Prison Legal News:
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Volume 21, Number 3
In this issue:
- The Prison Industries Enhancement Certification Program: Why Everyone Should be Concerned (p 1)
- From the Editor (p 10)
- First Circuit Upholds $101,750,000 in Damage Awards in FBI Misconduct Case (p 10)
- Less Than Equal: State officials, including prejudiced human-rights commissioners, block Prisoner complaints (p 12)
- Prison Labor Bails Out State and County Budgets (p 14)
- All Eyes On the Court: An Interview with Attorney and Federal Court Monitor Fred Cohen (p 16)
- Cook County Strip, Body Cavity Searches Held Unconstitutional; Other Suits Pending (p 18)
- California Cuts Funding for Prop 36 Drug Treatment Programs (p 19)
- Michigan Study Shows Incarceration Can Cause Illness in Loved Ones (p 20)
- Conviction of CIA Contractor Who Fatally Beat Afghan Detainee Upheld on Appeal (p 20)
- Sexual Victimization Widespread in U.S. Correctional Facilities (p 22)
- Certificate of Merit in Medical Malpractice Suits Unconstitutional in Washington State (p 23)
- Illinois Prisoners Bilked Out of Millions Through DOC Commissary Surcharges (p 24)
- A Tight Leash: Judges Micromanage Federal Offenders After Release (p 24)
- Texas Counties Give Up on Probationer Restitution Centers (p 25)
- Prisoner Transport Guards Accused of Forcing Prisoner to Perform Sex Acts (p 26)
- Call Your Attorney from Jail, Go to Prison (p 26)
- Washington Sex Offender Relieved of Obligation to Register (p 27)
- Texas Youth Commission Causes Consternation, Conflict in State Legislature (p 28)
- Ninth Circuit Strikes Down BOP Rule Limiting Early Release for RDAP Participants (p 28)
- California Prisoner Settles Medical Suit for $35,000 (p 29)
- California Enacts Non-Revocable Parole And Increased Credits To Reduce Prison Population (p 30)
- New Orleans Jail Conditions Found Unconstitutional (p 30)
- Jury Awards $80,001 to New Hampshire Prisoner for Guard Beating (p 31)
- California Prison Erupts, Hundreds Hurt in Riot, Multiple Causes Cited (p 32)
- In Support of Ending Prosecutorial Misconduct (p 32)
- GEO Group Prison Squalor Drives Idaho Prisoner to Suicide: $100,000 Settlement (p 34)
- South Carolina Prisoner Does Easy Time (p 34)
- $100,000 Settlement in New York Prisoner’s Slip and Fall Claim (p 35)
- $750,000 Settlement in Alabama Prisoner’s Heat Death (p 35)
- Partial Summary Judgment Granted To PLN in FOIA Case against EOUSA (p 36)
- Shrinking Budgets Force States to Cut Corrections Spending (p 36)
- $60,000 Settlement for Washington Prisoner Injured by Chemical Spill (p 37)
- GEO Group Buys Just Care For $40 Million (p 37)
- Texas Religious Group Policies May Violate First Amendment and RLUIPA; TDCJ Changes Policy (p 38)
- $2.1 Million Awarded in New York Unjust Conviction Claim (p 38)
- Four-Year Statute of Limitations Applies to § 1983 Claims Filed in Florida (p 39)
- Washington DOC Ordered to Pay $174,000 for False Imprisonment (p 39)
- Canadian Appellate Court Affirms $12,000 Judgment for Prisoner (p 40)
- Eleventh Circuit Finds Administrative Remedies Unavailable When Prison Official Threatens Retaliation (p 40)
- $3.1 Million Settlement to Wrongly Convicted Massachusetts Prisoner (p 41)
- $80,000 Award in NY Prisoner’s Claim for Injuries Caused by Assault (p 42)
- $200,000 Settlement in Florida Prisoner’s Suicide Death (p 42)
- Texas Prison Guard Gets 24 Months in Federal Prison (p 42)
- Fourth Circuit: Heck Bar Inapplicable to § 1983 False Imprisonment Suit (p 43)
- Failure to Raise Issue in Rule 50 Motion Prohibits Argument on Appeal; $214,000 Verdict Upheld (p 44)
- Massachusetts GPS Program Upheld by State Supreme Court (p 44)
- Indiana DOC Directive Limiting Educational Credit to Only One Associate’s Degree Violates Ex Post Facto Clause (p 45)
- Assessment of Prison Account Without Seizure of Funds Implicates Due Process in Third Circuit (p 46)
- Tenth Circuit Reverses Dismissal of Failure to Protect Suit (p 47)
- Defendants Denied Qualified Immunity in Tennessee Jail Detainee’s Death (p 48)
- Ninth Circuit: California Jail Detainee’s Excessive Force Suit May Proceed (p 48)
- Texas to Eliminate Centralized Release of Prisoners (p 49)
- News in Brief: (p 50)
- Eighth Circuit Rejects Debt Offset of EAJA Fees; Supreme Court to Hear Case (p 55)
To partially overcome the public’s lack of – and need for – everyday household, agricultural and other necessary items, many states began allowing their prison systems to put prisoners to work producing products for consumers. Some of those goods were distributed outside the state of manufacture and began to compete with private sector companies, which were already having difficultly finding markets for their products in the slow economy.
Legislating Limits on Prison Industry Programs
In 1924, the U.S. Secretary of Commerce, Herbert Hoover, held a conference on the “ruinous and unfair competition between prison-made products and free industry and labor” (70 Cong. Rec. S656 (1928)). As a result of that conference, an advisory committee was formed to study the issue. The need for such a committee was in response to complaints from private sector businesses ...
From the late 19th century into the depression years, Americans struggled economically. For the man and woman on the street to the businesses, companies and manufacturers vainly trying to keep their enterprises afloat, those were difficult times. States strained to overcome the desperate financial situation which held citizens captive as a result of few jobs and even less income or money available for business capital.
The physical move will take place during the first two weeks of March. PLN magazine and website subscribers will not see any disruption of service as we will continue doing data entry and processing our mail as it arrives in our Seattle office. Book orders will be delayed for a two week period while the office is physically in transit but that will be a one time delay. Our new office is literally upstairs from the local post office so we expect to provide our readers and customers with even faster and better service.
