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Prison Legal News: October, 2011

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Volume 22, Number 10

In this issue:

  1. The Failed Promise of Prison Privatization (p 1)
  2. From the Editor (p 10)
  3. FDOC Pen Pal Advertising Ban Passes Constitutional Scrutiny (p 11)
  4. Human Rights Defense Center Litigation Update (p 12)
  5. Economy Forces States to Rethink Juvenile Justice Policies, Priorities (p 14)
  6. California’s Behavior Modification Programs – Abuse of Prisoners, Racism and Cover-Ups (p 16)
  7. D.C. District Court Partially Dismisses Lawsuit by BOP CMU Prisoners (p 20)
  8. Ninth Circuit: California Prisoner Need Not Appeal from Satisfactory Grievance Response in Order to Exhaust Administrative Remedies (p 21)
  9. Massachusetts Prisoners Receive Expired Food Rejected by Schools (p 22)
  10. Tennessee Jail Detainee Shackled During Childbirth Awarded $200,000 (p 22)
  11. California Inspector General Expresses Concerns About Out-of-State Private Prisons (p 24)
  12. California District Court Rips Feds for “False and Misleading Information” in FOIA Case, Then Does Nothing (p 24)
  13. FBI Claims 2,500 Percent Increase in Child Porn Arrests (p 26)
  14. Oregon Aggravated Murder Statute Creates Liberty Interest (p 26)
  15. Montana Jail Agrees to Provide Addiction Treatment for Pregnant Prisoners (p 28)
  16. Pennsylvania Councilman Takes Private Prison Company’s Donation, then Opposes Detention Center (p 28)
  17. Department of Justice Report on Sexual Victimization in Prisons and Jails (p 30)
  18. $10,000 Settlement in North Carolina Prisoner’s Pepper Spraying (p 30)
  19. Los Angeles County Pays $400,000 to Settle Juvenile Jail Prisoner Wrongful Death Suit (p 31)
  20. 90% Remittitur of $750,000 Strip Search Verdict Vacated; Plaintiffs Accept $440,385.08 on Remand (p 32)
  21. Postcard-Only Mail Policy Enjoined at Colorado Jail (p 33)
  22. Prisons Are Breeding Ground for Terrorists? (p 34)
  23. Former Florida Prison Guard Sues for Reinstatement Under Whistleblower Act (p 34)
  24. Prison Legal News Sues Arizona Jail Over Restrictive Mail Policy (p 36)
  25. Budget Cuts Threaten Oregon Juvenile Offenders (p 36)
  26. Congressional Budget Resolution Cuts Some DOJ Programs (p 37)
  27. Fugitive Oregon DOC Food Manager Getting Homesick in Iran (p 38)
  28. Oregon Juvenile Who Attempted Suicide Settles Negligence Suit for $192,500 (p 38)
  29. Sexual Misconduct Topples Two Oregon Prosecutors (p 39)
  30. Taser International Settles Product Liability Lawsuit for $2.85 Million (p 40)
  31. U.S. Supreme Court: State P&A Can Sue Another State Agency for Records (p 40)
  32. PLN Sues Kansas Jail Over No-Publication Policy (p 41)
  33. Jail Guitar Doors, USA Offers Free Musical Instruments to Prisons (p 42)
  34. Florida’s Prison Industry Criticized for Failing in Mission (p 42)
  35. Oregon Prison Guard Guilty of Contraband Smuggling (p 43)
  36. ICE, CCA Settle ACLU Lawsuit Regarding Health Care for Immigration Detainees (p 44)
  37. Report Finds Federal Prisoners Exposed to Toxic Metals in Recycling Jobs (p 44)
  38. Sixth Circuit: Prisoner Must be Allowed Direct Appeal When Prison Delayed Appeal Mailings (p 46)
  39. CCA Psychiatrist’s License Restricted for Sexual Misconduct with Florida Female Prisoners (p 46)
  40. CORRECTIONS To Danny Trejo Interview in August 2011 PLN (p 48)
  41. Louisiana Sex Offender Agrees to Surgical Castration (p 48)
  42. News In Brief: (p 50)

The Failed Promise of Prison Privatization

We have been experimenting with prison privatization in the U.S. now for over twenty-five years. The privatization idea originated out of a notion that the private sector, with its competition-driven efficiency and innovation, could operate prisons of higher quality and lower cost than the public sector. Create a market for incarceration services, the argument ran, and the market will work its magic, improving prison conditions and rehabilitative outcomes while saving the taxpayers millions of dollars. That market has effectively been created over the past quarter century and we have now arrived at a place where prison privatization has been studied extensively and evaluated rigorously.

Although hyperbole continues to propel prison privatization policy along, research findings are incontrovertible: even in the best private prisons, quality of prisoner care is no better than in public prisons and the cost advantage of privatization, which initially accounted for minimal savings, is steadily eroding as the private prison industry matures.
The big promises of prison privatization – less cost, higher quality – have simply not materialized. Despite these disappointing results, prison privatization advocacy maintains traction in diverse jurisdictions as policymakers from Ohio to Florida and from Maine to California seek expedient solutions to budget shortfalls triggered ...

From the Editor

Tropical storm Irene caused serious damage in Vermont on August 27 and 28, including in Brattleboro where our offices are located. We received a lot of phone calls, e-mails and inquiries asking if we were okay, and the good news is that our office is safe and sound and none the worse for wear, and only one of our staff was seriously affected by the storm. Dennis, our office manager, lost his tool shed and firewood due to flooding but the flood waters stopped an inch from his door. Thanks to everyone who was concerned about us.

