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Prisoner Education Guide

Prison Legal News: August, 2011

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Volume 22, Number 8

In this issue:

  1. Prison Legal News Interviews Former Prisoner and Famous Actor Danny Trejo (p 1)
  2. Illinois Federal Court Denies Prisoner Release Order at Cook County Jail (p 9)
  3. From the Editor (p 10)
  4. Treasury Department Finds Prisoners’ Fraudulent Tax Returns Taxing (p 10)
  5. Prosecutors Who Commit Misconduct Are Rarely Disciplined (p 12)
  6. Habeas Hints: Expert Testimony in Habeas Cases (p 14)
  7. Idaho: Prison Doctor’s Treatment Fell Below Standard of Care (p 16)
  8. California DOC Complies With Population Reduction Order in Plata v. Brown (p 18)
  9. Ninth Circuit Reverses Grant of Injunctive Relief in Ex Post Facto Challenge to Marsy’s Law (p 18)
  10. Habeas Unavailable for Federal Prisoners’ Medical Claims (p 19)
  11. State Secrets Doctrine Requires Dismissal of Suit Involving CIA Torture Flights (p 20)
  12. Merger Creates Largest Private Prison Medical Provider in U.S. (p 20)
  13. $4,000 Settlement for Arkansas Prisoner Pepper Sprayed by Guards (p 21)
  14. Virginia DOC Settles Lawsuit to Improve Communication for Deaf Prisoners (p 22)
  15. U.S. Supreme Court: No Monetary Damages Against States Under RLUIPA (p 22)
  16. Placement in Maximum Security Facility May Trigger Due Process Protections; Religious Diet Claims Remanded (p 24)
  17. $1.2 Million Awarded Against PHS After Florida Jail Prisoner Paralyzed (p 24)
  18. Fifth Circuit Vacates Dismissal of Habeas Challenge to Texas Parole Changes (p 25)
  19. Report Finds Prior Incarceration Hinders Upward Economic Mobility (p 26)
  20. California Prisoners Still Forced to Drink Arsenic-Laced Water (p 26)
  21. Judge Rejects Challenge to BOP’s Special Administrative Measures (p 27)
  22. Supreme Court Allows § 1983 Challenge to Texas Post-Conviction DNA Testing Law (p 28)
  23. Washington Supreme Court Upholds Decision Against State Attorney General for Failure to Comply with Public Records Act (p 28)
  24. Provision in Florida Law Prohibits Compensation to Wrongfully Convicted (p 30)
  25. U.S. Supreme Court Overturns Wrongful Conviction Suit Against New Orleans DA, Vacates $14 Million Judgment (p 30)
  26. Oklahoma Gladiator Discipline Results in Prisoner’s Death (p 31)
  27. Ohio Prison Industry Cranks Out Crappy Toilet Paper (p 32)
  28. U.S. Department of Justice Seeks $28.2 Billion Budget (p 33)
  29. Prison Records Officer Entitled to Qualified Immunity; No Evidence of Deliberate Indifference to Sentencing Errors (p 34)
  30. Washington Prison Guards Sue Prisoners (p 34)
  31. $17.5 Million Verdict for Diabetic Prisoner in New York (p 35)
  32. Louisiana Attorney Permanently Disbarred but Not Criminally Charged for Pimping Child to Jail Prisoners (p 36)
  33. Insider Trading Charges Against Private Prison Consultant Rejected (p 36)
  34. Voting Rights Must Be “Earned” Back, Says Iowa Governor (p 37)
  35. Hawaii State Auditor Blasts Private Prison Contracting; State Renews Contract Anyway (p 38)
  36. New York Prisoners Man Call Centers (p 39)
  37. Fifth Circuit Upholds $355,000 Award Against Dallas County in Jail MRSA Case (p 40)
  38. Federal Court Dismisses PLN’s Texas Prison Censorship Suit; Appeal Pending (p 40)
  39. State Ordered to Reimburse Prisoner Who Was Not Allowed to Complete College Classes (p 41)
  40. Texas Prison Phones and Emails Generate Less Revenue Than Expected (p 42)
  41. Washington State Regulatory Agency Finds AT&T Failed to Disclose Prison Collect Call Rates (p 43)
  42. American “Corrections” (p 44)
  43. Oregon Jail Pneumonia Death Lawsuit Settles for $905,000 (p 44)
  44. Los Angeles Jail Guards Beat Prisoner in Front of ACLU Monitor (p 45)
  45. Terminated South Carolina Wardens Awarded a Total of $882,000 (p 46)
  46. Sixth Circuit Reinstates Michigan Prisoner’s Denial of Toothpaste Suit (p 46)
  47. California: Court Monitoring of Conditions at Pelican Bay State Prison Terminated (p 47)
  48. Illinois Prison Guards Scam Workers’ Comp (p 47)
  49. Seventh Circuit: Court May Not Revoke Supervised Release via Videoconference (p 48)
  50. Big Win for Open Government in Vermont Legislature: Attorney Fees Now Mandated for Prevailing Plaintiffs in Public Records Lawsuits (p 48)
  51. Ninth Circuit Upholds Arizona’s Felon Disenfranchisement Law (p 49)
  52. $450,000 Settlement in Alabama Jail Prisoner’s Death (p 49)
  53. News In Brief (p 50)

Prison Legal News Interviews Former Prisoner and Famous Actor Danny Trejo

Danny Trejo is one of the best-known American actors living today. His scarred face is among the most recognized in action movies and he has appeared in over 200 films, including Heat, Machete, Predators, From Dusk Till Dawn and many others. Less well known is the fact that Danny spent over ten years in various maximum-security California state prisons before getting out, getting sober, working as a drug counselor and then becoming an actor.

PLN editor and founder Paul Wright caught up with Danny in February 2011 in Marina del Rey, California for this interview. More of a chat over brunch than a formal interview (we edited out banter with the waitress and comments about the food), Danny was the consummate interviewee and spoke candidly about his life path, his views on the criminal justice system and the need for reform.

The interview was interrupted several times by fans, especially children, who wanted his autograph. Danny is a gracious and cheerful celebrity who enjoys and respects his many fans.

* * *

PAUL WRIGHT: So you’re saying you were state raised?

DANNY TREJO: You know, juvenile hall, juvenile youth authority camp, penitentiary.
PW: And you were born here in LA?

DT: Right ...

Illinois Federal Court Denies Prisoner Release Order at Cook County Jail

In a per curium decision, on January 11, 2011 a three-judge panel of federal judges of the U.S. District Court for the Northern District of Illinois denied a request by the Sheriff of Cook County for entry of a prisoner release order pursuant to 18 U.S.C. § 3626. The Cook County jail, a 9,800-bed facility serving Chicago and the city’s suburbs, has been the subject of litigation since 1974 and the target of a Department of Justice lawsuit filed in 2008. [See: PLN, July 2008, p.26; Jan. 2009, p.16].

Cook County’s jail has been accused of conditions that violate the Eighth Amendment’s prohibition against cruel and unusual punishment, made applicable to the states through the due process clause of the Fourteenth Amendment. Although there are convicted prisoners at the jail, most are pretrial detainees. Citing Minix v. Canarecci, 597 F. 3d 824 (7th Cir. 2010), City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983) and Bell v. Wolfish, 441 U.S. 520 (1979), the court noted that previous consent decrees “have included prisoner release provisions premised on the belief that the jail’s chronic overcrowding was contributing to the ...

