully ...
by Matt Clarke
The practice was generally legal under a 20-year-old California law intended to prevent families from using the juvenile justice system as a baby-sitting service (Cal. Welfare and Institutions Code, Section 903). However, critics complained it was being administered in a manner contrary to state law – that is, without consideration of whether or not a family could actually afford to pay the detention fees.
With 19 probation camps and three juvenile halls, which are presently under federal monitoring due to problems re-lated to safety, staff training and medical care, Los Angeles County has one of the largest juvenile justice populations in the U.S. In 2008, approximately 20,000 youths were processed through the county’s juvenile system at a cost of $100 to $200 per day of detention.
To partially offset those costs, county officials billed parents and legal guardians for the misbehavior of their children, assessing fees of $11.94 for each day of detention at a probation camp and $23.63 for ...
On February 13, 2009, following an investigation by the Los Angeles Times, the L.A. County Probation Department suspended its practice of billing parents and legal guardians for each day their children spent in juvenile detention.
As was reported in our previous coverage of a ...
Michigan’s Lenawee County Jail (LCJ) paid $325,000 to settle a lawsuit brought by a former prisoner who was denied medical care before and after his appendix ruptured. This is the second such settlement within a month. (See accompanying article.)
The 24 page second amended complaint in the action begins with an outline of ...
In what one lawyer described as round one, Michigan’s Lenawee County has paid $245,000 to settle a lawsuit alleging that the deficient medical care at the County’s jail caused a prisoner’s death.
On September 5, 2007, the Fifth Circuit Court of Appeals held that a guard who used a cattle prod to shock a prisoner without any provocation caused more than a de minimis injury.
Dale Keith Payne, a Texas state prisoner, was working at the back gate of the Estelle Unit when a horticulture truck drove up. Payne opened the truck’s hood to allow a guard to search the engine compartment. While he was doing this, TDCJ guard Jimmy Parnell, wielding a cattle prod he had confiscated from another vehicle, approached Payne from be-hind and shocked him in the back, making him “jump and holler.”
Payne fled, with Parnell in pursuit trying to shock him again. Payne made it into a bathroom and Parnell attempted to shock him through the door using the knob to conduct electricity. Payne did not immediately report this incident. However, after Parnell allegedly threatened him with a knife at a later time, he reported both incidents to prison staff and filed a grievance against Parnell. Parnell, who is white, had also reportedly used racial slurs against Payne, who is black, on numerous occasions.
Parnell initially told the prison system’s Office of ...
by Matt Clarke
On July 29, 2009, the State of Ohio’s Office of the Inspector General (OIG) released an investigative report concerning the relationship between Ohio Department of Rehabilitation and Correction (ODRC) Assistant Director Michael Randle and Keith B. Key, President of Columbus-based KBK Enterprises, a real estate development company. The focus of the report was on allegations that their personal relationship had influenced business dealings between ODRC’s Ohio Penal Industries (OPI) and KBK.
The OIG investigation was sparked by an on-line report that alleged KBK subsidiary Key Industries was allowed to purchase OPI products at OPI’s net cost for material and labor – a special pricing arrangement that was not even avail-able to state agencies.
The OIG learned that Randle and Key shared a personal relationship. Both had attended Ohio State University at the same time, were members of the same fraternity, and lived in the same fraternity house for about a year. More recently, they had socialized and even vacationed together.
The OIG found that Randle had a minimal role in the drafting of a memorandum of understanding (MOU) between OPI and KBK, for KBK to sell prison industry-made goods and share the profit with OPI ...
by Matt Clarke
Hartford Assistant Corporation Counsel Jonathan Beamon agreed to provide the documents pursuant to the state’s Freedom of Information (FOI) Act, at a cost of $27.50. PLN requested a fee waiver, stating it was a non-profit media organization and the records would be used to benefit the public through PLN’s news reporting. The fee waiver was denied, as was PLN’s request that the documents be provided in electronic format (such as via email or fax), which would have cost the City nothing.
