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Prisoner Education Guide

Prison Legal News: January, 2011

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Volume 22, Number 1

In this issue:

  1. Medical Examiners Lack Qualifications, Competence, Oversight (p 1)
  2. Kentucky Jail Under Investigation After Prisoner Dies; Sexual Abuse, Financial Mismanagement Also Alleged (p 10)
  3. From the Editor (p 10)
  4. St. Louis Lockups Violate Constitutional Rights, ACLU Asserts (p 12)
  5. Mentally Ill Prisoner Terrorized, Forced to Wear Pink Underwear by Arizona Jailers (p 16)
  6. California Prison Settles Prisoner’s Excessive Force Suit for $15,000 (p 18)
  7. Texas Capital Defendants with Hired Attorneys Rarely Receive Death Sentences (p 18)
  8. $16 Million Award Upheld in Wrongful Conviction Resulting from Undisclosed Evidence and Relationship (p 20)
  9. UNICOR-Made Military Helmets Recalled, Production Suspended (p 20)
  10. $300,000 Settlement for New York Guard’s Fondling of Prisoner (p 21)
  11. Kansas No Longer a Leader in Post-Release Prisoner Programs (p 22)
  12. North Carolina Prison Censorship Class Action Suit Settled (p 22)
  13. Federal Rapid REPAT Program Not Working in Rhode Island (p 23)
  14. Georgia Prisoners Strike for Wages, Better Medical Care and Food (p 24)
  15. Oregon Prisoner Holds Counselor Hostage, Gets New 68-Month Sentence (p 25)
  16. California: Confiscation of Prisoner’s Mail May Violate First Amendment (p 26)
  17. California: Harsh Sentencing Laws and Health Care Costs Strain Corrections Budget (p 26)
  18. Released Prisoners Need Not Exhaust Grievance Remedies Before Filing Suit (p 27)
  19. Budget Deficits Lead to Fewer Supermax Beds (p 28)
  20. California: Validity of Parole Board’s Psych Evaluation Procedures for Lifers Questioned (p 28)
  21. Fourth Circuit Vacates Pornography Restriction on Federal Defendant (p 29)
  22. Connecticut Restricts Prisoners’ FOIA Requests (p 30)
  23. U.S. Department of Justice Releases Report on Deaths in Jails (p 30)
  24. Former Ohio Prison Guard Dies Shackled to Hospital Bed (p 32)
  25. Seventh Circuit Reverses Summary Judgment for Guard in Illinois Jail Taser Case (p 32)
  26. Oregon Jail Guard Latest to be Indicted for Sexual Misconduct (p 33)
  27. Civilly Committing Sex Offenders Strains Some States’ Budgets (p 34)
  28. California: Parole Agents Saw and Spoke to Kidnap Victim, Yet Failed to Identify or Rescue Her (p 34)
  29. Political Patronage Scandal Rocks Massachusetts Probation Department (p 36)
  30. Federal Restitution Law Failing Crime Victims (p 38)
  31. Massachusetts: Court Lifts Stay of Discovery in Challenge to Treatment of Mentally Ill Prisoners (p 38)
  32. Mississippi Supreme Court Holds Substance, Not Label, of Prisoner Petitions Governs (p 39)
  33. Audit Report Finds Georgia Sex Offender Registry Needs Complete Overhaul (p 40)
  34. Probation Officers Working in Los Angeles Juvenile Facilities Engage in Misconduct, Avoid Disciplinary Action (p 40)
  35. Capital Appeals Attorney Sentenced to Prison for Theft (p 41)
  36. California Governor Orders Corrections Officials to Retain Parole Files Indefinitely (p 41)
  37. Delaware’s Parole Board Suffers from Infighting (p 42)
  38. Oregon Federal Halfway House Director Removed Due to Embezzlement (p 42)
  39. $389,548.55 Total Award in Texas Jail Strip Search Suit (p 43)
  40. Washington Supreme Court Holds No Liberty Interest in Sex Offender Release to Community Custody (p 43)
  41. Indiana DOC Hires Convicted Former Legislator for Re-Entry Job (p 44)
  42. Former Texas Youth Commission Official Gets Ten Years in Prison (p 44)
  43. North Carolina Supreme Court Upholds Felon’s Right to Possess Firearm (p 44)
  44. Seventh Circuit Holds No Public Interest Requirement in Prisoner’s First Amendment Retaliation Suit for Providing Affidavit to Help Dead Prisoner’s Family (p 44)
  45. California Supreme Court Clarifies Application of Presentence Good-Conduct Credit Statute (p 45)
  46. Speedy Sentencing Procedure Applies to Probation Revocations, California Supreme Court Holds (p 46)
  47. Massachusetts DOC Injunction Requiring Broadcast of Jum’ah Services via Closed-Circuit Television Upheld (p 46)
  48. Federal Prisoners Making Solar Cells (p 46)
  49. Cavity Searches of Civil Commitment Patients for Cellphone Upheld by Eighth Circuit (p 47)
  50. News in Brief: (p 50)

Medical Examiners Lack Qualifications, Competence, Oversight

by Matt Clarke

Most people will only have direct contact with a medical examiner, also known as a forensic pathologist, after they are dead. Thus, medical examiners have a certain mystic quality and are perceived as both doctors and sleuths who use scientifically-proven forensics techniques to reconstruct crimes, determine causes of death and identify the guilty. The reality, though, is almost exactly the opposite.

In fact, critics of Texas medical examiners say they are “the last bastion of junk science.” Such criticisms are bolstered due to a lack of accreditation and performance standards, a shortage of qualified personnel, excessive workloads, lax oversight and a profit motive among some medical examiners which, taken together, have brought their reliability and competence into question.

Lack of Qualifications and Oversight

There is no requirement for medical examiners in Texas to be trained in forensic science or to pass a specialty exam. Consequently, any doctor fresh out of medical school, with no training or experience in forensics or pathology, can become an examiner. Worse, medical examiners traditionally have had little oversight.

Until fairly recently the Texas Medical Board did not discipline medical examiners because it did not consider the performance of an autopsy to be ...

Kentucky Jail Under Investigation After Prisoner Dies; Sexual Abuse, Financial Mismanagement Also Alleged

The Big Sandy Regional Detention Center, a jail in Paintsville, Kentucky, became the focus of a Kentucky State Police investigation after the death of a prisoner in March 2009. Additionally, a jail guard was accused of sexual harassment and later indicted. Those incidents followed allegations of financial mismanagement related to a stalled jail expansion project, and in May 2010 the jail’s administrator and the former chairman of the board that oversees the facility were indicted.

Big Sandy prisoner Sherry McFaddin, who was serving a 90-day sentence for theft, died on March 27, 2009 after she contracted a respiratory illness while held at the jail. Her relatives filed suit in February 2010, alleging that jail guards and medical staff failed to give her proper care, resulting in her death.

Also in February, the jail authority board voted to fire guard Doug Muncy as a result of sexual misconduct allegations. Prisoner Emeral David May submitted a letter stating that Muncy approached him at about 2 a.m. one day and repeatedly asked him to “close his eyes and hold out his hand,” whereupon Muncy put his penis in May’s hand.

The next day May told other guards about the incident ...

From the Editor

Welcome to our first issue of 2011. As we noted in last month’s issue, our second book, The Habeas Citebook: Ineffective Assistance of Counsel, was printed and started shipping. We have already received a lot of very positive feedback from readers and reviewers alike. A lot of work and effort went into the book and we are pleased at the positive reception it has received. Ordering information for THC and our first book, the Prisoners Guerrilla Handbook to Correspondence Courses, is in this issue of PLN. The Fourth edition of the Prisoners’ Self-Help Litigation Manual has also been very well received.

I would like to thank everyone who has donated to PLN’s annual fundraiser. If you have not yet donated to PLN’s annual fundraiser it is not too late to do so. We appreciate and rely on reader support to carry out our activities above and beyond publishing Prison Legal News each month. Even if you cannot afford to make a donation to PLN on your behalf, if you know someone who can, please encourage them to do so. Advocacy on behalf of prisoners and those enmeshed in the criminal justice system is not a popular topic ...

St. Louis Lockups Violate Constitutional Rights, ACLU Asserts

A troubling investigative report by the American Civil Liberties Union of Eastern Missouri (ACLU-EM) has exposed a culture of abuse, corruption and cover-ups at the City Justice Center and the Medium Security Institution in St. Louis (CJC/MSI).

The most damning evidence came from six current and former guards whose identities were not revealed “because of the atmosphere of intimidation and retaliation” at the two jails. The guards, including a Captain and a longtime, nationally-certified training officer, are referred to as CO1 through CO6 in the report, which was released in March 2009 following a two-year investigation.

