Prison Legal News:
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Volume 22, Number 7
In this issue:
- U.S. Supreme Court Holds California’s Prison Overcrowding Violates Eighth Amendment, Must be Remediated by Population Reduction (p 1)
- California: Controversy Surrounds Governor’s Grant of Clemency to Son of Political Friend (p 10)
- $5.25 Million Paid to Former Ohio Prisoner for Wrongful Murder Conviction (p 11)
- Deaths of Three North Carolina Prisoners Raise Suspicions (p 12)
- From the Editor (p 12)
- Washington DOC Agrees to Change Sexual Abuse Policies (p 14)
- San Francisco Blanket Jail Strip Search Policy Upheld in Ninth Circuit En Banc Ruling (p 16)
- Why I Care About Prisoner Rights (p 17)
- Low Rates in Michigan DOC Phone Contract Demonstrate Actual Cost of Prison Phone Services (p 18)
- Paroled Killers Rarely Re-Offend (p 18)
- Anti-Private Prison Group Rips Revolving Door for Federal Employees After CCA Hires Former BOP Director (p 20)
- Ninth Circuit: Prison Visitation Privileges May be Temporarily Restricted for Legitimate Penological Reasons (p 20)
- New York Parolee Detained Without Hearing; City Not Entitled to Summary Judgment (p 22)
- State Audit Finds Maryland Prison Employees Misused Funds in Prisoner Accounts (p 22)
- The Incredible Honey Bun Behind Bars (p 24)
- Ninth Circuit Applies Houston Mailbox Rule to § 1983 Actions (p 24)
- Former Virginia Beach Sheriff Received Insider Information on Jail Contract (p 26)
- Fifth Circuit: Habeas Petition Challenging Recent Parole Denial Not Considered Successive (p 26)
- California Prisoner’s Life Sentence Upheld for Tossing Food Tray at Guard (p 27)
- Vermont Parole Law Change Violates Ex Post Facto Clause (p 28)
- Tenth Circuit Vacates Class Certification in Jail Conditions Suit; Case Settles Following Remand (p 28)
- Ninth Circuit: Despite Award of Only Nominal Damages, Attorney Fees Appropriate in § 1983 Wrongful Death Suit (p 30)
- Massachusetts Supreme Judicial Court Clarifies Erroneous Conviction Claims (p 30)
- Fourth Circuit Upholds Federal Civil Commitment Statute Against Constitutional Challenge (p 31)
- Third Circuit Holds Blanket Policy of Strip Searching Arrestees, Absent Reasonable Suspicion, is Constitutional; Cert Granted (p 32)
- Ninth Circuit Holds PLRA Fee Cap for Court-Appointed Counsel Also Applies to Paralegal Fees (p 32)
- Six New Jersey Jail Guards Arrested for Assaulting Prisoners (p 33)
- Washington: Eye Gouging Assault Severely Injures Airway Heights Prisoner (p 34)
- Inmate Accident Compensation Act Does Not Preclude Bivens Remedy (p 34)
- Deficient Medical Care Leads to Preventable Death of Seattle, Washington Jail Prisoner (p 36)
- In-Prison Filmmaker Prepares Next Release (p 36)
- U.S. Department of Justice Report Puts Price Tag on Preventing Prison Rape (p 38)
- Georgia: Child Support Contempt Findings Create Debtor’s Prisons (p 40)
- Pennsylvania DOC Agrees to Comply with Clean Air Act at Four Prisons (p 40)
- Former Deputy Sheriff Gets LWOP for Murder of California Prison Guard (p 41)
- $16 Million Federal Jury Award in Texas Jail Beating Suit (p 42)
- Florida Pre-Release Officer’s Federal Convictions Affirmed (p 42)
- Baltimore Jail’s Warden, Seven Guards Suspended Pending Excessive Force Investigation (p 43)
- Seventh Circuit Finds Appeal is Timely Despite E-Filing Error (p 44)
- Failure to Protect May Raise Claim Under Federal Tort Claims Act (p 44)
- New York: Double Jeopardy Prohibits Imposition of Post-release Supervision Once Defendant is Released from Custody (p 45)
- Fifth Circuit Clarifies Procedure for PLRA Failure-to-Exhaust Dismissals (p 46)
- A Cage by Any Other Name is Still a Cage: Mentally Ill California Prisoners Caged (p 46)
- Ninth Circuit Denies Arizona Prisoner Access to Dedicated Discharge Account (p 47)
- Queer (In)justice: The Criminalization of LGBT People in the United States, by Joey L. Mogul, Andrea J. Ritchie and Kay Whitlock (Beacon Press, Feb. 2011), 216 pages, $27.95 (p 48)
- “America’s Sheriff” Begins Serving Federal Prison Sentence (p 49)
- News In Brief (p 50)
In a landmark ruling upholding provisions of the Prison Litigation Reform Act (PLRA) that permit specially convened three-judge federal court panels to order reductions in state prison populations due to overcrowding (18 U.S.C. § 3626(a)(3)), a bitterly divided U.S. Supreme Court, in a 5-4 decision, affirmed a panel’s prior order directing the California Department of Corrections and Rehabilitation (CDCR) to remediate its constitutionally inadequate mental health and medical care by reducing its prison population to 137.5% of design capacity (thereby lowering the in-state prison population from 156,000 to 110,000 over a two-year period). See: Brown v. Plata, Case No. 09-1233, 2011 WL 1936074.
The May 23, 2011 majority opinion, authored by Justice Anthony Kennedy, was guided by profound moral principles: “A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.” Brown, supra, at p.27.
The Underlying Litigation
For decades, California has been the battleground of federal court litigation in separate class-action 42 U.S.C. § 1983 civil rights suits brought by prisoners related to the CDCR’s mental ...
by John E. Dannenberg
In one of his last official acts before leaving office in January 2011, California Governor Arnold Schwarzenegger exercised his right under the state constitution to grant clemency to Esteban Nuñez, the son of the governor’s friend, former State Assembly Speaker Fabian Nuñez. Schwarzenegger reduced Esteban’s sentence for voluntary manslaughter by more than half, from 16 to just 7 years, after he had served only six months of his prison term.