From the Editor

Over the years some readers have said they find Prison Legal News depressing because we don’t report any good news, or not much anyway. One reason for that, of course, is because there has been precious little “good news” emanating from the American criminal justice system over the past several decades. But amid the overall picture of gloom and doom there are the occasional bright spots of people who not only survive imprisonment in the American gulag but who are very successful either because of – or in spite of – their incarceration.

As a former prisoner myself, I have long observed that despite a little rhetoric to the contrary, most politicians and many citizens in this country really do not like the idea of former prisoners becoming successful. They don’t want ex-convicts to commit new crimes and want them to stay out of jail so as not to drain the public treasury even further, but the mainstream idea of success is for former prisoners to work menial jobs for low wages. It really upsets people when former prisoners do well socially and economically, and most notably, no one in a position of power is stepping forward to claim any ...

Treasury Department Finds Prisoners’ Fraudulent Tax Returns Taxing

Despite passage of the Inmate Tax Fraud Prevention Act of 2008, the Internal Revenue Service has been unable to curb alleged income tax fraud by prisoners, according to a report released by the Inspector General of the U.S. Department of the Treasury.

The report, dated December 29, 2010, found “significant problems still exist with internal revenue service efforts to identify prisoner tax refund fraud.” The report claims that fraud is “increasing at a significant rate,” and the number of false tax returns soared from 18,103 in 2003 to 44,944 in 2009 while fraudulent refunds in that same time period increased from $13.4 million to $39.1 million. Not addressed by the report is the number of fraudulent tax refunds claimed by non-prisoners; i.e., members of the general public.

The Inmate Tax Fraud Prevention Act “restricts the use of data by the Federal Bureau of Prisons to facilitate only administrative actions against the [prisoner] ... [including] revocation of privileges such as canteen privileges, outside visits, etc....” The Secretary of the Treasury is also obligated to “provide an annual report to Congress on the filing of false or fraudulent tax returns by Federal and State prisoners.” According to ...

Prosecutors Who Commit Misconduct Are Rarely Disciplined

by Matt Clarke

Prosecutors have a great deal of power and discretion. They choose whether to prosecute a case, what charges to file against a defendant and what plea bargain to offer. They can influence the court when imposing sentence and can even seek the death penalty. Prosecutors are also under an obligation to present truthful evidence in court and to reveal evidence that might be beneficial to defendants.

But what happens to prosecutors who shirk those professional obligations or commit other forms of misconduct? And how frequent are cases of prosecutorial misconduct?
The Northern California Innocence Project at the Santa Clara University School of Law examined over 4,000 criminal prosecutions conducted in California between 1997 and 2009. They discovered 707 cases in which courts explicitly found that prosecutors had engaged in misconduct. Thus, the rate of prosecutorial misconduct in the study exceeded 17%.

Only six prosecutors were disciplined by the State Bar of California in the 707 cases where courts determined that prosecutors had committed misconduct. Assuming one prosecutor per case, that’s a 0.8% discipline rate. Between 1997 and 2009 there were 4,741 state bar disciplinary actions. Just 10 involved prosecutors.

“In the most populated ...

Habeas Hints: Expert Testimony in Habeas Cases

by Kent Russell

This column provides “Habeas Hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on habeas corpus under AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice in federal courts throughout the U.S.

How To Get It and Use It

An expert witness declaration can be immensely valuable on habeas corpus to support a claim that trial counsel was ineffective in failing to use an expert witness for the defense. Granted, it’s difficult for a prisoner, indigent and confined within prison walls, to obtain expert testimony to support a pro se habeas corpus petition. Nevertheless, it’s possible to do so, especially if the prisoner follows these “Habeas Hints”:

1. Determine whether your case is one in which the defense lawyer’s failure to call an expert amounted to “deficient performance” and was “prejudicial”.

The trial lawyer is charged with the responsibility of deciding whether and how to use an expert witness for the defense. When trial counsel fails to call an expert on an important issue, that can support a claim of ...

Idaho: Prison Doctor’s Treatment Fell Below Standard of Care

by David M. Reutter

The Idaho State Board of Medicine’s Prelitigation Screening Panel found that a prisoner at the CCA-operated Idaho Correctional Center had “borne his burden of proving by a preponderance of the evidence that Dr. [Stephen] Garrett did not comply with the standard of care in failing to document his treatment of the patient and in failing to leave orders for follow up care of the patient.”

After prisoner Marlin Riggs was violently assaulted he was seen by Dr. Garrett on May 11, 2008. During the assault, Riggs was choked until unconscious and then kicked in the upper body and face.

While Dr. Garrett admitted he prescribed Ibuprofen for Riggs for “arthritis and headaches,” he contended that he never “saw/examined the patient myself and there is nothing that even indicates that a nurse or mid-level even discussed the case with me.” However, the panel found persuasive evidence that Dr. Garrett did in fact treat Riggs after the assault.

In addition to Riggs giving testimony and a description of Garrett, Riggs saw the doctor’s ID badge plus a note signed by two nurses stated, “Dr. Garrett placed nose back into position.” The note also contained Garrett ...

California DOC Complies With Population Reduction Order in Plata v. Brown

by John E. Dannenberg

On June 7, 2011, a scant seven days after the U.S. Supreme Court’s historic ruling affirming a three-judge panel’s order to reduce overcrowding in California’s state prisons (Brown v. Plata, No. 09-1233 (see PLN, July 2011, p. 1)), the state belatedly responded to the panel’s January 12, 2010 order to report on action it is taking to reduce its overpopulation. Next, on June 30, 2011, the panel ordered detailed monthly progress reports towards achievement of the mandated population limit of 137.5% of design capacity by June 27, 2013.

The June 7 report detailed efforts taken by the California legislature to depopulate its prisons. Major reductions were effectuated by increasing sentencing credits: (1) six weeks of credit per year for completion of approved rehabilitation programs; (2) day-for-day credits for eligible parole violators; (3) two days credit for every day served upon endorsement to a fire camp; (4) day-for-day credits for discipline-free prisoners who are on wait-lists for qualifying programs; (5) day-for-day credits for pre-prison time in county jail.

Additionally, in order to reduce the short term, revolving door parole violator population, newly-enacted Senate Bill (SB) 18 provides that low-risk violators will not be returned to ...

Ninth Circuit Reverses Grant of Injunctive Relief in Ex Post Facto Challenge to Marsy’s Law

by Mike Brodheim

The Ninth Circuit Court of Appeals has held that a district court abused its discretion in granting preliminary injunctive relief to a group of California life-term prisoners who challenged, on Ex Post Facto grounds, a 2008 voter-approved initiative (Prop 9) which drastically reduced the availability and frequency of future parole hearings following a denial of parole.

Prop 9, known as the Victims’ Bill of Rights of 2008, or Marsy’s Law, resulted in four changes to the parole process: 1) it increased the maximum deferral period from 5 years to 15 years; 2) it increased the minimum deferral period from 1 year to 3 years; 3) it changed the default deferral period from 1 year to 15 years; and 4) it increased the burden required to impose a deferral period other than the default period, while also effectively shifting that burden from the state to the prisoner. [See: PLN, May 2009, p.12; July 2010, p.42].