“The accounts and descriptions of conditions provided” by guards and prisoners at the jails “lead to the conclusion that there is endemic abuse ... and a pattern of policy violations at the CJC/MSI,” the ACLU-EM found. “Without an intervention there is no reason to think that any of these conditions are going to change.”

Culture of Abuse, Corruption & Cover-Ups

The ACLU-EM described a profoundly broken, out-of-control system where guards routinely subject prisoners to vicious, unwarranted beatings and other abuse. The report also found elaborate cover-up schemes. While the abuse is clearly systemic, one particular clique of high-ranking guards was cited as the most ruthless. Captain Irene Mitchell, Lt. Sydney Turner, Lt. Bettye Love and Lt. Willie McMorris comprised a rogue gang that “beats people up, covers it up and [] will get you fired,” said CO2.

Captain Mitchell repeatedly and brutally beat Peggy Jones, a young prisoner at MSI, for several weeks in 2007 according to CO2, who witnessed Mitchell enter Jones’ cell and savagely attack her. Mitchell “beat this child until it was pathetic” and she cried and pleaded for the abuse to stop, recalled the guard. “I got tired of looking at it.”

On another occasion, a prisoner’s questions prompted Mitchell to order guards to “crack their motherfucking heads open.” Fifteen guards then entered the dorm and ruthlessly and indiscriminately beat prisoners in the head and body with billy clubs, and punched and kicked them. “Captain Mitchell has authorized COs to beat a small inmate – beat him!” said CO2. “They beat him down!”

“Head cracking” and “beat downs” were apparently common at the CJC/MSI, the ACLU-EM reported. Jail guard Dirrell Alexander choked and slammed a handcuffed prisoner over a stairwell, alleged CO2. Another guard, Paul Tillery, took a prisoner to an isolated area and “busted his head” with a soap dispenser, according to CO3. On February 13, 2006, CO1 found prisoner Samuel Aye handcuffed and bleeding. An investigation revealed that Lt. Victor Cooper had failed to report his use of force and did not seek medical attention for Aye.

CJC prisoner Cedric Cross was brutally beaten by guards and denied medical attention. When he was released on March 29, 2007, he was unable to walk. Upon arrival at a hospital he required emergency surgery to treat internal bleeding from what doctors described as blunt force injuries, according to the ACLU-EM report.

CO3 witnessed Lt. McMorris bang a handcuffed prisoner’s head into some bars. “Nothing happened to the Lieutenant and to cover that Lieutenant’s ass, they went to the extent of filing charges on that guy, saying that he assaulted the officer,” said CO3.

On February 15, 2007, a 16-year-old, 5’5” 130 lb. detainee joked about a guard.
McMorris responded by ordering several guards to enter the juvenile’s cell and stomp and punch him in the face and body, according to COs 1 and 2. The prisoner suffered a badly bruised and lacerated eye and bruising on his torso, which CO1 photographed. No action was taken against the guards who carried out the beating. Rather, administrators focused on CO1, questioning why he had taken pictures of the injuries.

Lt. Sydney Turner ordered the guards who assaulted the juvenile not to write individual incident reports. The day after the assault, Lt. Turner, who witnessed the beating, wrote a report for each guard to sign as though they’d written them themselves. Turner omitted and changed facts in the reports, the ACLU-EM found. In June 2008, the juvenile’s family reported that guards were allowing prisoners to enter his cell and beat him almost nightly.

CO5 witnessed Lt. Turner repeatedly abuse and assault Crystal Randle, a suicidal prisoner at MSI. Turner ordered Randle to spend up to 15 days nude in her cell. Medical staff told guards to at least give her a gown, but each time Turner saw it she ordered Randle stripped naked again.

On April 19, 2008, Lts. Turner and Love ordered guards to initiate three cell extraction/use of force incidents against Randle, at 7:35 a.m., 8:35 a.m. and 10:50 a.m. The first two incidents were not videotaped. During the second cell extraction, Love ordered McMorris and two other male guards to put Randle in a restraint chair, but no use of force reports were written. During the third incident, Randle threatened suicide.

Lt. Love and a Correctional Medical Services (CMS) mental health employee responded. Guards told them Randle had torn her suicide gown, made a noose, tied it around her neck and threatened to hang herself. Love ordered Randle placed in a restraint chair. Lt. McMorris and two guards entered Randle’s cell and restrained her. Once she was put in the chair, “it was simply turned toward the open cell door, clearly exposing” Randle’s nudity, before a medical gown was placed over her two minutes later, according to the ACLU-EM. The exposure “was both prolonged and unnecessary,” said CO5.

Reward/Retaliation Dynamic

Major Russell Brown, Chief of Security at MSI, determined that jail staff had committed nine policy violations in the Randle incident. When he submitted his report to his supervisors, then-Acting Deputy Superintendent Reginald Moore and Superintendent Eugene Stubblefield, however, the report was returned to him for revision because it was “too detailed,” according to CO5. “Lt. Turner’s name and involvement appeared ... in too much detail,” Moore and Stubblefield concluded. Brown then revised his report. “While Lt. Turner’s role is reportedly reduced in it, and the role of Bettye Love is amplified, it is still a damning assessment of ... Randle’s treatment,” the ACLU-EM concluded. Yet “neither Lt. Love nor anyone else has been disciplined regarding ... Randle.”

Moore and Stubblefield shielded Lt. Turner and other guards from repercussions for policy violations, according to CO4, a Captain. Stubblefield reportedly authorized lower-ranking guards “to issue directives to their superiors,” said CO4, who “believes that this authority was undoubtedly a result of their willingness to cover [up] the corruption and the abuses that ... Stubblefield and others have allowed to exist in the CJC/MSI,” the ACLU-EM stated. This “is an example of the reward and retaliation ethic that defines the culture inside CJC/MSI.”

Guards “who won’t embrace the abusive culture that has been entrenched” at the jails “are being forced out or penalized for challenging its supporters,” said CO4. Immediately after CO4 “wrote up Lt. Turner for leaving female inmates in a medical unit unsupervised,” CO4’s salary was cut by three percent. Such retaliation is a common theme throughout the ACLU-EM report.

“COs can’t say anything” about abuse of prisoners “because of retaliation from superiors,” added CO3. “I’ve seen them mess with them, find things to write them up about ... suspend them and try to demote them.” CO3 reported that “a CO [who] was in her sixties was put on one of the worst dorms there” because she had protested prisoner abuse. “A lot of people won’t speak up.”

Anyone advocating policy compliance is fired by Captain Mitchell, said CO2. Yet “those COs who adapt themselves to” the “culture of abuse and embrace the systemic cover-up ... are advantaged with promotions or other favors from administrators,” CO2 stated. “Cooperative COs were given days off or ... alerts prior to ‘random’ drug testing,” for example.

Sex, Drugs and Big Macs

The cover-up culture at the CJC/MSI extends far beyond physical assaults. “Female COs go after young inmates (sexually), and male COs go after female inmates with coercion,” said CO2. “One CO had been written up for sexual misconduct seven or eight times, but nothing had been done about him beyond the write ups.” COs 1 and 5 agreed, noting that in February 2009 a male guard was charged with repeated sexual abuse of a female prisoner, but “several more officers were involved in the wrongdoing.”

CO2 discussed guard involvement in smuggling contraband that included illicit drugs, according to the ACLU-EM report, saying several guards gave crack cocaine to prisoners. “Some COs have been suspended multiple times for drug use and ‘some of them were sent for treatment by the city but they came back doing the same thing,’” stated CO2. “You know who they are.... Nothing is done about it.”

CO3 said prisoners are “steadily getting cigarettes and drugs. Sometimes it smells like a lounge. ... Down there, you have well known [drug] mules. ... Everybody pretty much knows who the mules are but there is so much favoritism [and] subjective discipline.” CO3 witnessed guards smuggling in drugs, and noted that one time a large quantity of marijuana and black tar heroin was found but “there was no investigation or official action ... and ‘no one was reprimanded.’”

Guards also allow or order prisoners to assault other prisoners, according to CO2. One jail guard “was merely suspended for getting McDonald’s food as a reward for inmates who assaulted another inmate for him,” CO2 stated. CO3 concurred, saying guards “coerce inmates into attacking or ‘jumping on’ other inmates,” according to the ACLU-EM report.
“It goes on a lot and when I say ‘jump on,’ most of the time it’s pretty bad,” said CO3.
“There was a situation where nine guys jumped on one guy” and the victim claimed a guard had ordered the assault. CO3 mentioned another incident where “a young white guy said a CO was going to have him jumped on and checked himself out of the dorm because he feared the CO and feared for his safety.”