This month’s cover story regarding the private prison industry is the story the mainstream media should be covering but isn’t. As states like Ohio, Arizona and Florida seek to privatize portions of their prison systems as part of the attack on organized labor (government employees are the last bastion of unionized workers left in the U.S.), little attention is being paid to the fact that the private prison industry is merely another mechanism to transfer public tax dollars into private hands.

By now subscribers should have received their annual fundraiser mailing from Prison Legal News, as it was mailed a ...

FDOC Pen Pal Advertising Ban Passes Constitutional Scrutiny

by David M. Reutter

In January 2011, a federal district court granted summary judgment to the Florida Department of Corrections (FDOC) in a lawsuit challenging FDOC rule 33-210.101(9), Florida Administrative Code, which prohibits prisoners from advertising for pen pals or receiving correspondence from organizations that provide such services.

The suit was filed by Joy Perry, who operates non-profit pen pal services called Freedom Through Christ Prison Ministry and Prison Pen Pals, and by the for-profit Writeaprisoner.com, Inc. (WAP).

Perry’s services are both religious and secular; her prison ministry is free, connecting prisoners and persons on the outside. The purpose of her ministry is to reach prisoners who desire to learn about the Gospel of Christ through the exchange of letters.

WAP charges $40.00 per year to place personal ads seeking pen pals on the Internet. The fee includes printing out any email correspondence sent to prisoners and forwarding it via U.S. mail. WAP also assists prisoners in successfully re-entering society by allowing them to post a résumé free of charge.

Perry and WAP alleged free speech violations under the First Amendment and due process violations under the Fourteenth Amendment. Freedom Through Christ Prison Ministry ...

Human Rights Defense Center Litigation Update

This month marks the beginning of my second year practicing law with the Litigation Project of the Human Rights Defense Center. The Litigation Project was envisioned by PLN founder Paul Wright as a complement to HRDC’s principal project, Prison Legal News, for the purpose of engaging in litigation that advances the basic human rights of all prisoners – with the core focus being to ensure that prisoners can actually receive PLN’s books and monthly publication. In recent years, the attempts to censor PLN have increased dramatically and have consumed ever-increasing staff resources.

The number of severe violations of constitutional rights I read about on a daily basis is almost overwhelming. Sometimes I feel like I am standing outside in a thunderstorm trying to catch all the rain in a teacup. Although I cannot respond to every letter we receive, each one is methodically recorded and catalogued in anticipation of future litigation. If specifically requested to do so, I will forward letters to other counsel who may be interested in assisting prisoners with the litigation of their claims.

Since its inception, HRDC has encouraged (through PLN and the books it distributes) individual prisoner self-help as the primary vehicle for improvement ...

Economy Forces States to Rethink Juvenile Justice Policies, Priorities

The “tough on crime” movement of the 1990s ushered in a wave of harsh juvenile justice practices across the U.S., and the philosophy for dealing with juvenile offenders shifted from rehabilitative to punitive.

Children were tagged with dehumanizing labels like “super predator” and “incorrigible,” and lawmakers quickly responded to an anticipated epidemic of juvenile crime by lowering the age at which youthful offenders could be tried as adults (in some states as low as 14 years old). Such juveniles were often dumped into overcrowded, violent adult prisons where they had two choices: become hardened and violent themselves or be preyed upon and victimized.

Of course this knee-jerk response to juvenile crime had devastating consequences for youths who were swept up in the juvenile justice and adult prison systems. Some children died in custody in well-publicized cases, while others, lacking rehabilitative opportunities, evolved from juvenile delinquents into adult criminals.

More recently, as states verge on the brink of financial collapse due to the economic downturn, saner minds appear to be prevailing as evidenced by a growing number of states rolling back many of the punitive juvenile justice policies of the 1990s, according to a March 16, 2011 report by the ...

California’s Behavior Modification Programs – Abuse of Prisoners, Racism and Cover-Ups

Ill-conceived experiments in behavior modification by the California Department of Corrections and Rehabilitation (CDCR) have led to allegations of racism, abuse of prisoners, retaliation and cover-ups, plus a state Senate inquiry.

In 2005 and 2006, the CDCR initiated pilot programs in behavior modification at six facilities, including the High Desert State Prison (HDSP) in Susanville.

Behavior modification is linked to a school of psychological thought which holds that a person’s behavior can be influenced by application of appropriately timed rewards and punishments. It is derived primarily from the early 20th century work of Russian psychologist Ivan Pavlov, and was later popularized by American psychologist B.F. Skinner. In behavior therapy, emotional problems are considered the consequences of faulty acquired behavior patterns or the failure to learn effective responses. The aim of behavior therapy, therefore, is to change negative behavior patterns.

There is little or no concern for unconscious processes (i.e., thoughts and feelings), which is the traditional focus of psychoanalysis, nor is there concern about achieving new insights or effecting fundamental personality changes.

In the Skinnerian approach, desired behavioral responses are reinforced by being rewarded while those that are not desired are punished. According to the theory, the ...

D.C. District Court Partially Dismisses Lawsuit by BOP CMU Prisoners

A lawsuit filed on behalf of prisoners held in Communication Management Units (CMUs) at federal prisons in Terre Haute, Indiana and Marion, Illinois, which alleged violations of their Constitutional rights due to placement in the CMUs, as well as violations of the Administrative Procedure Act (APA), 5 U.S.C. § 701, et seq., was partly dismissed on March 30, 2011 although some claims were allowed to go forward.

The ruling by the U.S. District Court for the District of Columbia noted factual differences regarding the circumstances of the prisoner plaintiffs in the case.

Prisoner Yassin Aref was serving a fifteen-year sentence for “money laundering, providing material support for terrorism, conspiracy, and making a false statement to the FBI.” Initially classified as low security, he was eventually assigned to the CMU at Terre Haute and, after filing a grievance and requesting a transfer, was sent to the Marion CMU.