Please note our new mailing address and office phone number effective immediately are:
Prison Legal News
P.O. Box 2420
West Brattleboro, VT 05303
Mail to our Seattle office will be forwarded for several years so anything sent to that ...
The big news this month is that Prison Legal News is closing its Seattle office and consolidating its operations on the east coast in Vermont. We have had our Seattle office in 1996 and since 2004 have maintained offices in both Seattle and Vermont. The consolidation comes as part of an effort to reduce costs and overhead associated with having two offices on separate coasts.
On August 27, 2009, the First Circuit Court of Appeals upheld an almost $102 million judgment in a lawsuit filed against the federal government after the FBI helped an informant secure the convictions of four men for a murder they didn’t commit.
In March 1965, Edward ...
by Matt Clarke
So if you think it’s proper for prison guards to call African-American prisoners “niggers” and gay prisoners “fags,” then this story may not be for you. If, however, you think that prisoners deserve to be treated as human beings while they pay what the old movies call “their debt to society” — that they still have some rights despite being deprived of their freedom — then please read on.
Complaints about harassment on racial and sexual-orientation grounds within Maine’s public institutions would normally get a hearing before the Maine Human Rights Commission. A prisoner at the Maine State Prison, Jonathan Dix, recently made such a complaint. He accused guards of allowing him to be called a “monkey” and “dirty nigger.”
Commission executive director Patricia Ryan and chief attorney John Gause wanted to accept Dix’s case and others like it. But for six years their gubernatorially appointed citizen commissioners, including a former prison warden, Paul Vestal — who is now the commission chairman — have blocked all prisoner harassment complaints from being heard. In doing so, they have lessened prisoners’ remedies against a variety of crimes such ...
This story has a bias. It’s in favor of human rights for all people.
Unlike the PIECP programs discussed in this issue’s cover story, the prison labor programs described below produce goods or provide services for government agencies through state-run prison industries, work release programs or community corrections, not in conjunction with private-sector businesses.
For fiscal year 2009, the state of Ohio cut its budget by $1.9 billion. Statehouse operations at the Capitol were slashed $310,000; consequently, 17 employees were laid off. To fill that void, the state has proposed using seven prisoners – five as janitors and two as groundskeepers.
The Ohio Civil Service Employees Association filed a grievance in an effort to stop the plan, but some state officials feel there’s no other alternative. “Get the money reinstated, and we’ll bring the employees back,” said William Carleton, executive director of the Capitol Square Review and Advisory ...
Across the nation, state and local governments are facing gaping holes in their budgets. As a result many are turning to cheap or free prison labor, and in some cases prisoners have taken the place of free-world citizens laid off due to budget cuts. State and local agencies have increasingly come to benefit from – and rely upon – low or no-cost prison workers.
As promising an athlete he was, Cohen was more interested in a different kind of court.
“When it became clear that I was not National Basketball Association material, I was looking at either being drafted to serve in Korea or going to law school,” says Cohen. He arrived at the latter, and went on to teach law at Denver University and the University of Texas. He also helped found a graduate school in criminal justice at SUNY-Albany, and published, edited and wrote articles on prisoners’ rights.
“I was motivated by a powerful ...
Most people familiar with prisoners’ rights issues know attorney Fred Cohen as an advocate for juvenile prisoners and prisoners with mental health issues. They have also seen his byline in the Correctional Law Reporter, which he co-founded more than 20 years ago, and followed his work as a Federal Court Monitor in Ohio. But they may not know this about Cohen: He once dominated the boards in college basketball. Indeed, Cohen, as a starter for Temple University in 1956, set the record for most rebounds in an NCAA Tournament game by collecting 34 boards against the University of Connecticut. More than a half-century later, the record still stands.
The plaintiffs were separated into two classes. The Class I members comprised “all males who were subjected to strip search and/or visual body cavity search as new detainees at the Cook County Jail on or after January 30, 2004.”
The Class I members alleged that their Fourth Amendment, due process and equal protection rights were violated when they were strip searched in groups of 75-100 men without partitions to prevent other detainees from seeing their naked bodies.
During the searches, the Class I members complained they were exposed to “strong, foul odors,” “vomit, diarrhea, and blood,” “insults [by guards] about body odor, anatomy, sexual orientation, and race,” and that dogs were used to humiliate and intimidate them. Privacy screens were later installed at CCJ, but the Class I members alleged they were forced to continue strip searching in front of other detainees at times. Similarly situated female detainees were treated differently. Female detainees were not strip searched in groups, and ...
On February 23, 2009, U.S. District Court Judge Matthew F. Kennelly granted partial summary judgment to the plaintiffs in a class action lawsuit challenging certain strip and visual body cavity searches conducted at Illinois’ Cook County Jail (CCJ).
In 2000, in a rare show of rationality by members of the public relative to criminal justice issues, California voters approved Proposition 36. For those who meet specific eligibility requirements, Prop 36 mandates drug treatment at state expense in lieu of incarceration.
While such treatment programs require funding, studies have repeatedly shown that the costs of drug treatment are dwarfed by the alternative expense of imprisonment, and that treatment is more cost-effective and socially beneficial.
Such net savings, along with a potential reduction in criminal activity associated with illegal drug use through lower recidivism rates, have garnered favor with California voters – and with public officials. “This has been a very successful program; we should be spending more, not less on these people,” remarked Dan Nelson, a deputy district attorney.
Schwarzenegger’s budget cuts, announced last August and approved by the state legislature in January 2010, eliminated almost all funding for Prop 36 drug treatment programs. As a result ...
In an effort to trim a $26.3 billion budget deficit, California Governor Arnold Schwarzenegger slashed $90 million from a diversion program designed to offer certain non-violent drug offenders the opportunity to participate in substance abuse treatment instead of going to prison.
In a unique approach to the study of the disparity of physical illness between blacks and whites, Daniel J. Kruger PhD and E. Hill DeLoney, MA attempted to establish a correlation between the higher incidence of physical illness in the black community and the higher rate of incarceration within the same group.