Further, even when CJC/MSI guards don’t order prisoner assaults, they often don’t intervene when they occur. Prisoners “get jumped and a CO will stand there and look,” CO3 observed. “A guy was stabbed up because no one was watching. The guard was mad with him and wouldn’t watch.”

Medical Indifference and Incompetence

The ACLU-EM also found systemic, callous indifference and incompetence by CMS medical staff at the jails. COs 2 and 3 reported that a prisoner who struck his head on something said “I need to go to medical,” and fell down. Guards delayed taking him to get treatment because they believed he was faking. When medical staff finally saw him, they provided only a cursory “evaluation,” gave him some water and told him to walk back to his cell. “By the time he got to his bunk, he died,” said CO2. Another prisoner with a head injury lost his hearing after he was denied treatment.

“Nurses are generally slow to respond to inmates who are sick or injured,” CO2 stated. For example, CO2 observed “a nurse’s slow response to an inmate who complained that he didn’t feel well and couldn’t get up. The inmate went into a seizure and the nurse just let him sleep it off. ‘That kind of thing happens all the time.’”

Another “sadistic practice” of CMS medical staff was cited by the ACLU-EM. “Required medicine is dispensed at a set time. CO2 states that if an inmate cannot physically make it to the distribution point at the correct time, they are not given their medicine. This is true even for heart patients. It doesn’t matter if the inmate is slow to move due to infirmity or feebleness. An inmate asking for his medicine after struggling to get up and arriving at his door once the medical staff has passed ... is told, ‘No, you didn’t make it.’”

In April 2008, a 29-year-old jail prisoner was repeatedly vomiting. “Instead of taking him to medical they threw him in another holding cell all by himself – after he kept throwing up. Nobody checked on him,” said CO3. By the time he was discovered dead in his cell rigor mortis had set in, according to the ACLU-EM report.

Similarly, in January 2008, a 19-year-old prisoner, Joshua Turner, committed suicide. “After it had been determined that he was a risk to himself,” Turner was housed in general population instead of a medical observation cell. Nobody checked on him for three days. Following Turner’s death, guard Sylvester McMillan mockingly said, “‘What suicide? That’s a figment of your imagination,’ when the subject of Turner’s death came up,” said CO2.

Perhaps the most damning evidence of medical neglect was a complaint letter submitted by St. Louis Emergency Medical Technician (EMT) Christine Seper. On April 11, 2007, LaVonda Kimble, a 30-year-old single mother, was arrested and detained at the CJC on a simple traffic warrant. Her boyfriend posted bond but it was sent to the wrong jail, delaying her release with fatal results.

Kimble suffered an asthma attack while in custody that resulted in Seper and EMT Chastity Girolami being called to treat her. Girolami said “that firefighters who arrived ahead of the EMTs told her that when they got there, CJC staff was trying to perform CPR by compressing Kimble’s stomach instead of her chest,” the ACLU-EM reported. When medics asked a jail nurse “if she had used an automatic defibrillator to try to restore Kimble’s heartbeat, ‘She just looked at us and asked us what we were talking about.’ The medical care was ‘substandard at best,’” Girolami wrote.

CJC guards also delayed letting the EMTs into the facility, and distracted and interfered with them. “The medics twice asked the CO to ‘back off,’” but “she kept persisting and finally my partner informed the staff that this patient was in cardiac arrest and basically dying and they would have to wait,’” said Girolami. “The staff was surprised at this. They didn’t know the patient was in cardiac arrest.”

Kimble died at a hospital an hour later. “The initial delay was detrimental to the patient’s outcome,” Girolami noted. Kimble’s family later filed a lawsuit against CMS. “People don’t generally die of an asthma attack when they go to the hospital,” said John Scott Wallach, an attorney representing the family. “I fully believe our evidence will show if she was treated properly, she would have been fine.”

Jail staff handled the Kimble incident as per their usual practice: they falsified reports. “Those official CJC records show LaVonda Kimble was given Albuterol to ease her breathing three separate times while she was in the CJC,” the ACLU-EM stated. However, the “medical examiner ran a special toxicology test specifically looking for the presence of Albuterol in Kimble’s body during an autopsy and found none, a finding inconsistent with the CJC records showing three doses.”

Not surprisingly, an internal investigation by jail officials found “no evidence that the Division of Corrections violated any policies or procedures.” The wrongful death suit filed by Kimble’s estate is scheduled to go to trial on January 31, 2011. See: Davis v. Correctional Medical Services, 22nd Judicial Circuit Court (St. Louis, MO), Case No. 0822-CC09706.

Inhumane Conditions

Overcrowding is a persistent problem at the CJC/MSI, according to COs 1 and 5. It “is so severe that inmates are regularly forced to sleep under beds and toilets,” said CO1. “Mats and steel inside the facility are not regularly sanitized; vomit and human feces are sometimes found ... where inmates are housed,” COs 1 and 2 reported.

“In some cells there would be inmates [who] were sick or injured who had been left alone in that condition, and because of their sickness or injury they ...

Mentally Ill Prisoner Terrorized, Forced to Wear Pink Underwear by Arizona Jailers

In the world of Maricopa County Sheriff Joe Arpaio, safety and security demand that male prisoners wear pink underwear. Indeed, this is so important to Arpaio and his staff that detainees who refuse to change into pink underwear when ordered to do so are forcibly stripped by jail guards.

At least that’s what happened to Eric Vogel, a diagnosed paranoid schizophrenic who had a violent altercation with Maricopa County jailers at the now-closed Madison Street Jail because he refused to wear pink underwear. He reportedly thought the guards were dressing him as a woman as a prelude to being gang-raped. Vogel, 36, died of a heart attack about a month later in December 2001, after he had been released and was in a state of depression over his treatment at the jail.

Vogel’s estate filed a wrongful death suit seeking $100,000 in damages. The complaint alleged that the failure on the part of Sheriff Arpaio and his staff to take into consideration Vogel’s mental illness and fear of wearing pink underwear constituted discrimination and deliberate indifference towards the mentally ill.

Unfortunately, the jury never got to hear any pink underwear-related testimony. In a pre-trial ruling that ...

California Prison Settles Prisoner’s Excessive Force Suit for $15,000

On January 28, 2010, California prisoner Garrison S. Johnson, proceeding pro se, signed a settlement agreement to resolve a federal lawsuit he had filed pursuant to 42 U.S.C. § 1983, claiming violations of his civil rights by officials with the California Department of Corrections and Rehabilitation (CDCR).

Johnson had ...

Texas Capital Defendants with Hired Attorneys Rarely Receive Death Sentences

by Matt Clarke

In February 2010, the American Constitution Society for Law and Policy (ACS) published an issue brief on the relationship between hired defense counsel and the death penalty. The brief concluded that defendants charged with a capital crime who hired a private attorney, even if only for a portion of the criminal proceedings, had a greatly reduced chance of receiving a death sentence.

The ACS chose Harris County, Texas, which contains Houston and its environs, as the location for the study. Harris County is the largest jurisdiction in the nation that uses individual attorneys appointed by a judge for indigent defense instead of a public defender system. That same system is used in 252 of Texas’ 254 counties. Harris County is also the capitol of capital sentencing, with 112 executions resulting from convictions in the county since the death penalty was reinstated in 1976. The only jurisdiction in the U.S. with more executions than Harris County is the entire state of Texas.

An indigent defense system that uses judge-appointed counsel selected from the private bar has many shortcomings. When appointed defense attorneys are paid a flat fee on a per-case basis, they may be tempted to skip ...

$16 Million Award Upheld in Wrongful Conviction Resulting from Undisclosed Evidence and Relationship

The Eighth Circuit Court of Appeals has affirmed a $16 million jury verdict in a civil rights action that alleged a police detective had violated the due process rights of a defendant convicted of child molestation by not preserving the victim’s diary as evidence and by failing to disclose ...

UNICOR-Made Military Helmets Recalled, Production Suspended

The U.S. Department of Justice is conducting an investigation into military contracts issued to ArmorSource, an Ohio company, and then subcontracted to Federal Prison Industries (FPI), commonly known as UNICOR, following the recall of 44,000 potentially defective combat helmets. According to U.S. Representative Chris Carney, “FPI has not met protective standards, nor has it met required deadlines in its production of these crucial helmets ... and we can’t wait any longer to protect our troops.”

The 44,000 helmets, which were recalled on May 14, 2010, were part of a 600,000 helmet contract for the U.S. Army and 100,000 lightweight helmets for the U.S. Marine Corps. The contracts are now in question as a result of the recall, as the helmets failed ballistics testing.