Avon Twitty, initially serving a sentence for murder and a firearms violation, was designated to the Terre Haute CMU but paroled in 2011, and his case was dismissed as being moot.

Prisoner Daniel McGowan was accused of domestic terrorism; like Aref, McGowan was classified as low security. He was transferred to ...

Ninth Circuit: California Prisoner Need Not Appeal from Satisfactory Grievance Response in Order to Exhaust Administrative Remedies

Clarifying “the boundaries of proper exhaustion” within the context of California’s prison system, the Ninth Circuit Court of Appeals held that a prisoner “has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in order to exhaust administrative remedies.”

In July 2004, Quillie Harvey, a prisoner at Salinas Valley State Prison, was extracted from his cell with pepper spray. He was charged with refusing to comply with a cell search.

Prison officials subsequently failed to hold a hearing on the charge within 30 days as required by policy. In January 2005, Harvey filed a grievance complaining about the delay and requesting alternative forms of relief – either that the charge be dismissed or that he be provided access to a videotape of the cell extraction, which he claimed would prove his innocence.

In a written decision, prison officials partially granted Harvey’s appeal, agreeing to provide a hearing as well as access to the videotape. However, no hearing was held and no access to the video was granted. Thus, five months later, Harvey filed a “reminder” grievance which prison officials construed as an appeal of the earlier (partially-granted) grievance, and accordingly rejected as ...

Massachusetts Prisoners Receive Expired Food Rejected by Schools

According to an April 2011 news report, the Massachusetts Department of Education set aside 11,000 cases of expired cheese, blueberries, frozen chicken and other food items for use in prison kitchens after an investigation discovered the out-of-date food was being served to Boston school children.

The action comes as no surprise to many prisoners, who are openly served canned desserts, packaged snacks and other food items that are as much as two or three years past the “best-by” date stamped on the packaging. In some prison warehouses it is not uncommon to come across cases of food destined for prisoner meals that are marked “Not to be used for human consumption.”

Documents obtained by the Boston Globe revealed that the old food discarded by the Dept. of Education went to a state prison in Bridgewater, but a spokesman for the Massachusetts Department of Correction (DOC) said most of the food had been thrown out, including 2,000 cases of cheddar cheese.

According to Diane Wiffin, director of public affairs for the DOC, prisons rejected the out-of-date food and refused to pick up many of the items, which included cases of frozen chicken and frozen beef patties. The blueberries were ...

Tennessee Jail Detainee Shackled During Childbirth Awarded $200,000

Juana Villegas won a $200,000 jury award in a § 1983 action against the Metro-Davidson County Sheriff’s Office in Nashville, Tennessee for being shackling while she was in the final stages of labor during her pregnancy and past-partum recovery. Villegas had asserted that the shackling was in disregard of ...

California Inspector General Expresses Concerns About Out-of-State Private Prisons

In December 2010, California Inspector General David Shaw sent a letter to the California Department of Corrections and Rehabilitation (CDCR), informing CDCR officials about concerns related to housing California prisoners in out-of-state privately-operated facilities.

The concerns arose when the Office of the Inspector General (OIG) visited five out-of-state facilities that house California prisoners. Those facilities included the Florence Correctional Center, La Palma Correctional Center and Red Rock Correctional Center in Arizona; the Tallahatchie County Correctional Facility in Mississippi; and the North Fork Correctional Facility in Oklahoma – all operated by CCA.

The state has since contracted with GEO Group to house prisoners at the North Lake Correctional Facility in Michigan, effective May 1, 2011. Presently, the CDCR contracts for approximately 12,800 private prison beds outside of California.

The out-of-state program was initiated in 2006 in an effort to address the problem of California’s severely overcrowded prison system. With 33 adult facilities housing around 170,000 prisoners, roughly twice their design capacity, California’s prisons are so dangerously overcrowded that former Governor Arnold Schwarzenegger deemed them a threat to the safety, security and well-being of both prisoners and guards.

Lawsuits were filed and the federal courts intervened, placing prisoner medical ...

California District Court Rips Feds for “False and Misleading Information” in FOIA Case, Then Does Nothing

In a lawsuit filed by six Islamic organizations and five individuals, the U.S. District Court for the Central District of California, Southern Division, found that the FBI and the U.S. government had “provided false and misleading information to the court” when they represented that their responses to the plaintiffs’ Freedom of Information Act (FOIA) requests were complete when they were not. Notwithstanding that finding, the court agreed to withhold the requested FOIA records because they “could reasonably be expected to compromise national security.”

The plaintiffs filed their FOIA requests in May 2006, asking for “information reflecting any investigation or surveillance of them” by the FBI. When they were not satisfied with the government’s response, they filed suit in federal court in September 2007 seeking the requested information.

In 2009, the U.S. government represented in court filings that it had fully complied with the plaintiffs’ FOIA requests. Following an in camera review of the FOIA records, however, the district court determined that the FBI’s claims that “A significant amount of information within those documents was outside the scope of Plaintiff’s FOIA request ... were then, and remain today, blatantly false.... The Government asserts that it had ...

FBI Claims 2,500 Percent Increase in Child Porn Arrests

Although the number of prosecutions for child pornography is small in comparison with drug and immigration offenses, child porn cases have skyrocketed according to FBI statistics.

Arrests for such crimes are up 2,500 percent since 1996, largely due to technology that allows federal investigators to download images from home computers after users have logged onto certain websites. Another reason for the increase in arrests is the five-year mandatory minimum sentence for child porn crimes that is handed out in federal prosecutions.