Although PLN requested information regarding the FOI appeals process, after a two-week delay Beamon responded by stating, “My understanding is the City of Hartford does not have an internal or administrative appeal process.” He neglected to mention, however, that under Connecticut law denials of FOI requests can be appealed to the state FOI Commission. PLN submitted a renewed records request which also was denied, then filed a formal appeal with the Commission on ...
On September 22, 2008, PLN requested public documents from the City of Hartford, Connecticut related to a lawsuit involving a prisoner who committed suicide; the suit had resulted in a $403,164 judgment against the City. [See: PLN, Feb. 2009, p.24].
Harry Whitman was transferred to the custody of the DOC pursuant to an intergovernmental agreement between the Bureau of Prisons (BOP) and the DOC. While serving his federal sentence in the DOC, the DOC began deducting cost of incarceration and crime victim compensation from money Whitman earned or received.
Whitman sought injunctive relief, arguing that the deductions violated state and federal law, and his due process rights under the United States and Washington constitutions.
Judge McPhee agreed with Whitman that he was not subject to the collection of the fees. McPhee based his decision primarily on the fact that Whitman’s federal sentencing judge waived the imposition of a fine, and the language of the intergovernmental agreement which required the DOC to provide Whitman with the same rights he would have if confined in the BOP. In the BOP, a cost of incarceration fee may not be collected when a court waives a fine.
By exempting Whitman, the ...
On February 25, 2008, Judge William Thomas McPhee of the Thurston County Superior Court entered an injunction prohibiting the Washington Department of Corrections (DOC) from withholding cost of incarceration and crime victim compensation from a federal prisoner serving time in the DOC.
On August 4, 2009, a consent decree was entered in a class-action lawsuit brought on behalf of jail prisoners with the help of the American Civil Liberties Union (ACLU) over conditions of confinement at the Canyon County Jail in Caldwell, Idaho. The defendants agreed to eliminate overcrowding and improve ventilation, laundry, temperature control, recreation, plumbing, sanitation and medical care.
Amanda Davis, Alisha Baker, Troy Fenster, Desiree Comingo, Parnell Williams and Pedro Martin, six prisoners incarcerated at the Canyon County Jail, filed a federal class-action suit against Canyon County, the Board of County Commissioners and Sheriff Chris Smith in March 2009. They alleged that unconstitutional conditions of confinement existed at the facility due to severe overcrowding. Davis, who entered the jail when she was five months pregnant, had to sleep on the floor and was denied a second mattress.
The jail has three detention buildings: the 62-bed Annex, built in the 1940s; the Dale G. Haile Detention Center (DHDC), built in 1993; and the 216-bed Work Release Center, built in 2006, which was not part of the suit. The Annex was twice abandoned, only to be reopened due to overcrowding. Sheriff Smith believed the Annex should be closed ...
by Matt Clarke
The prisoner, John Fitzgerald Young, suffered from chronic mental illness that required ...
In April, 2009, a federal jury awarded $2.1 million in a lawsuit filed against guards at California’s Richard J. Donovan Correctional Facility for their negligence and excessive use of force that caused a prisoner’s death.
On October 15, 2009, the Wyoming Department of Corrections’ Wind River Mushroom Farm in Shoshoni was sold at auction for an undisclosed amount. The agricultural program, which began in 2004 as an $8 million public-private partnership that used state funds and federal loan guarantees, was once called the nation’s premier prison industry. It closed in 2006 due to “labor challenges.”
Initially the labor force was provided by prisoners from the Wyoming Honor Farm at Riverton, but they proved too slow at picking and sorting the portabello and crimini mushrooms grown at the farm. That prompted Doug Tanner, the farm’s president and CEO, to hire trained immigrants from Guatemala as supplemental labor. However, those workers left after a check by ICE revealed problems with some of their immigration documents.