Powers of pardon and commutation are traditionally vested in the offices of governors and typically exercised, as in this case, in the last days of a governor’s term. In 2003, for example, the outgoing governor of Illinois, George Ryan, commuted all the death sentences of that state’s condemned prisoners, sparking a controversy that has yet to subside. (Ryan was later implicated in an unrelated corruption scandal; he was charged, convicted and sentenced to 6 1/2 years in prison).
In the case of former Governor Schwarzenegger, what makes his particular act of clemency controversial is the appearance of favoritism. But for the fact that Esteban Nuñez’s father is a former influential state lawmaker, his actions are no less egregious than those of ...
by Mike Brodheim
Elkins had been charged with the 1998 murder of his mother-in-law, Judith ...
The City of Barberton, Ohio has paid $5.25 million to settle a lawsuit filed by a man wrongfully convicted of murder. Clarence Elkins spent almost eight years in prison before being exonerated by DNA evidence in 2005.
The deaths of two prisoners at the Maury Correctional Institution (MCI), a 1,000-bed close-security prison for men located in Greene County, North Carolina, have raised suspicions due to questionable circumstances surrounding those incidents. The eventual death of another prisoner who suffered injuries at the Alexander Correctional Institution remains unexplained.
In May 2009, Johnny Lee Lewis, a 55-year-old state prisoner with a history of mental illness, was found dead in his MCI cell with a plastic bag over his head that was cinched around his neck with a belt. Before Greene County Sheriff’s Department investigators arrived, MCI guards cleaned up the cell and removed the plastic bag and belt.
“That was a mistake,” said North Carolina Department of Correction spokesman Keith Acree. “The employee who packed up the cell had just arrived at work, did not know the circumstances of the inmate’s death and packed up his belongings as if it were a death by natural causes.”
MCI later refused to allow the medical examiner access to the plastic bag and belt. Nevertheless, an autopsy released in February 2010 listed the cause of death as suicide, opining that Lewis had put ...
by Matt Clarke and David M. Reutter
Without doubt this is the most significant prisoner rights ruling of the 21st century, and it will no doubt keep that distinction for a long while. Alas, its application for prisoners outside of California will be of limited utility given the facts presented in California, a dearth of law firms with the resources and willingness to bring cases of this magnitude, and few federal judges willing to enforce the constitution.
Through the 1970s and 80s it was common for federal judges to relieve prison overcrowding by releasing prisoners. An immediate response was the building, nationally, of over a million new prison ...
Over the past 20 years PLN has reported the various conditions class-action lawsuits in California concerning the lethal health care administered to prisoners. After decades of non-compliance with dozens of court orders the prison system’s health care was put into a federal receivership, yet that still did not resolve the problem. Ultimately, a three-judge panel court was convened which ordered the reduction of California’s prisoner population so its prison system can provide minimally-adequate health care. The U.S. Supreme Court, as this issue’s cover story describes in detail, recently affirmed that order in Brown v. Plata.
The Washington Department of Corrections (WDOC) has agreed to change its policies that relate to preventing, reporting and investigating sexual abuse of prisoners by staff members. The changes resulted from a settlement in a class-action lawsuit filed by five female prisoners who claimed they were sexually abused by male guards.
The settlement was reached between the WDOC and three of the prisoners who are still incarcerated. The other two plaintiffs have since been released from prison.
The lawsuit named six guards at the Washington Corrections Center for Women (WCCW). Accused of engaging in sexual misconduct were Sgt. Steve Fewkes and guards Johnnie Davis, Gregory Fontenette, Kenneth Lane, Leonard Merkle and Marvin Taylor.
The complaint also listed 20 “John Doe” guards who worked “at WCCW, Pine Lodge, Mission Creek, and other work release facilities where women prisoners reside.” Each of the prisoner plaintiffs was named as Jane Doe.
The lawsuit cited incidents in which guards traded gifts or rewards for sexual activity involving prisoners. “Davis spent several months in 2005 cultivating a personal relationship with Jane Doe 4, which included giving her items such as a book, a greeting card, candy, fast food, and money.” He exploited ...
by David M. Reutter
In 2003, Mary Bull and a class of similarly-situated plaintiffs filed suit against the City and County of San Francisco and various officials, alleging that the San Francisco County Sheriff’s Department’s blanket strip search policy violated their rights under the Fourth and Fourteenth Amendments. After the parties filed cross-motions for summary judgment, in 2005 the district court held that Sheriff Michael Hennessey was not entitled to qualified immunity. The defendants then filed an interlocutory appeal.
Determining whether officials are entitled to qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the official’s conduct violated a constitutional right; and (2) if so, whether the right was clearly established at the time ...
In a class action § 1983 suit brought by pre-arraignment jail detainees, a divided Ninth Circuit panel held that San Francisco’s blanket policy of strip searching all arrestees classified for the jail’s general population, in the absence of individualized reasonable suspicion, violated the arrestees’ clearly established constitutional rights and that the defendants were therefore not entitled to qualified immunity. The panel decision was later reversed by the appellate court sitting en banc.
A friend recently asked: “Why do you care and write so much about prisoner rights? After all, they’re convicted criminals.” The question came after the U.S. Supreme Court’s ruling in Brown v. Plata that dealt with overcrowded prisons and terrible medical and mental health care in California prisons. [See this issue’s cover story].
I’ve fielded similar queries in the past. The questions reflect a mentality shared by many: Why care about the rights of those who didn’t care about the rights of their victims?
The question deserves a response.
First, prisoners file an inordinate amount of litigation alleging deprivation of their constitutional rights. Some studies have shown that prisoner litigation makes up more than 20% of the federal court docket. It would be negligent not to report on at least some of these pleadings – even if many prisoner complaints leave much to be desired in terms of form and validity.
Second, much deprivation of constitutional rights occurs in prisons. One attorney described prisons to me years ago as “constitutional black holes.” Think about it. Prisoners are under the control of government officials 24/7 – there are bound to be ...
by David L. Hudson, Jr.
Our research found that based on data from 2007-2008, 42 states receive kickbacks or other payments from prison phone service companies, averaging 41.9% of gross revenue from prison phone calls, which generate over $152 million per year in commission payments.
