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Prisoner Education Guide

Prison Legal News: July, 2010

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Volume 21, Number 7

In this issue:

  1. Celebrity Justice: Prison Lifestyles of the Rich and Famous (p 1)
  2. California Uses $1.08 Billion in Federal Stimulus Funds to Pay Prison Guard Salaries (p 12)
  3. From the Editor (p 12)
  4. New Medical Director at Texas Jail Previously Sanctioned (p 13)
  5. U.S. Supreme Court to Review California Prison Population Reduction Orders (p 14)
  6. Florida Prison Psychiatrist Resigns; License Revoked Over Sex with Patient (p 15)
  7. Dallas County Jail Settles Three Medical-Related Suits for $795,000 (p 16)
  8. Florida’s Civil Rights Restoration Process Insufficiently Funded (p 16)
  9. Convictions Upheld in Appeal of Lynne Stewart, Attorney to Blind Sheikh, but Case Remanded for Resentencing (p 18)
  10. Texas Youth Commission Ombudsman Resigns Following Smuggling Indictment (p 18)
  11. Kentucky Lethal Injection Protocol Adopted in Violation of APA (p 20)
  12. Pennsylvania County Jail Settles Medical Indifference Suit for $55,000 (p 20)
  13. Eighth Circuit Upholds $2,501 Retaliation Judgment Against Arkansas Prison Guard (p 22)
  14. Indiana Sex Offender Registration Law Can Not Be Retroactively Applied (p 22)
  15. Valley Fever Cases at California Prison Increase in 2009 (p 22)
  16. Release Conditions Requiring Defendant to Tell Probation Officer about Romantic Relationships Vacated (p 23)
  17. Only Three States in Compliance with Unfunded Federal Sex Offender Mandates (p 24)
  18. DNA Exonerations in Georgia Result in Disparate Compensation Awards (p 24)
  19. Guilty Pleas in Angola Horse Selling Scheme (p 26)
  20. San Francisco Settles Wrongful Incarceration Cases for $7.5 Million (p 26)
  21. Canyon County Jail in Idaho Settles Conditions Suit With Consent Decree and $190,000 in Attorney’s Fees (p 27)
  22. U.S. Senator’s Girlfriend, In-Law Get Department of Justice Jobs (p 28)
  23. U.S. Department of Justice Releases Report on HIV in Prisons (p 28)
  24. South Carolina Settles Prisoner Stabbing Death Lawsuit for $47,500 (p 30)
  25. California County Jail Settles Wrongful Death Suit for $600,000 (p 30)
  26. Virginia Sheriff’s Office, PHS Settle Wrongful Death Suit for $1.6 Million (p 30)
  27. CCA Pays $70,000 in Damages, Attorney Fees to Settle PLN Censorship Suit (p 31)
  28. Prison-based Call Centers Open in Austria, India (p 32)
  29. New York Prisoner Beaten, Guards Convicted, GEO Settles Suit for $80,000 (p 32)
  30. California Counties Vie to House ICE Prisoners (p 33)
  31. New Jersey DOC Agrees to Let Prisoner Preach (p 34)
  32. Erroneously Released Texas Prisoner Entitled to Credit on Sentence (p 34)
  33. Media Agencies Intervene to Unseal Records in Prisoner’s Wrongful Death Suit (p 36)
  34. Sacramento County Partially Settles Taxpayer Suit Alleging Il-legal Conditions of Confinement in Juvenile Facilities (p 36)
  35. Oregon Offers Early Release to Illegal Immigrants Who Consent to Deportation (p 37)
  36. The Politics of Death: Throwing Mumia Abu-Jamal Under the Bus (p 38)
  37. CMS Nurse Denied Summary Judgment for Failure to Treat Prisoner for Heat Illness;$400,000 Settlement Following Sixth Circuit Ruling (p 40)
  38. Wisconsin County Pays $750,000 to Settle Jail Sex Abuse Suit (p 41)
  39. Marsy’s Law Enjoined in California (p 42)
  40. Arkansas Federal Jury Awards $261,000 to Male Prisoner Raped by Male Guard (p 42)
  41. One in Six HIV-Infected Americans Spent Time in Prison or Jail in 2006 (p 43)
  42. Houston Police Department Conducted Blood Draw Training on Prisoners (p 44)
  43. Second Circuit Ruling in Post-9/11 Immigration Detention Case (p 46)
  44. Massachusetts Supreme Judicial Court: Sheriff May Not Charge Jail Fees (p 46)
  45. Former New York Corrections Commissioner Receives Four-Year Prison Sentence (p 48)
  46. Sixth Circuit: No Eleventh Amendment Immunity When ADA Claim Includes Fourteenth Amendment Violations (p 48)
  47. Georgia Officials Receive Prison Sentences in Charge-Fixing Scheme (p 49)
  48. News in Brief: (p 50)

Celebrity Justice: Prison Lifestyles of the Rich and Famous

by Matt Clarke

There are two criminal justice systems in the United States. One is for people with wealth, fame or influence who can afford to hire top-notch attorneys and public relations firms, who make campaign contributions to sheriffs, legislators and other elected officials, and who enjoy certain privileges due to their celebrity status or the size of their bank accounts. The other justice system is for everybody else.

As one example of this dichotomy, for over a decade suburban jails in Southern California have been renting upscale cells to affluent people convicted of crimes in Los Angeles County. These pay-to-stay programs, also called self-pay jails, cost wealthy prisoners between $45 and $175 a day and include such amenities as iPods, cell phones, computers, private cells and work release programs. Some even let prisoners (who are referred to as “clients”) bring in their own food.

This nicer-jail-stay-for-pay scheme not only allows the rich and famous – as well as the more modestly affluent – to avoid the brutality, squalor, abysmal medical care and other unpleasant conditions typical in public jail systems. It also highlights the inequities of a two-track system of justice in the United States in which the wealthy enjoy privileges ...

California Uses $1.08 Billion in Federal Stimulus Funds to Pay Prison Guard Salaries

In a November 2009 letter to Governor Schwarzenegger and legislative leaders, California State Auditor Elaine Howle reported that corrections officials had greatly overstated the number of jobs they saved using $1.08 billion in federal stimulus money, claiming they retained thousands of positions that were never in jeopardy.