According to the FBI more than 10,000 arrests for child pornography have been made since 1996. As arrests go up, however, so do the chances of ensnaring people accused of child porn offenses who may be innocent victims of malware, viruses and malicious hackers. [See: PLN, Nov. 2010, p.14].

Child porn investigations are relatively inexpensive compared to other crimes, since evidence can be collected by an agent equipped with an Internet connection and peer-to-peer software used by millions of people worldwide, such as Limewire, to swap videos and other digital files. Locating child porn offenders has also been made easier due to computer technology, such as the ability to identify and track IP addresses.

Attorney Michael ...

Oregon Aggravated Murder Statute Creates Liberty Interest

The Ninth Circuit Court of Appeals has held that Oregon’s aggravated murder statute creates a protected liberty interest in parole eligibility.

In 1982, Oregon state prisoner Douglas Miller was convicted of aggravated murder and sentenced to life imprisonment with a 30-year minimum under ORS 163.105(1).

Prisoners convicted of aggravated murder are not eligible for parole while serving the judicially-imposed mandatory minimum sentence. After 20 years, however, such prisoners are entitled to a “rehabilitation hearing” – referred to by the Oregon Board of Parole and Post-Prison Supervision (Board) as a “Murder Review Hearing” – to determine whether they are likely to be rehabilitated within a reasonable period of time.
“If the individual can make that showing, his sentence is converted to life imprisonment with the possibility of parole and he immediately becomes parole-eligible,” the Ninth Circuit noted.

“To be clear,” the provisions of ORS 163.105(3)-(4)(1981) “speak only to early eligibility for a parole hearing for persons convicted of aggravated murder; they promise nothing as far as being paroled after the hearing,” the Court of Appeals wrote.

In 2004, the Board held a rehabilitation hearing for Miller. “At the hearing, the Board engaged Miller in an extended ...

Montana Jail Agrees to Provide Addiction Treatment for Pregnant Prisoners

The American Civil Liberties Union of Montana (ACLU) has reached a settlement with the Lake County Detention Center (LCDC) which requires LCDC to ensure that pregnant prisoners at risk of opiate withdrawal receive proper medical treatment.

The ACLU filed a federal civil rights lawsuit in November 2009 on behalf of Bethany Cajune, who was incarcerated at LCDC for nine days while four months pregnant and was denied medication essential for preventing the serious medical risks associated with opiate withdrawal, including miscarriage.

Cajune reported to LCDC to complete a 24-day jail sentence for a traffic violation. That sentence was interrupted after five days because Cajune went into early labor. Before turning herself in to serve the remainder of her sentence, Cajune consulted her Medically Assisted Treatment (MAT) counselor.

In 2008, Cajune had been diagnosed for an opioid addiction that required medical and psychosocial treatment. As part of her MAT program, Cajune began receiving Suboxone for her addiction, which is similar to methadone but is approved for office-based treatment.

While in the program, Cajune, 24, started to get control of her life. She began to take GED classes and stayed off drugs. Her treating physician, Dr. Kenneth Cairns, recommended that she continue ...

Pennsylvania Councilman Takes Private Prison Company’s Donation, then Opposes Detention Center

A $3,000 campaign contribution from private prison firm GEO Group has put a spotlight on a county councilman in Pennsylvania. The contribution was made only days after Ron Angle, president of the Northampton County Council, urged his colleagues to explore a proposal from GEO in October 2010.

GEO Group proposed that Northampton County seek a contract with the Immigration and Customs Enforcement agency (ICE) to house immigration detainees. The detention contract would be farmed out to GEO.

Angle and other supporters of the project touted it as a way to bring jobs to the area and increase tax revenue for the Bangor Area School District without adding new students. GEO’s donation to Angle came after the County Council authorized County Executive John Stoffa to act quickly in exploring the company’s proposal.

“They didn’t buy any influence,” Angle said of the contribution from GEO’s political action committee. “They bought my disinfluence.” Angle said he spent $650 of GEO Group’s donation to poll residents about their opinion on building the detention center on a 128-acre site in their community.

Local residents did not see a GEO-run facility as being a good neighbor. Based on that response ...

Department of Justice Report on Sexual Victimization in Prisons and Jails

In January 2011, the U.S. Department of Justice’s Bureau of Justice Statistics (BJS) released a report titled “Sexual Victimization Reported by Adult Correctional Authorities, 2007-2008.” The report is based on the annual Survey of Sexual Violence mandated by the Prison Rape Elimination Act, 42 U.S.C. § 15601.

Survey forms were mailed to administrators for all federal, state, military and ICE facilities, plus a representative sample of local jails and privately-operated jails and prisons. The collected data covered 2.12 million prisoners in 2007 and 2.18 million in 2008.

The BJS survey dealt with a variety of sexual victimizations, which are defined as sexual contacts without consent or with a person who cannot consent. Sexual victimization perpetrated by a prisoner (PSV) includes nonconsensual sexual acts involving contact between the sexual organ or mouth of the perpetrator and the sexual organ, mouth or anus of the victim, or penetration of the anal or genital opening of the victim by a finger, hand or another object. Abusive sexual contact is considered less serious and includes intentional touching of the genitalia, anus, groin, breast, inner thigh or buttocks, even through clothing, and incidents of sexual exploitation.

Staff sexual misconduct (SSM ...

$10,000 Settlement in North Carolina Prisoner’s Pepper Spraying

The North Carolina Department of Corrections (NCDOC) paid a prisoner $10,000 to settle a lawsuit claiming guards used excessive force by pepper spraying him.

Lanesboro Correctional Institution prisoner Bill Rayburn had been asking guards to move him away from another prisoner who had been taunting and threatening him. On ...