Further, prison phone rates vary widely among different states and even within the same state, despite the fact that all prison phone companies provide essentially the same service with the same security features. Local collect calls cost as much as $2.75 + $.23/minute (Colorado), intrastate collect calls are as high as $3.95 + $.69/minute (Oregon), and interstate collect calls range up to $4.95 + $.89/minute (Washington).
As prison phone contracts tend to be awarded based on the highest kickback percentage rather than the lowest phone rates, the usual competitive forces that result in lower prices to consumers are largely absent in the prison phone service market. Consequently, prison phone rates, which are primarily paid by ...
PLN’s April 2011 cover story detailed the results of our comprehensive multi-year research project on prison phone services, including a state-by-state comparison of prison phone rates, commission (kickback) percentages, and the amounts of commission payments from prison phone contracts nationwide.
Judging by the statistics, Reginald Powell, 54, may be the proverbial exception to the rule – the rule, in this case, being that convicted murderers who are granted parole only rarely re-offend.
In 1984, Powell was convicted of the shooting death of New York cabbie Joseph Accordino. After serving more than 25 years for second-degree murder, Powell was paroled in October 2008. He had been denied parole in 2004 and 2006.
Now, more than two years following his release, Powell is in trouble again – he faces burglary and other charges after he was found driving a car stolen from Jennifer Katz, a mother of two from Mamaroneck, New York who was stabbed to death in her home on December 30, 2010. Powell also had some of her jewelry in his possession.
Quite naturally, Powell is the prime suspect in Katz’s death; he was indicted on first- and second-decree murder charges in June 2011. If found guilty, Powell will be among the rare paroled murderers who are re-convicted in subsequent homicide cases.
A 2002 study by the U.S. Bureau of Justice Statistics (BJS), which tracked 272,000 paroled prisoners in 15 states, including New York, found that ...
by Mike Brodheim
Lappin retired from the BOP in May 2011, several months after his arrest on DUI charges by the Anne Arundel County Police Department in Maryland. According to a police report, his eyes were bloodshot, he had slurred speech and alcohol on his breath, and he failed sobriety tests. In addition to DUI he was charged with reckless driving, negligent driving and failure to obey the instructions of a traffic-control device. In an apologetic memo sent to BOP employees, Lappin cited “a lapse in my judgment ... giving rise to potential embarrassment to the agency.” [See: PLN, May 2011, p.20].
Lappin, who received probation on the DUI-related charges, joins another former BOP director already employed with CCA – J. Michael Quinlan, who was hired by the company in 1993. Quinlan is employed as a senior vice president who oversees CCA’s quality assurance program. He retired as director of the BOP in 1992, several ...
On June 1, 2011, Corrections Corporation of America (CCA), the nation’s largest for-profit private prison company, announced its most recent acquisition: Former federal Bureau of Prisons director Harley G. Lappin, who was hired by CCA as an executive vice president and the company’s Chief Corrections Officer.
In May 2002, Corcoran State Prison officials cited California prisoner Dylan Lee Dunn for violating prison rules by “attempting to elicit illegal sexual relations by phone in concert [with a] minor.” In his defense, Dunn claimed that, unbeknownst to him, his child was on the phone when he engaged in a sexually-oriented telephone conversation with his wife.
Twenty months later, relying on a regulation that authorizes the imposition of visiting restrictions where substantial evidence of specified sexual misconduct exists, “with or without a criminal conviction” (Title 15, Cal. Code Regs., § 3173.1), Corcoran’s Institutional Classification Committee (ICC) prohibited Dunn from receiving visits from all minors, including his own children. In the ICC’s view, Dunn’s May 2002 prison rule violation constituted substantial evidence that he had violated Penal Code § 266j, a law which prohibits persuading a child under 16 to ...
Holding that the temporary suspension of a prisoner’s visiting privileges with his minor children due to an alleged rule infraction did not violate any clearly established constitutional right of which a reasonable prison official would have been aware, the Ninth Circuit reversed a district court’s denial of qualified immunity in a case raising that particular issue.
On December 13, 2001, Keith McDay was arrested in New York on criminal charges and a parole violation ...
The Second Circuit Court of Appeals reversed a district court’s dismissal of a parolee’s wrongful imprisonment claims, holding that the defendant, New York City, was not entitled to summary judgment.
State lawmakers have registered outrage after a state audit, released in October 2010, revealed that employees of the Maryland Department of Public Safety and Corrections (DPSC) at five finance offices in the Baltimore area used a prisoners’ trust account for paycheck advances. Irregularities were also discovered in an account that had tens of thousands of dollars in missing funds.
“This is inmates’ money, and it’s like a giant ATM,” said Baltimore County Democratic Delegate Steven J. DeBoy, Sr., chairman of the legislative committee that oversees audits.
“If people are stealing, we need to get them out of state service and prosecute them.”
DPSC officials said they had instituted reforms to correct the problems identified in the audit. One DPSC employee was fired, another was disciplined and two others left the department.
The problems involved DPSC employees who used money from the prisoners’ trust account to issue paycheck advances, plus missing funds from a working account used to finance small expenditures. Some employees had access to blank checks from the working account with no supervisory oversight. Tens of thousands of dollars were missing and unaccounted for.
The ability to issue paycheck advances was intended to help out ...
by Matt Clarke
Things that are seemingly inconsequential to people outside of prison can quickly become something of great importance when made available to prisoners. The honey bun is one such item, which has taken on its own lore and become a beloved sticky-sweet staple among prisoners.
Why are honey buns so coveted by those behind bars? The institutional cuisine is one obvious reason. For example, the low-fat, low-sodium 2,750-calorie diet fed to Florida prisoners costs only about $1.76 per prisoner per day.
Although nutritional needs are met, prison meals “achieve an impressive level of mediocrity. The portions are reasonable, the nutritional content adequate, the taste ordinary, the presentation dull, the blandness as inescapable as the facilities themselves,” wrote the St. Petersburg Times in a January 2011 article on the honey bun phenomenon. “The meals are made to guarantee very little except survival.”
By contrast, honey buns are a sugary mass of fried dough. “They’re sooo good!” said prisoner Thomas Lamb, who said he eats at least one honey bun a day. What honey buns are is extremely unhealthy. “Actually, honey buns are a heart attack in a bag,” observed prisoner Larry Roberson.
