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Prisoner Education Guide

Prison Legal News: August, 2010

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Volume 21, Number 8

In this issue:

  1. Everything Revolves Around Overcrowding: The State of California’s Prisons (p 1)
  2. From the Editor (p 9)
  3. Wheelchair-bound Texas Escapee Produces Pistol, Commandeers Transport Van (p 10)
  4. U.S. Supreme Court: Counsel Must Advise Immigrant Defendants of Deportation Risks (p 11)
  5. Controversy Over Texas Attorneys Charging Questionable Fees in Wrongful Conviction Cases (p 12)
  6. $4.3 Million Award in Preventable Death of Cook County Pretrial Detainee (p 14)
  7. Incomplete DNA Databases Result in Tragic Consequences (p 14)
  8. Texas Youth Commission Pays $625,000 to Settle Abuse Suit (p 16)
  9. Exorbitant Prisoner Phone Rates Pass New York Constitutional Scrutiny (p 18)
  10. Obama’s 2011 Budget Calls for More Prisons, More Guards (p 18)
  11. Aryan Warriors Prison Gang Prosecuted in Nevada (p 20)
  12. $500,000 Settlement in Maryland Prisoner’s Death from Pepper Spraying (p 22)
  13. Prisoner’s Homicide at Maryland Jail Not Prosecuted (p 22)
  14. DOJ Investigation into New York Jail Finds Unconstitutional Conditions (p 24)
  15. California Official Resigns from State Post, Hired by Federal Receiver (p 25)
  16. U.S. State Prison Population Declines for First Time in a Decade (p 26)
  17. Washington DOC Pays $3,275,000 to Family of Deputy Killed by Former Prisoner (p 26)
  18. New Jersey’s Riverfront Prison Demolished (p 27)
  19. “Back to School” is a Guide to Success Following Release from Prison (p 28)
  20. ICE Policies and U.S. Deportation Laws Violate Human Rights (p 28)
  21. U.S. Department of Justice Releases 2008 Capital Punishment Statistics (p 30)
  22. Problems Persist at Privately-Operated Rhode Island Jail (p 30)
  23. North Carolina Innocence Commission Verifies Wrongful Conviction (p 32)
  24. Maricopa County Throws Sheriff Arpaio Under Improperly Purchased Bus (p 32)
  25. Wisconsin: Taycheedah Lawsuit Set for Trial (p 34)
  26. California Prison Health Care System Plagued by Understaffing, Overtime (p 34)
  27. $140,000 Settlement in Washington Jail Detainee’s Suicide (p 35)
  28. California: Audit Finds CDCR Overpaid Employees Who Supervise Prisoner-Workers (p 36)
  29. Prosecutorial Misconduct Case Pending Before Supreme Court Settles for $12 Million (p 36)
  30. New Picture on Violence in Federal Prisons (p 37)
  31. Maricopa County Detention Officer Held in Contempt for Taking Document from Defense Counsel’s File (p 38)
  32. Released Prisoners More Likely to Die (p 38)
  33. Maryland Prison Guards Busted for Helping Gang Members (p 40)
  34. Louisiana Judge, Attorneys Plead Guilty to Bribery Charges (p 40)
  35. New York City Jail Settles Excessive Force Suit for $62,001 (p 41)
  36. Physician Assisted in Botched Execution Attempt in Ohio (p 42)
  37. Seventh Circuit: Catholic Prisoner’s Religious Diet Lawsuit Remanded (p 42)
  38. Whole Foods Farms out Fish Farming to Colorado Prisoners (p 43)
  39. SORNA Challenges Produce Mixed Results; Supreme Court Weighs In (p 44)
  40. Washington Supreme Court Holds No Judicial Immunity for Non-Judicial Conduct (p 45)
  41. Ninth Circuit: No Qualified Immunity for Refusing to Feed Prisoner (p 46)
  42. $145,000 Settlement by New York City After Holding Immigration Detainee Beyond 48 Hours (p 46)
  43. Washington DOC Settles MRSA Death Claim for $125,000 (p 47)
  44. $3.5 Million Settlement to Former New York Prisoner Convicted Due to Perjured Testimony (p 48)
  45. Kentucky Law Retroactively Applied to Award Street Credit (p 48)
  46. Washington DOC Agrees to Pay $38,000 in Too-Much-Medicine Suit (p 48)
  47. California Prisoner Wins Option of Kosher Meals Until Halal Meals Can be Provided (p 49)
  48. News in Brief: (p 50)

Everything Revolves Around Overcrowding: The State of California’s Prisons

by Donald Specter, Director, Prison Law Office

I. Introduction

California has the nation’s largest and the world’s third-largest prison system.1 In two separate class action lawsuits, filed a decade apart, California prisoners sued the governor and corrections officials for violating their rights under the Eighth Amendment’s Cruel and Unusual Punishment Clause because they were being deprived of adequate health care. In the first case, Coleman v. Wilson, the federal court in 1995 held after a three-month trial “that thousands of inmates suffering from mental illness are either undetected, untreated, or both.”2 In the second case, Plata v. Davis, the state of California in 2002 implicitly acknowledged that it had been deliberately indifferent to the medical care needs of prisoners and stipulated to an injunction designed to improve medical care throughout the state’s thirty-three prisons.3 The common thread in both cases is that prisoners’ basic health care needs were not being met, resulting in injury or death from neglect, suicide, or malpractice at an alarming rate.

Three years after stipulating to the injunction in Plata, the court put California’s prison medical system into receivership because it remained “broken beyond repair” and the state ...

From the Editor

This month’s cover story on Plata v. Schwarzenegger is an ample illustration of the political failures that have led to the current state of the criminal justice system around the country. Namely the lack of political will to ensure public safety and to respect the human and civil rights of poor people. As Don Specter’s article illustrates, the current state of affairs in the California prison system has been decades in the making and only when there is an ongoing body count of dozens of needless deaths a year and a dozen medical class-action lawsuits have failed, did the federal judiciary step in to safeguard the constitutional rights of California prisoners.

Alas, the medical plight of prisoners is not confined to California but is a national problem that is largely ignored for the simple reason that politicians want to lock people up but don’t want to spend money on their health care. With Plata going to the Supreme Court it promises to be the most significant prisoner rights case of the 21st century. We have been reporting on the case since its inception and will continue to do so.