Los Angeles County Pays $400,000 to Settle Juvenile Jail Prisoner Wrongful Death Suit

The Los Angeles County Board of Commissioners has approved a $400,000 settlement to resolve negligence, civil rights and other claims related to the wrongful death of a juvenile offender held at the Los Padrinos Juvenile Hall. Tremayne Cole, 14, passed away less than a month after being arrested for ...

90% Remittitur of $750,000 Strip Search Verdict Vacated; Plaintiffs Accept $440,385.08 on Remand

On June 30, 2010, the Eighth Circuit Court of Appeals held that a district court had abused its discretion in reducing a $750,000 jury award to $75,000 in a case raising illegal strip search claims involving two retired school teachers who were arrested while protesting President George W ...

Postcard-Only Mail Policy Enjoined at Colorado Jail

On December 20, 2010, Chief U.S. District Court Judge Wiley Y. Daniel issued a preliminary injunction against a postcard-only mail policy instituted at the El Paso County Jail in Colorado Springs, Colorado.

The injunction resulted from a class-action lawsuit filed by a group of El Paso County prisoners who ...

Prisons Are Breeding Ground for Terrorists?

“Prisons are often described as ‘hotbeds’ of terrorism,” but they can also become important “net contributors in the struggle against terrorism” according to a July 2010 joint study by the London-based International Centre for the Study of Radicalisation and Political Violence (ICSR) and the National Consortium for the Study of Terrorism and Response to Terrorism (START).

The 64-page report was the result of the first study “to examine policies on prison radicalization and deradicalisation in 15 countries across the globe.” Researchers “aimed to develop a more sophisticated understanding of the role prisons can play in radicalizing people and reforming them,” according to the report.

“Prisons are ‘places of vulnerability,’ which produce ‘identity seekers,’ ‘protection seekers,’ and ‘rebels’ in greater number than other environments,” the study found. “They provide near-perfect conditions in which radical, religiously framed ideologies can flourish.” Noting that the extent of this problem is difficult to discern, the researchers wrote that “the potential for prison radicalization is significant” and must be addressed.

Among the problems noted by the researchers was a “security first” approach to prison management. “Many prison services seem to believe that the imperatives of security and reform are incompatible,” the report said. “In reality, though ...

Former Florida Prison Guard Sues for Reinstatement Under Whistleblower Act

The Florida Department of Corrections (FDOC) has been sued for retaliation under the state’s whistleblower act by a former guard. The suit, filed by lawyers for John Pisciotta, seeks back pay, reinstatement of his job, damages and attorney fees.

Pisciotta’s employment problems began on May 21, 2008. He was one of eight guards involved in the cell extraction of prisoner Kelly Bradley at the Charlotte Correctional Institution (CCI); when the incident was over, one of Bradley’s eyes was hanging from its socket.

Pisciotta was the only prison employee to report that another guard, William Hamilton Wilson, had gouged Bradley’s eye out. Only one other guard even noted in his report that Bradley was injured; the others testified at Wilson’s 2009 federal criminal trial that they didn’t see how the injury occurred.

“It took a lot of courage to come forward in that environment,” said one of Pisciotta’s attorneys, Jason Gunter. “The corruption is pretty shocking. It’s scary that this can happen.”

Only hours after Wilson was sentenced to six years in federal prison and three years supervised release, Pisciotta was fired by the FDOC. His lawsuit details several events that led up ...

Prison Legal News Sues Arizona Jail Over Restrictive Mail Policy

On September 7, 2011, Prison Legal News, represented by the American Civil Liberties Union of Arizona (ACLU) and the law firm of Rosen, Bien & Galvan, LLP, filed a federal lawsuit challenging the constitutionality of a Pinal County, Arizona jail policy that prohibits prisoners from receiving any magazines, hardcover books or letters of more than one page in length.

The lawsuit, which was filed against the county and Sheriff Paul Babeu, argues that the “postcard-only” mail policy amounts to censorship and prevents prisoners from receiving Prison Legal News and other reading material.

“Publishers have a well-established First Amendment right to send their publications and books to prisoners, and it is unfortunate that rather than respect the rights of publishers to communicate with prisoners Sheriff Babeu continues to try to defend the indefensible by banning our books and magazines,” said PLN editor Paul Wright.

According to the complaint, paperback books (limited to 3) are the only exception to the jail’s mail policy and they must be sent from “an approved publisher.” Over a six-month period, Pinal County jail officials refused to deliver several PLN publications, including Prison Legal News and other informational brochures, citing “not allowed,” “only 1-page letters allowed” or ...

Budget Cuts Threaten Oregon Juvenile Offenders

Even in the face of a $3.5 billion shortfall in the 2011-2013 biennial budget cycle which began on July 1, 2011, Oregon Governor John Kitzhaber refused to touch the $1.5 billion budget of the Oregon Department of Corrections (ODOC). Instead he turned his budget knife on every other state agency, cutting to the bone as he tried to find about $200 million in savings. One of the agencies slated for cuts was the Oregon Youth Authority.

“The Oregon Youth Authority (OYA) was not singled out,” noted the governor’s Communications Director, Tim Raphael. Kitzhaber proposed slashing $34.5 million from OYA – one fifth of its general fund budget – and wanted the Department of Education to eliminate schooling for kids in state custody, saving another $1.6 million.

Juvenile system administrators recognized the daunting economic challenges facing the state, but criticized the governor’s plan to impose “draconian” cuts on OYA’s budget as being harmful to children in the short-term and self-defeating in the long-run.

“These cuts will cause a major shift in the way we handle juvenile justice in Oregon,” noted Scott Taylor, director of the Multnomah County Community Justice Department. “It’s a huge change,” agreed ...

Congressional Budget Resolution Cuts Some DOJ Programs

The April 2011 vote in Congress that passed a resolution for continued federal funding until the end of the current fiscal year on June 30 included 17 percent cuts for various Department of Justice (DOJ) programs, including the Second Chance Act.