At around the same time that Rep. Carney added an amendment to the National Defense Authorization Bill that would force UNICOR to submit to competitive bidding, UNICOR suspended helmet production and agreed to waive preferential status that gives it the right of first refusal on U.S. government contracts. “Our military men and women deserve only the best equipment and it has become clear that Federal Prison Industries cannot ...

$300,000 Settlement for New York Guard’s Fondling of Prisoner

The New York State Department of Correctional Services agreed to pay $300,000 to settle a prisoner’s Eighth Amendment claim involving a sexual assault.

Arthur Kill Correctional Facility prisoner Stephen Lewis advised his unit guard on November 8, 2007 that he had lost his ID card. The guard told ...

Kansas No Longer a Leader in Post-Release Prisoner Programs

The Kansas program that as recently as two years ago was cited as a model for reintegrating prisoners into society after their release no longer exists, according to state Rep. Pat Colloton, who heads the House Committee on Corrections and Juvenile Justice.
Despite hard statistics that showed recidivism rates for parolees dropped to 2.2 percent in 2007, the number of parolees re-convicted for felonies fell 36 percent, and the state’s prison population and new prison admissions had declined, the reentry program fell into disrepair.

This occurred despite Congress’ enactment of the much-heralded “Second Chance Act,” which purported to help states provide funding for substance abuse, education, family reintegration and transitional housing for released prisoners. The reality is that many states, like Kansas, have not increased their halfway house bed space or programs to properly utilize the new funding, which Rep. Colloton estimated at $54 million.

While other states are taking radical measures to release prisoners early in response to serious budget deficits, Kansas has claimed it cannot do likewise due to stricter sentencing laws. The state has cut $25 million from its corrections budget since 2008, according to Kansas Secretary of Corrections Roger Werholtz.

As a result, even ...

North Carolina Prison Censorship Class Action Suit Settled

A settlement has been reached in a class action lawsuit that challenged the way the North Carolina Department of Corrections (NCDOC) administers its policies related to the receipt of books and magazines by prisoners.

The suit sought to enforce the First Amendment rights of NCDOC prisoners to receive reading materials. The complaint claimed that NCDOC employees frequently withheld publications sent to prisoners and failed to provide them with notice of such censorship. When notice was given, it did not include a full explanation as to why the publication was withheld. Either way, this prevented prisoners from exercising their appeal rights.

The representative class plaintiff, Joseph Urbaniak, Jr., pursued his administrative remedies at the Harnett Correctional Institution after prison officials denied him several publications, including Out and The Advocate magazines. Those publications contain articles on news, fashion, health, travel and music that focus on the gay, bisexual, lesbian and transgender community. Urbaniak was also denied the novels American Desert and Avoidance.

After his administrative remedies were rejected, Urbaniak filed a civil rights complaint. The federal district court certified the case as a class action on May 30, 2008, with the class consisting of all present and future NCDOC prisoners who seek ...

Federal Rapid REPAT Program Not Working in Rhode Island

A federally-funded program designed to help states remove illegal immigrants held in state prison systems if they agree to immediate deportation from the U.S. has had no impact in Rhode Island, according to Steve Brown, executive director of the Rhode Island American Civil Liberties Union.

The Rapid REPAT (Removal of Eligible Parolees Accepted for Transfer) program, administered by the U.S. Bureau of Immigration and Customs Enforcement (ICE), although successfully utilized in other states, has had dismal results in Rhode Island. A year-and-a-half after the state signed up for the program, not one illegal immigrant had been deported early.

Many states facing large budget deficits, such as California and Illinois, have used financial concerns to justify early releases for certain prisoners who had not completed their full sentences. According to ICE, the REPAT program has saved some states millions of dollars and has resulted in thousands of immigrant prisoners being deported and returned to their home countries.

To qualify for REPAT, illegal immigrants must have already been convicted in state court and held in custody. They must have received final orders of deportation, which they agree not to contest. Additionally, they must waive any appeals they might have related ...

Georgia Prisoners Strike for Wages, Better Medical Care and Food

by Naomi Spencer

Prisoners at seven Georgia state prisons called a strike on December 9, 2010 to protest against unpaid labor practices, poor conditions and violations of basic human rights.
Thousands of prisoners participated in the protest by refusing to work and remaining in their cells. Prisoners coordinated the action using contraband cell phones. Black, white and Latino prisoners were unified in the strike, a significant development considering the brutal and fractious racial culture within U.S. prisons.

In a press release, the prisoners listed foremost among their demands a wage for their work. Prisoners under the state’s Department of Corrections (DOC) are forced to work without pay.

Protesting prisoners demanded access to educational opportunities beyond General Equivalency Diploma (GED) certification, improved living conditions, access to medical care, fruit and vegetables in their meals, family visitation and telephone communication rights, just parole decisions, and an end to cruel and unusual punishments.

Initially planned as a one-day protest, prisoners extended the strike when the DOC responded with violence. Prisoners at the Augusta State Prison said at least six prisoners were forcibly removed from their cells by guards and beaten. Several men suffered broken ribs and, according to a press release ...

Oregon Prisoner Holds Counselor Hostage, Gets New 68-Month Sentence

On May 11, 2010, an Oregon state prisoner was convicted of kidnapping and sentenced to an additional 68 months for holding a prison counselor hostage.

John Anthony Brown, 42, was confined at the Coffee Creek Correctional Facility (CCCF), the Oregon Department of Corrections’ (ODOC) intake facility and women’s prison. While meeting with Counselor Karen McManmon on June 25, 2008, Brown brandished a sharpened plastic fork and ordered McManmon to sit in a corner of her office, according to prosecutor Bracken McKey.

Brown then spent 90 minutes using McManmon’s phone to call his family in California and the Federal Bureau of Investigation. He told the FBI that gang members from California, where he had previously served time, were infiltrating the Oregon prison system. Brown’s family contacted CCCF staff to report the hostage situation.

The prison was placed on lockdown, and a SWAT team swarmed McManmon’s office and subdued Brown. There were no reported injuries. The ODOC recognized McManmon with an Award of Valor, and she remains a prison counselor – though it’s unlikely that Brown will be on her caseload when he is processed through CCCF on his new sentence. Before the hostage incident, Brown was serving ...

California: Confiscation of Prisoner’s Mail May Violate First Amendment

In a First Amendment case alleging improper confiscation of a state prisoner’s incoming and outgoing mail, U.S. District Court Judge Susan Illston denied a motion for summary judgment filed by prison officials.

In 2007, Marcus Harrison, a validated member of the Black Guerrilla Family (BGF) housed at California’s Pelican Bay State Prison, filed a federal lawsuit pursuant to 42 U.S.C. § 1983 alleging that the confiscation of his mail violated his rights under the First Amendment.

Acting pursuant to regulations prohibiting the mailing of gang-related materials and other contraband, prison officials seized from Harrison’s outgoing mail items related to the Black August Memorial, the New Afrikan Collective Think Tank and the New Afrikan Institute of Criminology, as well as a drawing of a dragon. From his incoming mail they confiscated pictures of George Jackson (a co-founder of the BGF), Malcolm X, Nat Turner and others, which Harrison had previously sent out for copying.

While not disputing his membership in the BGF, Harrison denied that the confiscated materials were gang-related. He instead maintained that the materials all related to the promotion of educational, social, cultural and political awareness from the perspective of the New Afrikan.

In ...

California: Harsh Sentencing Laws and Health Care Costs Strain Corrections Budget

In May 2010, responding to a legislative request for information related to the impact of correctional operations on California’s budget, State Auditor Elaine Howle submitted a report subtitled “Inmates Sentenced Under the Three Strikes Law and a Small Number of Inmates Receiving Specialty Health Care Represent Significant Costs.”

The report came to three primary conclusions, the first two of which were stated in the subtitle. The report’s third main conclusion was that the state spends a significant amount on overtime for prison staff to guard and transport sick prisoners, in large part because it has failed to effectively plan ahead for such costs.

With perhaps the harshest “three strikes” law in the nation, California enhances the sentences of repeat offenders with “violent” or “serious” priors regardless of whether their current offense is violent or serious (so long as it is a felony). So-called second strikers have their sentences doubled, while third strikers face a minimum sentence of 25 years to life in prison.

The State Auditor found that as of April 2009, the California Department of Corrections and Rehabilitation (CDCR) held more than 43,500 prisoners sentenced under the state’s three strikes law, representing 25 percent of ...

Released Prisoners Need Not Exhaust Grievance Remedies Before Filing Suit

The Ninth Circuit has held that former prisoners need not exhaust administrative remedies before filing suit pursuant to 42 U.S.C. § 1983 to challenge the conditions under which they were once confined. In so ruling, the Ninth Circuit joins the Second, Third, Seventh, Eighth and Tenth Circuits; each has held that the exhaustion requirement imposed by the Prison Litigation Reform Act (PLRA) applies only to individuals who are “prisoners” (as defined by 42 U.S.C. § 1997e(h)) at the time they file their civil actions.