I am pleased to report that the move ...

Wheelchair-bound Texas Escapee Produces Pistol, Commandeers Transport Van

by Matt Clarke

On November 30, 2009, a maximum-security Texas state prisoner who was shackled to a wheelchair in the back of a transport van while being transferred between prisons pulled out a pistol, commandeered the van, handcuffed the guards together and escaped. He was recaptured eight days later.

Arcade Joseph Comeaux, Jr., 49, was in solitary confinement at the Estelle Unit in Huntsville, Texas, where he was serving three life sentences, when prison officials decided to move him to the Stiles Unit in Beaumont. During a contact visit a decade earlier, Comeaux, who was confined to a wheelchair, pinned his wife against a wall and stabbed her 17 times with a homemade shank. He also stabbed another prisoner’s visitor who tried to intervene.

That got him two of the life sentences. They were consecutive to his other life sentence, which he received for aggravated sexual assault of a child. He also had prior convictions for rape of a child, aggravated rape of a child, burglary of a building and indecency with a child.

The 6-foot, 200-pound Comeaux had been using a wheelchair for a decade. Perhaps that is what lulled Texas Department of Criminal Justice (TDCJ) guards into ...

U.S. Supreme Court: Counsel Must Advise Immigrant Defendants of Deportation Risks

An immigrant charged with a criminal offense must be advised of the deportation consequences associated with pleading guilty, the U.S. Supreme Court held on March 31, 2010.

Jose Padilla was charged with drug trafficking after he was caught in Kentucky driving a tractor-trailer loaded with marijuana. Padilla, a lawful permanent U.S. resident for 40 years, pleaded guilty after he was allegedly told by his attorney that he “did not have to worry about immigration status since he had been in the country so long.”

Padilla’s attorney was wrong. Padilla had a lot to worry about, since his guilty plea to felony drug charges exposed him to automatic deportation. He tried to withdraw his plea but the Kentucky Supreme Court denied relief, holding the Sixth Amendment right to effective assistance of counsel did not extend to misadvice concerning collateral consequences of a conviction, such as deportation. See: Commonwealth v. Padilla, 253 S.W.3d 482 (Ky 2008).
The U.S. Supreme Court granted certiorari.

Looking at the long history and seriousness of deportation, and equating it with the arcane punishment of banishment, the Supreme Court held that advice regarding deportation falls within “the ambit of the Sixth Amendment ...

Controversy Over Texas Attorneys Charging Questionable Fees in Wrongful Conviction Cases

by Matt Clarke

On September 17, 2009, Steven Charles Phillips, a former Texas prisoner who spent 24 years in prison on a rape charge before being exonerated in 2008, filed suit in Dallas County district court against his former attorney, Kevin Glasheen, and his attorney’s law firm, Glasheen, Valles, Inderman & DeHoyos LLP.

Phillips alleged that after he filed for over $4 million in compensation from the state for his wrongful incarceration, Glasheen sent him a bill for almost $1 million even though he had not provided meaningful legal services and did not even help Phillips fill out the compensation form.

According to Phillips’ lawsuit, he contacted Glasheen shortly after his release from prison, when he was living in difficult circumstances in Springfield, Missouri. The next day, Glasheen’s firm flew a representative to Springfield to speak with him. The representative gave Phillips a $3,400 loan and persuaded him to sign a contract for legal services with a contingency fee arrangement. At the time, Phillips was entitled to recover statutory compensation of $50,000 per year of wrongful incarceration without having to file suit. Glasheen failed to tell Phillips about that provision of state law.

Phillips learned about the ...

$4.3 Million Award in Preventable Death of Cook County Pretrial Detainee

by David M. Reutter

The Seventh Circuit Court of Appeals has affirmed a jury’s $4.3 million award to the estate of a pretrial detainee. The jurors found that guards at the jail in Cook County, Illinois were deliberately indifferent to the detainee’s serious medical needs, resulting in ...

Incomplete DNA Databases Result in Tragic Consequences

A review by the Associated Press has found that state crime lab databanks are missing thousands of DNA samples. The missing samples and backlogs in processing those that have been collected raise questions concerning serious crimes that otherwise might have been prevented.

“If you got missing samples, some of those people are out there raping your wives and abducting and murdering your children,” said J.E. Harding, a former Charlottesville, Virginia police captain. Harding discovered missing DNA samples in Virginia’s database while searching for a serial rapist.

Over the past several decades legislatures in 47 states have enacted laws requiring convicted felons to provide DNA samples; in 21 states, people arrested for murder, sex crimes or other offenses are required to supply samples even though they have not been convicted. The FBI’s National DNA Index System, which draws from state databanks, held about 7.4 million samples as of September 2009.

State officials lay the blame for failing to collect required DNA samples on confusing legislation and a lack of coordination among government agencies – plus the costs involved in collecting and processing the samples.

One high-profile case involving a serial killer has focused attention on missing DNA samples ...

Texas Youth Commission Pays $625,000 to Settle Abuse Suit

To settle a federal lawsuit, the Texas Youth Commission (TYC) agreed to pay $625,000 in damages to four youths who were grossly abused by the states’ corrupt juvenile justice system.
The largest payout of $345,000 went to plaintiff Joseph Galloway, who had filed suit alleging that the TYC ...

Exorbitant Prisoner Phone Rates Pass New York Constitutional Scrutiny

by David M. Reutter

On November 23, 2009, the New York Court of Appeals – the state’s highest court – affirmed the dismissal of a lawsuit arguing that the contract between the New York State Department of Correctional Services (NYDOCS) and MCI Worldcom Communications for prison telephone services violated the state’s constitution.

The complaint alleged that the portion of the telephone charge allocated as a commission (i.e., kickback) paid to NY-DOCS constituted an illegal tax or fee, amounted to a government taking without just compensation, and violated the peti-tioners’ equal protection, free speech and associational rights. NYDOCS used the phone commission payments to fund the Family Benefit Fund, which included prisoner health care services, bus transportation for family visitation programs, free prisoner postage, and expenses at prison visitor centers.