The Florida prison ...
by David M. Reutter
The Ninth Circuit Court of Appeals has joined nine other Circuits in holding that the prison mailbox rule set forth in Houston v. Lack, 487 U.S. 266 (1988) applies to pro se civil rights actions brought under 42 U.S.C. § 1983.
Oregon prisoner Damien Douglas was confined at the Multnomah County Detention Center from July 2000 to December 2002. He was then transferred to the Oregon Department of Corrections and held at the Snake River Correctional Institution.
On November 30, 2004, Douglas mailed a civil rights complaint to federal court via registered mail. The complaint asserted six claims against Multnomah County officials for incidents occurring on July 14, 2000, May 19, 2001, July 15, 2001, October 30, 2001, April 29, 2002 and December 1, 2002. Each of his claims was based on a particular incident, but Douglas argued that the claims, taken together, were part of a pattern of illegal behavior by the defendants.
Douglas’ last cause of action accrued on December 1, 2002, but the district court clerk did not file his complaint until December 8, 2004 – seven days late. The court granted the defendants’ motion to dismiss ...
Ninth Circuit Applies Houston Mailbox Rule to § 1983 Actions
Within a few days after his retirement as Sheriff of Virginia Beach, Virginia in late 2009, Paul Lanteigne went to work for Conmed Healthcare Management, Inc. and began exchanging emails with and receiving documents from his former coworkers at the Sheriff’s Department. The subject of the emails and documents was a $3.5 million-per-year contract to provide health care for prisoners at the Virginia Beach jail. The total value of the three-year contract, including two years of optional extensions, could reach $17.5 million.
Some of the information provided to Lanteigne was publicly available and some was not. Five companies had submitted bids for the contract. Conmed and Correctional Medical Services (CMS) were short-listed as finalists. Conmed, a publicly-traded company with operations in seven states, had won an $18 million contract for health care services at the jail in Chesapeake, Virginia in 2008, but lost a bid for the jail in Norfolk. CMS, a privately-held company, operates in 19 states. It had held the Virginia Beach contract for 25 years – including 10 during which Lanteigne was sheriff.
Lanteigne was given an early copy of the draft request for proposals (RFP). The RFP was similar to the ...
by Matt Clarke
On April 1, 2009, the Fifth Circuit Court of Appeals issued an order holding that a federal habeas corpus petition challenging procedures used to deny parole at a parole hearing which occurred after a previous habeas petition had been filed was not a successive petition.
Richard Delaney Kyles, a Texas state prisoner, filed a motion asking the U.S. District Court to consider a successive petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petition challenged the parole board’s use of parole laws which were stricter than the laws in effect at the time his offense was committed, which the board relied upon to deny him parole at a 2007 hearing.
Kyles alleged that the retroactive application of the stricter parole laws violated the ex post facto and equal protection clauses of the U.S. Constitution. The district court initially dismissed his complaint for failure to state a claim, but that dismissal was reversed on appeal. [See: PLN, July 2008, p.42].
Because he had filed a previous federal petition for a writ of habeas corpus in 2006, and Rule 9 of the rules governing Section 2254 cases in the U ...
by Matt Clarke
On January 3, 2011, the California Court of Appeal, Fifth District, affirmed a “three strikes” sentence of 25 years to life for a prisoner who, while confined in a security housing unit at the California State Prison at Corcoran, threw a food tray at a guard through a port in his cell door.
Mark Dixon, 48, had a criminal history dating back to 1980, when he was convicted of numerous felonies including rape, sodomy, robbery and burglary, which were deemed “serious” and/or “violent” under California law. In 1987, while serving a 10-year sentence for those offenses, he was convicted of assault and received a consecutive six-year sentence. In 2000 he violated his parole and was convicted of both attempted forcible sodomy against a minor and resisting an officer. And in 2005, Dixon was convicted of battery by a prisoner on a nonconfined person, for which he received an eight-year prison term.
On October 15, 2008, Dixon threw his food tray at prison guard Richard Tait, as Tait was attempting to retrieve the tray from the food port of Dixon’s cell door. The tray struck Tait “on his hands and forearms,” and he bumped into a ...
by Mike Brodheim
In 2009, the Vermont legislature enacted 28 V.S.A. § 204b, which rendered “high-risk sex offenders” ineligible for “parole, furlough, or any other type of early release until the expiration of 70 percent of his or her maximum sentence.” Previously, such prisoners were eligible for furlough or parole before they served 70% of their sentences.
Robert Wood, Mark Benjamin, Steve Kinney and Jason Blow, Vermont state prisoners convicted of crimes that occurred before the new parole law was enacted, were nonetheless subjected to the 70% rule change. They filed separate suits in Vermont state court challenging the retroactive application of § 204b as a violation of the U.S. Constitution’s prohibition against ex post facto laws.
The court found that the prisoners’ original effective sentences were less than 70% of their maximum sentences. The application of the 70% requirement increased their minimum sentence to be served before becoming eligible for ...
On November 2, 2010, a Vermont state court held that changes to Vermont’s parole laws requiring certain prisoners to serve 70% of their maximum sentences violate the Ex Post Facto Clause of the U.S. Constitution when applied to prisoners whose crimes occurred prior to the law’s enactment.
Four jail prisoners sued Garfield County officials alleging, among other things, that the use ...
On February 4, 2009, the Tenth Circuit Court of Appeals granted a Colorado sheriff’s interlocutory appeal challenging a class certification order and remanded the case for further proceedings, where it eventually settled in April 2011.
Despite a jury’s award of only nominal damages, the Ninth Circuit affirmed the award of attorney’s fees to a plaintiff who filed suit under 42 U.S.C. § 1983 (and various provisions ...
Ninth Circuit: Despite Award of Only Nominal Damages, Attorney Fees Appropriate in § 1983 Wrongful Death Suit
On November 23, 2010, the Massachusetts Supreme Judicial Court issued a pair of opinions that clarify the requirements for suing the state for compensation following an erroneous conviction. Specifically, the Court clarified the requirement that the conviction must be reversed “on grounds which tend to establish innocence,” as set forth in G.L. c. 285D.