In August 2004, more than a year after his release from jail, Ruben Talamantes filed suit under 42 U.S.C. § 1983, alleging that his Eighth and Fourteenth Amendment rights had been violated while he had been in the custody of the Los Angeles Sheriff’s Department. Although the Sheriff’s Department maintained an administrative appeals process for handling complaints by incarcerated as well as released prisoners, Talamantes did not avail himself of either grievance procedure.

The defendants moved to dismiss the complaint on the ground that Talamantes had failed to exhaust administrative remedies. The district court held that the PLRA mandated exhaustion before filing an action relating to conditions of confinement, even ...

Budget Deficits Lead to Fewer Supermax Beds

Throughout the 1990s, “Supermax” prisons and control units – commonly called Security Housing Units (SHUs) or Intensive Management Units (IMUs) – sprang up across the nation. Between 1995 and 2000 the general prison population increased by 28 percent, but according to a study by the Commission on Safety and Abuse in America’s Prisons (CSAAP), the number of prisoners held in Supermax facilities surged by 40 percent to 80,870 over the same time period.

Today, however, prison officials are beginning to realize that locking prisoners in their cells 23 hours a day comes with a heavy price – literally. Segregating prisoners is often “twice as costly,” the CSAAP study found. For example, Supermax confinement requires at least two guards to escort prisoners to activities such as showers and recreation, noted Mississippi Corrections Commissioner Christopher Epps.

Faced with federal lawsuits challenging prison conditions, Mississippi prison officials have sharply curtailed the number of segregated prisoners from nearly 1,000 to about 150 – a significant decrease which saved the state around $6 million, according to Epps. [See related article in this issue of PLN].

Critics contend that returning Supermax prisoners to the general prison population threatens the safety of both guards and prisoners. “The departments ...

California: Validity of Parole Board’s Psych Evaluation Procedures for Lifers Questioned

The process by which California’s Board of Parole Hearings (BPH) administers psychological evaluations to parole-eligible prisoners serving life sentences has been questioned by the state Senate and also was the subject of a recent ruling by the Office of Administrative Law (OAL).

Prompted by a petition filed by this PLN writer in May 2010 that alleged the psychological instruments used by the BPH’s Forensic Assessment Division are unreliable because they have never been validated for use in a population similar to that of California’s life-term prisoners, the OAL was asked to determine whether a memorandum announcing the BPH’s use of those instruments beginning in January 2009 contained so-called “underground regulations.” Underground regulations are defined as standards of general application that should have been, but were not, formally adopted as regulations pursuant to California’s Administrative Procedures Act.

Included among the public comments received by the OAL in connection with its regulatory determination regarding the BPH’s psychological evaluation process for lifers was a July 2010 special report by David Shaw, California’s Inspector General (IG), titled “The Board of Parole Hearings: Psychological Evaluations and Mandatory Training Requirements.”

The special report was prepared in response to concerns ...

Fourth Circuit Vacates Pornography Restriction on Federal Defendant

The U.S. Court of Appeals for the Fourth Circuit has vacated a set of supervised release conditions that prohibited a defendant from possessing pornography, entering places where pornography could be obtained, having contact with children and requiring that the defendant undergo numerous sex offender tests.

Dwight Armel was found guilty of making threats to the FBI. Armel was sentenced to thirty months in prison, and ordered to serve three years of supervised release. The U.S. District Court in Virginia imposed the pornography and sex offender-related restrictions as special conditions of supervised release without explanation. Armel appealed, arguing that the pornography and sex offender restrictions were improper.

While district courts are granted “broad latitude to impose conditions on supervised release,” the Fourth Circuit wrote, “the court must explain the rationale for the special conditions it imposes.” In Armel’s case, the district court “offered no explanation as to their necessity in Armel’s case,” the appellate court stated.

The pornography restriction, for instance, was “particularly inexplicable” given Armel’s case “was not sex-related” and a number of other circuits had found such conditions to be improper, even in sex cases.

The judgment of the district court was accordingly vacated ...

Connecticut Restricts Prisoners’ FOIA Requests

by David M. Reutter

Last year, Connecticut enacted an exemption to the state’s Freedom of Information Act (FOIA) that prevents disclosure of certain records requested by “any individual committed to the custody or supervision of the Commissioner of Correction or confined in a facility of the Whiting Forensic Division of the Connecticut Valley Hospital.”

Public Act No. 10-58, which became effective on May 26, 2010, prohibits the disclosure to said individuals of a “personnel or medical file or similar file concerning a current or former employee of the Department of Correction or the Department of Mental Health and Addiction Services.” Such prohibited files include, but are not limited to, “a record of a security investigation of such employee by the department or an investigation by the department of a discrimination complaint by or against such employee.”

For the purposes of this law, an employee of the Department of Correction includes a member or employee of the Board of Pardons and Paroles. The Connecticut Freedom of Information Commission opposed the law, as did various prisoners’ rights organizations, including Prison Legal News.

PLN submitted comments to the legislative Government Administration and Elections Committee, noting that “existing provisions in Connecticut’s FOIA ...

U.S. Department of Justice Releases Report on Deaths in Jails

by Matt Clarke

In July 2010, the U.S. Department of Justice’s Bureau of Justice Statistics released a report on mortality in U.S. jails from 2000 through 2007. During the 8-year period covered by the report, 8,110 prisoners died in U.S. jails. The number of deaths increased each year from 905 in 2000 to 1,103 in 2007, but the mortality rate declined from 152 deaths per 100,000 prisoners in 2000 to 141 deaths per 100,000 in 2007. This is because the average daily jail population increased 31% from 597,226 in 2000 to 782,592 in 2007, outpacing a 22% increase in the number of prisoner deaths.

Each year, over 80% of the approximately 3,000 jail jurisdictions participating in the Deaths in Custody Reporting Program report no prisoner deaths. Just over 40% reported no prisoner deaths during the entire 8-year period covered by the report.

The leading cause of death among jail prisoners was suicide, accounting for 29% of all deaths. The probability of a prisoner committing suicide went down as the size of the jail increased. The suicide rate among the smallest jails was 6 times higher than among the largest ...

Former Ohio Prison Guard Dies Shackled to Hospital Bed

by Matt Clarke

For five years, Jeff Maier, 53, was an Ohio prison guard. Then for 13 months he was an Ohio state prisoner. The change from one side of the bars to the other occurred after Maier was discovered smuggling drugs into the facility where he worked. Following his conviction he was sentenced to two years in prison, which turned out to be a death sentence due to the lack of medical care he received from the Ohio Department of Rehabilitation and Correction (ODRC), his former employer.

Maier’s wife, Robin, and their daughter traveled to the Ohio State University Medical Center (OSUMC) after prison officials at the North Central Correctional Center called to tell her that her husband had been hospitalized.

“Oh, he’s dead,” a guard at OSUMC told her when she arrived at the hospital. That came as a shock, as she had not been informed his condition was life-threatening.

What Robin did know was that her husband had been diagnosed with lung cancer, which had resulted in the surgical removal of part of a lung and several ribs six months earlier.
She also knew that promised radiation treatment and chemotherapy had never been provided. Maier ...

Seventh Circuit Reverses Summary Judgment for Guard in Illinois Jail Taser Case

The U.S. Court of Appeals for the Seventh Circuit reversed a grant of summary judgment for a guard who Tasered a federal pre-sentencing detainee at the Jerome Combs Detention Center in Kankakee County, Illinois. The prisoner alleged the guard’s use of the Taser amounted to an unconstitutional exercise of excessive force.

Darryl Lewis was placed in segregation at the Jerome Combs Detention Center after getting into a fight with another prisoner. Lewis was being housed at the jail awaiting sentencing for his recent federal conviction for being a felon in possession of a firearm.
Lewis went on a hunger strike while in segregation. Responding to an apparent suicide attempt wherein Lewis threatened to take a whole bottle of ibuprofen, Lewis was Tasered by Michael Shreffler, a guard at the jail.

Lewis sued Shreffler, arguing that his use of the Taser constituted excessive force. Lewis alleged that Shreffler Tasered him after Shreffler gave him one warning to get up from his bed, but was slow in doing so because he was weak from not eating. Shreffler painted a different picture, asserting that Lewis was Tasered only after he failed to comply with three orders for him to get up ...

Oregon Jail Guard Latest to be Indicted for Sexual Misconduct

On May 13, 2010, Oregon jail guard Darin L. Fox was charged with having sexual contact with female prisoners. He was arrested and booked into the Clackamas County Jail, where he had worked since 1998. He was then released on his own recognizance.