New York’s initial 1996 contract with MCI included a 60% per-call commission payment to the state. In 2001, a new contract lowered NYDOCS’ commission to 57.5%. A 2003 contract revision purported to provide relief to families from MCI’s “unfair” variable rate structure by enacting a flat rate fee of $3.00 per phone call plus $.16 per minute, but continued the 57.5% commission.

While the suit ...

Obama’s 2011 Budget Calls for More Prisons, More Guards

So much for “hope” and “change.” President Obama’s fiscal year (FY) 2011 budget for the U.S. Department of Justice (DOJ) is simply more of the same – more prisons, more guards, more cops. At least when it comes to the criminal justice system, Republicans and Democrats apparently have no trouble finding consensus.

According to a recent report from the Justice Policy Institute, the President’s proposed FY 2011 budget, which covers spending for federal government operations from October 1, 2010 to September 31, 2011, asks for a whopping $29.2 billion for the DOJ – largely to fund programs and policies that will cause crime rates and prison populations to increase.

The DOJ’s budget request is on top of $4 billion already provided to the department through the American Reinvestment and Recovery Act, better known as the federal “stimulus package,” and reflects a 5.4 percent increase over the DOJ’s 2010 budget appropriation.

Some $500 million of Obama’s FY 2011 budget is dedicated to providing Edward Byrne Memorial Justice Assis-tance Grants to the states. Byrne grants can be used for a variety of different purposes, but past experience has demonstrated that most go to law enforcement efforts ...

Aryan Warriors Prison Gang Prosecuted in Nevada

Nevada prison officials recently had to come to grips with two stark realities. First, for decades their correctional facilities have been a haven for gang-related crime and brutality, and second, the state’s own corrupt prison guards played a role in perpetuating those dangerous and violent conditions.

A federal investigation into gang violence in Nevada’s prison system began in January 2004, but the actual drama did not begin to unfold until July 2007 when 14 members of the Aryan Warriors prison gang were indicted on a variety of charges, including drug distribution, extortion and murder.

The indictments named Ronald “Joey” Sellers (AKA “Fuzzy”), Daniel Joseph Egan (AKA “Dano”), James Milton Wallis (AKA “Gargoyle”), Guy Edward Almony and Ronnie Lee Jones (AKA “RJ”) as high-ranking leaders in the gang. Sellers, the most infamous member, was accused of killing fellow prisoner Anthony Beltran in 2006 and stabbing one of his own gang members in 2007. Prosecutors charged Aryan Warriors members in prison as well as several who had been re-leased.

The trial began on May 18, 2009, with heightened security and two unusual twists in court procedure. Fearful of retaliation against witnesses and jurors, the U.S. District Court issued a ...

$500,000 Settlement in Maryland Prisoner’s Death from Pepper Spraying

by David M. Reutter

A half-million dollar settlement was paid to the family of a Maryland prisoner who died when prison officials used excessive pepper spray while extracting him from his cell, and then failed to provide medical care.

After state prisoner Ifeanyi A. Iko was involved in a violent ...

Prisoner’s Homicide at Maryland Jail Not Prosecuted

Ronnie White’s death by strangulation will go unpunished. On June 2, 2009, almost a year after White died amid a flurry of controversy at the Prince George’s County Correctional Center in Maryland, state’s attorney Glenn F. Ivey announced there was not enough evidence to charge anyone with his death.

On June 27, 2008, White, 19, was arrested for killing county policeman Richard S. Findley. Two days later, at 10:30 a.m., White was found dead in his maximum security cell at the jail. The initial autopsy report determined that he had been strangled, and his death was ruled a homicide. [See: PLN, May 2009, p.14].

A rash of inconsistencies surrounded the subsequent investigation into White’s death. Originally, jail guard Ramon Davis claimed to have found White lying in the cell unresponsive. A camera was brought to the scene to record the removal of White’s body, but video footage showed White only after he was already on a stretcher outside the cell. Guards blamed the lapse on a camera malfunction.

Allegations of suicide were raised almost immediately by the guard’s union. However, ranking officer Gregory O. Harris had stated that White did not ...

DOJ Investigation into New York Jail Finds Unconstitutional Conditions

The findings of an investigation by the U.S. Department of Justice (DOJ) into conditions at a New York jail describe violations of prisoners’ constitutional rights – violations which, in the words of federal investigators, have resulted in “serious harm.”

The Civil Rights Division of the DOJ and the U.S. Attorneys Office conducted an investigation into the Westchester County Jail (WCJ) in Valhalla, New York pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997. CRIPA provides the DOJ with the authority to seek remedies when conditions at correctional facilities violate prisoners’ rights.

The 42-page DOJ report, released in November 2009, contained findings related to on-site inspections at WCJ as well as a review of internal documents and videos. The report, issued by Assistant Attorney General Thomas E. Perez, concluded that “certain conditions at WCJ violate the constitutional rights of inmates.” It detailed four areas of concern: inadequate protection from harm, medical care deficiencies, mental health care issues and the treatment of juvenile offenders.

The DOJ investigation cited a “pattern” of failures which indicated “that WCJ is not adequately providing for the safety and well being” of prisoners held at the facility. Numerous examples were ...

California Official Resigns from State Post, Hired by Federal Receiver

Kathleen Webb, the California official who, as deputy director of the state’s Department of General Services, oversaw the questionable purchase of $1.2 million worth of vehicles that remained unused for months, and who resigned in October 2009, just two days after her actions were scrutinized in the press, did not remain unemployed for long.

About a month following her resignation, Webb, who earned $106,800 a year in her state post, was hired to work in the office of policy, planning and evaluation for the California Prison Health Care Receivership at a slightly reduced salary of $98,760.

As detailed in previous PLN articles, the Receivership was established by Judge Thelton Henderson of the U.S. District Court for the Northern District of California to oversee the state’s prison medical system which, the court had deter-mined, was violating prisoners’ Eighth Amendment right to be free from cruel and unusual punishment [see this issue’s cover story].

Webb became enmeshed in controversy when the Sacramento Bee reported on October 28, 2009 that she had overseen the purchase of 50 new Toyota Priuses that sat parked on the roof of a state garage near the capitol, unused for months ...