Faced with an economic crisis the likes of which the United States had not experienced since the Great Depression, on February 17, 2009, President Obama signed the American Recovery and Reinvestment Act into law. The Recovery Act set aside $787 billion in federal funds to retain and create jobs; other objectives included assisting those most affected by the recession and stabilizing state and local government budgets.

The latter goal was to be achieved through the State Fiscal Stabilization Fund Program. Under the terms of the Re-covery Act, a certain percentage of stabilization funds (18.2%) could be used for public safety and other governmental services; the remainder had to be allocated to education-related programs.

California applied for initial funding under the State Fiscal Stabilization Fund Program in April 2009. In its application, the state explicitly indicated that it planned to spend the entire governmental services portion of its allotted stabilization funds on ...

From the Editor

The cover story of this month’s issue of Prison Legal News is no surprise to our readers. The pay-to-stay luxury jails in Southern California first came to my attention over a year ago when a reporter from the Los Angeles Times called to ask me for a comment on the practice. I duly pointed out the inherently unequal and discriminatory practice of this obvious two-tiered jail system and he commented “You know, you’re the only person I can find to go on record and say something bad about these pay-to-stay jails. Not even the ACLU will criticize it.” Most likely because when they or their loved ones face a jail sentence they would much rather have the option of doing time in a cushy luxury jail than the cesspool of violent corruption and disease known as the Los Angeles County jail. Even a rapper like Dr. Dre who has made his millions “keepin’ it real” knows it’s far better to write about jail from afar than doing hard time in one.

This very two-tier system of injustice is one of the factors that make reform all the harder. When everyone, rich and poor alike, are subject to ...

New Medical Director at Texas Jail Previously Sanctioned

In December 2009, McLennan County, Texas commissioners Lester Gibson, Kelly Snell and Joe Mashek admitted that a candidate for the medical director’s position at the McLennan County Jail had previously been sanctioned by the Texas Medical Board. That didn’t stop them from hiring him, though.

A background check of Dr. John Wells revealed that in August 2006 he had been ordered to take 16 hours of addi-tional education in the areas of medical records and ethics and pay a $500 fine for failing to turn over a woman’s medical records to an insurance company despite repeated requests. As a result, she lost a medical disability claim.

Wells belittled the disciplinary action, saying the records weren’t released because he was out of town tending to a sick relative and had an office policy of not releasing records unless he was personally in the office. “I don’t see what this has to do with me taking this job as a medical director [for the jail],” he complained. “This is a dead issue.”

The disciplinary sanction was discussed during a closed-door executive session of the County Commissioners Court. The commissioners said Wells had committed to work 30 hours ...

U.S. Supreme Court to Review California Prison Population Reduction Orders

by John E. Dannenberg

On June 14, 2010, the U.S. Supreme Court (USSC) agreed to review orders entered by a three-judge federal district court panel in California that would relieve overcrowding in that state’s prison system by requiring a reduction in its 172,000 prisoner population by 46,000 over the next two years. [See: PLN, Sept. 2009, p.36].

The USSC’s review caps two decades of litigation in the federal courts that culminated in a provision of the Prison Litiga-tion Reform Act (PLRA) that allows a three-judge panel to rule on alleged violations of prisoners’ constitutional rights, includ-ing issuing a “prison release order” under 28 U.S.C. § 3626(g)(4), subject only to an appeal to the Supreme Court.

In Coleman v. Schwarzenegger, U.S.D.C. (E.D. Cal.), Case No. CIV S-90-0520 LKK JFM P, Senior U.S. District Court Judge Lawrence K. Karlton found a substantive number of prisoners in the California Dept. of Corrections and Rehabilitation (CDCR) who suffered from mental illness were not receiving constitutionally adequate mental health care. Indeed, Judge Karlton was driven to provide relief based upon documented preventable suicides and conditions that exacerbated the pris-oners’ mental illnesses ...

Florida Prison Psychiatrist Resigns; License Revoked Over Sex with Patient

by David M. Reutter

Prisoners often believe that prison health care personnel are second-rate and incompetent, and likely couldn’t find work in non-correctional settings. The December 2, 2009 resignation of a Florida Department of Corrections (FDOC) psychiatrist whose license was revoked lent credence to that belief.

Emanuel John Falcone was hired in April 2008 as a psychiatrist at the Florida State Prison, and was promoted to a full-time position in August 2009. He obtained the $188,000-a-year job despite the FDOC interviewer being advised that Falcone had lost his New York medical license for having sex with a mentally ill patient.

In 2003, Falcone’s girlfriend, a licensed clinical social worker in Manhattan, began treating a woman who suffered from multiple personality disorder. The patient-client relationship continued after Falcone and his girlfriend married and moved to Florida in 2005.

When his wife shared the patient’s information with him, Falcone became “fascinated” by her alternative personalities, some of which were children. He began communicating with the woman by phone, took over her treatment, and pre-scribed medication for her. A sexual relationship began when Falcone and the woman met in New York in 2006; it contin-ued during a weekend trip ...

Dallas County Jail Settles Three Medical-Related Suits for $795,000

In April 2009, a federal jury in the U.S. District Court for the Northern District of Texas awarded $355,000 to Robert Duvall for injuries he suffered when he was denied medical treatment at the Dallas County Jail. Less than three months later, Dallas County settled two similar lawsuits ...

Florida’s Civil Rights Restoration Process Insufficiently Funded

by David M. Reutter

With Florida continuing to face budget shortfalls due to the economic crisis, Governor Charlie Crist is looking for ways to slash government spending. However, his efforts are drawing fire from those who question cutting the budget of the Florida Parole Commission (FPC).

When Crist became governor, one of his first acts was to fulfill a campaign promise to restore the civil rights of ex-felons who were no longer under correctional supervision. He met resistance from his cabinet, which forced him to com-promise. As a result only certain classes of felons – mostly convicted of non-violent crimes – received automatic restora-tion of their rights. Still, from 2007 to 2009 more than 115,000 former felons have had their rights restored. [See: PLN, Jan. 2009, p.26].