While investigating complaints of sexual misconduct involving another guard, Alan Dean Randol, investigators learned of similar allegations against Fox.

Randol pleaded guilty to official misconduct and served eight days in jail. Fox was placed on paid administrative leave, and was indicted on one felony count of first-degree custodial sexual misconduct, one misdemeanor count of second-degree custodial sexual misconduct and five misdemeanor counts of first-degree official misconduct.

Felony first-degree custodial sexual misconduct requires actual intercourse, while second-degree misdemeanor custodial sexual misconduct encompasses all other sexual contact. The law was enacted in 2005 in response to high-profile sex abuse cases involving guards.
Several guards have been convicted and sentenced to lengthy prison terms under the custodial sexual misconduct statute. A prisoner’s willing participation in sex acts is not a defense, as prisoners are deemed unable to consent due to the power differential between guards and prisoners.

Fox’s indictment alleged that he engaged in sexual activity with female ...

Civilly Committing Sex Offenders Strains Some States’ Budgets

by Matt Clarke

The twenty states that have civil commitment programs will spend close to a half-billion dollars in 2010 to incarcerate and provide treatment for some 5,200 civilly-committed sex offenders. The per-offender cost for civil commitment is much higher than the cost of incarcerating people in prison, and has risen considerably since civil commitment programs were first enacted.

The annual cost per civilly-committed sex offender (CCSO) is highest in New York ($175,000) and California ($173,000). Nationwide, such costs average $96,000 – double the cost of tuition to an Ivy League university. Iowa spends $7 million a year for 80 CCSOs, nearly double the 2005 budget of $3.6 million. Virginia expects to spend $24 million in 2010 to house 239 CCSOs at the Virginia Center for Behavioral Rehabilitation, up from $2.7 million in 2004. Virginia Governor Bob McDonnell wants to spend an additional $43.5 million to convert a closed prison into another civil commitment facility.

Minnesota spends $71.6 million on CCSOs annually, five times the per-person cost of incarcerating state prisoners. The reason for the higher expense is the treatment regimen for CCSOs, which involves behavioral therapists, social workers, psychologists and psychiatrists necessary ...

California: Parole Agents Saw and Spoke to Kidnap Victim, Yet Failed to Identify or Rescue Her

While providing a legal analysis of claims against the California Department of Corrections and Rehabilitation (CDCR), a June 25, 2010 letter from the California Department of Justice noted that Jaycee Lee Dugard – the now-30-year-old woman who was kidnapped and held captive for 18 years by a paroled sex offender who fathered two children with her – said parole agents spoke to her and her eldest daughter but failed to take steps to identify them or determine their relationship to Phillip Craig Garrido, 58, the man accused of kidnapping and repeatedly raping her. [See: PLN, Dec. 2009, p.48; Sept. 2010, p.24].

The letter does not specify where or when the conversations between Dugard and the state parole agents took place. But neither does the letter, authored by Senior Assistant Attorney General Rochelle C. East, make any attempt to dispute the truth – or significance – of Dugard’s assertion, which was made in support of claims she filed against the CDCR, contending that such conversations in fact took place.

East’s letter, addressed to Deputy Attorney General Bruce Reeves, was presented to state lawmakers before they voted on July 1, 2010 to authorize a $20 million settlement to Dugard and her daughters ...

Political Patronage Scandal Rocks Massachusetts Probation Department

A May 2010 investigative report in the Boston Globe took the Massachusetts Probation Department to task for bypassing qualified candidates for available job positions, instead employing at least 250 friends, relatives and financial backers of politicians and top court officials. According to the Globe, “[r]eports of irregularities in the [hiring] process are legion ... the children of influential people who got jobs even though they didn’t make the list of finalists, friends and allies hired on an ‘acting’ basis without a formal hiring process, [and] job applicants with no political ties who find their interview evaluations inexplicably changed to reduce their overall ranking.”

Singled out for specific criticism was Probation Commissioner John J. “Jack” O’Brien, who was selected for his position in 1997 by Chief Judge John J. Irwin, Jr. instead of highly-regarded probation expert Ronald P. Corbett, Jr. Judge Irwin, now deceased, had indicated that he wanted a streetwise commissioner and selected O’Brien, who was then in charge of a program where probationers could go for drug testing and educational services. Shortly after O’Brien took office, he hired two of Irwin’s relatives.

Passed over for promotion once O’Brien became commissioner was Deirdre I ...

Federal Restitution Law Failing Crime Victims

by Mike Rigby

A federal law meant to ensure that victims of violence, fraud and other property crimes are compensated for financial loss does not work as intended.

According to the Mandatory Victims Restitution Act (MVRA) passed by Congress in 1996, crime victims who suffer identifiable monetary losses are entitled to “full and timely restitution.” However, that is rarely the case.

Since the MVRA was enacted, the amount of outstanding federal restitution debt owed to victims nationwide has ballooned from $3.7 billion to more than $44.4 billion in 2008, the most recent year for which statistics are available. In fact, according to the U.S.
Department of Justice, the average collection rate for all 94 federal judicial districts in 2008 was a mere 1.4 percent.

During that same year the rates in some individual districts were particularly abysmal. New Jersey and the Southern District of New York had collection rates of .025 and .021 percent, respectively. The Eastern District of Pennsylvania collected a paltry .002 percent of outstanding third-party restitution debt in 2008.

One problem, critics say, is that the MVRA requires judges to order restitution for the full amount of a victim’s losses regardless of ...

Massachusetts: Court Lifts Stay of Discovery in Challenge to Treatment of Mentally Ill Prisoners

by David M. Reutter

The Disability Law Center, Inc. (DLC) has obtained an order lifting a stay of discovery in its suit against the Massachusetts Department of Correction (MDOC). As previously reported in a 2008 PLN cover article, DLC filed a lawsuit on behalf of Massachusetts prisoners claiming the failure to treat their serious mental illnesses violated their Eighth Amendment rights. [See: PLN, Sept. 2008, p.1].

The U.S. District Court overseeing the case held a hearing on August 11, 2010. In allowing DLC to obtain discovery from the University of Massachusetts Correctional Health Program (UMCHP), a third party to the suit, the court stated, “DLC shall write a letter requesting releases from inmates or their representatives, if any, whose medical or mental health records are involved in the documents sought by DLC.”

The letter is to advise prisoners “that there is currently a dispute regarding whether certain of the inmate’s medical records are privileged, and that this privilege may be waived” by returning an enclosed waiver form.

DLC was to provide at least 25 copies of the letter to the MDOC no later than August 13, 2010, and the MDOC was required to transmit it to prisoners ...

Mississippi Supreme Court Holds Substance, Not Label, of Prisoner Petitions Governs

Mississippi courts must construe prisoner filings based on their substance, and not how they are labeled, the Supreme Court of Mississippi decided.

Dennis Dobbs, a Mississippi state prisoner, filed a “Petition for an Order to Show Cause” with the Marshall County Circuit Court complaining about the lack of air-conditioning and other inhumane conditions at the Marshall County Correctional Facility. Dobbs used the show cause petition instead of a 42 U.S.C. 1983 form because the law library did not have any section 1983 forms. Dobbs specifically averred in his petition that he “was not attacking the legality of his sentence.” Nonetheless, the court construed Dobbs’ petition as a motion for post-conviction relief pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act and denied relief. Dobbs appealed the circuit court’s decision and the court of appeals affirmed.

The Supreme Court of Mississippi granted certiorari and reversed. “Dobbs explicitly stated in his petition that he was not attacking the legality of his sentence, nor did he even inferentially attack the legality of his conviction,” the court wrote. “As such, and due to the lack of jurisdiction, the Circuit Court of Marshall County should have treated Dobb’s filings as non-post-conviction ...

Audit Report Finds Georgia Sex Offender Registry Needs Complete Overhaul

by David M. Reutter

The federal Jacob Wetterling Act of 1994 imposed a duty on the states to establish sex offender registry programs, including life-long registration for offenders classified as sexually violent predators. In 1996, Megan’s Law required the states to provide public sex offender registries and community notification programs.

Georgia established its Sex Offender Registry (SOR) in 1996, and the Georgia Bureau of Investigation (GBI) created a “new database on an existing mainframe platform.”
Apparently not much has changed since that time, as Georgia’s current SOR is based on “an outdated and inflexible computer system, resulting in a registry that does not fully meet the needs of the law enforcement or the public.”

That was one of the findings in a July 2010 report issued by the Performance Audit Operations division of the Georgia Department of Audits and Accounts, concerning the performance of the state’s SOR.