The Second Chance Act, Mentally Ill Offender Treatment Program and Justice Reinvestment program were all reduced seventeen percent. Unaffected were the budgets for the Office of Violence Against Women, National Institute of Justice, Bureau of Justice Statistics, Regional Information Sharing Systems, Justice for All and National Center for Missing and Exploited Children.

The DOJ’s total budget was funded at $27.4 billion – 8% less than requested for FY 2011. In the category of State and Local Law Enforcement Activities, $2.8 billion was provided, which will be used to provide grants to local and state law enforcement agencies and crime victims. The bill provides $1.12 billion for state and local law enforcement assistance, $276 million for juvenile justice programs, $496 million for COPS grants, $235 million for Justice Assistance programs, $419 million for domestic violence and sexual assault grants, and $187 million for grant management and administration.

The FBI received $7.8 billion for salaries and expenses ...

Fugitive Oregon DOC Food Manager Getting Homesick in Iran

“I would love to come back to my country ... but unfortunately they want to fry me for my mistake,” wrote international fugitive and former Oregon Department of Corrections (ODOC) Food Service Administrator Farhad (“Fred”) Monem, in emails sent to The Oregonian newspaper in March 2011. “I know it wasn’t right what I did but I never heard [hurt] any one,” he explained.

As previously reported in PLN, in addition to his $77,000 annual salary, Monem, 52, pocketed at least $1.2 million in kickbacks from food distributors between 2000 and 2006 while serving ODOC prisoners “distressed” or expired food. [See: PLN, Sept. 2010, p.24; July 2009, p.20; August 2008, p.1].

Monem didn’t like the plea deal offered by federal prosecutors because it would have had him eating prison food for a long time. “They want to give me 6 to 8 years and that would mean I will die there,” he wrote. So in June 2007 he disappeared, leaving his American wife, Karen, holding the bag.

Four food venders who gave bribes to Monem pleaded guilty and served up to 3 months in prison. After Fred fled, Karen Monem pleaded guilty in 2009 to ...

Oregon Juvenile Who Attempted Suicide Settles Negligence Suit for $192,500

An Oregon juvenile offender has settled a negligence suit against county officials for $192,500. In June 2010, Michael J. Stephens, 16, was detained at Lane County’s John Serbu Youth Campus in Eugene, Oregon. He was on suicide watch due to “extreme emotional disturbance and temporary mental illness,” according ...

Sexual Misconduct Topples Two Oregon Prosecutors

The elected District Attorney of a small Oregon county lost his job after being accused of using his office for sexual misconduct and then trying to cover it up.

In August 2010, a female employee of the Umatilla County District Attorney’s office, Dawn Wilson, accused DA Dean Gushwa of physically, sexually and emotionally abusing her both on- and off-duty between December 2008 and April 2010.

Gushwa denied the claim but took a leave of absence soon after the allegations became public. While he was on leave, the Oregon Department of Justice (DOJ) managed the DA’s office. However, Gushwa still continued to draw his $7,363 monthly salary and $2,205 in monthly insurance and retirement benefits during his absence.

On November 10, 2010, Gushwa was charged with five Class A misdemeanor counts of official misconduct related to the sexual abuse allegations.

The next day Gushwa told a reporter he was innocent of wrongdoing, pointing out that the charges had not been reviewed by a grand jury. Rather, they were just the opinion “of someone sitting in an office somewhere in Salem.”

Gushwa pleaded not guilty on November 23, 2010 and asked the court to allow him to return ...

Taser International Settles Product Liability Lawsuit for $2.85 Million

by Mike Brodheim

Using tactics reminiscent of those once employed by tobacco companies, Taser International has for years engaged in a high-stakes campaign designed to deceive the public into believing that the stun guns it manufactures, known formally as Electronic Control Devices, are non-lethal and safe.

At least that’s ...

U.S. Supreme Court: State P&A Can Sue Another State Agency for Records

U.S. Supreme Court: State P&A Can Sue Another State Agency for Records

by David Reutter

The U.S. Supreme Court held on April 19, 2011 that sovereign immunity does not apply when one agency of a state sues another for violation of federal law. The ruling applies only to obtaining injunctive relief; it does not apply to payment of funds from the state treasury.

The case began when the Virginia Office for Protection and Advocacy (VOPA) filed suit in federal district court seeking an injunction against James Stewart, Commissioner of the Virginia Department of Behavioral Health and Developmental Services, requiring him to provide access to records concerning two patient deaths and an injury at state mental hospitals.

VOPA’s suit was brought pursuant to the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (DD Act) and the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI Act). The DD Act provides federal funds to states to improve community services, such as medical care and job training, for people with developmental disabilities. To receive that funding, however, a state must establish a protection and advocacy (P&A) system “to protect and advocate for the rights of individuals with developmental disabilities.” The P&A system “shall ... have the authority to investigate incidents of abuse and neglect ... if the incidents are reported to the system or if there is probable cause to believe” they occurred. P&A agencies advocate for people with mental disabilities in state ...

PLN Sues Kansas Jail Over No-Publication Policy

On August 31, 2011, Prison Legal News filed a federal lawsuit against the Board of Commissioners for Shawnee County, Kansas and Richard Kline, Director of the Shawnee County Department of Corrections.

PLN’s suit alleges First Amendment violations due to a policy at the Shawnee County Jail that prohibits prisoners from receiving books and other publications sent to them through the mail. According to the Shawnee County Dept. of Corrections’ website, “No packages, newspapers, magazines, books, or other personal property is to be mailed to the facility.”