Those not granted automatic restoration have to trudge through the clemency process, which requires a review and recommendation by the FPC. As of June 30, 2009 the FPC had 63,000 pending cases, and it expects 60,000 more an-nually due to prisoner releases. The State Auditor estimated it would take 71 staff members a full year to eliminate the backlog; the Auditor also blamed errors in some FPC cases on a lack ...

Convictions Upheld in Appeal of Lynne Stewart, Attorney to Blind Sheikh, but Case Remanded for Resentencing

On December 23, 2009, a federal appeals court upheld the convictions of disbarred defense attorney Lynne Stewart and criticized what it called a “strikingly low sentence” for her offenses, which were related to providing material support in a terrorism conspiracy. [See: PLN, Sept. 2005, p.14; Sept. 2002, p.20].

Judges Robert D. Sack and Guido Calabresi of the Second Circuit Court of Appeals questioned the reasonableness of her 28-month sentence, which Stewart had told the Los Angeles Times she could do “standing on her head,” and re-manded the case to the district court for resentencing. The government had sought a sentence of 30 years for Stewart – the statutory maximum.

In particular, the appellate court cited the sentencing judge’s failure to make findings regarding charges of perjury, or to assign proper weight to Stewart’s abuse of trust of her position as an attorney, when considering the appropriateness of her sentence. The ruling threatens to have a significant impact on future right-to-counsel issues.

Stewart, along with co-defendants Mohammed Yousry and Ahmed Abdel Sattar, were convicted in 2005 for providing assistance to her client, Sheikh Omar Ahmed Ali Abdel Rahman, otherwise known as the “Blind Sheikh.” Rahman had himself been ...

Texas Youth Commission Ombudsman Resigns Following Smuggling Indictment

by Matt Clarke

On November 30, 2009, Catherine S. Evans, a former Dallas state district judge and the newly-appointed ombudsman for the Texas Youth Commission (TYC), resigned after she was indicted on a third-degree felony charge for smuggling a prohibited weapon into a TYC facility. [See: PLN, March 2010, p.28].

In 2007 the TYC was rocked by a scandal involving the widespread physical and sexual abuse of juvenile offenders, which led to a complete overhaul of the agency. [See: PLN, Feb. 2008, p.1]. As a result of remedial efforts, the Office of the Ombudsman was created with a mandate to protect juvenile prisoners from abuse.

The Ombudsman’s Office has charted a stormy course since its inception in May 2007. After it was found that Will Harrell, the first ombudsman appointed by Governor Rick Perry, had a prior arrest for reckless driving that disqualified him from the position, the hiring policy was changed to accommodate his arrest record. However, he resigned on June 1, 2009 to become the TYC’s director of special projects, leading Gov. Perry to appoint Evans to the ombudsman’s job in September 2009.

A pressing issue in Texas prisons at that time was ...

Kentucky Lethal Injection Protocol Adopted in Violation of APA

The lethal injection protocol adopted by the Kentucky Department of Correction (DOC) was promulgated in violation of the state’s Administrative Procedure Act (APA), the Kentucky Supreme Court decided on November 25, 2009.

Kentucky, like most other states that have the death penalty, uses a three-drug lethal injection protocol to carry out executions. Death row prisoners Thomas Bowling, Ralph Baze and Brian Moore sought a declaratory judgment in 2006 that the three-drug protocol was enacted in violation of the APA.

On May 26, 2006, a Franklin Circuit Court judge agreed, ordering the DOC to promulgate its execution protocol in ac-cordance with the APA. The court later reversed itself, finding the protocol was not subject to the Administrative Procedure Act.

While that litigation was pending, Bowling and Baze were challenging the constitutionality of the lethal injection proc-ess. Ultimately, the U.S. Supreme Court held that Kentucky’s three-drug protocol did not offend the Constitution. See: Baze v. Rees, 553 U.S. 35 (2008) [PLN, Dec. 2008, p.37].

After losing in the Supreme Court, Bowling and Baze turned to their appeal in the declaratory judgment suit over whether the protocol was adopted in violation of the APA. The Kentucky Supreme Court ...

Pennsylvania County Jail Settles Medical Indifference Suit for $55,000

Butler County, Pennsylvania has agreed to settle a medical deliberate indifference lawsuit for $55,000. In April 2006, James Raub was arrested and taken to the Butler County Prison. During the booking process, he told guards and a nurse that he was in pain and wanted to be sent to ...

Eighth Circuit Upholds $2,501 Retaliation Judgment Against Arkansas Prison Guard

The U.S. Court of Appeals for the Eighth Circuit has affirmed a $2,501 award to an Arkansas state prisoner who was subjected to retaliation by an Arkansas Department of Correction (ADC) guard.

On June 23, 2007, ADC prisoner Walter Haynes filed a grievance against Sgt. Patrick L. Stephenson ...

Indiana Sex Offender Registration Law Can Not Be Retroactively Applied

The Indiana Sex Offender Registration Act (ISRA) can not be applied to offenders who committed their crimes before the statute’s enactment, the Indiana Supreme Court decided on January 6, 2010.

Gary M. Hevner was convicted in 2008 of possessing child pornography after downloading illegal images to his computer. In addition to being placed on probation for two-and-a-half years, Hevner was ordered to register as a sex offender consistent with the ISRA, which took effect on July 1, 2007.

Hevner appealed the sex offender registration requirement, arguing the ISRA could not be retroactively applied to him be-cause his offense was committed before the effective date of the law. In a six-page opinion, the Indiana Supreme Court agreed.

Relying primarily on its prior ruling in Wallace v. State, 905 N.E.2d 371 (Ind. 2009) [PLN, Nov. 2009, p.14], the Court con-cluded that the statute could not be applied to Hevner. The ISRA was punitive in effect, and as such, retroactive application of the law violated the Indiana Constitution’s “prohibition on ex post facto laws,” the Court wrote.

However, the Indiana Supreme Court approved a residency restriction prohibiting Hevner from residing within 1,000 feet of a school, holding ...

Valley Fever Cases at California Prison Increase in 2009

According to The Fresno Bee, the number of cases of Valley Fever among California prisoners at the Pleasant Valley State Prison in Coalinga nearly doubled from 2008 to 2009. Data reported by prison officials to the Fresno County Public Health Department indicate that 311 prisoners were diagnosed with Valley Fever in 2009, compared with 159 in 2008.