Humberto Guzman was convicted of trafficking, distribution and conspiracy to deliver cocaine. His convictions were reversed after he spent four years in prison. Guzman had maintained that two police detectives who testified they had observed him dealing cocaine had actually observed his cousin. The prosecution maintained that Guzman and his cousin were the same person.
Guzman’s attorney had also represented two men who were convicted of having purchased cocaine from Guzman based on the testimony of the same two police detectives. Although he knew they could testify that Guzman was not the person who sold them the cocaine, the attorney didn’t call them as witnesses at Guzman’s trial because he felt there was a conflict of interest with their defenses. Guzman’s case was overturned based on ineffective assistance of counsel due to his attorney’s conflict of interest ...
by Matt Clarke
In 2006, the United States initiated civil commitment proceedings against Graydon Earl Comstock as he was nearing the end of his federal prison sentence for sexually exploiting minors via the Internet.
Under the terms of the Adam Walsh Act, Comstock’s release was automatically stayed until the government’s petition for commitment could be decided.
Rather than reach the merits of the commitment petition, though, the district court declared the federal civil commitment statute unconstitutional. The court held that Congress had exceeded its authority in enacting the statute, and even assuming the statute was a proper exercise of Congress’ authority, the procedures for civil commitment under the law violated due process.
In January 2009, a panel of the Fourth Circuit affirmed the district court’s conclusion that the civil commitment process exceeded Congress’ authority. The Court of Appeals did not address the district court’s alternate finding that the commitment procedures violated due process.
On May 17, 2010, however, the U.S. Supreme Court reversed the Fourth Circuit. The Supreme ...
The procedures for civil commitment of “sexually dangerous” federal offenders do not violate due process, the U.S. Court of Appeals for the Fourth Circuit held on December 6, 2010.
While granting summary judgment to the plaintiffs on the legal issue of the constitutionality of the strip searches, the court denied their request for preliminary injunctive relief, finding that, because they had not shown that they were likely to be subjected to strip searches in the future, they lacked the requisite standing. Significantly, however, the district court denied the defendants’ requests for Eleventh Amendment and qualified immunity, leaving the door open for damages.
In a thorough and well-reasoned opinion, the district court began its analysis by asking whether the intake procedures at the Burlington and Essex County jails – requiring all arrestees to completely disrobe, to subject their nude bodies to visual inspection, and then to take a supervised shower together with other arrestees – were sufficiently intrusive to constitute “searches” for purposes of the Fourth Amendment. Despite the semantic efforts of the defendants, some of whom ...
In a class-action suit brought under 42 U.S.C. § 1983, a federal district court in New Jersey held that a blanket policy of strip searching arrestees charged with non-indictable offenses, absent reasonable suspicion that they were concealing contraband, drugs or weapons, violated the arrestees’ clearly established constitutional right to be free of unreasonable searches.
Carlos Perez filed suit pursuant to 42 U.S.C. § 1983 on behalf of himself and a class of all current and future California prisoners, alleging constitutionally inadequate dental care in violation of the Eighth Amendment. His lawsuit settled with a remedial plan, under the terms of which the prisoners’ attorneys would monitor prison officials’ implementation of the plan and be compensated at rates limited by the PLRA’s fee cap. [See: PLN, April 2007, p.16].
In 2007, prison officials did not dispute the attorney’s fees, including the rates charged for paralegal services. In 2008, however, they balked when they were asked to reimburse paralegal services at a rate of $169.50 per hour – the same rate applicable to attorney’s fees. After a hearing, the district court determined that the proposed billing rate was permissible under the PLRA, was reasonable for the work performed ...
In a January 13, 2011 ruling, the Ninth Circuit Court of Appeals determined that the cap on attorney’s fees established by the Prison Litigation Reform Act (PLRA) also applies to separately billed paralegal fees, notwithstanding the anomaly that this results in awarding payments for paralegals at the same rate as for attorneys.
All of the assaults took place in 2010, with the first occurring on April 27. That incident involved an attack on 19-year-old prisoner Kirtrel Gadson, who was in jail for running over a woman while fleeing from police in a stolen car. He was beaten by guards William Rupp, 31, and Richard Amorosi, 25. Gadson refused medical care for the minor cuts and bruises he received. Prosecutors charged Rupp and Amorosi with the assault and with altering reports in an attempt to cover up the incident.
The second attack occurred less than a month later, on May 20. In that incident, Rupp, Amorosi, Sgt. John Conway, 33 (an 11-year jail veteran) and guards Mark Horst, 29, and Krysztof Golas, 36, assaulted prisoner James Craft. His injuries were so severe that he had to be taken to a local hospital. Craft’s beating took place shortly after Golas had completed his academy training.
The final assault occurred on September 3 ...
On December 21, 2010, prosecutors charged six guards at New Jersey’s Essex County Correctional Facility with assaulting prisoners. The charges involve unprovoked attacks on three different prisoners in separate incidents. Four of the guards were also charged with falsifying records.
The assault at Airway Heights, which occurred on October 12, 2010, involved West gouging Bolstad’s left eye out of its socket and severely damaging his right eye, resulting in major vision loss. According to Police Chief Lee Bennett, who was quoted in The Spokesman-Review, “It was pretty graphic. He was using his bare hands.” Following the attack, Bolstad was reportedly in satisfactory condition at a hospital while West was transferred to the maximum-security Washington State Penitentiary at Walla Walla.
Bolstad was scheduled to be released from prison in 2015; he is serving time for assault and robbery charges. West was not scheduled to be released until 2048 on his current convictions, though he will now likely face additional charges as a result of the eye-gouging incident.
Also injured during West’s attack on Bolstad was another prisoner housed in ...
A prisoner who killed his cellmate six years ago has assaulted and severely injured another prisoner at the Airway Heights Corrections Center near Spokane, Washington, according to police. The victim, Chad Bolstad, was attacked by his cellmate, Michael L. West, 34, who previously had been convicted of first-degree murder for killing his cellmate at the Spokane County Jail in 2004.
The appellate court’s decision came in response to an appeal by Byron Smith, a federal prisoner who sued several Bureau of Prisons (BOP) staff members for Eighth Amendment violations after he was exposed to asbestos while working at the federal prison in Leavenworth, Kansas.