U.S. State Prison Population Declines for First Time in a Decade

Recent advance data from the Bureau of Justice Statistics (BJS) indicates that not only has the rate of people entering the U.S. prison system declined in the past year, but the state prison population actually dropped in 2009 following a decade of growth.

In 2009 the number of people sent to state prisons nationwide decreased by 2,941, or .2 percent, compared with the previous year. In all, 24 states experienced a reduction in their prison populations last year.

In Michigan, which saw the largest drop, the prison population declined by 3,260 – a reduction of 6.7 percent. The California prison system decreased by 2,395 prisoners, while New York dropped by 1,660 and Texas by 1,257. The most dramatic reduction in terms of percentage was Rhode Island, with a decline of 371 prisoners, representing 9.2 percent of that state’s prison population.

“The change has been dramatic,” said Rhode Island Department of Corrections director A.T. Wall. “The staff is less harried ... there’s a sense that we’re in charge, a general feeling that things are calmer, more orderly.”

These drops in state prison populations were mostly – but not completely – offset by increases ...

Washington DOC Pays $3,275,000 to Family of Deputy Killed by Former Prisoner

In September 2009, the Washington Department of Corrections (DOC) agreed to settle a wrongful death suit filed by the family of a King County deputy who was murdered by a recently-released prisoner.

On December 2, 2006, while responding to a 911 call, Deputy Steve Cox of the King County Sheriff ...

New Jersey’s Riverfront Prison Demolished

The Riverfront State Prison in Camden, New Jersey is no more.

Despite protests from prison employees and the union that represents them, which objected to the loss of jobs, the prison – which had drawn considerable criticism over the years as a colossal waste of the city’s riverfront potential – was finally torn down. [See: PLN, April 2009, p.1].

On hand for an event marking the beginning of the demolition was a group of New Jersey officials that included then-governor Jon Corzine, who used a hammer to ceremoniously knock out the first brick. Corzine, who had made a campaign promise to raze the facility, called the prison’s destruction “emblematic of what can happen in this great city in the years ahead.”

The Riverfront facility was built 24 years ago at a cost of $31 million, and was situated on 17 acres of the city’s prime riverfront real estate. It will now make way for new developments that Camden officials hope will improve the city’s tarnished image.

Having been dubbed an “eyesore,” Riverfront State Prison, with its gray walls, razor-wire-topped-fences and looming guard towers, sat directly across the Delaware River from an upscale area of Philadelphia. The view ...

“Back to School” is a Guide to Success Following Release from Prison

Even the most diligent planning does not ensure success. However, it is a proven fact that education significantly enhances one’s chances to succeed. Back to School: A Guide to Continuing Your Education After Prison (the Guide) offers numerous helpful insights for entry or reentry into educational programs.

For many prisoners, education has never been their strong suit. Many dropped out before completing high school or are working to get their GED. Even those who did graduate probably have not been inside a classroom for many years.

The Guide notes that prisoners are not alone in that regard. For example, a 2000 study determined that more than 18% of adults in the U.S. never finished high school or earned a GED. Yet education is crucial to success. “According to the U.S. Department of Labor, a high school graduate earns about $9,000 more per year on average than a person with-out a diploma,” the Guide states.

In 2006, the unemployment rate for people with a high school diploma was 4.3% and their median weekly earnings were $595. By contrast, graduates with a two-year college degree had only a 3% unemployment rate and an average weekly income of ...

ICE Policies and U.S. Deportation Laws Violate Human Rights

A 64-page report issued last year by Human Rights Watch (HRW), a non-profit watchdog organization, indicates that changes in U.S. deportation laws implemented by Congress in 1996 are mostly targeting immigrants who commit nonviolent crimes.

Statistical data accumulated from 1997 through mid-2007 show that approximately 897,000 immigrants, both legal and illegal, were deported from the U.S due to criminal offenses. Of those, only 28 percent had been convicted of violent crimes while 72 percent committed nonviolent crimes.

Specifically, 34 percent of the deportees were charged with nonviolent immigration offenses, 24 percent for nonviolent drug offenses, 8 percent for nonviolent theft and 6 percent for nonviolent general offenses.

Of those deported, almost 180,000 were legal residents in the U.S. and were returned to their home countries after serving their prison sentences. The non-citizens legally present at the time of their deportation left behind an estimated 436,852 family members. The HRW report uses the word “tragic” to describe “lawful permanent residents ... forced to confront life without [their] fathers, mothers, children, husbands, or wives” following deportation.

More punitive immigration laws, enacted by Congress in 1996 and implemented in 1997, expanded the list of offenses for which non-citizens ...

U.S. Department of Justice Releases 2008 Capital Punishment Statistics

by Matt Clarke

In December 2009, the Bureau of Justice Statistics (BJS) of the U.S. Department of Justice released statistical data on capital punishment in the United States for 2008. The report was later revised to include preliminary statistics on capital punishment in 2009.

Of the 37 executions carried out in 2008, most were in Texas (18), followed by Virginia (4) and Georgia and South Carolina (3 each). One execution was by electrocution and the others by lethal injection. All of the executed prisoners were male; 20 were white and 17 were black.
Texas also led the capital punishment statistics for 2009 with 24 executions, followed by Alabama (6), Ohio (5) and Georgia, Oklahoma and Virginia (3 each). There were a total of 52 executions in 2009 – an increase of 40% over the previous year.

The average amount of time that condemned prisoners had spent on death row as of December 31, 2008 was more than 12 years. Thirty-seven states and the federal government had statutes authorizing capital punishment at year-end 2008. Thirty-six states and the federal government authorized execution by lethal injection, nine states allowed electrocution, four states permitted lethal gas to be used, three states allowed hanging ...

Problems Persist at Privately-Operated Rhode Island Jail

On June 30, 2009, a former employee at the Donald W. Wyatt Detention Facility, a privately-operated jail near Providence, Rhode Island, pleaded guilty to lying to federal officials about sexual misconduct involving an immigration detainee, marking yet another embarrassing problem in a string of scandals to hit the facility.

Glenn Rivera-Barnes, formerly a medical technician at the 746-bed Wyatt jail, admitted he had lied to federal investi-gators, telling them that the male detainee had sexually assaulted him when in fact he had initiated the unwanted sexual encounter. Rivera-Barnes’ involvement in the incident was confirmed by DNA evidence.