Tanner blamed the state’s labor shortage for the farm’s closure. “I wish I had never seen the state of Wyoming,” he said. “I thought it was a great opportunity for everybody, for the inmates, for me and for DOC. But it didn’t turn out that way.” Tanner claimed the Honor Farm prisoners “didn’t want to work. They didn’t want to pick mushrooms ...
by Matt Clarke
On May 22, 2009, a California federal jury awarded a state prisoner $6,500 on his claims of medical negligence and deliberate indifference. Todd A. Ashker, a prisoner at California’s Pelican Bay State Prison (PBSP), sued Dr. M.C. Sayre after Sayre discontinued Asker’s pain medication and treatment ...
On August 18, 2009, a settlement was reached in a class-action lawsuit over conditions of confinement at the Baltimore City Detention Center (BCDC). The lawsuit dates back to 1971 and had been on the federal district court’s inactive docket from 1999 until 2004 following a 1993 consent decree. In 2004, the court granted a motion to restore the case to the active docket filed by attorneys from the National Prison Project (NPP) of the American Civil Liberties Union (ACLU) and the Public Justice Center (PJC) representing the prisoners. Since then, some improvements have been made, such as air conditioning the Women’s Detention Center. However, the conditions of confinement in the jail remained abysmal, especially in the areas of medical care, vermin infestation, inadequate ventilation and non-functioning plumbing.
“This agreement will help ensure that all detainees receive the kind of medical care that they are constitutionally entitled to, and state officials [deserve] credit for agreeing to these improvements,” said Washington D.C. attorney and former NPP Director Elizabeth Alexander. “Detainees have been forced to endure undue pain and suffering for far too long, and the hope is that this agreement will go great lengths toward alleviating ...
by Matt Clarke
Derrick R. Parkhurst, a Wyoming prisoner, is chairman of the Wyoming Prisoners’ Association (WPA) and an official in the Wyoming chapter of Citizens United for the Rehabilitation of Errants (CURE). He is also the editor of a combined newsletter for both organizations, the “WPA Law Review and CURE Newsletter,” which publishes synopses of legal opinions and news of interest to Wyoming prisoners.
In his capacity as editor, Parkhurst sent 693 newsletters to the Wyoming State Penitentiary (WSP) in a single FedEx box. Although each newsletter was individually addressed with a prisoner’s name and number, WSP officials refused to deliver them based on Wyoming Policy and Procedure (WPP) #5.40l (IV)(C)(l)(k), which states that mail may be rejected if it contains material intended for parties other than the addressee. Parkhurst also mailed several copies of the newsletter individually, including one to himself, which were delivered by WSP officials.
Parkhurst filed a civil rights action in U.S. District Court pursuant to 42 U ...
On July 16, 2009, the Tenth Circuit Court of Appeals reversed in part a district court’s dismissal of a lawsuit involving the nondelivery of newsletters sent in bulk to a Wyoming state prison.
Juarez Miguel Bibbs, a Texas state prisoner, filed a civil rights action under 42 U.S.C. § 1983 in U.S. District Court. He alleged that guards had retaliated against him for filing grievances by turning on a “purge fan” which blew cold air into his cell for four-and-a-half hours on four consecutive nights, “causing the temperatures in his cell to drop below freezing.” The district court granted summary judgment to the defendants on the basis that the injury – exposure to cold – was de minimis.
Bibbs alleged that he had filed grievances against Clements Unit guards Leslie Early and Jamie Burkholder for failing to conduct proper ingress and egress to cells. One to two months after the grievances were filed, Early, Burkholder and guard Richard Gibson allegedly turned on a “purge fan” which drew large amounts of unheated outdoor air into Bibbs’ pod and cell. This occurred on four consecutive nights. Bibbs said he tried to ...
The Fifth Circuit Court of Appeals held that a district court had erred when it dismissed a prisoner’s retaliation-based civil rights suit as de minimis when the prisoner’s alleged injury was exposure to freezing cold for four-and-a-half hours on four consecutive nights.