In their own words, “We hypothesized that the incarceration of individuals close to survey respondents would correspond with greater adversity in physical and mental health outcomes. Differential incarceration rates for Blacks and Whites may be a contributing factor to health disparities.”
The study consisted of a telephone survey in Genesee County, Michigan. The urban hub of Genesee County is the city of Flint. For years General Motors (GM) had been the major employer in Flint, Michigan. Over the last decade the auto industry has been in serious decline and the main auto producer, GM, has closed many of its plants and laid off hundreds of workers. This economic decline led ...
A study, sponsored by the Centers for Disease Control and Prevention and released in December 2008, concludes that “Incarceration may not only affect those individuals incarcerated, but also those family members and friends left behind in the community.”
In 2001, the U.S. military forcibly took control of an old fortress at Asadabad, Afghanistan, and established a permanent military presence at the fort called Asadabad Firebase. The fortress had 350-yard-long, ten-foot-high mud walls surrounding about 25 acres with a few internal walls and several rooms in the outer walls. By 2003, the U.S. had made significant improvements, including the addition of a dozen buildings for offices, living quarters and detention facilities, plus electric generators, above-ground plumbing and multi-layered security fortifications.
When David A. Passaro, a former Army Special Forces medic working as a CIA civilian contractor, arrived at the fire-base in May 2003, it had been coming under regular rocket attack. Military officials suspected a local Afghan, Adbul Wali, of organizing the attacks. A plan was developed to bring him in for questioning; however, Wali surrendered himself to U.S. authorities before they could implement the plan.
Wali was detained in a ...
On August 10, 2009, the Fourth Circuit Court of Appeals upheld the conviction of a CIA contractor who beat to death a detainee at a U.S. military outpost in Afghanistan. The contractor’s sentence was reversed due to an error in the enhancement level.
As part of the Prison Rape Elimination Act of 2003 (PREA), Congress directed the Bureau of Justice Statistics (BJS) to conduct an annual statistical review and analysis of sexual abuse in U.S. correctional facilities. In response, the BJS created the National Inmate Survey (NIS).
Through the use of computerized media that protects the anonymity of survey participants, the NIS was used to ask about 63,800 prisoners in 146 state and federal prisons and 282 local jails to self-report whether they had been sexually victimized by staff members or other offenders. This data sample was then used to extrapolate national estimates.
The survey results were troubling. During 2007, an estimated 4.5% of state and federal prisoners and 3.2% of offenders in local jails reported being sexually victimized by other prisoners or correctional employees. This represented about 85,200 prisoners nationwide, or 3.7% of the nation’s combined 2.3 million prison ...
In a culture where it is socially acceptable for celebrities, advertisers and even movies to joke about the unfunny fact of prison rape, it should come as no surprise that almost 4% of prisoners in the United States have reported being sexually victimized while incarcerated.
Washington state’s medical malpractice litigation statute, RCW 7.70.150, requires plaintiffs in such cases to submit a certificate of merit prior to discovery that includes evidence supporting their claims. Putman argued that this requirement violated the separation of powers doctrine by usurping the judiciary’s power to set court rules. She also claimed that her right of access to the courts was hindered by her effectively being barred from the discovery process, which is intended to uncover the evidence that is required to be included in the certificate of merit.
On September 17, 2009, the Washington Supreme Court held that the statutory requirement for plaintiffs to file certificates of merit was “unconstitutional because it unduly burdens the right of access ...
In 2007, Kimme Putman, a Washington state resident, filed suit against the Wenatchee Valley Medical Center and a number of its employees. Putnam’s lawsuit alleged negligence by medical personnel when they failed to properly diagnose her ovarian cancer in 2001 and 2002, while it was still in the early stages. However, her suit was dismissed because she failed to file a certificate of merit from a medical expert as required in many states, including Washington. Putnam appealed.
In order to generate more revenue to help fund an over-capacity prison system, the Illinois General Assembly passed Senate Bill 0629 in 2004. The bill, which became Public Act 93-0607, granted the IDOC authority to add up to a 25% surcharge on all non-tobacco products and up to 35% on all tobacco products sold at prison commissaries. Prior to this amendment the surcharge was capped at 10%.
Illinois prisoners groaned as commissary prices rose. As captive consumers who rely on meager prison wages, the price increase meant a drastic reduction in what they were able to purchase.
Ironically, it wasn’t prisoners who cried the loudest about the price increase but rather prison guards. Their union, the American Federation of State, County and Municipal Employees (AFSCME), was able to convince state lawmakers to sponsor a bill to exempt IDOC employees from most of the price increase by capping commissary surcharges at 10% for prison staff. The bill passed and became Public Act 94-0913, effective ...
Few prisoners would be shocked to learn that they are paying too much for items sold in prison commissaries or canteens. The Illinois Dept. of Corrections (IDOC), however, has taken commissary price-gouging to an extreme level.
The advent of supervised release, a form of supervision for federal offenders after their release from prison, occurred with the passage of the Sentencing Reform Act of 1984 (SRA). The SRA abolished indeterminate sentencing in the federal system, taking with it parole and increased good time opportunities for early release. Mandatory federal sentencing guidelines were instituted, along with a good time statute that requires federal prisoners to serve 87.2% of their sentences.
Judges can impose “standard” and “special” conditions of supervised release in addition to three mandatory conditions required of all offenders: 1) do not commit another crime; 2) submit to at least one drug test; and 3) submit to DNA collection if you were convicted of a felony.
So-called “standard” conditions of supervised release typically require released prisoners to hold a job, not associate with other felons and meet with their probation officer once a month. For offenders who are doing ...
The number of people serving terms of supervised release after leaving federal prison is creeping ever closer to 100,000. As judges and probation officers attempt to manage their growing caseloads, more and more judges are imposing supervised release conditions that unfairly restrict ex-prisoners from successful reentry.
In the 1980s, faced with overcrowded prisons and probationers who often failed to pay their court-ordered fees and fines, some Texas counties came up with what sounded like a good idea: the Probationer Restitution Center (PRC). A PRC is essentially a group of dedicated jail beds used to incarcerate probationers on nights and weekends.