Rivera-Barnes had been fired in January 2009; he was previously employed by Cornell Companies, which operated the Wyatt facility until 2007. It is now run by the Central Falls Detention Facility Corporation. Rivera-Barnes was sentenced on December 21, 2009 to two years’ probation plus 480 hours of community service and participation in a mental health program. See: United States v. Rivera-Barnes, U.S.D.C. (D. RI), Case No. 1:09-cr-00106-S-LDA.

On February 11, 2010, Wyatt’s warden, Wayne T. Salisbury, Jr., and Chief Financial Officer, Tammy L. Novo, were fired following an eight-week audit of the facility’s operations. They had been ...

North Carolina Innocence Commission Verifies Wrongful Conviction

by Matt Clarke

After examining hundreds of cases, the North Carolina Innocence Inquiry Commission has verified its first claim of innocence – which resulted in both controversy and stinging criticism from prosecutors.

In 2006, North Carolina became the first state to establish a government agency with the sole mandate of verifying prisoners’ claims of innocence. That unprecedented action was taken following a string of high-profile wrongful convictions, including those of Darryl Hunt and Allen Gell.

Hunt had served 18 years for rape and murder; he later received $1.95 million in settlements from North Carolina and the City of Winston-Salem. [See: PLN, Oct. 2008, p.47]. Gell, who was sentenced to death, served 8 years prior to his re-lease and received a $3.9 million settlement from the state plus $93,750 from the town of Aulander. [See: PLN, Nov. 2005, p.8]. Both Hunt and Gell were exonerated in 2004.

“As a state that exacts the ultimate punishment, we should continue to ensure that we have the ultimate fairness in the review of our cases,” then-Governor Mike Easley said when the Innocence Inquiry Commission was formed. [See: PLN, March 2007, p.24].

Fortified with a $360,000 annual budget, the ...

Maricopa County Throws Sheriff Arpaio Under Improperly Purchased Bus

by Matt Clarke

On October 30, 2009, the Maricopa County Internal Audit Department released a report critical of Sheriff Joe Arpaio’s purchase of a $456,221.57 bus specially equipped to transport prisoners. Among other criticisms, the report noted that the Maricopa County Sheriff’s Office (MCSO) failed to obtain the approval of the Board of Supervisors prior to the bus purchase, failed to obtain board approval for a contract to purchase an item in excess of $250,000, failed to get board approval for a sole source purchase exceeding $50,000, and failed to obtain Office of Management and Budget approval for an exemption to the county’s capital purchasing freeze in effect at the time.

Sheriff Arpaio also failed to deposit Jail Enhancement Fund (JEF) monies with the County Treasurer, as required by Arizona state statutes and JEF guidelines, and failed to follow procurement policies required by state law, county policies and JEF guidelines. Essentially, the Audit Department report accused Arpaio of failing to seek the best price for the bus by using competitive bidding, failing to have adequate controls in place to protect public funds from misuse, and violating county purchasing policies.

JEF funds are a ...

Wisconsin: Taycheedah Lawsuit Set for Trial

On November 24, 2009, a U.S. District Court judge in Wisconsin substantially denied prison officials’ motion for partial summary judgment and set for trial a class-action suit that alleges medical and mental health care provided to female prisoners at Taycheedah Correctional Institution (TCI) violates the Eighth Amendment, Title II of the Americans with Disabilities Act, and § 504 of the Rehabilitation Act. [See: PLN, Jan. 2007, p.20]. The district court granted the defendants’ summary judgment motion only to the extent that it sought dismissal of claims related to dental care.

After hearing testimony from expert witnesses the court catalogued a “mountain of evidence,” which, it found, demon-strated that “there are ‘systemic and gross deficiencies’ in staffing, facilities and procedures at TCI.” The evidence easily established that there were genuine issues of material fact sufficiently in dispute to preclude summary judgment. In the court’s words, “it [is] curious that the defendants would even bother moving for summary judgment when their own expert describes the system as one designed to let people ‘fall through the cracks.’”

Among the deficiencies noted by the court, “TCI’s nursing system places patients at risk of harm by its failure to prop-erly triage and ...

California Prison Health Care System Plagued by Understaffing, Overtime

The rampant use of overtime to fill gaps in medical staffing in California’s prison system has resulted in windfalls for some of the state’s prison health care workers, fatigue for others, and lapses of judgment that endanger the health of prisoners entrusted to their care, according to a December 2009 investigative report by the Sacramento Bee.

The Bee’s investigation found that many prison health care employees average 12 hours a day, while others routinely log 16- to 18-hour shifts for months at a time. The impact of such extreme work schedules has both financial and clinical consequences.

A report from the independent, non-profit Institute of Medicine – the health arm of the National Academy of Sciences – found that prolonged wakefulness has the same effect on skills and judgment as being drunk. According to Charlene Harrington, a professor at the University of California San Francisco School of Nursing and co-author of the Institute of Medicine study, “Above eight hours a day, the errors [in medical judgment] start going up exponentially.”

Such errors include misdiagnoses, communication breakdowns and medication blunders, which contributed to nearly 300 “extreme departures from the community standard” of medical care in California prisons in 2007.

“Last ...

$140,000 Settlement in Washington Jail Detainee’s Suicide

Pierce County, Washington has paid $120,000 to settle a federal lawsuit that claimed its policies were deliberately indifferent to the risk of suicide by pretrial detainees at the Pierce County Detention and Corrections Center (PCDCC). The City of Lakewood paid an additional $20,000 to settle the case.

The ...

California: Audit Finds CDCR Overpaid Employees Who Supervise Prisoner-Workers

A follow-up investigation by the California State Auditor has found that the Department of Corrections and Rehabilitation (CDCR) overpaid certain employees who supervise prisoner-workers.

In California, non-custodial staff who supervise prisoner-workers qualify for a monthly pay differential which ranges from $190 (for an office technician or a cook specialist I) to $325 (for a chaplain) and $400 (for a supervising registered nurse), but only if the employee meets specific requirements set forth in the collective bargaining agreement between the state and the employee’s bargaining unit.