Smith, an electrician, was instructed to install a light fixture in a closet in the prison’s education department. During the installation process another prisoner who had been ordered to clean the closet began pulling insulation off some pipes, causing dust to fill the air. The dust, Smith later discovered, was laden with asbestos.
Smith alleged that the warden and other staff at Leavenworth were deliberately indifferent to his health and well-being because they were aware that the closet contained asbestos.
Smith pointed to a 1994 survey by an outside contractor that documented the presence of asbestos ...
The Inmate Accident Compensation Act (IACA), 18 U.S.C. § 4126, does not preclude a federal prisoner from bringing a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) for work-related injuries that amount to a constitutional violation, the U.S. Court of Appeals for the Tenth Circuit held.
According to a statement of charges filed on December 29, 2010, Dr. Anthony Rains engaged in “unprofessional conduct” while treating prisoner Lynn Dale Iszley at the King County jail.
Iszley arrived at the jail on July 15, 2007, and during the intake process nurses discovered “multiple abscesses” on his buttocks and legs. Concerned that Iszley had deep vein thrombosis or cellulitis, he was sent to a hospital.
Doctors at the hospital examined Iszley and prescribed Bactrim for his abscesses. He was returned to the jail the following day, on July 16, 2007. Not long afterwards, Iszley began experiencing symptoms of heroin withdrawal, vomiting almost the entire day. He had reported to nurses that he used three grams of heroin and drank 32-42 ounces of vodka per day.
A nurse practitioner prescribed nausea medication and instructed Iszley to drink fluids. During the early hours of July 17, 2007, he reported that he was vomiting with dry heaves. Nurses gave him more nausea medicine and told him to drink water, but Iszley couldn’t keep the water down.
Dr. Rains ...
The State of Washington’s Medical Quality Assurance Commission (MQAC) has charged a former King County jail doctor with providing substandard care.
Compact video cameras smuggled into prison have allowed New Jersey prisoner Omar Broadway to become an amateur documentarian of life behind bars. His first video, taken inside a New Jersey state facility in 2004, has been turned into a full-length feature, and he plans to use footage of prison conditions in Maryland for another film.
After receiving a 10-year sentence for carjacking a cabbie with a sawed-off shotgun in 1999, Broadway was placed in the Security Threat Group Management Unit at the maximum-security Northern State Prison in Newark. For 14 weeks he filmed covert footage from within his cell using a smuggled Panasonic PV-GS12 video camera.
“My relationship with several officers allowed a camera to fall into my lap and record how we were living back there, how life was in a gang unit,” Broadway said. “We just managed not to get caught with the camera,” which was passed from prisoner to prisoner to avoid cell searches.
He captured incidents of guards abusing prisoners. In one scene, guards drag a restrained prisoner down a flight of stairs by his feet; in another, prisoners protest their treatment and refuse to return to their cells. They are shown ...
by David M. Reutter
On June 18, 2010, the U.S. Department of Justice (DOJ) released a report on the estimated fiscal impact of the Prison Rape Elimination Act (PREA) standards that had been proposed by the National Prison Rape Elimination Commission (NPREC) the previous year.
PREA, which was signed into law by President George W. Bush on September 4, 2003, is intended to prevent prison rape and sexual abuse by setting standards related to various areas of prison and jail operations such as staffing, reporting of offenses, staff disciplinary action, investigative procedures, employee training, prisoner education and security monitoring technology. [See: PLN, March 2004, p.6].
Booz Allen Hamilton, a consulting firm, was hired by the DOJ to audit compliance with the proposed PREA standards at 49 sites in the U.S. The selected sites included 13 state prison systems, 15 county jails, 1 city jail, 9 state juvenile prison systems, 1 county juvenile detention facility, 6 state community corrections systems and 4 city police department lockups. The Massachusetts Department of Youth Services had the highest overall rate of compliance, at 88%. The Idaho Department of Juvenile Corrections had the lowest overall compliance rate, at 38%.
The report indicated that ...
by Matt Clarke
The Great Recession has put millions of Americans out of work, which has caused more people than usual to become delinquent on their child support obligations and other debts. Many courts, especially those in Georgia and South Carolina, have reacted to child support delinquencies by finding parents in arrears to be in contempt, which creates debtor’s prisons when those who can’t pay are incarcerated.
The issue of child support payments and assuring that children are properly cared for is rife with complexities. “There are a lot of kids out there with parents who just don’t pay, and for every dollar they’re not paying someone else has to pay,” noted Leah Ward Sears, former Chief Justice of the Georgia Supreme Court. “Too often it’s the taxpayers. They’re taxing the court systems that have to process them and taxing the jails that have to house them. They tax the welfare rolls. It also forces extended families – grandmothers and grandfathers – to pay.”
In Georgia, when people are found in contempt for failure to pay court-ordered child support, the court sets a “purge” fee that the parent can pay to avoid jail time. In ...
by David M. Reutter
A settlement agreement to remedy violations of the federal Clean Air Act at four Pennsylvania state prisons was announced on January 4, 2011. The settlement between the Pennsylvania Department of Corrections (PDOC), the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice covers violations at boiler plants that generate power, heat and hot water at the facilities.
The settlement agreement involves State Correctional Institutions at Muncy, Rockview, Huntingdon and Laurel Highlands. The remedial actions required by the settlement are graduated to allow the PDOC to make changes at one prison at a time.
By December 31, 2010, the PDOC was to “install and commence continuous operations for a baghouse” for particulate matter at SCI Rockview. Like the other three prisons, Rockview burns coal to operate its boiler plants. Three of the facilities burn bituminous coal; Muncy is the only prison that burns anthracite coal.
A baghouse is “a device or facility in which particulates are removed from a stream of exhaust gases as the stream passes through various fabric bags before the stream is discharged to the atmosphere.” Rockview may not operate Units 1 or 2 of its boiler plant absent a ...
by David M. Reutter
The evidence at trial revealed that Lo had been involved in an extramarital affair with Chu’s wife, Chia, a medical technical assistant who worked with Lo at the California Medical Facility in Vacaville. Vue discovered the affair, then arranged for his younger brothers, Gary and Chong Vue, to murder Lo.