The idea was that a judge would order night-and-weekend incarceration until the probationer got caught up on their delinquent fines and fees. That way the courts could get their money without having to violate the probationer, which would keep them out of the state’s overcrowded prison system.
Collin County, Texas closed its PRC in November 2009. Although the program had a capacity of ten beds, soon be-fore it shut down it held only four probationers. Bob Hughes, director of Collin County’s probation department, said they had rarely used all available beds, which were located in the county jail.
This inefficiency partially explains the demise of the PRCs. There were once fourteen Probationer Restitution Centers in Texas. After the Collin County PRC closed, only seven remain. They are located in Cameron, Cass, El Paso, Hildago, San Patricio and Taylor Counties. Tarrant County ...
by Matt Clarke
Ygelsias and Jacobo were accused of engaging in illegal sexual activity in October 2008 with a female prisoner they were transporting from Chowchilla State Prison to the Santa Barbara County Jail. Ygelsias, 29, was charged with one count of forcible oral copulation, which is classified as both a violent and serious felony under California law, and a misdemeanor count of sexual activity with a prisoner in a detention facility. Jacobo, 28, was accused of only the misdemeanor violation.
Ygelsias was terminated after being charged, while Jacobo resigned. They had worked for the company for less than six months.
The few details that emerged were sordid. Ygelsias reportedly received oral sex from a female prisoner he had picked up at Chowchilla; the sex act occurred in a van that was transporting seven offenders, some male and some female. The victim alleged that Ygelsias sat next to her in the front bench seat of the van. He then ...
In June 2009, the District Attorney’s office in Santa Barbara, California filed charges against Roland Ygelsias and Miguel Jacobo, former employees of U.S. Extradition Services, a company that contracts with law enforcement agencies to transport prisoners to and from prisons and jails.
Jail prisoners in California, Florida, Michigan and Texas have unknowingly had their phone calls to defense attorneys secretly recorded and handed over to prosecutors. The recordings surfaced before trial, when prosecutors were required to divulge all the evidence they possessed to the prisoners’ lawyers.
Highly indignant San Diego defense attorney Jim McMahon, whose calls with a client were recorded, complained, “We aren’t talking about cursory stuff [like] what kind of clothes to wear. We were talking trial strategy.”
“There’s no question that these calls are privileged, and we rely on that because the criminal justice system would come to a screeching halt if we had to drive to the jail every time we had to talk to our clients,” he added.
After McMahon’s complaint, San Diego jail staff temporarily suspended the phone recording system to allow the addition of “safeguards,” which consisted of software to automatically stop taping calls made to pre-approved attorney phone numbers.
The system was already using a database of 5,000 phone numbers for local lawyers, but it had serious deficiencies. “We thought we had a better database,” said Sanford Toyen, a legal advisor to the county. The jail ...
by John E. Dannenberg
After pleading guilty to two counts of second-degree rape of a child in January 1998, McMillan received a suspended sentence of 131 months pursuant to the SSOSA. His sentence was later reduced to 89 months. Clinical psychologist Dr. Clark Ashworth, who counseled McMillan and was apparently familiar with his state of mind, offered his expert opinion that McMillan posed no “significant risk of sexual re-offending.”
On appeal, as at the trial court level, Dr. Ashworth’s opinion carried significant weight in the judges’ deliberations. RCW 9A.44.140, the Washington state law that governs such petitions filed by sex offenders like McMillan, clearly grants the trial court discretionary ...
On September 9, 2008, following more than ten years of compliance with Special Sex Offender Sentencing Alternative (SSOSA) restrictions and guidelines, a Washington state trial court relieved Brian A. McMillan of his duty to register as a sex offender. The State of Washington appealed the court’s decision, arguing that “clear and convincing” evidence was not presented to show the purposes of the registration statute were no longer being served by McMillan’s continued registration, as required by law. Further, the state argued that the trial court had not made written findings.
Additionally, the OIO found enough problems with the Texas Youth Commission (TYC) to lead the Senate to propose closing both TYC and the Texas Juvenile Probation Commission (TJPC) and combining them into a single entity. The merger of the two agencies, which was estimated to save the state $27 million, had been recommended by the Texas Sunset Advisory Commission.
The OIO’s investigation also revealed that the number of juveniles sent to prison with some form of gang affiliation (40%) doubled by the time they were released from custody (80%).
According to the OIO, TYC facilities provided an unbalanced amount of Christian volunteer services while neglecting “minority faiths.” Other concerns expressed by the OIO included TYC’s handling of suicide prevention, discharges of mentally ill offenders, educational services and the agency’s classification process.
A separate report by ...
Last year, honoring the request of state Senator Juan “Chuy” Hinojosa, the Office of the Independent Ombudsman (OIO) of the Texas Youth Commission investigated the reason for the “alarming trend regarding adult certifications” of youthful offenders in Texas. What the OIO reported was a 31 percent increase, between 2007 and 2008, in the number of youths certified as adults by juvenile courts.
Federal prisoner Jerry Crickon filed a habeas petition challenging 28 C.F.R. § 550.58(a)(1)(iv), which prohibits prisoners who have “a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, or aggravated assault, or child sexual abuse offenses” from obtaining early release.
Such offenders could participate in RDAP but were ineligible to receive the one-year sentence reduction that could be earned by completing the program. Crickon was ineligible for an RDAP sentence reduction because he had a 38-year-old voluntary manslaughter conviction.
Crickon argued that the regulation, like the regulation struck down by the Ninth Circuit in Arrington, was promulgated in violation of the Administrative Procedure Act (APA) because the BOP had failed to articulate why it chose to exclude prisoners with prior convictions for homicide, forcible rape, robbery, aggravated assault or child sexual abuse from early release. The district ...
Following its recent decision in Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) [PLN, June 2009, p.44], the U.S. Court of Appeals for the Ninth Circuit struck down another federal Bureau of Prisons (BOP) rule that limits early release for certain prisoners who participate in the BOP’s Residential Drug Abuse Program (RDAP).
Eighteen months after surviving a motion for summary judgment, California prisoner William Milton agreed to a settlement of $35,000 in a case involving denial and delay of medical treatment. Though unpublished, the district court’s March 2007 order denying defendants’ motion for summary judgment includes an insightful discussion of ...