Contrary to its intended purpose to “provide law enforcement with an effective method of monitoring and investigating sex offenders” through its associated public website, Georgia’s SOR “contains incomplete, inaccurate, and outdated information regarding the number and characteristics of offenders living or working in an area.”

The SOR’s data ...

Probation Officers Working in Los Angeles Juvenile Facilities Engage in Misconduct, Avoid Disciplinary Action

According to a report released in June 2010 by the Los Angeles County Office of Independent Review (OIR), a civilian oversight agency, lax internal investigations in the county’s Probation Department have allowed sworn probation officers to commit serious acts of misconduct while employed at juvenile detention facilities, yet avoid disciplinary action in some cases.

Los Angeles County has 21 juvenile halls and camps, which operate with around 6,000 employees – about 4,400 of whom are sworn peace officers. With only a third as many employees, the Probation Department reported as many employee arrests in 2009 as did the Los Angeles County Sheriff’s Department.

In February 2010, after the Los Angeles Times reported that some cases of misconduct by sworn probation officers had gone unpunished, the county’s Board of Supervisors asked the OIR to investigate the scope of the problem. The ensuing three-month review found that the Probation Department’s internal investigations were taking too long to complete, averaging 200 days – often longer than the statute of limitations for departmental punishment.

“The system is broken down in so many ways, from the inception of the investigation all the way through. There are bottlenecks that slow things down ...

Capital Appeals Attorney Sentenced to Prison for Theft

by David M. Reutter

Former Louisiana death penalty defense attorney Jelpi Picou, 49, was sentenced on August 23, 2010 to five years in prison for stealing over $200,000 from a publicly-funded agency he had directed since 2004.

Picou was sentenced by Orleans Parish Criminal Court Judge Robin Pittman for five counts of theft. Over the years that Picou headed the Capital Appeals Project, which represents the poorest prisoners on Louisiana’s death row, he continuously stole from the organization.

When state officials came to inspect the financial records that Picou maintained for the Capital Appeals Project in November 2009, he resigned. Rather than face disciplinary proceedings, Picou surrendered his law license. As part of his sentence he also was ordered to pay full restitution to the Capital Appeals Project.

In 2008, Picou represented a death row prisoner who won a reversal by the U.S. Supreme Court of his death sentence for raping a child. That ruling declared capital punishment unconstitutional for child rapists. See: Kennedy v. Louisiana, 554 U.S. 407 (2008) [PLN, Nov. 2008, p.42].

Source: Times Picayune

California Governor Orders Corrections Officials to Retain Parole Files Indefinitely

The killing of a 17-year-old girl by a sex offender whose parole records had been destroyed resulted in a minor political frenzy in California.

The Associated Press requested the parole records of John Albert Gardner III, who was charged with the murder of Chelsea King, 17, in San Diego County and with the attempted rape of another woman, after the judge presiding over the case imposed a gag order. Gardner had pleaded guilty in 2000 to committing lewd and lascivious acts on a 13-year-old girl, and was also accused of raping and killing a 14-year-old girl.

On March 5, 2010, the Department of Corrections and Rehabilitation disclosed that the records requested by the Associated Press had been destroyed in 2009, one year after Gardner completed three years of parole supervision. That disclosure prompted Assemblyman Nathan Fletcher to call for an investigation to determine whether any records had been improperly destroyed.

Hours later, Governor Arnold Schwarzenegger ordered corrections officials to retain parole records indefinitely – a seemingly impossible task in light of the fact that some 10,000 ex-prisoners enter or leave parole supervision each month.

Gardner pleaded guilty on April 16, 2010 to the rape and murder of Chelsea King and ...

Delaware’s Parole Board Suffers from Infighting

by David M. Reutter

Internal strife within Delaware’s Board of Parole (Board) has provided ammunition to a move by the governor to abolish the Board. The squabble has resulted in claims that the Board’s chairman is acting without legal authority and refusing to set hearings requested by the other Board members.

The chairman, Dwight E. Holden, who manages the Board’s administrative offices, is the only full-time member. He receives an annual salary of $80,000. The other four Board members serve part-time and earn around $9,000 a year.

Since parole was abolished for offenses committed after June 30, 1990, the number of prisoners who fall under the Board’s jurisdiction has steadily dwindled. However, the Board has other duties. Among those are hearing the appeals of “tier designations” for sex offenders convicted prior to 1994.

A tip to the hotline of State Auditor R. Thomas Wagner resulted in a special investigation that found a lack of financial supervision and lack of oversight of the Board’s administrative office employees. The investigation caught the attention of Governor Jack Markell’s office, which sent Joseph Hickey, a deputy human resources director from the Office of Management and Budget ...

Oregon Federal Halfway House Director Removed Due to Embezzlement

The executive director of a non-profit transition center for federal prisoners was fired after allegations of embezzlement surfaced in June 2010.

The Oregon Halfway House (OHH) is a 75-bed transition center for federal prisoners located in Portland, Oregon. The program “provides job placement assistance, counseling, and a safe and drug-free home environment through contract correctional housing services to the U.S. Bureau of Prisons and the U.S. Probation [Office],” according to the OHH’s most recent tax statement. In 2009, OHH reported revenue of $2.6 million.

In June 2010, OHH’s board of directors learned about undisclosed financial problems within the organization and launched an investigation, according to OHH board president and Oregon federal public defender Steve Wax.

The investigation led to the termination of OHH executive director Laura Edwards, 38, for embezzlement. “The board removed Ms. Edwards and referred [the investigative findings] to the United States Attorney’s Office for investigation and possible
prosecution,” said Wax. She is accused of misappropriating $160,000 to $214,000, in part by using a business debit card to make purchases from the Adoption Shoppe – an online store that she owned.

Edwards, whose salary and benefits totaled $107,000 in 2009 ...

$389,548.55 Total Award in Texas Jail Strip Search Suit

On February 5, 2009, a former jail prisoner in Wood County, Texas was awarded $60,000 by a federal jury after being subjected to an unlawful strip search. She had previously settled claims against the Texas Alcoholic Beverage Commission (TABC) for $135,000.
Chandra Rae Jimenez, 45, co-owned a bar ...

Washington Supreme Court Holds No Liberty Interest in Sex Offender Release to Community Custody

The Washington Department of Corrections (DOC) may lawfully deny sexually violent predators early release to the community, the Supreme Court of Washington decided August 20, 2009. In so holding, the court concluded that RCW 9.94A.728(2) does not create a protected liberty interest in release to “community custody,” AKA parole.

Mark Mattson was convicted of a sex offense and sentenced to 120 months imprisonment. Nearing the end of his sentence, Mattson submitted several release plans to the DOC requesting transfer to community custody. The DOC denied Mattson’s request each time, citing DOC policy directive 350.200, which categorically prohibits the transfer of sexually violent predators to community custody.

Mattson filed a personal restraint petition which the Court of Appeals, Division One, granted, holding that Mattson had a “protected liberty interest in early release to community custody.” Accordingly, the court directed the DOC to consider Mattson’s release plan and decide whether he should be transferred to community custody.

The Supreme Court of Washington granted review in the case and reversed. For a state law to create a protected liberty interest, the law must “prescribe a given outcome for a specific set of facts,” the court wrote. RCW ...

Indiana DOC Hires Convicted Former Legislator for Re-Entry Job

A former Indiana democratic state representative convicted of impersonating a public servant was hired by the Indiana Department of Corrections to run its re-entry program at the Branchville Correctional Facility.

In June 2009, Dennie Oxley II attempted to avoid arrest for public intoxication by claiming he was a state lawmaker. Under Indiana’s Constitution, state legislators cannot be arrested for misdemeanors while the legislature is in session. Oxley, however, was no longer a lawmaker; after leaving the legislature he ran for Lieutenant Governor in 2008, but lost.

Police had responded to calls concerning a shoeless woman who was lying on the ground at a gas station. The woman was a 21-year-old former House intern, and Oxley was stopped after he was seen running into an alley carrying a pair of shoes. Previously, in February 2009, he had been charged with DUI in connection with a minor accident.

Oxley pleaded guilty in December 2009 to impersonating a public servant and received three months’ probation. He was hired three months later for his new job at Branchville, a medium-security 1,300-bed facility, where he will be paid $52,000 a year “to help meet strategic goals of reducing recidivism and preparing offenders ...

Former Texas Youth Commission Official Gets Ten Years in Prison

On April 22, 2010, a former Texas Youth Commission (TYC) official convicted of sexually abusing a young offender was sentenced to ten years in prison.

Ray Edwards Brookins, formerly the assistant superintendent of TYC’s West Texas State School, was convicted of the 2004 sexual abuse of a prisoner who was 18 years old at that time. The charges included two counts of improper sexual activity with a person in custody and an improper relationship between an educator and a student.