Vue, who also received a three-year sentence for hiding his brothers after they shot Lo to death, has maintained his innocence. His conviction is presently on appeal.
Sacramento Superior Court Judge Steve White, who sentenced Vue, described the case as “a tragedy bracketed by betrayals.”
Sources: Sacramento Bee, www.privateofficernews.wordpress.com
Former Sacramento County Sheriff’s Deputy Chu Vue, 45, was sentenced on November 30, 2010 to life in prison without the possibility of parole for his role in the October 2008 murder of 39-year-old California state prison guard Steve Lo.
On January 12, 2011, a federal jury in Beaumont, Texas found in favor of a former Jefferson County prisoner who was beaten by jail employees during the intake process. The jury awarded over $16 million in damages.
Joseph Christopher Roberts was arrested in April 2007 for making ...
by Matt Clarke
The appellate court’s decision affirmed Townsend’s convictions for knowingly and corruptly accepting a thing of value (jewelry and cash) as an agent of a local government; acting as an accessory after the fact, knowing that a crime against the United States had been committed; and two charges of obstruction of justice.
Following her convictions, Townsend, a Miami-Dade County corrections officer, was sentenced to concurrent federal prison terms of 45 months on each count, plus two years supervised release and a $400 special assessment.
Townsend had been assigned to supervise the pre-trial release of Humberto Febles, who was arrested on multiple state charges that included cocaine trafficking and aggravated assault with a deadly weapon. He was released on June 6, 2003 after posting a $500,000 bond. As a condition of his release, Febles was not to leave his residence for any reason and was required to wear a radio-frequency ankle bracelet to ensure compliance.
Permission was granted by the state court for Febles to work at ...
In a January 13, 2011 ruling, the Eleventh Circuit Court of Appeals upheld the criminal convictions of Florida pre-trial release officer Shynita Townsend for taking bribes to allow a releasee greater freedom.
The detainee, a 26-year-old woman who faced minor charges, was taken to a local hospital with non-life threatening injuries following the January 8, 2011 incident. BCBIC warden Naomi Williams, a major and six guards were placed on administrative leave while the Internal Investigative Unit of the Department of Public Safety and Correctional Services conducts an investigation.
Williams has worked at the Baltimore City Jail since 1978 and became BCBIC’s warden in 2008. Assistant warden Carolyn Scruggs will serve as acting warden during the investigation.
In other recent news at the jail, Benjamin F. Brown, 60, deputy commissioner of the pretrial division, was fired in August 2010 and later pleaded guilty to stealing money from arrestees that was contaminated with bodily fluids. Rather than follow the proper procedure of logging the money, placing it in a marked bag and storing it in a secure location, Brown took the cash and buried most of it in a junkyard.
Although Brown denied that he stole the money for personal gain, prosecutors ...
Pending an investigation into an alleged use of excessive force involving a female detainee, the warden and seven guards at the Baltimore Central Booking and Intake Center (BCBIC) have been suspended.
Scot Vince, a longtime informant for Rock County, Wisconsin law enforcement agencies, was assaulted by another prisoner while held at the Rock County Jail. Vince subsequently filed a federal civil rights lawsuit claiming he should not have been placed in the jail’s general population. The U.S. District Court for the Western District of Wisconsin granted summary judgment to the defendants on February 10, 2010.
On March 12, 2010 – the last day of the 30-day time limit – Vince’s attorney filed a notice of appeal using the court’s mandatory e-filing system. However, his attorney used the wrong event code. The court clerk notified the attorney about the error, who filed a corrected notice of appeal six days later on March 18, 2010.
The delay caused the Seventh Circuit’s staff to question the timeliness of Vince’s appeal. Citing previous case law, the appellate court ruled that the failure of Vince’s attorney to transmit the notice of appeal without the proper event code was ...
On May 3, 2010, the Seventh Circuit Court of Appeals held that a Wisconsin prisoner’s appeal was timely even though it was filed past the deadline due to an electronic filing error.
The Fifth Circuit Court of Appeals held that it was inappropriate to grant summary judgment against a prisoner who was assaulted by gang members after he had warned prison officials of the danger of being attacked. Following remand, however, the district court entered judgment in favor of the defendants.
Edward Dwayne Ashford, a federal prisoner, was incarcerated at a medium-security facility when he committed a disciplinary infraction and learned he would soon be transferred to a maximum-security prison. While previously incarcerated in the District of Columbia, Ashford had several confrontations with another prisoner named Kevin Smith. Smith and members of his gang had assaulted Ashford, and D.C. prison officials issued separation orders to keep Ashford and Smith from being housed in the same prison population.
Before his transfer, Ashford told the warden of the medium-security prison about his history with Smith. The warden told him to contact other prison officials. Ashford wrote to the other officials and explained the problem, and the warden assured him that his concerns would be investigated and addressed before his transfer. Unfortunately they were not.
Upon his arrival at the maximum-security prison, Ashford was interviewed by Lt. Russell Haas. Ashford alleged ...
by Matt Clarke
Over the objections of two dissenting justices, the Court of Appeals majority held that once freed from confinement, a defendant has a “legitimate expectation of finality” in the sentence originally issued by the trial court and, so long as the time to appeal the sentence has expired (or the appeal has been finally determined), “the sentence, although illegal under [New York’s] Penal law, is final and the Double Jeopardy Clause prevents a court from modifying the sentence to include a period of post-release supervision.”
When the New York legislature adopted Jenna’s Law in 1998, it instituted determinate terms of incarceration for certain felony offenses, replacing parole in those cases with a mandatory period of post-release supervision (PRS). The Court of Appeals subsequently held that a defendant had to be informed, before pleading guilty, that a period of PRS would ...
In a 5-2 decision on February 23, 2010, New York’s Court of Appeals, the state’s highest court, ruled that the double jeopardy clause of the U.S. Constitution prohibits the resentencing of a defendant to correct an illegal sentence once the defendant has been released from custody following completion of his or her judicially-imposed term of imprisonment.
Keith Mark Dillon was a prisoner at the Jefferson Parish Correctional Center in New Orleans when Hurricane Katrina made landfall in August 2005. Two days later, the Louisiana Department of Public Safety and Corrections (DPSC) evacuated Dillon to a temporary facility in Jena, Louisiana. Dillon was allegedly beaten and mistreated at Jena about a month after his arrival. A short time following the beating, Dillon was transferred to Allen Correctional Center (ACC) in Kinder, Louisiana, and the Jena facility was closed.