Regardless, the Fresno County grand jury released a report on January 25, 2010 claiming the number of Valley Fever cases at the prison had dropped by more than half. Although it did not reveal the source of its information, the report stated, “Statistics show a definite drop in cases and the grand jury believes that the medical staff [at Pleasant Valley] should be commended.”

Researchers believe environmental factors play a role in the spread of Valley Fever, a soil-borne fungus that is prevalent in Coalinga and nearby communities in both California and Arizona.
According to Richard Hector, director of the Valley Fever Vaccine Project and a researcher at U.C. San Francisco, little can be done to prevent Valley Fever, which is incurable and po-tentially fatal, though not contagious. [See: PLN, Aug. 2007, p.1; June 2008, p.22].

Prison officials are reportedly ...

Release Conditions Requiring Defendant to Tell Probation Officer about Romantic Relationships Vacated

On January 7, 2010, the U.S. Court of Appeals for the Second Circuit vacated a condition of supervised release that required a federal defendant to notify probation officials each time he entered into a “significant romantic relationship.” A related condition that required the defendant to inform anyone he was romantically involved with about his conviction also was vacated.
Lamont Reeves was convicted of theft of Social Security funds and possession of child pornography, and sentenced to 40 months in prison plus five years on supervised release. After sentencing, without prior notice to any of the parties, the district court imposed a special condition of supervised release that required Reeves to “notify the Probation Depart-ment when he establishe[d] a significant romantic relationship and ... inform the other party of his prior criminal history concerning his sex offenses.” Additionally, Reeves was required to give probation officials any “significant other’s address, age, and where the individual may be contacted.”

On appeal, the Second Circuit held those requirements were unreasonably vague and inconsistent with statutory limits on special conditions of supervised release. The requirement that Reeves notify the Probation Department upon entering into a “sig-nificant romantic relationship” was unduly vague, the appellate ...

Only Three States in Compliance with Unfunded Federal Sex Offender Mandates

by Matt Clarke

In 2006 Congress enacted the Adam Walsh Act, which requires states to institute stricter monitoring of sex offenders or face losing 10% of their federal crime-prevention grants. Although all states were supposed to comply with the Act by July 2009, as of May 18, 2010 only Ohio, Delaware and Florida were “in substantial compliance,” according to the U.S. Department of Justice.

Among other things, the Act, which is also known as the Sex Offender Registration and Notification Act (SORNA), requires states to narrow sex offender classifications to three “tiers” ranked by dangerousness, and to impose strict report-ing requirements based on an offender’s classification.

“We have states being very laid back and states where legislators are pulling out their hair trying to comply,” stated Alisa Klein of the Association for the Treatment of Sex Abusers. “And there’s lots of states waiting for another state to bust a move and say, ‘We’re not going to comply.’”

One might think that the reason for this foot-dragging is the fact that sex offender registration laws do not reduce the rate of sex offenses. [See: PLN, Dec. 2009, p.28; Aug. 2008, p.16]. Such is not the ...

DNA Exonerations in Georgia Result in Disparate Compensation Awards

by David M. Reutter

The disparity in compensation awards for prisoners exonerated by DNA evidence in Georgia demonstrates the need for evenhanded compensation laws.

Five wrongly convicted prisoners, Clarence Harrison, Robert Clark, Douglas Echols, Samuel Scott and Willie Otis “Pete” Williams, spent a combined 82 years in Georgia prisons for crimes they didn’t commit. All were proven innocent by DNA evidence.

Three of those five received compensation from the state – Harrison, who served 17 years for the abduction, robbery and rape of a woman waiting for a bus; Clark, who served almost 24 years for rape, kidnapping and robbery; and Williams, who served 21 years for kidnapping, rape and aggravated sodomy before being exonerated in 2007.

Harrison, who was 44 when released from prison in 2004, was awarded $1 million by state lawmakers. Clark re-ceived $1.2 million after the Georgia legislature passed a resolution approving the payment in March 2007. He had contracted hepatitis C while in prison. Williams was awarded $1.2 million in compensation.

“Can you even fathom in your wildest imagination what it must be like for this man to lose his entire adult life, until now, incarcerated in prison, literally excommunicated from free society ...

Guilty Pleas in Angola Horse Selling Scheme

by David M. Reutter

A federal investigation uncovered a fraudulent scheme at the Louisiana State Penitentiary at Angola in which horses were sold to private parties, bypassing required public auctions. Two indictments were handed down that resulted in guilty pleas.

On September 19, 2007, a federal grand jury returned an indictment that charged Angola worker Julius Harold “Buddy” Truax with four counts of mail fraud. According to the indictment, which remained sealed until 2009, Truax col-luded with director of Prison Enterprises James H. Leslie and other individuals to sell horses directly to private buyers. Prison Enterprises raises horses at Angola for use in prison agricultural programs and for sale to state agencies and cer-tain non-profit organizations, through competitive bidding at public auctions.
In one case, however, a horse was taken to a stockyard, remained in a state-owned trailer while a private buyer deliv-ered a check, and then taken by state employees to the buyer’s home. Paperwork was fabricated to indicate it had been sold at auction. Truax was allegedly involved in the illegal sale of at least seven horses between 2005 and 2006.

A second indictment named Leslie, who was charged with using intimidation or force against a witness ...

San Francisco Settles Wrongful Incarceration Cases for $7.5 Million

Nearly six years after his release from prison, Antoine Goff received a measure of belated justice – a $2.9 million settlement for almost 13 years of wrongful incarceration. Goff and his co-plaintiff, John “J.J.” Tennison, had filed complaints under 42 U.S.C. § 1983 that alleged numerous Brady violations ...

Canyon County Jail in Idaho Settles Conditions Suit With Consent Decree and $190,000 in Attorney’s Fees

On November 12, 2009, Canyon County, Idaho agreed to settle a federal class-action suit against the Canyon County Jail (CCJ) that raised a myriad of claims related to unconstitutional conditions.

Filed in March 2009 by the American Civil Liberties Union (ACLU) on behalf of prisoners at the jail, the lawsuit ...