Brookins is one of two TYC officials accused of sexually abusing up to 13 youths in TYC custody. Former West Texas State School principal John Paul Hernandez is scheduled to go to trial in February 2011; he faces one count of sexual assault, nine counts of improper relationship with a person in custody, and nine counts of improper relationship between a student and educator. [See: PLN, Feb. 2008, p.1].

Multiple witnesses, including the 18-year-old prisoner Brookins was accused of molesting, gave lurid testimony about late-night encounters in offices or recreational fields, Brookins’ use of pornography and sex toys, and his unwanted sexual advances that he would not allow his young victims to rebuff.

Brookins resigned in February 2005 ...

North Carolina Supreme Court Upholds Felon’s Right to Possess Firearm

On August 28, 2009, the Supreme Court of North Carolina concluded that a 2004 law prohibiting felons from possessing a firearm violated the North Carolina constitution in an as-applied challenge to the law.

Barney Britt was convicted in 1979 of possession with the intent to distribute a controlled substance. After his release in 1982, Britt had his right to possess firearms restored in 1987, and thereafter used and possessed his guns without incident, living as a law-abiding citizen.

In 2004, though, the North Carolina legislature enacted N.C.G.S. § 14-415.1, which makes it “unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm.”

After the law’s passage, Britt visited his local sheriff inquiring whether he could continue to keep his guns. The sheriff told him that he could not, and Britt promptly divested himself of all his firearms.

Britt brought an as-applied challenge to the law. The trial court and the court of appeals denied relief. The Supreme Court, however, agreed to hear the case and reversed.

“We conclude that N.C.G.S. § 14-415.1 is…unconstitutional…as applied to this ...

Seventh Circuit Holds No Public Interest Requirement in Prisoner’s First Amendment Retaliation Suit for Providing Affidavit to Help Dead Prisoner’s Family

The Seventh Circuit Court of Appeals held that a prisoner who alleges retaliation for free speech is not required to show that the speech engaged in concerned a matter of public interest.

Jimmy D. Bridges, a Wisconsin state prisoner, filed a civil rights suit pursuant to 42 U.S.C. § 1983 in federal district court complaining of retaliation by prison officials after he assisted the mother of a prisoner who died in suing prison officials. Bridges was an aural witness to the plight of another prisoner in an adjoining segregation cell who fell seriously ill, but whose pleas for help were ignored by guards until the day before he died. The dead prisoner’s mother sued prison employees. Her attorney interviewed Bridges in March 2005, receiving an affidavit from him. The affidavit was used in a summary judgment motion filed in April 2005.

Starting in March 2005, prison employees began a harassment campaign against Bridges. This included delaying his incoming and outgoing mail, kicking his cell door, turning his cell light on and off and opening then slamming his cell’s tray slot door when he tried to sleep, filing a bogus disciplinary charge, improperly upgrading the bogus charge to ...

California Supreme Court Clarifies Application of Presentence Good-Conduct Credit Statute

In an opinion of technical value, but little if any benefit to anyone (including the defendant in the case), the California Supreme Court held that a defendant need spend only four days in presentence confinement -- not six days, as argued by the State -- in order to become entitled to receive conduct credit pursuant to Penal Code section 4019.

The controversy arose when Roland Dieck was released on his own recognizance after spending five days in county jail. Dieck subsequently pled nolo contendere to two offenses and was sentenced to state prison for a total of 32 months. Execution of the sentence, however, was suspended; instead, Dieck was placed on probation on the condition that he spend one year in county jail, with credit for time served -- but, notwithstanding the good-conduct credit provisions of section 4019, no conduct credit.
Containing six subdivisions, section 4019 provides for two days of conduct credit for every four days of presentence incarceration. In Dieck’s case, confusion arose because subdivision (e) limits application of section 4019 to a person “committed for a period of six days or longer” -- and, at the time he was sentenced, Dieck had spent only five days in custody.

In an ...

Speedy Sentencing Procedure Applies to Probation Revocations, California Supreme Court Holds

California prisoners facing revocation of probation must be sentenced within 90 days after making a request under Penal Code 1381 or the probation revocation proceeding must be dismissed, the Supreme Court of California decided March 9, 2009.

David Wagner was placed on probation in 2003 after pleading guilty to unlawfully transporting methamphetamine. While on probation, Wagner was convicted of receiving stolen property and possessing a controlled substance. Wagner was sentenced to 16 months in state prison.

A detainer for violating Wagner’s probation was filed while Wagner was serving his sentence. Wagner requested final disposition of the probation violation under Penal Code 1381, which requires that a prisoner be brought “for sentencing within 90 days” of giving appropriate notice to the district attorney where “any criminal proceeding wherein the defendant remains to be sentenced” is pending. Failure to bring the defendant for sentencing within 90 days requires dismissal of “the action.”

Wagner was brought to court, but was not sentenced within 90 days of his 1381 request. Wagner’s attorney sought dismissal of the probation revocation proceeding arguing that Wagner’s 1381 request should be construed as a request under section 1203.2a, another mechanism prisoners may use to resolve ...

Massachusetts DOC Injunction Requiring Broadcast of Jum’ah Services via Closed-Circuit Television Upheld

The U.S. Court of Appeals for the First Circuit upheld an injunction requiring the Massachusetts Department of Correction (DOC) to broadcast Friday Jum’ah services via closed circuit television to Muslim prisoners in segregation.

The injunction comes in response to a suit under the Religious Land Use and Institutionalized ...

Federal Prisoners Making Solar Cells

Spire Corp., a solar cell manufacturer, has inked a deal worth approximately $55 million with UNICOR, the prison labor arm of the Bureau of Prisons (BOP), to establish a solar module manufacturing program at the Federal Correctional Institution (FCI) in Otisville, New York.

Under the terms of the deal, Spire will provide UNICOR with $55 million worth of solar cells. UNICOR is on the hook for all other costs associated with setting up the manufacturing program. UNICOR intends to sell the solar cells produced by prisoners to government agencies.

The stated goal of the arrangement is to provide prisoners with “green” technology training. However, critics have raised concerns that such training could eventually lead to ex-prisoners getting jobs that require them to visit people’s homes to install solar panels.

The deal for Spire could not come soon enough, as the company faced possible delisting from the NASDAQ stock exchange. Spire was notified by NASDAQ in late 2009 that it would be delisted unless its market valuation rose above $50 million.

Spire announced in October 2010 that the UNICOR contract had been reduced to $36.1 million. No reason for the decrease was provided, though it may be related to ...

Cavity Searches of Civil Commitment Patients for Cellphone Upheld by Eighth Circuit

The Eighth Circuit Court of Appeals upheld a strip search of 150 Minnesota civil commitment patients, but warned that it was “a close question of constitutional law,” which reached the outer limits of acceptable conduct.

On October 28, 2003, staff at the Minnesota Sex Offender Program (MSOP) found a cellphone case in an area that was accessible to patients, staff and visitors. A search of the area and review of surveillance videotapes did not reveal the phone, so MSOP officials ordered room and visual body cavity searches for 150 patients, none of whom were suspected of any wrongdoing. The phone was not found.

Acting on a tip from a patient, two days later the phone was found in a patient’s room in the protective isolation unit. He did not have access to the common area where the case was found, and it is not clear how it got there.

Luis A. Serna, an involuntarily committed “sexually dangerous person,” challenged the search in federal court. The district court determined that the search was reasonable and granted summary judgment to the defendants.

The Eighth Circuit found that a civilly committed person’s liberty interest is analogous to that of a pretrial ...

News in Brief:

Arizona: Infamous Maricopa County Sheriff Joe Arpaio, best known for his harsh and humiliating treatment of prisoners, staged a Christmas carol contest on December 21, 2010. Ten prisoners sang for a chance to get a full traditional dinner on Christmas Eve, with Arpaio judging the contest along with a jail guard and a Santa-costumed judge. Prisoner Jodi Ann Arias won the top prize by singing “Oh, Holy Night,” securing the dinner for her and her cellmate. Arias and two runner-ups also received Christmas stockings filled with commissary items, which they donated to charity.

Arizona: A December 23, 2010 fight at the CCA-operated Red Rock Correctional Center in Eloy left ten prisoners with injuries, three of them in critical condition. The lunchtime fight involved around 110 prisoners, all of whom had been transferred to the private prison from California. CCA staff used pepper spray to regain control, and both Red Rock and the neighboring Saguaro Correctional Center, also run by CCA, were placed on lockdown.

California: Malcolm Alarmo King, 38, incarcerated at the Theo Lacy Jail in Orange County, managed to get kosher meals by citing his devotion to the religious holiday of “Festivus.” According to a December 10, 2010 article ...


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