On February 13, 2009, Congress allocated $13 billion to the American Recovery and Reinvestment Act. One section of the Act allowed certain people to receive a one-time $250 stimulus check, including those eligible for Social Security or SSI payments, railroad retirement beneficiaries, and disabled veterans who collected benefits from the Dept. of Veterans Affairs (VA). Most people in prison are ineligible for such benefits, and poor record keeping led to a scramble to retrieve the stimulus checks sent to prisoners who didn’t qualify.
According to Wes Davis, a spokesman for the Social Security Administration, approximately 3,900 stimulus checks were mailed to incarcerated persons nationwide, 1,700 of whom were not eligible for the payments. To meet eligibility requirements, one had to have been outside prison or jail between November 2008 and January 2009, and be eligible for benefits from the Social Security Administration, VA or Railroad Retirement Board.
Of the 240 checks ...
Between May and June of last year, hundreds of federal economic stimulus checks began to arrive at various Texas prisons, addressed to prisoners who were thought to be eligible to receive them. Those payments were part of 1,700 stimulus checks erroneously sent to prisoners nationwide.
When housed at ECI on July 1, 2006, prisoner Michael Curry was called to the captain’s office to be questioned about ...
A federal jury has awarded $50,000 to a prisoner who was subjected to excessive use of force while in handcuffs at Florida’s Everglades Correctional Institution (ECI).
Kernan, who was subsequently suspended from work for six weeks without pay, released a statement expressing remorse for his actions. Acknowledging that there was “no excuse” for his “poor judgment” and that his conduct reflected poorly on Governor Schwarzenegger, who had appointed him in 2008, Kernan announced his intention to plead guilty to DUI charges at a subsequent court hearing.
Kernan entered the guilty plea on July 16, 2009 and was ordered to pay a $2,000 fine, complete 48 hours of community service and attend a DUI class. According to the CDCR’s 2008 California Prisoners & Paroles report, 2,701 state prisoners were serving prison terms for DUI offenses.
Sources: Sacramento Bee, www.sacramentotrafficattorney.com
On June 7, 2009, Scott Kernan, undersecretary of the California Department of Corrections and Rehabilitation (CDCR) – the operational head of the state’s sprawling prison system – was arrested by the California Highway Patrol for driving under the influence in his state-issued vehicle.
Michael J. Fegans, an Arkansas state prisoner ...
The Eighth Circuit Court of Appeals upheld a district court’s award of $1,500 to an Arkansas prisoner who was denied kosher meals. The Court of Appeals also affirmed the lower court’s ruling that upheld the prison system’s grooming policy.
The suit was originally filed pro se in March 1996 by Milton J. Christensen, a prisoner at the jail, and alleged constitutional violations due to dangerous conditions that were caused by overcrowding, exposure to communicable diseases and insufficient time spent outside of cells.
On May 8, 1996, a circuit court appointed the Legal Aid Society of Milwaukee to represent Christensen; soon after-wards, the complaint was amended to include “all persons who are now or in the future will be confined in the Milwaukee County Jail.”
In May 2001, the parties entered into a 48-page Consent Decree that was later approved by the court. One issue ad-dressed in the Decree dealt with the overcrowding problem. Among other provisions, the agreement stipulated that no individual would be housed longer than 30 hours in the booking-open waiting area.
Plaintiffs’ counsel moved to conduct discovery on March 23, 2004, and six months later filed a motion accusing the county of repeatedly violating the Consent Decree’s ...
In July 2009, the Supreme Court of Wisconsin entered an opinion reversing an appellate court’s decision that instructed a lower court to order remedial damages in a class-action lawsuit filed on behalf of Milwaukee County jail prisoners.
Since 1987, the ACLU has fought against the ADOC’s policy of banning HIV-positive prisoners from work release. Eligible prisoners at the HIV segregation units at Limestone Correctional Facility and the Tutwiler Prison for Women now await transfer to work release programs as beds become available.
“One of the prisoners told us that when she recently received notice that she had been approved for work release, she wanted to weep,” said Olivia Turner, Executive Director of the ACLU of Alabama. “There is no way to overstate the humiliation these prisoners have suffered for so long, from being ostracized, isolated, and denied participation in a program that has been available to everyone else.”