In the two years preceding implementation of Marsy’s Law, more than two-thirds of prisoners who were denied parole received deferrals of one or two years. Now, no prisoner can receive a deferral of less than three years, and the ...

Habeas Unavailable for Federal Prisoners’ Medical Claims

Federal prisoners may not resort to habeas corpus to challenge inadequate medical care, the U.S. Court of Appeals for the Seventh Circuit decided on January 26, 2011.

Charles Robinson sought habeas relief under 28 U.S.C. § 2241 after federal prison officials allegedly refused to treat his complaints of back pain.

The district court dismissed Robinson’s habeas petition on the ground that claims of inadequate medical care are not cognizable via habeas.

Robinson appealed, pressing his claims to the Seventh Circuit. Adhering to its “long-standing view that habeas corpus is not a permissible route for challenging prison conditions,” the appellate court held that Robinson’s medical care complaints had been properly dismissed. There must be at least “an indirect effect on duration of punishment” for habeas to apply, the Seventh Circuit wrote.

What were Robinson’s other options, then? Because he sought only equitable relief, the Federal Tort Claims Act (FTCA) did not provide a remedy. The FTCA only authorizes damages.

The Court of Appeals noted that the Administrative Procedures Act (APA) could “in principle” be invoked to obtain an order for medical treatment, but prisoners would be hard pressed to make out a viable APA claim. The ...

State Secrets Doctrine Requires Dismissal of Suit Involving CIA Torture Flights

On September 8, 2010, the Ninth Circuit Court of Appeals held the “valid assertion of the state secrets privilege” warranted dismissal of a lawsuit filed by suspects apprehended as part of the CIA’s extraordinary rendition program.

The suit was filed under the Alien Tort Statute by Binyam Mohamed and four other foreign nationals suspected of involvement in terrorist activities. Once they were apprehended, they were transferred in secret to foreign countries for detention and interrogation by U.S. or foreign officials. The rendition program allowed agents of the U.S. government “to employ interrogation methods that would [otherwise have been] prohibited under federal or international law.”

The plaintiffs were represented by the ACLU. “American corporations should not be profiting from a CIA rendition program that is unlawful and contrary to core American values,” stated ACLU executive director Anthony D. Romero. “Corporations that choose to participate in such activity can and should be held legally accountable.”

The five plaintiffs sued Jeppesen Dataplan, Inc., a Boeing subsidiary and CIA contractor, alleging the company had actual or constructive knowledge that its planes were being used to facilitate “forced disappearance.” According to the plaintiffs, Jeppesen’s “flights involved the transportation of terror suspects ...

Merger Creates Largest Private Prison Medical Provider in U.S.

On March 3, 2011, American Service Group, Inc. (ASG) and Valitás Health Services, Inc. (VHS) announced a planned merger of the two companies that would create the largest contractor for healthcare services in prisons and jails in the United States.

Under the deal, VHS will acquire ASG for $26 per share, or about $250 million. Once the merger is complete the combined company will have around 11,000 employees serving more than 400 correctional facilities nationwide. It will have annual gross revenue estimated at $1.4 billion.

ASG and VHS are the parent companies of the largest players in the privatized prison healthcare industry. St. Louis-based VHS, formerly known as Spectrum Healthcare Services, is the parent of Correctional Medical Services, Inc. (CMS), while ASG owns Prison Health Services, Inc. (PHS) and Correctional Health Services, LLC (CHS). Those three subsidiaries provide medical, dental, mental health, pharmacy and electronic medical records services to prisons and jails.

“We’re doing this to take advantage of the growth opportunities that are available in the marketplace and to blend the companies to take advantage of their relative strengths,” said Dick Miles, VHS’s chairman and CEO. “We think that a lot of states are going ...

$4,000 Settlement for Arkansas Prisoner Pepper Sprayed by Guards

The Arkansas Department of Correction (ADOC) has paid $4,000 to settle a lawsuit brought by a prisoner who was pepper sprayed three times by guards.

While confined at the Varner Supermax Unit in 2005, Eric Winston was repeatedly pepper sprayed. The guards claimed that Winston refused to vacate his ...

Virginia DOC Settles Lawsuit to Improve Communication for Deaf Prisoners

The Virginia Department of Corrections (VDOC) has agreed to settle a lawsuit brought by deaf prisoners. The settlement makes substantial changes to improve such prisoners’ ability to interact in the prison environment and rehabilitate themselves.

“We believe the settlement agreement in which the [VDOC] joined strikes a very fair balance ...

U.S. Supreme Court: No Monetary Damages Against States Under RLUIPA

On April 20, 2011, the U.S. Supreme Court ruled that state sovereign immunity bars recovery of monetary damages under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq.

Harvey Leroy Sossamon III, a Texas state prisoner incarcerated at the Robertson Unit, filed a RLUIPA action against the Texas Dept. of Criminal Justice (TDCJ), prison officials and the State of Texas. RLUIPA, in pertinent part, creates a cause of action against government agencies or officials who impose a substantial burden on the religious rights of prisoners or detainees that does not further a compelling governmental interest.
The law allows an aggrieved prisoner to obtain “appropriate relief.”

Congress enacted RLUIPA under its Spending Clause and Commerce Clause authority in response to the U.S. Supreme Court finding the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq., was unconstitutional as applied to state and local governments. See: City of Boerne v. Flores, 52 U.S. 507 (1997) [PLN, Sept. 1997, p.15]. The Spending Clause authority simply means that the statute applies to any state or local government agency that accepts federal funding.

Sossamon alleged that two TDCJ policies violated RLUIPA: 1 ...

Placement in Maximum Security Facility May Trigger Due Process Protections; Religious Diet Claims Remanded

The U.S. Court of Appeals for the Sixth Circuit has reversed a district court’s grant of summary judgment to Michigan prison officials in a procedural due process and religious diet lawsuit.

Lamont Bernard Heard received a Security Threat Group II (STG II) assignment and was placed in a Level V maximum-security prison after making inciting comments during a Nation of Islam (NOI) service at the Chippewa Correctional Facility in Kincheloe, Michigan.

While at the maximum-security facility, Heard requested a religious diet recommended by NOI founder Elijah Muhammad. Alternatively, Heard asked that he be given a kosher diet. Prison officials denied both requests.

Heard sued, arguing that he had a protected liberty interest in avoiding placement in a maximum-security facility. In addition, he raised an equal protection and Religious Land Use and Institutionalized Persons Act (RLUIPA) claim. The district court denied relief and Heard appealed.

Concerning Heard’s procedural due process claim, the Sixth Circuit held that the district court had erred in finding “that Heard’s placement in maximum-security facilities in Michigan was not an ‘atypical and significant hardship’ that implicated a liberty interest.”

The district court, the Sixth Circuit explained, had reached its conclusion “without explanation” and ...

$1.2 Million Awarded Against PHS After Florida Jail Prisoner Paralyzed

A federal jury in Florida has awarded $1.2 million to a former prisoner who was paralyzed due to deliberate indifference to his serious medical needs while he was incarcerated at the Lee County Jail. The jury found that the jail’s for-profit medical provider, Prison Health Services (PHS), was ...