Dillon filed a lawsuit pursuant to 42 U.S.C. § 1983 in federal district court alleging the beating he received at Jena violated his civil rights. The defendants moved to dismiss the action pursuant to Federal Rules of Civil Procedure (FRCP) 12(b), alleging failure to exhaust administrative remedies required by the PLRA, 42 U.S.C. § 1997e(a). The district court converted the motion to dismiss into a motion for summary judgment pursuant to ...
The Fifth Circuit Court of Appeals held that summary judgment may be granted when a defendant alleges failure to exhaust administrative remedies under the Prison Litigation Reform Act (PLRA), but, in this particular case, the record was not sufficiently developed to support summary judgment.
A rose by any other name, Shakespeare wrote, would still smell as sweet.
In California the question is, does referring to a cage as a “therapeutic module” make it any less inhumane, despite the fact that a human being is locked inside a space that the Society for the Prevention of Cruelty to Animals might condemn as “cruel” if a dog or monkey were kept inside instead?
The question arose when California prison officials responded to a federal court ruling which held (about a decade ago) that leaving mentally ill prisoners who were confined in segregation units locked in their cells all day without treatment amounted to cruel and unusual punishment. Now those prisoners are allowed out of their cells for group therapy.
They are led in handcuffs (which are later removed) to individual metal cages about the size of a phone booth.
A steel mesh and, typically, a plastic spit shield separate the patient-prisoners from the therapist. As the prisoners sit or stand in their cages, the therapist, wearing a stab-resistant vest, conducts the “therapy session” – sometimes in the middle of living quarters where other prisoners can observe, overhear and taunt.
“It’s bizarre,” said H ...
by Mike Brodheim
Ward alleged that since his 197-year sentence made it unlikely that he would be released from prison prior to his death, he should be allowed to use the funds in his discharge account while he was incarcerated. At issue was the sum of $50.00.
Ward, who had received the 197-year sentence as a result of twenty-two felony convictions, worked in a prison job. Most of his earnings were placed in his spendable account, but pursuant to Arizona state law (A.R.S. § 31-237(A)), $50.00 was put in a dedicated discharge account to provide “gate money” upon release. If a prisoner dies while incarcerated, the money is applied to cremation costs or other related expenses, with the balance released to his or her estate or heirs.
Ward had filed a 42 U.S.C. § 1983 civil rights suit alleging violation of the Sixth Amendment, and, in a supplemental brief, violations of his Fifth and Fourteenth Amendment rights against the government’s taking of ...
In a September 27, 2010 decision, the Ninth Circuit Court of Appeals affirmed a district court’s order denying Arizona prisoner Timmy Lee Ward access to a dedicated discharge account while he was still imprisoned.
Queer (In)justice (QI) is a useful and necessary tool for Lesbian, Gay, Bisexual, Transgender, Queer and Gender Non-Conforming (LGBTQGNC) activists and allies to help understand the issues affected by the LGBTQGNC communities when they are ensnared by the criminal justice system. Moving past the usual discussion of same-sex marriage by mainstream groups, QI outlines the historical background of sodomy from colonial times to the present and the involvement of the prison industrial complex against LGBTQGNC people.
Written by Joey L. Mogul, Andrea J. Ritchie and Kay Whitlock, all longtime activists either as lawyers or writers, QI is part of a series of books by Beacon Press on “Queer Action/Queer Ideas” – a series which helps to counteract the plethora of books which focus on same-sex marriage as the ultimate civil rights issue in the LGBTQGNC community. Pointing out the myriad communities for which same-sex marriage is far from the first thing on their list of priorities in their daily lives, QI refocuses discussion on LGBTQGNC communities left out of mainstream activism. QI is well researched and needs to be both read and passed on.
QI ranges from the oft-cited Leviticus to Plato, who called ...
Reviewed by Daniel R. Schaffer
Carona, 55, was elected sheriff of Orange County in 1999. He gained his proverbial 15 minutes of fame for his role in investigating the 2002 kidnapping and murder of 5-year-old Samantha Runnion. CNN talking head Larry King dubbed him “America’s Sheriff,” and Carona emerged as a bright star in state Republican politics.
Yet according to federal prosecutors, the seeds of Carona’s downfall had been sown a year before his election as sheriff. In 1998, they alleged, he solicited help from multi-millionaire businessman Don Haidl in laundering some $30,000 in campaign contributions.
Ultimately, Carona became the target of a sweeping public corruption grand jury investigation. He was indicted on federal charges of conspiracy, mail fraud and witness tampering, the latter stemming from a 2007 incident in which he attempted to persuade Haidl, who by then had become a government informant, to provide testimony before the grand jury consistent with ...
In January 2011, Michael S. Carona, the former sheriff of Orange County, California, turned himself in to prison officials at the Federal Correctional Institution Englewood in Littleton, Colorado to begin serving a 5 1/2-year sentence following his 2009 conviction for witness tampering. [See: PLN, Nov. 2009, p.38].
Indiana: Shaun Michael West, a prisoner at the Delaware County jail, was sentenced on April 7, 2011 to six years in prison for smuggling a cell phone and charger into the jail through a broken cell window. West, 19, admitted that the consequences of smuggling the cell phone were “more serious than I thought it was going to be.” He was also ordered to pay $278 to repair the damaged window. Another prisoner who assisted in the scheme, Spencer Robert Norvell, 23, received an 8-year sentence.
New Mexico: On January 20, 2011, former San Juan County Detention Center ...
Hawaii: On April 7, 2011, former Oahu Community Correctional Center guard Ryan Malasig, 44, wept at his sentencing hearing after pleading no contest to sexually assaulting a transgender prisoner in 2009. Malasig had forced the prisoner to perform oral sex on him; the prisoner kept a shirt that contained Malasig’s DNA, and turned it in to prison authorities. A letter from the victim, read at the sentencing hearing, said, “I hope you become an example to other corrections officers who might try to abuse their power.” Malasig was sentenced to an 18-month jail term and must register as a sex offender.