The requirements applicable to all bargaining units are that the employee have regular, direct responsibility for super-vising the work of at least two prisoners, who collectively work at least 173 hours a month; the employee must provide on-the-job training to the prisoners he or she supervises and evaluate their work performance; and the prisoners being supervised must perform work that otherwise would be performed by civil service employees.

An October 2008 investigation by the State Auditor had previously found that CDCR overpaid nine office technicians at R.J. Donovan Correctional Facility a total of $16,530 for supervising prisoners over a three-year period. Suspecting that the problem was not limited to one facility but ...

Prosecutorial Misconduct Case Pending Before Supreme Court Settles for $12 Million

On January 4, 2010, the U.S. Supreme Court side-stepped resolving an important case that would have likely exposed prosecutors to greater liability when they engage in prosecutorial misconduct.

The case, Pottawamie County v. McGhee and Harrington, S.Ct. No. 08-1065, was filed by Curtis W. McGhee, Jr. and Terry ...

New Picture on Violence in Federal Prisons

As the federal prison population continues to rise – to over 206,500 prisoners as of mid-year 2009 – violence in the U.S. Bureau of Prisons (BOP) is both up and down, according to recent data obtained from BOP officials.

Last summer PLN reported increasing levels of violence in the BOP, focusing largely on U.S. Penitentiaries (USPs), high-security facilities that house some of the BOP’s most dangerous prisoners. [See: PLN, Aug. 2009, p.10]. Anecdotal evidence from assaults, riots and homicides at USPs and other federal prisons suggested a trend toward increased violence, but new data suggests otherwise.

The rate of serious prisoner-on-prisoner assaults in BOP facilities has steadily decreased from 13.06 assaults per 5,000 prisoners in 2005 to 10.46 in 2008.

Likewise, the rate of serious prisoner-on-staff assaults has decreased. In 2005 there were 3.70 serious assaults on staff per 5,000 prisoners, compared to only 2.17 in 2008. Traci Billingsley, a spokesperson for the BOP, acknowledged the decline. “As you can see from the numbers, we really haven’t experienced an increase in the rate of serious assaults on staff over the past several years,” she said. However, Billingsley also noted that ...

Maricopa County Detention Officer Held in Contempt for Taking Document from Defense Counsel’s File

by Matt Clarke

In November 2009, an Arizona state judge held Maricopa County Detention Officer Adam Stoddard in contempt of court and ordered him to hold a press conference and publicly apologize to defense attorney Joanne Cuccia, after Stoddard took a document from Cuccia’s file while she was participating in a court hearing.

On October 19, 2009, Cuccia appeared in Judge Lisa Flores’ courtroom to argue the case of Antonio Lozano, a defendant who Stoddard later claimed “was a documented member of the Mexican Mafia.” According to the contempt ruling, Cuccia had achieved a favorable outcome for her client and was arguing for a lenient sentence when Stoddard moved up next to the defense counsel’s table.

The courtroom video system showed Stoddard looking at a file on the table for 16 seconds before removing a document and viewing it for another 21 seconds. He then gave it to Deputy Francisco Campillo, literally behind Cuccia’s back, and Campillo took it away to have it photocopied.

According to Stoddard, he saw three or four inches of the bottom of a document in plain view and read the words “go-ing to steal” and “money” in the same paragraph. He claimed ...

Released Prisoners More Likely to Die

Recently-released prisoners are at a higher risk of death, according to studies published in the New England Journal of Medicine (NEJM) and the American Journal of Public Health.
For a NEJM report entitled Release from Prison – A High Risk of Death of Former Inmates, the authors reviewed data related to 30,237 prisoners released from the Washington Department of Corrections (DOC) between July 1, 1999 and December 31, 2003.

The results were alarming. Within a mean follow-up period of 1.9 years after being released, 443 of the former prisoners died. Of those, 253 died within a year after they left prison. The overall mortality rate for former prisoners was 777 per 100,000 person-years, or almost 3.5 times higher than the rate for people not released from prison, which was calculated at 223 per 100,000.

The primary cause of death among ex-prisoners tracked in the NEJM study was drug overdose, accounting for about a quarter of all fatalities. Of those, 27 occurred within two weeks of release. Cocaine was involved in most overdose-related deaths, followed by methamphetamine, heroin, methadone and antidepressants.

The second major cause of death was cardiovascular disease. Homicide ranked third, followed by suicide, cancer ...

Maryland Prison Guards Busted for Helping Gang Members

In April 2009, four Maryland prison guards were indicted for participating in a variety of illegal activities involving the Black Guerrilla Family (BGF) at the Metropolitan Transition Center (MTC) in Baltimore. Guards Asia Burrus, Musheerah Habeebullah, Takevia Smith and Terry Robe were accused of supplying incarcerated BGF members with contraband and taking part in an extortion scheme run by the gang.

Smith, who also was accused of having sexual relations with prisoners, was recorded on a wiretap saying she was not concerned about losing her job. “I got the [corrections officers’] union behind me,” she boasted.

The following month, on May 11, 2009, former prison guard Fonda D. White pleaded guilty to extortion charges. White conspired with Jeffrey L. Fowlkes, a member of the BGF, to extort a 54-year-old woman out of more than $11,000.

In January 2007 the woman’s son was transferred to the MTC, where White had previously worked as a guard and where Fowlkes was incarcerated.

Fowlkes began calling the woman, telling her that her son had amassed a large debt from cigarettes, drinking and gambling, and was in danger of being hurt or killed. Fearing for her son’s life, the woman made a ...

Louisiana Judge, Attorneys Plead Guilty to Bribery Charges

In October 2009, following plea negotiations with federal prosecutors, a Louisiana judge and two lawyers pleaded guilty for their roles in a bail bond-rigging conspiracy that allowed about 100 prisoners over a five-year period to get out of jail without paying any bond money, just bribe money.

Wayne Cresap, a long-time St. Bernard Parish judge, pleaded guilty in U.S. District Court to taking part in a judicial bribery scheme which netted him between $70,000 and $120,000 from 2004 to 2009. The attorneys, Victor J. “V.J.” Dau-terive and Nunzio Salvadore “Sal” Cusimano, both of whom practiced in the St. Bernard Parish, pleaded guilty to charges of conspiracy to commit wire fraud.