U.S. Senator’s Girlfriend, In-Law Get Department of Justice Jobs

Melodee Hanes, the live-in girlfriend of U.S. Senator Max Baucus, who chairs the Senate Finance Committee, has received a high-level political appointment with the Department of Justice (DOJ).

Hanes’ new job at the DOJ comes on the heels of a brewing scandal concerning her nomination for U.S. Attorney for Montana. Senator Baucus had submitted Hanes’ name for the U.S. Attorney position after “extensive evaluation” by a third party and consultation with Montana’s other senator, Jon Tester. However, Baucus reportedly did not inform White House or DOJ officials that Hanes was his girlfriend.

Hanes later withdrew from the nomination after reports of her relationship with Baucus became public. “While her per-sonal relationship with Senator Baucus should in no way be either a qualifier or a disqualifier for the position, during the nomination process and after much reflection, both Senator Baucus and Ms. Hanes agreed that she should withdraw her name from consideration because they wanted to live together in Washington, D.C.,” said Ty Matsdorf, a spokesperson for Baucus.

In June 2009, Hanes was hired by the DOJ as acting Deputy Administrator for Policy in the agency’s Office of Juve-nile Justice and Delinquency Prevention. Hannah August ...

U.S. Department of Justice Releases Report on HIV in Prisons

In December 2009, the Bureau of Justice Statistics of the U.S. Department of Justice released a report entitled HIV in Prisons, 2007-08. The report indicates that while the number of prisoners with HIV increased in some states and decreased in others, overall the number of HIV-positive prisoners in the U.S. remained fairly stable.

The report compares statistics on prisoners with HIV for 2006, 2007 and 2008. Discounting data from Illinois, Indiana, Alaska and Oregon due to incomplete reporting by those states, the number of prisoners reported to have HIV increased slightly from 21,644 in 2007 to 21,987 in 2008.

This represents 1.5% of the total prisoner population, which is slightly less than the 1.7% reported in 2006. Notably, the rate of HIV infection among female prisoners was 1.9% in 2008 compared to a 1.5% rate for male prisoners.

Nationwide, an estimated 5,733 prisoners were reported to have confirmed cases of AIDS in 2008, though not all ju-risdictions report whether HIV-positive prisoners have AIDS, thus that estimate is likely low. In 2007, 120 AIDS-related deaths among state prisoners were reported. This is down from an estimated 155 deaths in 2006. The highest ...

South Carolina Settles Prisoner Stabbing Death Lawsuit for $47,500

In October 2009, the South Carolina Department of Corrections (DOC) paid $47,500 to settle a survivorship suit related to a fatal stabbing.

Justin Bregenzer, 22, a DOC prisoner, was stabbed to death by another prisoner in July 2005 at the Lieber Correctional Institution. Bregenzer’s mother, Sandra Carter, filed ...

California County Jail Settles Wrongful Death Suit for $600,000

In December 2009, the Board of San Joaquin County, California approved a $600,000 settlement to resolve a federal lawsuit filed by the family of a 71-year-old man who died of a heart attack following his release from jail.

On March 4, 2006, Guillermo Davila was arrested by Tracy City ...

Virginia Sheriff’s Office, PHS Settle Wrongful Death Suit for $1.6 Million

Prison Health Services (PHS), a private for-profit company that provides medical care to prisoners, has agreed to pay $1.5 million to the family of a man who died at a Virginia jail, with the sheriff’s office paying another $100,000.

Joseph Combs, 57, a Vietnam veteran who suffered ...

CCA Pays $70,000 in Damages, Attorney Fees to Settle PLN Censorship Suit

On June 7, 2010, Prison Legal News announced that it had settled a federal censorship suit against Corrections Corp. of America (CCA), the nation’s largest private prison company.
PLN filed the lawsuit in September 2009, claiming that CCA’s Saguaro Correctional Center in Eloy, Arizona only allowed prisoners to ...

Prison-based Call Centers Open in Austria, India

by Matt Clarke

In an attempt to bridge a budget shortfall, the Austrian Justice Ministry has set up call centers in prisons and con-tracted them out to private companies that might otherwise outsource the work overseas. The move has prompted criticism about prisoners handling private customer information.

Austrian prison officials say they have call centers at seven facilities, including the Karlau prison near Graz. The com-panies contracting to use the centers are primarily German telecommunications service providers. Christian Sikora, a rep-resentative for employees at Karlau, said “We have filed a protest with the ministry, on moral, legal and ethical grounds. But our complaint was rejected because of the ‘enormous’ economic advantage” to using cheap prison labor.

Sikora claimed that prisoners are told to use fake names and falsely say they are employed by companies like Tele-kom Austria or Deutsche Telekom to get personal information that is used for marketing. Telekom Austria has filed legal action against one prison call center contractor. Sikora also said the contractors preferred to hire prisoners convicted of fraud, because they are “experienced sales geniuses.”

The Karlau program employs 26 prisoners who generate 40,000 Euros ($57,300) a year for the prison. Other call cen-ters ...

New York Prisoner Beaten, Guards Convicted, GEO Settles Suit for $80,000

by Matt Clarke

On July 7, 2009, three private prison guards were convicted of charges involving the unjustified beating of a New York prisoner in 2007. [See: PLN, Sept. 2009, p.50; July 2009, p.50]. A fourth guard was convicted of related charges in January 2010.

Rex Egurido, 28 ...

California Counties Vie to House ICE Prisoners

Santa Clara County, California – where local law enforcement authorities have policies against cooperating fully with Immigration and Customs Enforcement (ICE) in terms of enforcing immigration laws – has turned a blind eye to its pro-immigration values and contracted with federal officials to incarcerate immigrant detainees.

The decision to go into the rent-a-bed jail business, made six years ago, enabled the county to avoid severe budget cuts. Today, Santa Clara County houses not only federal immigrant detainees but also state prisoners, plus a small number of prisoners from other local jurisdictions. These revenue-generating prisoners account for nearly 10 percent of the county’s jail population, which now stands at 4,500 – making it the 15th largest county jail system in the nation.