Fifth Circuit Vacates Dismissal of Habeas Challenge to Texas Parole Changes

On February 2, 2011, the Fifth Circuit Court of Appeals vacated a district court’s judgment dismissing a prisoner’s challenge to retroactive changes in Texas parole procedures.

Matthew Clarke, a Texas state prisoner and PLN contributing writer, filed a habeas corpus petition in federal district court pursuant to 28 U.S.C. § 2254 challenging various changes in Texas parole procedures which allegedly “present a significant risk of prolonging his sentence and therefore are in violation of the Ex Post Facto Clause.”

The changes included delaying or denying parole “by requiring sex offenders to complete a sexual offender treatment program (SOTP) before being released on parole, by keeping violent offenders in prison longer to receive federal funds under the Truth-in-Sentencing Act, and by the State’s passing of laws that make it tougher for violent offenders to be released on parole.”

The challenged statutes were primarily those associated with the requirement that certain prisoners receive favorable parole votes from at least five of the seven parole board members, Tex. Gov’t Code §§ 508.031 and 508.046, and associated changes in parole rules, practices and policies. The district court denied relief, dismissed Clarke’s petition and denied a Certificate of ...

Report Finds Prior Incarceration Hinders Upward Economic Mobility

by Matt Clarke

The Pew Charitable Trusts’ Economic Mobility Project and Public Safety Performance Project issued a collaborative report in September 2010 on the impact of incarceration on economic mobility. The report found a strong negative effect of incarceration on upward economic mobility not only for former prisoners but also their families.

“These findings make it clear that beyond the already substantial brick and mortar costs of incarcerating such a significant portion of the population, there are additional costs to former inmates, their families and their communities,” the report stated. “Those who have been incarcerated emerge from prisons and jails and work fewer weeks per year, receive lower wages and take home smaller earnings. These costs now account for a substantial share of the economic hardship faced, in particular, by young, undereducated racial and ethnic minorities.”

Before incarceration, more than two-thirds of male prisoners were employed with over half being the primary earner for their families. After release, their hourly wages are about 11% less than a similar group of men who were not incarcerated, their annual employment is nine weeks less and their annual income is 40% less. Lifetime earnings by age 48 are reduced by an average of ...

California Prisoners Still Forced to Drink Arsenic-Laced Water

by David M. Reutter

Prisoners at California’s Kern Valley State Prison in Delano are being slowly poisoned through their drinking water. The “state of the art” facility opened at a cost of $379 million in 2005; the water problem was discovered within weeks of the prison’s opening, but years later nothing has been done. [See: PLN, June 2009, p.26].

Tests reveal that the water at Kern Valley contains up to twice the federally permitted standard for arsenic levels, which is 10 parts per billion.

“The standard was set for a reason, and the reason is that arsenic is known to cause cancer in humans,” said Dr. Gina Solomon, with the Natural Resources Defense Council.

According to the U.S. Environmental Protection Agency, long-term exposure to arsenic can cause “cancer of the bladder, lungs, skin, kidneys, nasal passages, liver, and prostate.”

A January 2011 memo to prisoners from Kern Valley’s warden, M.D. Biter, revealed the lackadaisical approach taken by prison officials. “This is not an emergency,” the memo stated. Prisoners “do not need to use an alternative water supply (e.g., bottled water).”

Of course, prisoners have no choice but to drink the water that’s ...

Judge Rejects Challenge to BOP’s Special Administrative Measures

On January 27, 2011, U.S. District Court Judge Lewis T. Babcock dismissed a lawsuit challenging Special Administrative Measures (SAMs) imposed by the federal Bureau of Prisons (BOP). SAMs are authorized under 28 C.F.R. § 501.3(a).

Mohamed Rashed Daoud Al-Owhali, serving life plus 40 years for the 1998 bombing of the U.S. embassy in Nairobi, Kenya, was placed on SAMs on October 16, 1998 while serving his sentence at ADX Florence, the federal supermax prison in Colorado.

SAMs severely restrict prisoner communication with the outside world. Al-Owhali alleged that the SAMs violated his equal protection and First Amendment associational rights, and infringed on his right to communicate confidentially with his attorneys.

A magistrate judge recommended that those claims be allowed to proceed. However, upon de novo review, Judge Babcock disagreed.

While the SAMs were allegedly “burying [Al-Owhali] alive” in solitary confinement, Judge Babcock concluded they were nothing more than the product of the government’s “rational interest in setting the conditions of confinement [of] a terrorist.”

“It is incumbent upon the [] Plaintiff to plead sufficient facts showing plausibly that there are alternative means of exercising plaintiff’s rights in question, the lack of impact accommodation of ...

Supreme Court Allows § 1983 Challenge to Texas Post-Conviction DNA Testing Law

Supreme Court Allows § 1983 Challenge to Texas Post-Conviction DNA Testing Law

On March 7, 2011, the U.S. Supreme Court held that a Texas prisoner could challenge the due process he received under Texas’ post-conviction DNA testing statute, Article 64 of the Texas Code of Criminal Procedure, as that statute was interpreted by the Texas Court of Criminal Appeals, the state’s highest appellate court for criminal matters.

Henry W. Skinner, a Texas state prisoner, was convicted of murdering his live-in girlfriend and her two sons, and sentenced to death. Skinner claimed he was incapacitated by large amounts of drugs and alcohol when the crime occurred and pointed to his girlfriend’s uncle, an ex-con with a history of physical and sexual abuse, as the likely perpetrator.

The crime scene was rife with evidence, including blood smears and splatters, bloody palm and finger prints, hair, knives and an axe handle. Police found Skinner standing in a closet wearing blood-soaked socks and bloodstained jeans. They tested some hairs and blood stains on Skinner’s clothes and a blanket, and made fingerprint comparisons. A bloody palm print implicated Skinner, but fingerprints on a plastic bag containing a knife did not. Other items ...

Washington Supreme Court Upholds Decision Against State Attorney General for Failure to Comply with Public Records Act

On September 16, 2010, the Supreme Court of the State of Washington, sitting en banc, upheld a lower court’s finding that the Attorney General’s Office had failed to produce requested documents under the state’s Public Records Act and failed to provide a brief explanation as to why certain withheld documents were exempt from disclosure. As a result, the plaintiff, Justice Richard B. Sanders, was awarded costs and attorney’s fees due to those violations.

Justice Sanders had been the recipient of a complaint filed by Washington’s Commission on Judicial Conduct, and sued to compel the Attorney General to defend him at public expense. Subsequently, Justice Sanders delivered a public records request to the Attorney General for all records pertinent to the Commission’s complaint. The complaint related to an incident in which Justice Sanders had visited Washington’s Special Commitment Center on McNeil Island and spoke with civilly-committed sex offenders held at that facility.

Although the Attorney General’s response included 1,000 pages of documents and a document index, Justice Sanders filed a lawsuit alleging that the Attorney General had violated the Public Records Act “by failing to provide a brief explanation of how its ...

Provision in Florida Law Prohibits Compensation to Wrongfully Convicted

by David M. Reutter

A “clean hands” provision in a Florida law designed to compensate wrongfully convicted prisoners is preventing most of those prisoners from receiving compensation. Of 13 men cleared by DNA evidence in Florida, only one has qualified for compensation while two eventually received payments through legislative claim bills.