Cresap was arrested by FBI agents in April 2009, about two weeks after the FBI confronted him in a parking lot about the payoff scheme. According to federal agents, Cresap admitted to his role in the scheme at that time. Although white-collar defendants are not usually arrested, the FBI was concerned that Cresap might commit suicide and took him into custody. Nonetheless, Cresap, whose crimes are punishable by up to five years in prison and $250,000 in fines, was re-leased shortly after his arrest.

Cresap ...

New York City Jail Settles Excessive Force Suit for $62,001

On August 11, 2009, the City of New York agreed to settle a 42 U.S.C. § 1983 suit brought by a former prisoner who alleged that he was beaten without provocation by guards at the George Motchan Detention Center.

In November 2006, while on his way to court, Severiano ...

Physician Assisted in Botched Execution Attempt in Ohio

by Matt Clarke

On September 5, 2009, guards at the Southern Ohio Correctional Facility in Lucasville prepared for an onerous task – executing state prisoner Romell Broom. They tried for two hours to find a usable vein in which to inject the three-drug lethal injection cocktail. Unable to find one, they called in a doctor to assist.

The Hippocratic Oath taken by physicians begins with the Latin words “Primum non nocere,” which translate to “first do no harm.” Taking that vow seriously, the American Medical Association (AMA) prohibits its members from participating in any form or fashion in executions – since helping to kill someone is indisputably doing harm. But it is a meaningless ban since the AMA has no means to enforce it or discipline those doctors who participate in executions.
However, some doc-tors believe it is acceptable to assist in executions, in order to help prisoners avoid pain and ensure a peaceful death. To the extent that being forcibly killed by the state can be considered peaceful, that is.

Dr. Carmelita Bautista, the physician called in to assist during Broom’s execution, was not an AMA member. She was on the staff of Thomas Memorial Hospital in South Charleston, West ...

Seventh Circuit: Catholic Prisoner’s Religious Diet Lawsuit Remanded

by David M. Reutter

The Seventh Circuit Court of Appeals held a Catholic prisoner’s free exercise of religion was substantially burdened because he was denied a non-meat diet on Fridays and during Lent.
In 2003, Illinois state prisoner Brian Nelson sued Tamms Correctional Center chaplain Carl Miller, alleging violation of his rights under the First Amendment, the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the Illinois Religious Freedom Restoration Act (IRFRA). He sought declaratory and injunctive relief plus monetary damages.

Nelson designated himself a Catholic when he entered prison in 1983. In the late 1990s he took a greater interest in his faith, and came to understand three methods of penance under Catholicism: giving alms, works of charity and acts of abstinence. Given his incarceration, Nelson reasoned his only practical forms of penance were prayer and abstaining from eating meat.

When he arrived at Tamms, a “supermax” prison, in 1998, Nelson requested a meatless diet on Fridays throughout the year as an act of penance. He said he would accept the prison’s vegetarian diet for that purpose. His request was denied by Chaplain Miller, a Lutheran minister, because it was unsupported by the Bible and was ...

Whole Foods Farms out Fish Farming to Colorado Prisoners

A food vendor is involved in a partnership with correctional facilities in Colorado that employ prisoners to raise tilapia and trout, which are then sold to Whole Foods, a popular grocery chain.

About 120 prisoners at the Arrowhead Correctional Center, a minimum-security facility for drug and alcohol offenders, earn around 60 cents a day plus bonuses to farm the fish. That amounts to about $40 per month for prisoners employed in the Colorado Correctional Industries’ fishery program.

Tilapia are popular both with consumers, for their taste, and fish producers, for the ease and efficiency of space in which they can be raised. The Arrowhead program also raises shrimp. Another tilapia farming program operates at the East Canon Prison Complex, and rainbow trout are raised at the Buena Vista Correctional Complex.

Eight prisoners are employed at Buena Vista, which produces 200,000 trout a year. Some are purchased by the state Division of Wildlife and released into local waterways. The trout sold for consumption are first taken to the Skyline Correctional Center for cleaning and processing.

Not only do prisoners handle the farming of the fish, which is done in large greenhouses, but they construct the 12,000-gallon fiberglass tanks in ...

SORNA Challenges Produce Mixed Results; Supreme Court Weighs In

Over the past several years a split has developed between the federal courts of appeal over the scope and constitutionality of the Sex Offender Registration and Notification Act (SORNA), a component of the federal Adam Walsh Child Protection and Safety Act of 2006.

SORNA requires sex offenders to keep their registrations current and to notify state authorities each time they move, change jobs or change schools. Any offender who “travels” in interstate or foreign commerce who “knowingly fails to register or update a registration” can receive up to ten years in federal prison.

In U.S. v. Husted, the Tenth Circuit Court of Appeals considered whether the “travels” element of the Act applied to conduct that occurred before the effective date of SORNA, which was July 27, 2006. Sometime in April 2006, Michael Husted, a sex offender, moved from Oklahoma to Missouri without notifying officials in Oklahoma or registering in Missouri. Federal officials charged Husted under SORNA, arguing that his failure to register after moving to Missouri violated the Act.

The Tenth Circuit disagreed. Congress’ use of the word “travels,” the present tense form of “to travel,” limited the application of the Act to only those offenders who “travel in ...

Washington Supreme Court Holds No Judicial Immunity for Non-Judicial Conduct

The doctrine of judicial immunity does not apply to actions unrelated to judicial conduct, the Supreme Court of Washington decided on December 31, 2009.

In September 2002, Skagit County District Court Judge Stephen Skelton ordered Deputy Deanna Randall to take Anthony Reijm into custody following a court hearing.

Believing Reijm to be a model prisoner, Randall attempted to escort him to jail without handcuffing him. Instead Reijm made a break for it. John T. Lallas, a private security guard, attempted to block Reijm from running out the front door of the court-house and was injured in the process.

Lallas sued Deputy Randall and Skagit County claiming negligence. The trial court granted summary judgment to both defendants, holding they were entitled to quasi-judicial immunity from suit. After the Court of Appeals reversed, the Washington Supreme Court granted review. [See: PLN, Feb. 2009, p.37].