With the ADOC’s policy reversal, South Carolina stands alone as the only prison system in the nation that bans HIV-positive prisoners from work release. The ACLU noted that there is more work to be done in Alabama, as ...
After more than two decades of intense advocacy by the ACLU, in August 2009 the Alabama Department of Corrections (ADOC) agreed to end its practice of prohibiting prisoners with HIV from participating in work release programs. PLN has previously reported on this issue. [See: PLN, Dec. 2008, p.28].
When it comes to prison and jail telephone services, it’s all about how much money can be made without regard to the people who are bilked by for-profit phone companies. That is the sad conclusion that must be drawn from a recent decision by Florida’s Public Service Commission (PSC).
After the PSC received a complaint in March 2004 claiming that calls from the collect-only phone system at the Miami-Dade Pretrial Detention Center (MDPDC) were being improperly disconnected, the agency opened an investigation.
That investigation, conducted between 2004 and 2007, determined that three-way calling detection software was causing prisoners’ phone calls to prematurely disconnect. As a result, prisoners would have to call back to complete their conversation. That caused customers to incur additional surcharges of $2.25 per local call and $1.75 per intrastate toll call.
The MDPDC’s phone service provider, TCG Public Communications, Inc., was previously a wholly-owned subsidiary of AT&T; it was acquired by Global Tel*Link Corporation in June 2005. TCG replaced the errant three-way calling detection software in March 2008, and responded to the PSC complaint by offering to establish a settlement fund of $175,000 to provide refunds ...
by David M. Reutter
Arkansas: A federal defamation lawsuit filed against the Dixie Chicks was dismissed on December 1, 2009 after a U.S. District judge found that singer Natalie Maines had not acted with “actual malice” when she posted comments on the band’s website suggesting a man was guilty of murder. Maines had claimed that Terry Hobbs was implicated in the death of his 8-year-old stepson, Stevie Branch, who was murdered with two other children in 1993. Three teenagers – Damien Echols, Jessie Misskelley, Jr. and Jason Baldwin – were prosecuted and convicted for that crime, and Maines became convinced that ...
Alabama: On October 30, 2009, Richard Hawthorne, 51, a member of the Escambia County School Board, was in-dicted on seven charges stemming from allegations that he fondled female prisoners at the Escambia County Detention Center where he formerly worked as a guard. Two female prisoners reported that Hawthorne had molested them in a jail van – one on March 4 while transporting her to prison and the other on April 27 while driving her to a mental health facility. Hawthorne resigned from his position at the jail after the allegations surfaced. He was released on $100,000 bond, which was posted by his wife.
The Sixth Circuit Court of Appeals has affirmed a jury’s verdict that found a municipality liable despite there being no finding of liability on the part of the individual defendants. The facts in this case involved a claim of deliberate indifference to a prisoner’s serious medical needs.
The Eleventh Circuit Court of Appeals has held that 42 U.S.C. § 1983 actions filed in Florida have a four-year statute of limitations. The appellate court’s ruling reversed a Florida federal district court’s dismissal of a civil rights complaint filed by a prisoner who alleged he had been assaulted by a jail guard.
According to a complaint filed by Pinellas County Jail prisoner Johnny E. Ellison, in March 2004 guard Jeremy Lester destroyed his legal mail and personal property, and assaulted him while he was handcuffed. The complaint also charged that other guards had failed to intervene.
Pursuant to 28 U.S.C. § 1915(e), the district court dismissed the complaint as untimely. The court found the statute of limitations was governed by Florida Statutes § 95.11(5)(g), which specifies a one-year time limit for “action[s] brought by or on behalf of a prisoner ... relating to the conditions of the prisoner’s confinement.”
The Eleventh Circuit, however, held that federal courts apply a state’s statute of limitations for personal injury actions to complaints brought under § 1983. Thus, the four-year limitations period in § 95 ...
Four-Year Statute of Limitations Applies to § 1983 Claims Filed in Florida