As a result of that policy, PLN’s monthly publication and books sent to prisoners at the jail were censored. PLN consequently filed suit in the U.S. District Court for the District of Kansas, arguing the policy unconstitutionally infringes on its right under the First Amendment to send reading material to prisoners at the jail.

According to PLN’s complaint, “since at least November 2010, Plaintiff has sent copies of the monthly publication Prison Legal News, subscription renewal letters, informational brochures and soft-cover books such as Protecting Your Health and Safety to a number of individuals confined in the Shawnee County Jail.” All of the reading material was censored pursuant to the ...

Jail Guitar Doors, USA Offers Free Musical Instruments to Prisons

Long before words there was the drum, the beat, the foundation of all communication.
Some drummers and musicians communicate through the most finely crafted instruments of their day. For the prisoner it is typically the sound of a metal desk or bunk diversified by the slap, the fist, the click-clack of a plastic coffee mug. But it doesn’t have to be only the primitive beat, as a rising program aims to get fine instruments into the darkest corners of our penal system.

Jail Guitar Doors, USA is a foundation dedicated to bringing musical instruments into prisons, and has had success from Sing Sing in New York to facilities in Texas and Southern California. The organization’s founder, Wayne Kramer, got the idea from the success of his friend Billy Bragg, a rock legend doing similar work in the U.K. Bragg named the effort after a 1978 Clash song of the same name, with lyrics about a guy named “Wayne” going to prison for involvement with drugs. That would be the same Wayne Kramer, guitarist for the storied Detroit punk band MC5.

“Music and songwriting is a way to process your problems in a way that is internal,” Kramer ...

Florida’s Prison Industry Criticized for Failing in Mission

Florida’s prison industry program is “making a few people very wealthy while operating ... in a manner entirely inconsistent with its mission,” according to advisors to Governor Rick Scott, in a transition report released in December 2010.

The mission of Prison Rehabilitative Industries and Diversified Enterprises (PRIDE) is to operate as a non-profit corporation that trains prisoners in job skills they can use upon their release. PLN has previously reported on the cozy relationships between PRIDE board members and the for-profit companies the agency cooperates with. [See: PLN, March 2010, p.1; May 2007, p.11; Jan. 2005, p.12].

PRIDE pays its president $207,724 annually and its general counsel receives $238,276. The agency also retains several high-priced lobbyists. Meanwhile, prisoners earn from 20 to 55 cents an hour.

Still, the positions are highly coveted. Aside from PRIDE jobs, the only other option for Florida state prisoners to earn a wage is as one of the few canteen operators. Only 1.6 percent of Florida prisoners have received PRIDE job training.

A new focus on education and transition is targeting prisoners with 10 years or less to serve. For now, prisoners with longer sentences are being grandfathered in ...

Oregon Prison Guard Guilty of Contraband Smuggling

On March 21, 2011, former Oregon prison guard Tara Martinmaas, 34, pleaded guilty to a felony charge of supplying contraband. She was sentenced to a two-year term of probation and ordered to pay over $1,500 in fees and have no contact with Oregon Department of Corrections (ODOC) facilities or prisoners.

Martinmaas was hired by the ODOC in 2007 and worked at the Oregon State Penitentiary (OSP). She was accused of smuggling tobacco into the prison between September and November 2010 for a prisoner with whom she had a romantic relationship.

A misdemeanor custodial sexual misconduct charge for “sexual touching” – intercourse is a felony under state law, everything else is a misdemeanor – was dismissed as part of the plea agreement. Thus, Martinmaas will not have to register as a sex offender.

Source: The Statesman Journal

ICE, CCA Settle ACLU Lawsuit Regarding Health Care for Immigration Detainees

A lawsuit filed by the American Civil Liberties Union that alleged deficiencies in health care at the San Diego Correctional Facility (SDCF) in Otay Mesa, California has been settled, according to a December 16, 2010 press release issued by the ACLU.

The suit named as defendants the Immigration and Customs Enforcement agency (ICE), a branch of the U.S. Department of Homeland Security, as well as officials and employees of ICE and Corrections Corporation of America (CCA), the private company managing SDCF.

Originally filed in 2007 by the ACLU, the ACLU of San Diego and Imperial Counties, and the law firm of Cooley LLP, the lawsuit alleged that detainees at SDCF were routinely subjected to long delays before receiving treatment, denied necessary medication for chronic illnesses and refused essential referrals prescribed by medical staff.

According to the ACLU, “the lawsuit specifically cited the cases of 11 detainees, including several whose bipolar disorders and depression went untreated, a man who was forced to wait more than eight months for eye surgery and nearly suffered permanent disfigurement, and detainees who never received medical attention despite suffering from a variety of maladies including Type 2 diabetes, hypercholesterolemia, hypertension, abscessed and broken teeth, and ...

Report Finds Federal Prisoners Exposed to Toxic Metals in Recycling Jobs

A four-year study by the U.S. Department of Justice’s Office of the Inspector General (OIG), released in October 2010, found that prisoners and employees at ten federal prisons were exposed to hazardous metals and materials while handling electronic waste in recycling programs.

The study was initiated following complaints by Leroy Smith, Jr., a Bureau of Prisons (BOP) safety manager at USP Atwater in California. Federal investigators found examples of “serious misconduct,” including “carelessness or indifference” to prisoner safety in the electronics recycling programs at Atwater and other federal prisons, as well as “numerous violations of health, safety, and environmental laws, regulations, and BOP policies.” OIG investigators examined recycling programs at ten federal facilities, including Leavenworth, KS, Lewisburg, PA and Tucson, AZ.