Deputy Randall and Skagit County argued they were immune from suit because Randall was performing a judicial function when she was escorting Reijm to jail on Judge Skelton’s order. The Supreme Court disagreed.

Judicial immunity applies when the function being performed is in a “judicial capacity,” the Court wrote. In this case Deputy Randall was not ...

Ninth Circuit: No Qualified Immunity for Refusing to Feed Prisoner

The Ninth Circuit Court of Appeals has held that a prison guard was not entitled to qualified immunity for depriving a prisoner of 16 meals over a 23-day period.

In 2001, Ronald P. Foster was confined at California’s High Desert State Prison in Susanville. A rash of assaults on staff was committed on his unit, particularly when guards attempted to handcuff prisoners through the food slots in their cell doors.

Foster did not participate in any of those assaults, but his unit was locked down and prisoners were fed in their cells. During the lockdown numerous weapons were confiscated during cell searches.

On July 27, 2001, prison officials issued a memo directing that the bright light in prisoners’ cells must be on and any-thing covering the front or rear windows must be removed before the food port was opened. Failure to comply with this directive would result in forfeiture of meals.

Prison guard Sandra Cole was frequently responsible for serving meals during the lockdown.
Between July and August 2001, Cole repeatedly refused to feed Foster, claiming his cell windows were covered with paper and he refused to comply with her orders to uncover them so she could see inside ...

$145,000 Settlement by New York City After Holding Immigration Detainee Beyond 48 Hours

by David M. Reutter

A $145,000 settlement by the New York City Department of Corrections (DOC) provides a new twist in the area of immigration law. The main allegation in the complaint was that the DOC had violated a detainee’s rights by holding him for Immigration and Customs ...

Washington DOC Settles MRSA Death Claim for $125,000

The Washington Department of Corrections (DOC) has agreed to pay $125,000 to the family of a prisoner who died from pneumonia caused by Methicillin-resistant Staphylococcus aureus (MRSA).

On March 27, 2008, Jeremy Swaser was given a check-up by medical staff at the Washington State Penitentiary in Walla Walla. He ...

$3.5 Million Settlement to Former New York Prisoner Convicted Due to Perjured Testimony

The City of New York has paid $3.5 million to settle a lawsuit brought by an innocent man who spent 12 years in prison after being wrongfully convicted of attempted murder. The conviction was obtained by a prosecutor who “knowingly present[ed] perjured testimony.”

While the conduct of the ...

Kentucky Law Retroactively Applied to Award Street Credit

The Kentucky Supreme Court has held that a law that applies “street credit” to released prisoners effectively suspends existing statutory law that specifies time spent on parole does not count towards a prisoner’s maximum sentence.

The Court accepted transfer of appeals from two circuit courts concerning the application of House Bill 406 (HB 406), which was the Commonwealth’s biennial budget for 2008-10. The Pulaski Circuit Court granted the Attorney General’s request for an injunction prohibiting the Kentucky Department of Corrections (KDOC) from applying HB 406’s street credit provision retroactively, but the Franklin Circuit Court refused to grant a similar injunction.

The Pulaski court’s injunction applied only to people sentenced within that court’s jurisdiction, but the Franklin case sought statewide application. The Kentucky Supreme Court accepted the appeals to resolve the disagreement between the circuit courts.

Prior to the state’s adoption of HB 406, time spent on parole could not count as part of a prisoner’s maximum sentence to determine final discharge date eligibility.

Believing it to be the General Assembly’s intent, the KDOC began applying HB 406 retroactively. As of November 2008 the department had released 1,562 prisoners from custody ...

Washington DOC Agrees to Pay $38,000 in Too-Much-Medicine Suit

On November 19, 2008, the Washington Department of Corrections (DOC) agreed to pay $38,000 to a woman who was improperly administered her seizure medication.

The settlement resulted after Cindi J. Heihn, a prisoner at the Washington Corrections Center for Women in Gig Harbor, filed suit against the DOC in ...

California Prisoner Wins Option of Kosher Meals Until Halal Meals Can be Provided

The Marin County Superior Court ordered San Quentin prison officials to provide Keith Allen Lewis, a Muslim prisoner, with access to Jewish kosher meals until he could be provided with the Halal meals prescribed by his faith.

Lewis had filed a petition for writ of habeas corpus requesting that the California Department of Corrections and Rehabilitation (CDCR) provide Halal meals to both him and other Muslim prisoners. Judge Lynn O’Malley Taylor found the CDCR had begun taking the necessary procedural steps (through the Administrative Procedure Act) to provide Halal meals to Muslim prisoners, and therefore denied as moot Lewis’s petition requesting that remedy.

The court noted, however, that the CDCR permitted Muslim prisoners at other institutions the option of selecting between a vegetarian diet and a Jewish kosher diet. To qualify for the latter, a prisoner need only obtain a religious meal card pursuant to section 54080.14 of DOM, the CDCR’s Operations Manual.

The court found no reason why Lewis should not be given the same kosher meal option at San Quentin, holding that the impact of such an accommodation on security and institutional safety would be “de minimus.” See: In Re: Keith Allen Lewis, Marin ...

News in Brief:

California: Beverly Hills attorney Michael H. Inman was charged on June 17, 2010 with attempting to smuggle heroin into a secure area of the downtown L.A. criminal court building. The 48-year-old lawyer was caught with approximately 14.25 grams of black tar heroin in a plastic bag and a trace amount of methamphetamine, prosecutors said. He was arrested when a police dog alerted to the drugs; if convicted he faces up to five years in prison.

Florida: State prisoner Michael L. Parker, 38, died at the Charlotte Correctional Institution after being stabbed multi-ple times by another prisoner on June 24, 2010. The prison has a suspect in the stabbing but won’t release his name until the investigation is complete. Parker was serving a 30-year sentence for armed robbery and kidnapping.

France: French prisoner Nicolas Cocaign, perhaps tired of prison food, killed fellow prisoner Thierry Baudry in Janu-ary 2007 and tried to eat his heart. Baudry was beaten, stabbed with scissors and suffocated; Cocaign then cut open his chest with a razor blade. After removing an organ, Cocaign allegedly eat part of it raw and cooked the rest on a makeshift burner in his cell at the Rouen prison ...

 

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