In what appears to be the first attempt to comply with federal court orders to reduce California’s prison population, the State Legislature enacted Senate Bill 18, which, effective January 25, 2010, places over 20% of the parole population on a new non-revocable parole (Penal Code (PC) § 3000.03) and gives “half-time” credits to disciplinary-free prisoners who were otherwise eligible for “one-third-time” credits. Additionally, it makes prisoner fire-fighters who are assigned to a prison, rather than just to a camp, eligible for the “two-thirds” credit rule. The new law also requires the California Department of Corrections and Rehabilitation (CDCR) to promulgate new regulations for eligible prisoners, granting up to six weeks additional credit for successful completion of approved rehabilitation programs, including academic, vocational and substance abuse programs.
The intent of the new rules is to incentify good behavior and rehabilitation among those incarcerated for minor, non-violent, non-“serious” crimes. But the law goes a great step further, by eliminating the discretion of parole agents to violate certain paroled offenders solely for “technical” violations. While such non-revocable parolees are still subject to warrantless searches and may be held without bail if arrested on a new offense, they ...
by John E. Dannenberg
Under the auspices of the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997, federal investigators were charged with determining if conditions at OPP evidenced a “pattern or practice of conduct that violates the constitutional rights of inmates” at the facility.
Utilizing expert consultants in the areas of corrections, use of force, custodial medical and mental health care and sanitation, the investigators conducted extensive interviews with OPP staff and prisoners. Additionally, a wide range of documents were examined – including policies and procedures, prisoner grievances, medical records, incident reports and training materials.
The results of the investigation were delivered in a “finding letter” on September 11, 2009, addressed to Orleans Parish Criminal Sheriff Marlin N. Gusman. The letter informed Sheriff Gusman of the numerous procedural and substantive rights violations uncovered by CRIPA investigators.
For example, the investigators determined that OPP failed in its duty to provide “humane conditions” of confinement in the area of prisoner safety, as mandated by the U.S. Supreme Court ...
In June, August and November 2008, the Orleans Parish Prison (OPP) in New Orleans, Louisiana was the target of a U.S. Department of Justice investigation conducted by the agency’s Civil Rights Division.
While incarcerated at the New Hampshire State Prison for Men on December 20, 2003, Shawn Cheever was transferred to ...
On September 18, 2009, a federal jury awarded a New Hampshire state prisoner $80,000 in punitive damages for a violation of his Eighth Amendment rights, plus $1 in nominal damages.
The riot began in a 200-bed dorm and eventually engulfed seven of eight housing units in an area at Chino known as Reception Center West. More than 1,000 prisoners were involved in the melee, some using improvised weapons; 240 were injured, with 55 requiring hospitalization for such serious injuries as stab wounds and head trauma.
One of the units was completely destroyed by fire while the others were so badly damaged that they were left uninhabitable. The riot began on a Saturday evening at about 8:20 p.m. and raged for four hours, but California Dept. of Corrections and Rehabilitation (CDCR) officials, aided by local law enforcement agencies, did not regain control until approximately 7:00 a.m. the next morning. Batons, tear gas and pepper spray were used. In an effort to prevent the unrest from spreading, ten of the state’s 33 prisons (all located in Southern California) were placed on lockdown in the wake ...
On August 8, 2009, just days after a three-judge federal panel ruled that California’s prison system was dangerously overcrowded, a major riot erupted at the California Institution for Men at Chino, a prison about 40 miles east of Los Angeles.
The report offers a comprehensive examination of the problems caused by and reasons behind prosecutorial misconduct. It goes on to provide workable recommendations geared toward resolving the problems in the most beneficial yet cost effective ways.
The first recommendation involves the need for prosecutor’s offices to adopt and enforce clearly defined policies and procedures in order to create a guide for prosecutors to refer to in their decision-making processes. The manual would remove much of the arbitrary nature currently found in the exercise of discretion, and eliminate the racial and economic bias that appears in so many criminal prosecutions today.
The next recommendation regards the need for open-file discovery in criminal cases in order to insure full disclosure of all relevant evidence by the prosecutor’s office. The most common form of prosecutorial misconduct is the suppression of exculpatory evidence, and enacting laws requiring open-file discovery, with sanctions for ...
The Justice Project recently published its policy review concerning prosecutorial accountability in our nation’s criminal justice system. Entitled, Improving Prosecutorial Accountability, the report was prepared by the president of The Justice Project, John F. Terzano, Esq., along with Executive Director Joyce A. McGee, Esq. and Policy Coordinator Alanna Holt.
On September 13, 2009, the Idaho Department of Corrections (IDOC) reached a settlement with the parents of an Idaho state prisoner who was driven to suicide by squalid conditions at a GEO Group-run private prison in Texas, where he had been transferred. The IDOC agreed to pay the prisoner’s ...
The transfer of prisoners from state prisons to county facilities is common in South Carolina, as it relieves the burden on the prison system and places prisoners closer to their families. What is uncommon is the amount of privileges that Bell received once he arrived at the county jail, where he worked as a trustee.
Bell was able to basically leave the detention center at will. At one point he left the jail long enough to have sex and father a daughter. The two celebrated her third birthday at a Chuck E. Cheese restaurant in 2006, along with the guard who drove him there and the guard’s wife and two children.
Occasionally Bell would enjoy dinner at his parents’ home in the next county. He did his own shopping at Wal-Mart, and at times was even allowed to ...
South Carolina state prisoner Kevin Bell, 42, breezed through the last six years of his sentence with the help of local law enforcement officials. In 1996, Bell began serving a 13-year prison term for cocaine trafficking. Six years later he was sent to the Cherokee County Detention Center, at the request of county officials, to serve the remainder of his sentence.
The settlement comes in a claim filed by prisoner James Mahoney, who was assigned as a recreation aide between the hours of 7:00 ...
The State of New York agreed to pay $100,000 to settle a prisoner’s slip and fall claim that occurred at the Groveland Correctional Facility.
Just four days after his admission to Kilby Correctional Facility (KCF), prisoner Farron Barksdale, 32, was found unconscious in his segregation ...