The BOP, which operates prison industry programs through Federal Prison Industries, also known as UNICOR, has used prisoners to recycle computers, monitors and other electronic equipment since 1997. The recycling process can be dangerous because cathode ray tubes (CRTs) in computer monitors can contain up to five pounds of lead. The recycling process normally involved breaking the CRTs, which would release lead dust into the air. Smith, while safety manager at Atwater, became concerned in 2001 and ...

Sixth Circuit: Prisoner Must be Allowed Direct Appeal When Prison Delayed Appeal Mailings

by Matt Clarke

The Sixth Circuit held that Michigan had to allow the appeal of a prisoner’s criminal conviction when prison officials had delayed the mailing of his appeal documents until after the filing deadline had expired.

Following his criminal conviction in state court, John Andrew Dorn, a Michigan prisoner, refused appointed appellant counsel and told the trial judge that he would retain appellate counsel himself. Having not yet secured an attorney and being responsible for filing his claim of appeal, Dorn requested disbursement of the filing fee from his prison account on June 11, 1998.

On June 15, 1998, he gave the same prison official his claim of appeal, to be notarized and mailed with the disbursement. The filing deadline was June 22; however, the prison official waited until June 23, 1998 to mail the documents. Consequently, the state appellate court dismissed Dorn’s claim for lack of jurisdiction due to the late filing of his appeal.

Dorn filed a motion to reconsider or reinstate, explaining the facts to the court of appeals.
His motion was summarily denied “for lack of merit in the grounds presented.” He appealed that decision to the Michigan Supreme Court, but his application ...

CCA Psychiatrist’s License Restricted for Sexual Misconduct with Florida Female Prisoners

Florida’s Department of Health (FDH) issued an emergency order in March 2011 that placed restrictions on a psychiatrist accused of sexual misconduct while treating female prisoners at the Hernando County Jail (HCJ). At the time of the alleged misconduct the jail was managed by Corrections Corporation of America (CCA); since August 2010, HCJ has been operated by the county.

In a March 22, 2011 order, the FDH found that the actions of Dr. James A. Yelton Rossello “regarding his patients were egregious and constitute a threat to the public health and safety.” The order restricted him from providing medical, mental health or psychiatric treatment to patients, specifying that he may treat female patients only under the supervision of a third-party licensed medical professional.

Each of the prisoners Rossello was accused of preying upon in his windowless office at the CCA-run jail were in their early to late 20s. While interviewing a 24-year-old patient identified as “C.A.,” he told her he had been married for about 24 years and was “faithful 98 percent of the time,” but that when confronted with women like her “he became a bad boy.”

In early 2009, Rossello asked C.A. to allow him ...

CORRECTIONS To Danny Trejo Interview in August 2011 PLN

Prison Legal News always strives to get things right. Last August, our cover story was an interview with former prisoner and famous actor Danny Trejo. The interview was conducted live, in person, and transcribed to print. Unfortunately, due to difficulties with the audio transcription process, some mistakes were made. We are therefore running the following corrections to our August 2011 cover story:

Page 3 – First column, first paragraph. Mr. Trejo did not say his son is a rap singer; rather, he is a punk/rock fan.

Page 4 – Third column, at the top. Mr. Trejo worked for Jimmy Gene at the Narcotics Prevention Project, not Danny Lebatoff. The corrected paragraph should read, “Yeah, and I was also just doing a lot of volunteer work. You know, talking at schools, doing whatever I could. And this organization called the Narcotics Prevention Project heard about me and a guy named Jimmy Gene who was also an ex-convict offered me a job. So I went to work for him and they saw that I was kind of articulate and I was the court liaison for a while, then I was the hospital coordinator. And the NPP was one of the first substance abuse ...

Louisiana Sex Offender Agrees to Surgical Castration

What should be done with sex offenders who are not prison guards, cops or priests is an emotionally-charged issue. Most states have adopted some form of civil commitment, but others have adopted the more drastic option of chemical and surgical castration. An incarcerated Louisiana child molester recently volunteered for an even more extreme approach, agreeing to be surgically castrated in exchange for his freedom.

Castration, either surgical or chemical, is on the law books of eight U.S. states; according to 2006 data the procedure is authorized in California, Florida, Georgia, Louisiana, Montana, Oregon, Texas and Wisconsin. That form of punishment, however, is rarely used.

For example, of Florida’s approximately 102,000 prisoners, more than 11,100 have been convicted of sex crimes. Only 15 prisoners are scheduled for castration upon their release, according to the Florida Department of Corrections. Whether it is chemical or surgical castration is the prisoner’s choice; chemical castration usually involves ongoing treatment with Depo-Provera, which reduces testosterone levels.

“That’s an awful draconian step to take,” said University of Florida professor Bob Dekle, a former prosecutor. “I personally would have been reluctant to ask for it. And I think most judges I’ve ...

News In Brief:

Alaska: On June 29, 2011, a federal pretrial detainee, Sabil Mujahid, 54, was convicted of a dozen charges related to raping and threatening three other prisoners at the Anchorage Correctional Center. Mujahid was accused of preying on smaller, younger prisoners who had cognitive disabilities. He was being held at the facility on sex trafficking charges, and is scheduled to go to trial in that case in October.

California: Avenal State Prison guard Randy Motl was sentenced to three years on June 13, 2011 for felony bribery charges. Motl was convicted of accepting money and electronics equipment from prisoners and their families in exchange for smuggling cell phones and other contraband into the facility. The offenses occurred between December 2008 and August 2009, and Motl received over $10,000 in cash and electronics during that time period – including a DVD player, a laptop and toys for his children.

California: A report by the State Controller’s office released in July 2011 revealed that more than 500 state employees earned over $240,000 in 2010. At least nine employees made over $500,000, mostly prison doctors. The top earner was an unidentified surgeon at the High Desert State Prison, who made $777 ...

 

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