The law, passed in 2008, entitles those who were wrongfully convicted to receive $50,000 for each year they were imprisoned plus free state college tuition. However, the “clean hands” language prohibits the state from paying anyone who has a prior felony conviction. [See: PLN, Sept. 2010, p.27].

The clean hands provision is “just crazy,” according to John Blue, a former Florida appellate judge who failed in his attempts to get the legislature to remove the restriction.

“It’s a nice bill. It looks good on paper but it eliminates at least 90 percent of the [wrongfully convicted] people,” said Barbara Heyer, an attorney who represents Anthony Caravella, who was cleared of murder by DNA testing. Caravella has been unable to collect compensation due to a juvenile record that “no one seems to be able to produce.”

Heyer and other lawyers are seeking to sue police officers who ...

U.S. Supreme Court Overturns Wrongful Conviction Suit Against New Orleans DA, Vacates $14 Million Judgment

by Derek Gilna and Brandon Sample

In a March 29, 2011 five-to-four decision, the U.S. Supreme Court ruled against a former Louisiana prisoner who filed a § 1983 suit against Orleans Parish District Attorney Harry F. Connick, Sr., based upon admitted Brady errors. The Supreme Court’s decision reversed a jury award of $14 million to John Thompson, who had served 18 years in prison – including 14 on death row.

Thompson claimed that during his prosecution for attempted armed robbery, prosecutors failed to disclose evidence of his innocence as required under Brady. Thompson was found guilty on the armed robbery charge; he was later tried and convicted of murder stemming from an unrelated incident, and sentenced to death based on his tainted armed robbery conviction. Prosecutors later admitted that they failed to disclose the existence of a swatch of the robbery victim’s pants stained with the robber’s blood, which was type B.

According to the Supreme Court’s opinion, “there is no evidence that the prosecutors ever had Thompson’s blood tested or that they knew what his blood type was.”

One month before his scheduled execution, Thompson’s investigator discovered the undisclosed evidence from his armed robbery ...

Oklahoma Gladiator Discipline Results in Prisoner’s Death

The estate of a prisoner killed by his codefendant claimed in a lawsuit that guards at the Oklahoma State Penitentiary (OSP) used a “gladiator system” to discipline prisoners.

Paul David Duran, Jr., 24, and Jesse James Dalton, 33, were convicted on charges related to a 2002 home invasion robbery. Duran testified at trial against Dalton, who received a life sentence without parole. Duran, meanwhile, pleaded guilty to robbery with a firearm and was sentenced to 28 years.

According to a federal suit filed by Duran’s estate in October 2010, Duran was involved in an argument with a guard, who told him, “I got somebody for you.” Duran was then placed in a cell with Dalton despite expressing fear for his life and requesting not to be housed with Dalton.

The complaint alleged that “Dalton beat Duran to death within minutes of Duran’s placement in Dalton’s cell.” They were cellmates for about 15 minutes. Records show that Duran died of strangulation and blunt force trauma to the neck.

At a preliminary hearing in Dalton’s murder prosecution, a deputy warden testified that both prisoners’ files were clearly marked that they were to be separated, and such information was ...

Ohio Prison Industry Cranks Out Crappy Toilet Paper

by David M. Reutter

The foray by Ohio Penal Industries (OPI), a branch of the Ohio Department of Rehabilitation and Correction, into manufacturing toilet paper has turned out to be a crappy deal for taxpayers.

OPI creates a wide variety of products at 24 manufacturing sites in 16 prisons. The agency’s 1,400 prisoner workers and 120 civilian employees produce license plates, clothes, soap, eyeglasses, flags, office furniture, dentures, brooms, outdoor furnishings and more.

OPI has a guaranteed clientele. “State law requires that state agencies purchase through OPI if OPI can meet the state agency need,” says Ohio’s purchasing handbook. “In the event of an emergency or a special need, OPI may grant a waiver to the agency to purchase items elsewhere.”

Between its state agencies and prisons, Ohio purchases $1.4 million worth of toilet paper annually. OPI bought a $600,000 machine that cuts bulk toilet paper and installed it at the Belmont Correctional Institution. Eighteen prisoners are employed in the program, which had net income of over $487,000 as of March 2011.

“OPI got into the toilet paper business about two years ago. We thought we could manufacture toilet paper and sell it to ...

U.S. Department of Justice Seeks $28.2 Billion Budget

Despite initial reports that the Justice Department’s 2012 budget would decrease, the latest numbers indicate the Department will seek a 2% increase, including a 10% hike for prison operations.

During a February 14, 2011 public news briefing, Deputy Attorney General James Cole said the issue of whether terrorism detainees held at Guantanamo Bay, Cuba might be transferred to a prison in Thompson, Illinois was still uncertain. The Justice Department’s 2012 budget dropped a prior request for the federal government to acquire Thompson from the State of Illinois. Instead, the Department is seeking about $67 million to renovate and reopen Thompson as a federal facility, as well as to open new prisons in Berlin, New Hampshire and Abbeville, Alabama.

Prison and detention aspects of the Justice Department’s proposed budget would rise to $8.3 billion, reflecting an expected 7,200-prisoner increase over the current federal prison population of 211,000. Of the 2,000 new employees the Department seeks to hire in 2012, 1,800 are slated for the Bureau of Prisons. Five additional attorneys and 71 agents are sought for national security offices. A new Electronic Surveillance Center is requested in the budget. Thus the Obama administration ...

Prison Records Officer Entitled to Qualified Immunity; No Evidence of Deliberate Indifference to Sentencing Errors

On April 22, 2010, the Third Circuit Court of Appeals held that a Pennsylvania prison records officer was entitled to qualified immunity for a prisoner allegedly being confined 10 months beyond his maximum term of imprisonment.

On August 11, 1992, Miguel Montanez was sentenced to 60 months in prison with a 30-month minimum. Under Pennsylvania law a prisoner may be paroled after expiration of the minimum sentence. Montanez’s sentence began on July 23, 1992 and was to expire on July 23, 1997. However, soon after his minimum sentence expired, the Pennsylvania Board of Probation and Parole (Board) paroled Montanez on January 28, 1995.

Montanez was arrested on numerous state sex offenses on February 9, 1996. He was found guilty of those charges and on April 30, 1996 was again sentenced to a 60-month maximum with a 30-month minimum. He appealed his conviction on May 24, 1996.
On July 29, 1996, the Board found Montanez to be a convicted and technical parole violator. It imposed a 36-month sanction for the new crime and a concurrent 6-month sanction for a technical violation.

Montanez finally pleaded guilty to the 1996 criminal charges on June 9, 1997 and was again sentenced to 60 ...

Washington Prison Guards Sue Prisoners

Prisoners who attack Washington state prison guards can add one more potential consequence to their actions – garnishment of their commissary accounts.

The effort to garnish prisoners’ accounts is being spearheaded by the Washington Staff Assault Task Force (WSATF), a group of guards who hope to deter assaults by suing their attackers.

WSATF thinks that prisoners will be less inclined to attack guards if they know they will lose the money sent to them by family members or friends, or earned in prison wages.
Prisoners can use the funds in their accounts to buy food, TVs, shoes and other amenities.

“You start taking away [a prisoner’s] creature comforts, and then he might think twice about doing it again,” said Darren Kelly, WSATF’s chairman and a guard at the Airway Heights Corrections Center near Spokane.