While saying that he would “prefer not to have federal and state prisoners and inmates from other counties” in his jail, Edward Flores, chief of Santa Clara County’s Department of Correction, admitted that given the economic reality of tight budgets, the county had little choice but to continue its current practice.

Indeed, a 2009 management audit found that Santa Clara County reaped a net annual benefit of $11.1 million – nearly 6 percent of its corrections budget – by housing ...

New Jersey DOC Agrees to Let Prisoner Preach

In November 2009, the New Jersey Department of Corrections (DOC) settled a lawsuit brought under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The suit, filed by the ACLU on behalf of a New Jersey state prisoner, alleged the DOC had violated RLUIPA by refusing to let prisoners preach.

Howard Thompson has been incarcerated at the New Jersey State Prison (NJSP) since 1986. During more than 20 years of confinement he has been a devout and active adherent to the Pentecostal faith, often participating and preaching at Sunday church services and other religious events.

In October 2000, Thompson was formally ordained as a Pentecostal minister. Over the next several years he preached more regularly and led other activities, such as Bible study, without incident. Indeed, the prison’s chaplaincy staff often encouraged Thompson to preach, believing he was a positive influence on his fellow prisoners.

In June 2007, shortly after Reverend Pamela Moore took over as chaplain at NJSP, she told Thompson that he would no longer be allowed to preach. According to Moore, the NJSP administration had decided to ban all prisoner preaching.

With the help of the ACLU of New Jersey, Thompson filed a federal lawsuit against ...

Erroneously Released Texas Prisoner Entitled to Credit on Sentence

by Matt Clarke

On February 4, 2009, the Texas Court of Criminal Appeals held that a state prisoner who had been erroneously released through no fault of his own, and who had not violated any of the conditions of his release, was entitled to credit against his sentence for the time he spent on the street.

Kevin Rowe, a Texas prisoner, was convicted of possession of a controlled substance in San Antonio and sen-tenced to three years in the Texas Department of Criminal Justice (TDCJ). Before being transferred to the TDCJ he was extradited to Georgia, where he was released on probation. Shortly thereafter he transferred his probation to San Antonio, Texas.

Rowe told his probation officer that he should be serving a TDCJ sentence. The probation officer checked for out-standing warrants and, finding none, did nothing. Three months later, a TDCJ parole officer called the probation officer and informed him that Rowe should be in prison and that she would contact him to tell him when Rowe should surren-der himself. The parole officer never called back, but a premature-release warrant was issued for Rowe several days later. Rowe was arrested on the warrant when he tried to renew his ...

Media Agencies Intervene to Unseal Records in Prisoner’s Wrongful Death Suit

On November 4, 2005, Earl Krugel was killed while exercising on the recreation yard at the Federal Correctional Institution (FCI) in Phoenix, Arizona, a medium-security facility.

Krugel, an activist for the Jewish Defense League, had been prosecuted and convicted for his role in a plot to bomb a California mosque and the office of Republican Lebanese-American Congressman Darrell Issa. He was sentenced to 20 years.

His untimely death came at the hands of David Frank Jennings, a known white supremacist. Krugel was murdered a mere three days after his transfer to FCI Phoenix, when Jennings bludgeoned him to death with a piece of concrete.

Prison officials had failed to classify Jennings as a member of the Aryan Brotherhood despite his gang-related tattoos, and had downgraded his initial high-security designation so he could participate in a substance abuse program at FCI Phoenix. Jennings was charged with murdering Krugel and received a 35-year prison sentence in March 2008.

Following Krugel’s death, his widow sued the United States under the Federal Tort Claims Act, alleging that the Bureau of Prisons had improperly classified Jennings by sending him to a medium-security facility.

A two-day bench trial was held in July 2009, and the ...

Sacramento County Partially Settles Taxpayer Suit Alleging Il-legal Conditions of Confinement in Juvenile Facilities

The parties to a taxpayer lawsuit seeking declaratory and injunctive relief, which alleges that conditions in Sacramento County’s juvenile detention facilities violate state statutory, constitutional and regulatory laws, reached a partial settlement and signed a stipulated consent decree in December 2009.

Plaintiff David Porter, a resident of Sacramento County, California, brought suit as a taxpayer in Sacramento County Superior Court, pursuant to sections 525, 526a and 1060 of the Code of Civil Procedure, seeking to enjoin the expendi-ture of funds by the Chief Probation Officer of Sacramento County, and by the county’s Superintendent of Schools, to promulgate, administer and enforce allegedly illegal practices and policies in Sacramento County’s juvenile facilities (the Warren E. Thornton Youth Center, the Youth Detention Facility and the Carson Creek Boys Ranch).

The stipulated consent decree “resolves plaintiff’s claims with respect to the Chief Probation Officer, who is desig-nated by statute as operator of the juvenile detention facilities, without addressing or in any way resolving plaintiff’s claims with respect to the Superintendent of Schools, who is responsible for the educational instruction of minors in those facilities.”

While entering into the consent decree the Chief Probation Officer admitted no liability and continues ...

Oregon Offers Early Release to Illegal Immigrants Who Consent to Deportation

Seeking to cut costs in the face of a recession that has forced many states to reconsider their criminal justice priorities, Oregon officials have signed a memorandum of understanding with the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE), under which illegal immigrants who waive their right to contest deportations will have their prison sentences commuted and then be quickly returned to their home countries.

The program is available only to offenders who have less than six months remaining on their sentences and have not been convicted of a violent crime, sexual offense or any crime identified in a provision of state law known as “Measure 11.” Aside from having to waive their right to challenge deportation proceedings, prisoners who agree to take part in the early release program also face stiff penalties – a 20-year federal prison sentence – if they are caught in the United States again illegally.

According to state records, as of January 2010 there were 206 prisoners eligible to participate in the early release and deportation program; of those, the vast majority were Mexican nationals. About 1,200 illegal immigrants are held in the state’s prison system.

Oregon hopes to save $2 ...

The Politics of Death: Throwing Mumia Abu-Jamal Under the Bus

“I would unite with anybody to do right and with nobody to do wrong.”
– Frederick Douglass

On the evening of February 25, 2010, participants at the Fourth World Congress Against the Death Penalty in Geneva, Switzerland had assembled from all over the globe for a dramatic Voices of Victims evening. It got more dramatic than they had anticipated though, when suddenly a cell phone rang and Robert R. Bryan, lead defense attorney for Mumia Abu-Jamal, jumped up on the stage to announce that his client had called him from death row in Pennsylvania.