A $750,000 settlement was paid to the mother of an Alabama mentally ill prisoner who died as the result of exposure to extreme heat while on psychotropic medication.
On October 10, 1999, Joey Estrella was brutally murdered by his two drunken cellmates, William and Rudy Sablan, while incarcerated in the segregation unit at the United States Penitentiary in Florence, Colorado.
In the immediate aftermath of Estrella’s death, the Bureau of Prisons (BOP) videotaped William Sablan mutilating and handling Estrella’s body and internal organs, and drinking Estrella’s blood. The video also shows Estrella’s numerous injuries, and the BOP’s removal of the Sablans from the cell, along with their initial physical exams, and their placement in four-point restraints in different cells.
The United States Attorney’s Office (USAO) for the District of Colorado used the video and autopsy photos in prosecuting the Sablans and unsuccessfully seeking the death penalty. Following the Sablans’ convictions, the video and autopsy photos were returned to the USAO where they remain.
On March 12 ...
On September 16, 2009, U.S. District Judge Marcia S. Krieger granted in part and denied in part a motion for summary judgment by Prison Legal News (PLN) in a Freedom of Information Act (FOIA) case wherein PLN sought the disclosure of a gruesome video and autopsy photos related to the death of a federal prisoner.
The story is in the numbers, and the numbers are staggering. More than one out of every 100 adults in the United States is in prison or jail – 2.3 million in all. One out of every 31 adults is under correctional supervision of some kind – a total of 7.3 million people, including more than five million on probation and parole.
Between 1988 and 2008, state spending on corrections increased four-fold. With total corrections system expenditures exceeding $50 billion nationally, one in every 15 state general fund dollars is now spent on corrections. However, with 43 states facing a combined budget shortfall of more than $100 billion in fiscal year 2009, many are doing the un-thinkable: making cuts to their corrections budgets.
Indeed, of the 33 states that responded to the Pew Center survey, at least 22 had made such cuts. The Pew Center report examined the nature of those budget reductions and divided them into three categories – decreases in operational costs, strategies for reducing ...
In a July 2009 report funded by the Public Safety Performance Project of the Pew Center on the States, author Christine S. Scott-Hayward examines how shrinking budgets are impacting state corrections policies and practices.
While working in the kitchen at the McNeil Island Correction Center, prisoner George D. Douglas reached for a chemical bottle to clean stainless steel. The bottle was on ...
The State of Washington paid $60,000 to settle a prisoner’s claim that he was injured due to a chemical spill.
In announcing the acquisition, GEO Group said it expected an additional $30 million in annual revenue from the purchase, along with a four cent increase in its profit per share. The company said the acquisition is being financed with free cash flow and borrowings; GEO completed the acquisition of Just Care in October 2009.
Geo Group, like most other private prison operators, has been plagued with problems at its facilities. Inadequate medical care at a west Texas immigration facility led to riots by prisoners in 2008, for instance. But with profits as the bottom line, instead of the general welfare of prisoners, these kinds of problems are to be expected. Such a history does not bode well for the fate of Geo Group’s most recent acquisition.
Geo Group, Inc., one of the country’s largest private prison and detention operators, has agreed to acquire Just Care. Just Care operates a 354-bed medical and mental health care unit in Columbia, South Carolina.
Darren L. Mayfield, a Texas state prisoner, filed a civil rights suit under 42 U.S.C. § 1983 and RLUIPA alleging that prison officials at the Hughes Unit had violated his rights when, pursuant to TDCJ policy, they refused to let his religious group meet without an outside sponsor being present, refused to allow him to possess runestones (small tiles made of antler, wood or stone with ancient runic alphabet carvings), and prohibited him from receiving rune-related literature.
Mayfield is a member of the Odinist/Asatru faith – an ancient, nature-based, polytheistic northern-European religion. He produced affidavits from free-world Odinist leaders who described Blotar, a worship meeting that should be conducted at least once a month which involves the use of runestones and other religious items, and stated that the study of runestones for the revelation of wisdom and truth is ...
The Fifth Circuit Court of Appeals held that Texas Department of Criminal Justice (TDCJ) policies that had the effect of prohibiting a prisoner from meeting with other members of his religion and possessing religious items may violate his rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5.
During “an extremely unpleasant and highly bitter divorce and custody ...
On March 16, 2009, a New York Court of Claims awarded $2,093,420 in damages to a man who was wrongfully convicted of sexually assaulting his 4-year-old child. He had spent more than two years in a maximum-security prison.
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
Melanie Hinkle was convicted of conspiracy to commit murder in the second degree and was sentenced to 120 months ...
A Washington state woman has been awarded $174,000 in damages after the Washington Department of Corrections (DOC) miscalculated her sentence, causing her to stay in prison an extra 18 months.
Carr had accused Correctional Service of Canada (CSC) of negligence and breaching its duty of care to him while he was housed at Millhaven ...
On June 2, 2009, a Canadian appellate court affirmed a decision by Federal Court Prothonotary Martha Milczynski awarding $12,000 to Barry Carr, a federal prisoner.
The appellate ruling came in a civil rights action filed by Georgia prisoner Willie Turner. He claimed that while working in the kitchen at the Men’s State Prison, he was ordered to clean an oven despite protesting it was not safe to do so be-cause the oven was sparking electricity and the floor was wet.
When he touched the oven, Turner received an electric shock that knocked him to the ground and injured his leg. In-stead of turning off the power or providing medical assistance, Turner’s supervisor joked about what happened, said he was stupid and filed a disciplinary report against him. Turner alleged that the supervisor later told him that exposing him to the risk of electrical shock was his way of getting back at him for being too fat. After being shocked, Turner was taken to the infirmary where he said he received inadequate medical care.
Turner timely filed an informal grievance with the grievance counselor, complaining that he had been shocked and ...
The Eleventh Circuit Court of Appeals has held that a prison official’s threat to retaliate against a prisoner for use of the institutional grievance procedure made the prisoner’s administrative remedies unavailable.
On July 28, 2009, within weeks of settling a similar wrongful conviction lawsuit that resulted in a $3.4 million payment to the estate of Kenneth Waters, the town of Ayer, Massachusetts agreed to pay $3.1 million to settle a federal complaint brought by former prisoner Dennis Maher. PLN ...