Assaultive prisoners lose “good time” and are placed in control units and are frequently brutally attacked by guards as well, but are rarely prosecuted. The loss of good time alone, guards say, is an inadequate deterrent.

Thus, WSATF files lawsuits against prisoners who attack prison guards. Most recently the group sued a prisoner who assaulted John Poynor, a guard at the Coyote Ridge Corrections Center ...

$17.5 Million Verdict for Diabetic Prisoner in New York

A diabetic prisoner who was denied insulin by officers with the New York Police Department (NYPD) was awarded $17.5 million by a Brooklyn jury on October 19, 2010.

For nearly 58 hours after Jose Vargas’ arrest on drug charges in September 2006, he went without insulin for his Type ...

Louisiana Attorney Permanently Disbarred but Not Criminally Charged for Pimping Child to Jail Prisoners

by David M. Reutter

An attorney’s failure to respect the authority of the Louisiana Supreme Court, “as well as his use of his position as an attorney to obtain sexual gratification at the expense of his client’s interests,” has resulted in permanent disbarment.

The January 19, 2011 order to strike Noland James Hammond from the rolls of Louisiana attorneys came after Hammond was found guilty of 24 counts of misconduct. The most egregious charge involved taking a 16-year-old girl to a local jail to perform sex acts with several prisoners.

In October 2003, Hammond contacted two men who were being held at the Bunkie Detention Center in Avoyelles Parish; one had been convicted of aggravated battery, the other of rape. Hammond told them he believed they had been wrongfully convicted and thought he could get their convictions reversed, but that he would need a sample of their semen in order to do so.

Hammond set up an attorney-client contact visit with the two prisoners. He brought with him a 16-year-old girl, whom he described as his “assistant.” Once they were in a private room, the girl performed oral sex on the prisoners while Hammond videotaped the encounter.

When ...

Insider Trading Charges Against Private Prison Consultant Rejected

by David M. Reutter

A Florida federal district court has rejected insider trading charges brought against a consultant for Correctional Services Corporation (CSC). The civil complaint, filed in September 2008 by the Securities and Exchange Commission (SEC), charged Dr. Zachariah P. Zachariah, his brother Dr. Mamen P. Zachariah, and his friend and colleague Dr. Sheldon Nassberg with using inside information to trade CSC stock.

On July 14, 2005 it was announced that GEO Group Inc., the nation’s second-largest private prison company, was acquiring CSC. The SEC alleged that the three defendants traded CSC stock from May to July 2005 based on non-public information concerning the acquisition. The evidence at trial showed the defendants periodically discussed securities transactions and traded in private prison company stock.

The evidence established that Dr. Zachariah had researched CSC, printed out information about the company on his computer on May 18, 2005, purchased his largest block of CSC stock the following day, and recommended it to others. The stock experienced a spike in trading volume the same day of his purchase. Zachariah was subsequently charged with insider trading. [See: PLN, Dec. 2008, p.36].

To prove its case, the SEC pursued a “multiple choice” theory ...

Voting Rights Must Be “Earned” Back, Says Iowa Governor

Regaining voting rights for former felons in Iowa just got harder.

Making good on a campaign promise, the newly-elected governor of Iowa, Terry Branstad, a Republican, has rescinded a July 4, 2005 executive order that allowed felons to vote after they completed their sentences.

Branstad signed a new executive order in January 2011, hours after taking office, that requires payment of all court costs, fines and restitution before voting rights are restored. Several other states have similar re-enfranchisement requirements, including Florida and Tennessee.

Branstad’s decision was quickly denounced by local community leaders. Rev. Keith Ratliff, a prominent member of the NAACP’s Iowa chapter, said the governor’s new executive order discriminates against black Iowans.

“We believe in second chances and second chances should never be based on one’s ability to financially pay, but one’s desire to do better,” Ratliff noted.

In a state where blacks represent only 2.8 percent of the population, a quarter of Iowa’s prison population is black.

Ratliff compared Branstad’s decision to make the restoration of voting rights contingent on repayment of monetary penalties to Jim Crow-era laws that required blacks to pay a “poll tax” before they were allowed ...

Hawaii State Auditor Blasts Private Prison Contracting; State Renews Contract Anyway

On December 29, 2010, the State Auditor of Hawaii released a report highly critical of the way the Hawaii Department of Public Safety (DPS) contracts for private prison beds on the U.S. mainland.

The report found that the DPS overstated the cost of housing prisoners in Hawaii while understating the cost of incarcerating them at private prisons in Arizona operated by Corrections Corporation of America (CCA). The audit also determined that the DPS used a sham inter-governmental contract with the City of Eloy, Arizona to circumvent open-bid procurement procedures that were required had the DPS contracted with CCA directly. The report noted that DPS personnel had been uncooperative and tried to obstruct the audit.

Hawaii has an unusual prison system in that the DPS runs the state police, state prisons and local jails. The state’s prisons have an operational capacity of 3,327 beds, leaving Hawaii more than 2,000 beds short of the number needed to house its prisoner population.

To address this persistent problem, beginning in 1995 the DPS started sending Hawaiian prisoners to privately-operated facilities on the mainland. Although introduced as a temporary measure to alleviate prison overcrowding, the outsourcing of prisoners to private facilities ...

New York Prisoners Man Call Centers

The current era of budget deficits and fiscal austerity has made prison labor fashionable, at least in the eyes of some government officials.

For nearly two decades, New York State’s Department of Motor Vehicles (DMV) has been operating a call center from New York’s Bayview and Arthur Kill Correctional Facilities. In December 2010 another call center opened at the Bedford Hills prison, replacing the one at Bayview. Arthur Kill houses male prisoners while Bayview and Bedford Hills hold women.

According to David J. Swarts, Commissioner of the DMV, the prison call centers are “good for the taxpayers,” citing an estimated $3.5 million in savings by using prisoner operators who are paid 46 cents to $1.14 an hour.

The prisoners handle general questions about DMV matters and are not given access to callers’ personal information. Requests for specific information are routed to DMV staff.
Swarts said that no issues with driver privacy have come up in the past four years under his tenure. The DMV call centers at Arthur Kill and Bedford Hills employ 94 prisoners.

“This program benefits both offenders and taxpayers, providing offenders with valuable and marketable skills that help them during incarceration and prepare ...

Fifth Circuit Upholds $355,000 Award Against Dallas County in Jail MRSA Case

On January 13, 2011, the Fifth Circuit Court of Appeals upheld a judgment in a lawsuit filed by a former prisoner who contracted Methicillin-Resistant Staphylococcus Aureus (MRSA) while incarcerated at the Dallas County Jail, resulting in the loss of sight in one eye. The federal district court jury had awarded ...

Federal Court Dismisses PLN’s Texas Prison Censorship Suit; Appeal Pending

On January 4, 2011, a Texas federal district court dismissed PLN’s challenge to censorship of books by the Texas Department of Criminal Justice (TDCJ).

PLN had filed a civil rights suit under 42 U.S.C. § 1983 against TDCJ Executive Director Brad Livingston, TDCJ Mail Systems Coordinating Panel chairperson Jennifer Smith and two prison mailroom employees, alleging that the censorship of five books mailed to prisoners by PLN violated PLN’s First Amendment and due process rights. [See: PLN, Jan. 2010, p.38].