The audience sat in rapt silence as the emcee held the phone up to the microphone. Abu-Jamal, on death row for 28 years after a widely disputed conviction for the murder of Philadelphia police officer Daniel Faulkner, greeted the dele-gates and then, as he has done on many occasions before, described to them the horrors of life in prison for the 20,000 people around the world who are awaiting execution.

A small group of American death penalty abolitionist leaders, led by Renny Cushing, executive director of Murder Vic-tims’ Families for Human Rights, stalked out of the hall. Two members of MVFHR, however, remained in the hall ...

CMS Nurse Denied Summary Judgment for Failure to Treat Prisoner for Heat Illness;$400,000 Settlement Following Sixth Circuit Ruling

by David M. Reutter

In February 2009, the Sixth Circuit Court of Appeals affirmed the denial of summary judgment to a Correctional Medical Services (CMS) nurse in a lawsuit that accused her of failing to properly treat a Michigan prisoner for heat sickness, which left him a quadriplegic.
On July ...

Wisconsin County Pays $750,000 to Settle Jail Sex Abuse Suit

A woman who was sexually assaulted at a jail in Monroe County, Wisconsin has received $750,000 as part of a settlement in a federal civil rights case.

While awaiting trial on charges of felony battery of a police officer, Sherry Calhoun was repeatedly forced to perform oral sex on ...

Marsy’s Law Enjoined in California

On February 4, 2010, in a class-action suit brought under 42 U.S.C. § 1983 by eight plaintiffs seeking to represent a class of California state prisoners serving life sentences with possibility of parole, U.S. District Court Judge Lawrence K. Karlton issued two significant orders.
The first order granted the plaintiffs’ motion for a preliminary injunction barring enforcement of certain provisions of Proposition 9, a November 2008 ballot initiative also known as “Marsy’s Law.” [See: PLN, May 2009, p.12].

The court’s second order denied the state’s motion to dismiss the plaintiffs’ claim that Proposition 89 – a November 1988 initiative that gave the governor the power to affirm, nullify or reverse any Board of Parole Hearings decision granting or denying parole to a prisoner convicted of murder – violated the constitutional prohibition against ex post facto laws with respect to pris-oners who had committed offenses prior to the enactment of that initiative.

With respect to the Prop. 89 claim, the district court rejected the state’s argument that Johnson v. Gomez, 92 F.3d 964 (9th Cir. 1996), foreclosed the plaintiffs’ ex post facto challenge. Judge Karlton noted that Johnson was decided prior to Garner v. Jones ...

Arkansas Federal Jury Awards $261,000 to Male Prisoner Raped by Male Guard

On July 16, 2009, a federal jury awarded $261,000 to a former Arkansas prisoner who was sodomized and forced to perform oral sex on a guard.

While incarcerated at the Varner Supermax Unit, Jason D. Palton was terrorized by Arkansas Dept. of Correction guard Antonio Remley. On four occasions ...

One in Six HIV-Infected Americans Spent Time in Prison or Jail in 2006

The authors of a study published in November 2009, which was partially funded by the Emory Center for AIDS Research, reported that the number of HIV/AIDS cases involving releasees from prisons and jails in the U.S. decreased by nearly 30% between 1997 and 2006.

More specifically, the authors found that approximately one in five (20%) of all HIV-positive Americans was released from jail or prison in 1997, while that rate had dropped to one in seven (14%) by 2006. Although the proportional share of HIV/AIDS cases involving prisoners has declined, the total number of HIV-positive prisoners has remained more or less constant at 150,000 nationwide.

Some of the study’s other findings are worth repeating. The prevalence of HIV/AIDS among prisoners was reported to be 1.7% in 2006, while the prevalence of AIDS (defined as the latter phase of infection) was 0.5%. Jail and prison popula-tions, the authors reported, have similar demographics related to HIV risk.

According to the Centers for Disease Control, an estimated 1.1 million people in the U.S. were HIV positive in 2006. The study’s authors estimated that there were 9.1 million releases from prisons and ...

Houston Police Department Conducted Blood Draw Training on Prisoners

In 2009, to expedite DWI arrests, the Houston Police Department sent seven officers to Lone Star College to be trained as certified phlebotomists. A phlebotomist is a qualified medical technician who draws a person’s blood. During the course of the officers’ clinical training, they practiced on prisoners in the psychiatric ward at the Texas Dept. of Criminal Justice’s Jester IV unit in Richmond, Texas. That practice drew criticism for using prisoners as test subjects during the police officers’ training.

Since 2008, Texas law enforcement officials have been at odds with the medical community over the issue of obtaining consent for drawing blood from suspects during DWI arrests using judge-issued warrants. In October 2008, police officers in Burnet County obtained a warrant to have a DWI suspect’s blood drawn at Seton Highlands Hospital. The hospital refused to cooperate, despite the warrant, because the suspect would not give medical consent. Greg Hartman, Senior Vice President of the Seton Family of Hospitals, noted “There is a conflict in state law. There are other situations where it is questionable whether a licensed hospital can draw blood from a person without an order from a qualified practitioner to draw blood or consent ...

Second Circuit Ruling in Post-9/11 Immigration Detention Case

by Matt Clarke

On December 18, 2009, the Second Circuit Court of Appeals issued an opinion in a federal class-action suit brought by illegal immigrants arrested in sweeps following the 9/11 attacks and incarcerated at the Metropolitan Detention Center (MDC) in New York City. The Court of Appeals affirmed the district court’s dismissal of length-of-detention claims, but vacated its denial of motions to dismiss the plaintiffs’ conditions-of-confinement claims.

This civil rights action was filed in U.S. District Court pursuant to 42 U.S.C. § 1983 by immigration detainees who claimed the government had mistreated them and increased their length of detention prior to being deported because it believed they were Arab or Muslim. The plaintiffs admitted they were in the U.S. illegally and subject to deportation.