A New York Court of Claims has awarded $80,000 in damages to a prisoner at the Auburn Correctional Facility in connection with a prisoner-on-prisoner assault. Previously, in an October 1, 2007 order, the court found the State of New York 100% liable because the assault “was reasonably foreseeable and ...
Florida’s Department of Corrections paid $200,000 to settle a lawsuit involving a prisoner’s suicide death. That settlement is the maximum allowed under law when suing a state agency.
Prior to his entry into prison, prisoner David Hansen had a history of mental illness, which included suicide attempts. His transition ...
Eugene Morris, Jr., a TDCJ sergeant at the Ferguson Unit, was offended by prisoner Robert Tanzini’s use of a racial slur to refer to another prison guard. He entered Tanzini’s cell, handcuffed him behind his back and took him to an office. Behind closed doors, Morris angrily confronted Tanzini, knocked him to the floor and repeatedly kicked him in the head. According to Tanzini, Morris and another guard “stomped, kicked and punched” him. Afterwards, Morris filled out a Use of Force report falsely saying that he had only used a bear hug on Tanzini to force him to the ground.
Tanzini suffered severe head trauma resulting in a week of unconsciousness, brain injuries, and skull and facial bone fractures. He said one of his eyes had been “kicked out of its socket.” It took him months to relearn the use of his right arm and leg; he still has difficulty with balance and fine motor control.
Morris was fired after the incident and another guard resigned. Tanzini filed ...
In August 2009, a former Texas Department of Criminal Justice (TDCJ) guard was sentenced to 24 months in federal prison in connection with a vicious assault on a handcuffed prisoner.
The Fourth Circuit Court of Appeals has joined five other circuits in holding that a former prisoner’s § 1983 false imprisonment claim is not barred by the “favorable termination” requirement of Heck v. Humphrey, 512 U.S. 477 (1994).
Lee O. Wilson, Jr. was arrested on March 24, 2005 in Virginia for grand larceny of a motor vehicle. He pleaded guilty on July 26, 2005 and was sentenced “to twelve months imprisonment, six months of which was suspended due to time served.” The Virginia Department of Corrections initially calculated Wilson’s release date as April 21, 2006, but later re-calculated it as July 17, 2006.
After he was released and his sentence had expired, Wilson filed a § 1983 action seeking $105,000 for false imprisonment. The district court dismissed his lawsuit sua sponte, “holding that Heck’s favorable termination requirement barred his § 1983 claim” and noting that he could resubmit his claim in a federal habeas corpus petition.
The Fourth Circuit weighed in on the sole issue of “whether Wilson’s § 1983 claim for wrongful imprisonment, filed af-ter his sentence expired, is cognizable.” The appellate court suggested that while the ...
Fourth Circuit: Heck Bar Inapplicable to § 1983 False Imprisonment Suit
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.
On March 8, 2007, Edward Donohue was convicted of his third drunk driving offense. Twelve days later, Middlesex Superior Court Judge Diane Kottmyer sentenced him to two-and-a-half years in jail, with a requirement that he serve at least 18 months of the sentence.
After Donohue had served 195 days, Middlesex County Sheriff James DiPaola transferred Donohue to a home GPS-monitoring program on September 17, 2007. Two days later Kottmyer learned that Donohue had been released on GPS monitoring, and ordered DiPaola to show cause why Donohue was no longer incarcerated.
On October 2, Judge Kottmyer issued an order concluding that the early release of prisoners onto the GPS program was in violation of state law. She ordered Donohue and eleven other prisoners back to jail. Sheriff DiPaola appealed.
The Supreme Judicial Court noted that “generally ... once a judge has sentenced a defendant, authority over the defendant passes from the judicial branch to the executive branch of government in that the defendant becomes subject to the sheriff’s control.” The Court found that ...
The Massachusetts Supreme Judicial Court vacated a lower court order which found that a sheriff had violated state law when he released sentenced prisoners on a GPS-monitoring program.
Steven I. Paul was convicted of aggravated battery and sentenced to twenty years imprisonment following a fatal shooting incident in 2002. On July 23, 2007, he filed a motion with the sentencing court requesting educational sentence credit. Paul complained that he had been denied educational credit for a second Associate’s Degree that he earned while incarcerated in 2006. The court denied Paul’s motion, relying on IDOC directive 05-29, which limits the award of educational credit to only one Associate’s Degree. Paul appealed.
At the time of Paul’s offense of conviction, Indiana law allowed prisoners to earn one year of educational credit for completing an Associate’s Degree. Educational credit was capped at the lesser of four years or one-third of the prisoner’s sentence, and could be achieved through the earning of multiple degrees.
In 2003, however, the state legislature changed the ...
A directive issued by the Indiana Department of Corrections (IDOC) that limits the award of educational sentence credit to only one Associate’s Degree cannot be applied retroactively without running afoul of the ex post facto clause of the U.S. and state Constitutions, the Indiana Court of Appeals decided on June 19, 2008.
In February 2005, Pennsylvania prisoner Charles Mobley sustained minor burns to his face when someone threw scalding water on him. During the ensuing investigation prison officials received two calls to “a special phone line set up to allow trusted inmates to relay sensitive information.” The anonymous callers claimed that prisoner Rodney Burns was Mobley’s assailant.
That information was deemed credible because guards recognized the informants’ voices and said they had provided reliable information before. A third prisoner sent an anonymous letter stating the “right guy” had been locked up, referring to Burns.
On March 7, 2005, Burns was charged with assaulting Mobley based primarily on the information provided by the informants. At a March 10, 2005 hearing, Burns denied the charges and requested that the hearing officer review the video tapes of the location where the incident occurred, but was informed the tapes ...
In an important case of first impression, the U.S. Court of Appeals for the Third Circuit held that an assessment of a prisoner’s trust account without an actual seizure of funds implicates a property interest. On remand, however, the district court decided that the violation of that right resulted in a very limited remedy.
Scott L. Howard, a self-described “openly homosexual” prisoner of “slight build,” was a target from the moment he arrived at the Fremont Correctional Facility in 2004. Convicted of various financial crimes that garnered both local and national media attention, Howard was first approached by the “2-11 Crew” gang after being recognized in media reports.