The TDCJ censored Women Behind Bars: The Crisis of Women in the U.S. Prison System by former PLN board member Silja J.A. Talvi, Perpetual Prisoner Machine: How America Profits from Crime by Joel Dyer, and Prison Masculinities by Don Sabo, Dr. Terry Kupers and Willie London, due to descriptions of rape.

Texas prison officials also allegedly censored Soledad Brother by George Jackson, Lockdown America: Police and Prisons in the Age of Crisis by Christian Parenti, and Prison Masculinities for “racial” content. PLN was not notified of such censorship but learned the books had been rejected when they were returned, upon being informed by the author or through discovery after filing suit.

Both parties moved ...

State Ordered to Reimburse Prisoner Who Was Not Allowed to Complete College Classes

An Illinois prisoner was awarded $1,225 by a state Court of Claims for tortious interference with a business relationship by the Illinois Department of Corrections (IDOC).

While incarcerated at Stateville Penitentiary, Marshan Terrell Allen received permission from prison staff to enroll in two college correspondence courses from Ohio University ...

Texas Prison Phones and Emails Generate Less Revenue Than Expected

When the Texas legislature passed SB 1580 in 2007, requiring the Texas Department of Criminal Justice (TDCJ) to install phones in state prisons, Texas was the only state that did not allow prisoners to make regular phone calls. Even so, the bill faced opposition and only passed because lawmakers expected the calls would generate a lot of revenue. Also, victims’ rights organizations that would otherwise oppose prisoners having phone access were bought off with a promise that they would receive the first $10 million in profits from the new prison phone system.

At the time, the House Research Organization estimated annual profits of between $25 million and $30 million. A more realistic estimate published in the bill’s fiscal note conservatively estimated $7.5 million a year in net income.

The first phones were installed in March 2009, and nine months later the phone installations were complete system-wide. [See: PLN, Feb. 2009, p.27]. Since then, TDCJ prisoners have placed over 4.7 million phone calls and received about 1.8 million emails.
However, the profits were lower than expected. During the first twenty-one months of TDCJ phone operations, Embarq, the company that operates the system, collected $15 million for ...

Washington State Regulatory Agency Finds AT&T Failed to Disclose Prison Collect Call Rates

Washington State Regulatory Agency Finds AT&T Failed to Disclose Prison Collect Call Rates

by Derek Gilna and Brandon Sample

On March 31, 2011, AT&T Communications of the Pacific Northwest was found guilty by the Washington State Utilities and Transportation Commission of failing to disclose charges for collect calls from various Washington State prisons. According to the Commission’s final order, “based on undisputed facts [the] automated operator services platform used at the prisons ... did not make rate quotes available to consumers as required by Commission rules.”

The Commission referred its conclusions to King County Superior Court for additional fact finding and the ultimate disposition of the claims against AT&T. Sandy Judd and Tara Herivel, who had accepted calls from Washington prisoners, had initially filed the complaint in Superior Court in 2000. The case was referred to the Commission because it has primary jurisdiction over the billing practices of operator service providers (OSPs).

The Commission found that “AT&T violated Commission regulations 480-120-141(5)(a)(1991) and WAC 480-120-141(2)(b)(1999) for collect calls ... [by prisoners] at the Washington State Reformatory, Airway Heights, McNeil Island Penitentiary, or Clallam Bay correctional facilities by failing to verbally advise the ...

American “Corrections”

At SCI Pittsburgh in Woods Run, Pennsylvania, prisoners and guards alike made the phenomenon of imprisonment more hellish than usual.

That’s because, according to at least one broadcast report, men at the medium- to minimum-security lock-up, particularly those convicted of sexual assaults against children, were raped by other prisoners – and by several guards – with ranking staff turning a blind eye.

While the radio report was unconfirmed, the Pennsylvania Dept. of Corrections did the unprecedented. They fired the prison’s warden, two deputy superintendents and even the major of the guard – something virtually unheard of in this business.

Eight prison guards were suspended without pay earlier this year (although seven have not been publicly identified).

An Allegheny County grand jury is presently investigating the sexual assault charges. No state government official has commented publicly on the claims, but certainly the firing of the prison’s highest-ranking staff suggests that “something is rotten in Denmark.”

What makes these incidents particularly poignant is that SCI Pittsburgh, which was closed back in 2005 because of security and budgetary concerns, isn’t the maximum-security prison it once was. It reopened in 2007 as a treatment center, a kind of medical unit for men suffering ...

Oregon Jail Pneumonia Death Lawsuit Settles for $905,000

The estate of a woman who died of pneumonia at the Multnomah County Detention Center (MCDC) in Portland, Oregon has agreed to settle a federal wrongful death suit for $905,000.

Homeless heroin addict Holly Jean Casey, 36, was arrested on January 3, 2008 for failure to appear in court ...

Los Angeles Jail Guards Beat Prisoner in Front of ACLU Monitor

by David M. Reutter

A monitor with the American Civil Liberties Union of Southern California (ACLU/SC) witnessed the brutal beating of a prisoner at the Twin Towers Correctional Facility by two Los Angeles County sheriff’s deputies. Twin Towers is part of the county’s jail system.

The January 24, 2010 incident involved detainee James Parker and was seen by ACLU/SC’s Esther Lim, who was touring the jail as part of her duties to monitor conditions at the facility in connection with a federal class-action lawsuit. The attack on Parker, who was being held on a marijuana charge, was both brutal and brazen.

“Mr. Parker looked like he was a mannequin that was being used as a punching bag,” Lim said in a written statement submitted to the federal district court. “I thought he was knocked out, or perhaps even dead.”

Deputies Ryan Hirsch and Ochoa, whose first name was not provided, punched and kneed Parker as he lay motionless on the ground. They Tasered his leg up to four times and his torso up to three times.

“Mr. Parker was not fighting with the deputies,” Lim stated. He “was not trying to kick, hit, or otherwise ...

Terminated South Carolina Wardens Awarded a Total of $882,000

On December 22, 2010, the South Carolina Court of Appeals upheld a $372,000 verdict in favor of a prison warden who was wrongfully terminated by the South Carolina Department of Corrections (SCDC).

In 2002, SCDC Investigator Karen Hair was assigned to the Lee Correctional Institution (LCI). Hair did not ...

Sixth Circuit Reinstates Michigan Prisoner’s Denial of Toothpaste Suit

On May 6, 2010, the U.S. Court of Appeals for the Sixth Circuit reversed the dismissal of a Michigan prisoner’s federal civil rights lawsuit in which he claimed he was denied toothpaste for nearly a year.

In January 2005, while held at the Newberry Correctional Facility, Jerry Flanory was placed on cell restriction for refusing to participate in the prison’s General Equivalency Degree (GED) program. Flanory asserted that he had both a GED and an Associate Degree, but prison officials failed to verify either. Flanory remained on cell restriction until the prison’s new principal verified his Associate Degree in November 2005.

In total, Flanory spent 337 days on cell restriction. During that time he was denied indigent status, which meant the only way he could obtain toothpaste was to buy it from the prison commissary. Since Flanory was on restriction and therefore unable to participate in prison work programs, he could not earn money to purchase toothpaste.