The defendants included high-ranking members of the Bush administration – the former Attorney General, FBI Director and INS Commissioner, as well as MDC officials and guards. The administration officials and four high-ranking MDC defendants filed motions to dismiss some of the plaintiffs’ claims on grounds that included qualified immunity and failure to state a claim. The district court denied the motions as to the conditions-of-confinement claims, but granted the motions on ...

Massachusetts Supreme Judicial Court: Sheriff May Not Charge Jail Fees

by Matt Clarke

On January 5, 2010, the Supreme Judicial Court of Massachusetts held that the Sheriff of Bristol County could not charge fees for certain jail services.

In 2002, prisoners at the Bristol County House of Correction and Jail in Dartmouth, Massachusetts filed a complaint in state Superior Court challenging various fees they were being charged, and requesting declaratory and injunctive relief.

The fees included a $5 per day “cost-of-care” fee, $5 per medical appointment, $5 for an eyeglasses prescription, $3 per pharmaceutical prescription, $5 per haircut or beard trim and $12.50 for GED testing. If a prisoner was indigent the requested service would still be provided, but a charge would be entered in his or her jail account and the fees deducted from any future monies deposited in the account for up to two years, even if the prisoner was released and later re-incarcerated.

The only exceptions to the fees were that indigent prisoners were allowed one free haircut a month and prisoners were not charged for medical services related to admission health screening, emergencies, prenatal care, lab work, diagnostics, and contagious and chronic disease care.

The Superior Court determined that the plaintiffs were entitled to summary ...

Former New York Corrections Commissioner Receives Four-Year Prison Sentence

by Matt Clarke

On February 18, 2010, a New York federal judge sentenced Bernard “Bernie” Kerik, 54, to four years in federal prison after Kerik pleaded guilty to five counts of making false statements to federal agents, two counts of tax fraud and one count of making a false statement on a loan application.

The centerpiece of the case against Kerik was a charge that he accepted $255,000 in renovations on his house in the up-scale Bronx neighborhood of Riverdale from New Jersey-based Interstate Industrial Corporation, a company suspected of having ties to organized crime. The renovations included marble bathrooms and a Jacuzzi, and company officials allegedly hoped Kerik would help them get a city license. Kerik was asked about the then-surfacing bribery allegations while being vetted for the position of Secretary of Homeland Security, but lied to federal agents.

In regard to the tax fraud charges, he acknowledged hiding profits from his autobiography, “The Lost Son: A Life in Pursuit of Justice,” from the IRS. The title of the book reflects the murder of Kerik’s mother, a prostitute.

Kerik began his career as an officer in the New York Police Department. He rose to the rank of ...

Sixth Circuit: No Eleventh Amendment Immunity When ADA Claim Includes Fourteenth Amendment Violations

by Matt Clarke

On January 5, 2010, the Sixth Circuit Court of Appeals upheld a Michigan district court’s denial of Eleventh Amendment immunity for a claim involving both a violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, et seq., and the Equal Protection Clause of the Fourteenth Amendment.

Ned Mingus, a Michigan state prisoner with macular degeneration and other medical problems, filed a federal civil rights suit, pursuant to 42 U.S.C. § 1983, against registered nurse Sherilyn Butler, the Health Unit Manager at the G. Robert Cotton Correctional Facility, alleging violations of the Eighth and Fourteenth Amendments.

Specifically, Mingus complained about Butler’s failure to assign him a single-man cell when some able-bodied prison-ers and prisoners with lesser health-related issues were granted single cells. Mingus said he feared for his safety and his ability to protect his property from other predatory prisoners. Butler had denied Mingus’ requests, stating that he failed to meet the criteria for assignment to a single-man cell.

Butler filed a motion for summary judgment on the basis of qualified immunity and immunity under the Eleventh Amendment. The district court dismissed Mingus’ individual-capacity ADA claim and official-capacity § 1983 claim. How-ever ...

Georgia Officials Receive Prison Sentences in Charge-Fixing Scheme

Two former DeKalb County, Georgia officials have been sentenced to federal prison for their involvement in a criminal charge-fixing scheme.

In 2008, an unidentified defendant arrested on a drug offense was told by DeKalb County pretrial officer Keith C. Hughes and probation officer Natalie Nicole Dunn that he could get the charges dropped in exchange for $25,000.

The defendant informed the FBI, which arranged a sting operation. At a meeting in Hughes’ office in December 2008, Hughes said Dunn would lie to the DeKalb County District Attorney about the defendant’s cooperation in other drug investigations in order to have the charges dismissed. Two installment payments of $5,000 were made.

Dunn and Hughes were indicted, pleaded guilty to bribery charges, and were both sentenced on November 24, 2009. Hughes received 35 months in federal prison, three years supervised release, a $2,500 fine and 200 hours of community service, while Dunn was sentenced to 26 months in prison, three years probation and 250 hours of community service. See: United States v. Dunn, U.S.D.C. (N.D. Ga.), Case No. 1:09-cr-00277-WSD and United States v. Hughes, U.S.D.C. (N.D. Ga.), Case No. 1 ...

News in Brief:

Australia: In May 2010, guards at the Mobilong prison in South Australia discovered a fake gun made of matchsticks. Prison staff searched an unnamed prisoner and found the faux weapon after they noticed him behaving suspiciously. Authorities described the matchstick gun as highly realistic; it was apparently made in the prison’s hobby crafts program. The prisoner was transferred to the high-security Yatala prison in Adelaide, banned from any type of craft activities, and charged with a felony under the Correctional Services Act.

California: On April 20, 2010, Constantine Peter Kallas, assistant chief counsel at the U.S. Immigration and Customs Enforcement office in Los Angeles, was convicted on federal charges of bribery, fraud, conspiracy, identity theft and obstruction of justice. The jury found that Kallas had been taking bribes from immigrants in exchange for helping them re-solve legal issues and avoid deportation. His wife also pleaded guilty. The couples’ illicit activities, which spanned a 10-year period, netted over $1 million.

Connecticut: On May 6, 2010, a jury cleared former judicial marshal Manfred Vives, 41, of a sex assault charge but convicted him of disorderly conduct for swapping sweets for sexual misconduct involving a prisoner. Vives was charged with giving ...

 

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Disciplinary Self-Help Litigation Manual