Initially, the gang wanted Howard to commit similar financial crimes for their benefit. Eventually, though, they began extorting money from him. When Howard could no longer pay, he was forced into prostitution and repeatedly raped as payment for his “debts” to the gang. After contacting an attorney friend, Howard was questioned by prison officials and admitted that “he had been assaulted.” His case manager replied, “I don’t want to hear the details of this.” Several days later he was moved to the Sterling Correctional Facility.
Howard’s first permanent housing at Sterling was in Unit 2. There, he met with his case manager and “explained his ordeal with 2-11 Crew members” while at ...
The U.S. Court of Appeals for the Tenth Circuit has reversed the dismissal of a lawsuit filed by a Colorado prisoner who requested but was denied protection from prison gang members.
Sonya Phillips was a pretrial detainee at the Roane County Jail in Kingston, Tennessee. On November 24, 2000, guards “found her unconscious in her cell, not breathing, and with no detectable pulse.” She regained consciousness before paramedics arrived but still appeared “almost purplish” in color, “very swollen” and “very slow.”
Paramedic Duranda Tipton, who observed Phillips’ condition, asked if she should be transported to an emergency room for evaluation; however, Phillips was not hospitalized because Captain Fay Hall said “she should be left in the jail if she was not in ‘distress.’”
Phillips’ physical condition continued to deteriorate and fellow prisoners had to bathe and clothe her because she was unable to do so herself. She began vomiting frequently and passing out. Her breathing sounded as though she had fluid in her airway, and she vomited blood.
Jailers placed Phillips in a medical observation cell ...
The Sixth Circuit Court of Appeals has held that a lower court improperly deferred a qualified immunity determination to the jury. The appellate court decided that jail guards, a jail physician and a paramedic were not entitled to qualified immunity in a Tennessee prisoner’s death, though qualified immunity was granted to several other defendants.
The Ninth Circuit Court of Appeals reversed a district court’s decision granting summary judgment to Orange County, California jail officials who allegedly used excessive force while restraining a detainee. The appellate court found that because there were triable issues of fact, summary judgment was not appropriate.
Donald C. Fuller, Jr. sued Orange County under 42 U.S.C. § 1983 and state law claims for excessive force and violations of his First and Fourteenth Amendment rights during his booking and incarceration at the Orange County Jail. He named three deputies, a supervising sergeant and Sheriff Michael Carona – who has since himself been indicted and convicted in an unrelated case. [See: PLN, Nov. 2009, p.38; Feb. 2009, p.1].
The defendants moved for summary judgment on grounds that the evidence did not show “objective unreasonable-ness” as required for a Fourth Amendment violation, or that they had chilled the exercise of Fuller’s First Amendment rights. The sergeant moved for summary judgment because he was not one of the restraining officers, and Sheriff Carona moved for summary judgment because he was not present during the incident. The district court granted summary judgment to all the defendants and ...
by John E. Dannenberg
The vast majority of Texas prisoners released each year--more than 42,000 in 2008--are processed out through a red-brick walled prison built in 1842 designated the Huntsville Unit that Texas prisoners call “The Walls.” Female prisoners are released through a women’s prison in Gatesville. Texas is the last state in the nation to practice centralized release of prisoners.
The legislation mandating the change is codified at § 493.029, Texas Government Code, and requires that prisoners be released through one of at least six regional release centers or the prison at which the prisoner is incarcerated no later than September 1, 2010. Prison system spokeswoman Michelle Lyons said that the prison system expects to save money by not having to transport prisoners to Huntsville or Gatesville, but is unsure of how much the savings will be. Currently, the prison system operates a fleet of 80 buses and vans that transport over 2,100 prisoners each day for transfers between prisons and to medical facilities and courts.
“It’s been nuts to take prisoners from 112 units and haul them all the way ...
By September 1, 2010, a long-standing Texas prison tradition will come to an end--the centralized release of prisoners.
California: In late November 2009, Craig Howard, 47, formerly a state parole agent, was arrested at Sacramento International Airport trying to smuggle drugs onto a plane by flashing his old badge at a security checkpoint. Transportation Security Administration agents observed him attempting to stuff a bag of marijuana in his shoe; they also found methamphetamine in his bag. Howard has been charged with various drug-related offenses and for impersonating a peace officer.
Connecticut: Hartford city police officer Rhashim Campbell was charged with misdemeanor assault and felony fabricating evidence on December 9, 2009. He is accused of beating prisoner Michael Stewart on November 1 after Stewart flooded his cell. Officer Kent Lee also was involved in the beating, but was not charged. Campbell has been suspended without pay; Lee retired from ...
Australia: Ipswich resident Kurt James Milner, a former security guard, pleaded guilty in January 2010 to charges of possessing cartoon pornography. Police recovered 64 images of “cartoon child exploitation material” from Milner’s com-puter, including X-rated cartoon images of child characters from The Simpsons, The Incredibles and The Powerpuff Girls. As a result of his guilty plea, Milner received a 12-month suspended sentence and must register as a sex offender.
South Dakota attorney Catherine G. Ratliff successfully represented two claimants in their efforts to obtain Social Security benefits. She was subsequently awarded attorney’s fees and costs under 28 U.S.C. § 2412(b) of the EAJA.
The government reduced the fee award to offset debts that the claimants owed the United States. Ratliff challenged the offset, arguing that it violated the Fourth Amendment; the district court rejected the challenge, concluding that Ratliff lacked standing because the fees were awarded to the parties, not their attorney.
The Eighth Circuit reversed based on controlling Circuit precedent “that the attorney’s fees ... are awarded to the par-ties’ attorney.” Applying Curtis v. City of Des Moines, 995 F.2d 509 (8th Cir. 1990), the appellate court held that “EAJA fee awards become the property of the prevailing party’s attorney when assessed and may not be used to offset the claimant’s debt.” Therefore, “Ratliff has standing to bring an independent action to collect the fees,” and the Court found ...
The Eighth Circuit Court of Appeals has held that attorney’s fees awarded under the Equal Access to Justice Act (EAJA) may not be withheld to pay debts owed to the federal government.