Flanory sued multiple defendants pursuant to U.S.C. § 1983 on May 1, 2008, claiming that his inability to obtain toothpaste violated the Eighth Amendment’s prohibition against cruel and unusual punishment. He specifically alleged that a dental examination ...

California: Court Monitoring of Conditions at Pelican Bay State Prison Terminated

On March 21, 2011, the Honorable Thelton E. Henderson, U.S. District Court Judge for the Northern District of California, issued an order terminating all remaining aspects of federal court monitoring of conditions at Pelican Bay State Prison. In so doing, the court relinquished jurisdiction over a 1990 class-action lawsuit challenging the constitutionality of medical and mental health care, as well as use-of-force practices, at the supermax facility.

In a landmark 1995 ruling, Madrid v. Gomez, 889 F.Supp. 1146 (N.D.Cal. 1995), the court concluded that conditions at Pelican Bay State Prison were so harsh that they violated the Eighth Amendment’s ban on cruel and unusual punishment. The court appointed a Special Master at that time, both to assist in the development of a remedial plan and to monitor the plan’s subsequent implementation. [See: PLN, Aug. 1995, p.3; Oct. 1995, p.20; April 1996, p.17].

The monitoring of medical and mental health care at Pelican Bay was ultimately subsumed within the broader monitoring of such care throughout California’s entire state prison system in a separate lawsuit. The latter led, in January 2010, to a controversial statewide prison population reduction order that was upheld ...

Illinois Prison Guards Scam Workers’ Comp

The chairman of the Illinois Workers’ Compensation Commission (IWCC) has called for an investigation of workers’ comp claims filed by guards at the maximum-security Menard Correctional Center.

Since January 2008, over 500 workers’ compensation claims have been filed by Menard guards. Most of the claims seek compensation for so-called “repetitive trauma” injuries caused by manually locking and unlocking cells. Menard, which opened in 1878, does not have electric locks; the Illinois Department of Corrections (DOC) says it would be too expensive to replace the manual locks.

Claims by guards at Menard have cost the state almost $10 million as of December 2010, including $5.9 million for repetitive trauma. Some 389 prison employees – over half the workforce at Menard – have received workers’ comp settlements. Records show that most of the claims were paid without opposition from the state.

Dave Rednour, Menard’s warden, received one of the largest settlements – some $75,678. DOC spokesperson Sharyn Elman declined to comment about the payment to Rednour, calling it a “personnel issue.”

IWCC chairman Mitch Weisz has publicly questioned the veracity of the guards’ claims. “It’s hard for me to imagine it’s all kosher,” he remarked.

Deputy attorney general Cara Smith ...

Seventh Circuit: Court May Not Revoke Supervised Release via Videoconference

by Matt Clarke

On March 19, 2010, the Seventh Circuit Court of Appeals held that a federal district court violated Rule 32.l(b)(2) of the Federal Rules of Criminal Procedure when the judge used videoconferencing technology to appear at a supervised release revocation hearing.

Christopher R. Thompson was convicted in federal court and released on supervised release. He was later arrested for DUI, operating an uninsured motor vehicle, driving with a suspended license, speeding and improper lane usage. After he failed to notify his probation officer of the arrest within 72 hours, the government sought to revoke his supervised release.

The district court held both an initial hearing and a revocation hearing at which the prosecutor and appointed federal public defender were present in the Rockford, Illinois courtroom but the judge appeared via videoconferencing from a courtroom in Key West, Florida. The judge revoked Thompson’s supervised release and, despite the prosecutor’s recommendation of eight months’ incarceration, imposed a 12-month prison sentence and one year of supervised release. Thompson appealed.

The government admitted error, so the Seventh Circuit appointed an amicus attorney to defend the district court’s procedure. The Court of Appeals held that Rule 32 ...

Big Win for Open Government in Vermont Legislature: Attorney Fees Now Mandated for Prevailing Plaintiffs in Public Records Lawsuits

Vermont’s public records law will be getting a makeover thanks to a push from open government advocates, the administration of newly-elected Governor Peter Shumlin and a legislature that saw the need for greater government transparency.

The key provision of the public records reform bill, H. 73, adds an enforcement mechanism lacking since the state’s original public records law was passed in 1976. Citizens or organizations that have to go to court to force the release of a public document, and win, will now have their attorney’s fees and costs reimbursed. The bill was signed into law earlier in 2011 by Governor Shumlin.

Up to now, judges have had the discretion to order reimbursements but they’ve rarely done so.

There is a “safe harbor” escape for public agencies if, after getting sued, they change their mind and provide the requested records. Fees and costs “may” then be awarded at the court’s discretion. Even in such cases, however, a plaintiff is no worse off than s/he was under the old law.

The new law also contains a “redaction” provision. The intent of the change is to emphasize for public agencies that the existence of some confidential ...

Ninth Circuit Upholds Arizona’s Felon Disenfranchisement Law

by David M. Reutter

The Ninth Circuit Court of Appeals held on May 27, 2010 that Arizona’s felon disenfranchisement law does not violate the Fourteenth Amendment. The law is based on Arizona’s Constitution, which provides that anyone convicted of treason or a felony may not vote unless their civil rights are restored.

The appellate court rejected the plaintiffs’ argument that § 2 of the Fourteenth Amendment of the U.S. Constitution, which allows disenfranchisement for “participation in rebellion, or other crime,” should be read as rebellion or other common-law felonies. The Court of Appeals held that persons subject to felon disenfranchisement must face the long shadow of Richardson v. Ramirez, 418 U.S. 24 (1974), which held that barring felons from voting is an affirmative sanction under the Fourteenth Amendment.

Next, the Ninth Circuit rejected the argument that “crime,” at the time of the Fourteenth Amendment’s drafting, was commonly understood as being restricted to common-law felonies. The Court of Appeals found no historical support for that assertion. Moreover, the Court wrote that the “better reference point for determining whether a crime is serious is to look at how the crime is designated by the modern-day legislature that proscribed ...

$450,000 Settlement in Alabama Jail Prisoner’s Death

by David M. Reutter

The estate of a prisoner who died at Alabama’s Washington County Jail has agreed to accept $450,000 to settle a wrongful death suit.

Shawn Desmond Woodard, 33, was being held at the Washington County Jail on a probation violation when he became sick on ...

News In Brief

Alabama: A prisoner’s refusal to surrender a contraband cell phone to guards led to an uprising at the Holman prison in April 2011 that was quelled by the facility’s SORT team. “The inmates did not take over the unit. What actually happened, the supervisor came on the unit, the confrontation escalated and he chose to bring the officers back out of the unit and call for assistance,” said prison supervisor Grantt Culliver. “Guys do not want to give the cell phones up when they are caught with them.”

Australia: A prisoner from the Fulham Correctional Centre was taken off life support on May 16, 2011 after being severely beaten two weeks earlier. The 53-year-old prisoner was not identified; according to news reports, the weapon used in the attack may have been a rolling pin. Police are questioning another prisoner in connection with the incident. The Fulham prison is operated by GEO Group, the second-largest private prison firm in the U.S.

California: The Ninth Circuit Court of Appeals held on May 5, 2011 that sheriff’s officials did not violate a lawyer’s rights when they targeted him in a 2006 drug sting operation. Merced attorney John Garcia, 69, filed ...


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