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Prison Legal News: October, 2012

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Volume 23, Number 10

In this issue:

  1. Solitary Confinement Subject of Unprecedented Congressional Hearing (p 1)
  2. Solitary Confinement: Bad for Chimps, Okay for Humans? (p 16)
  3. California Female Prisoners Eligible for Early Release, but Disqualified Due to Lack of Local Rehabilitative Services (p 17)
  4. From the Editor (p 18)
  5. Ninth Circuit Judge Who Co-Authored “Torture Memos” Discloses Receipt of $3.4 Million in Legal and Consulting Help (p 19)
  6. The Price to Call Home: State-Sanctioned Monopolization in the Prison Phone Industry (p 20)
  7. Ninth Circuit Holds CAFRA Attorney Fees Should be Paid to Claimant, not Attorney (p 24)
  8. New York Court Upholds Law Requiring Census Count to Use Prisoners’ Pre-Incarceration Address (p 26)
  9. Fifth Circuit Holds Louisiana Prisons Can’t Ban Nation of Islam Newspaper (p 26)
  10. Texas Abolishes Last Meals for Death Row Prisoners, Reduces Weekend Meals (p 28)
  11. Report Cites Rising Violence, Other Problems at Illinois Maximum-Security Prison (p 30)
  12. Manhattan Prosecutor Who Moonlights as Dominatrix Suspended, Resigns (p 30)
  13. 46 California Prisoners Injured in Disturbance at CCA-run Oklahoma Facility (p 32)
  14. Private Prison Monopolies (p 32)
  15. Violence in Tennessee Prisons up 20 Percent Under New Commissioner (p 34)
  16. Washington State Post-Judgment Interest Award Required when Judgment Increased by Appellate Court in Records Case (p 34)
  17. Mug Shot Websites Based on Extortion Business Model (p 36)
  18. Advanced Criminal Procedure in a Nutshell, 2nd Ed., by Mark E. Cammack and Norman M. Garland (Thomson West, 2006). 505 pages, $38.00 (p 38)
  19. California Federal Judge Denies Habeas Petitions after Sitting on Them for Years (p 40)
  20. Florida: Two Men Sentenced in Prison Canteen Kickback Scheme (p 40)
  21. California’s Experiment with Community Correctional Facilities Coming to an End? (p 41)
  22. UTMB Challenges Texas State Audit, while Legislature Imposes $100 Prisoner Health Care Co-Pay (p 42)
  23. Oregon Adopts 5% Prison Trust Fund Account “Service Fee” (p 44)
  24. North Dakota Farmers Help Flush Out Escaped Florida Sex Offender (p 44)
  25. New Hampshire Court Invalidates City’s Sex Offender Residency Ordinance (p 45)
  26. Fourth Circuit Upholds North Carolina Sheriff’s Bribery Conviction (p 46)
  27. Texas Compensates Exonerees Unequally (p 46)
  28. Criminal Law in a Nutshell, 5th Ed., by Arnold H. Loewy (West Law School, 2009). 387 pages, $38.00 (p 48)
  29. Former Delaware Prisoner Settles Sexual Assault Suit for $287,500 and Policy Changes (p 48)
  30. Eight Puerto Rican Prisoners Drown in Flooded Van (p 49)
  31. Oregon Passes Legislation to Move Juveniles Out of Adult Jails (p 50)
  32. Oregon Guard Shoots, Wounds Prisoner; Unreported Earlier Prisoner Murder Exposed (p 50)
  33. News in Brief (p 52)

Solitary Confinement Subject of Unprecedented Congressional Hearing

by Alex Friedmann1

It’s an awful thing, solitary. It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.

— U.S. Senator John McCain, on his treatment as a P.O.W.2

On June 19, 2012, the U.S. Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Human Rights, held a hearing concerning issues related to solitary confinement – the first time that topic has been addressed by a Congressional committee. Over 250 audience members attended.3

The hearing, titled “Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety Consequences,” was chaired by Illinois Senator Richard J. Durbin and included testimony from federal Bureau of Prisons Director Charles E. Samuels, Jr.; Mississippi DOC Commissioner Christopher B. Epps; attorney Stuart M. Andrews, Jr.; exonerated former death row prisoner Anthony Graves; Pat Nolan, president of Justice Fellowship; and University of California psychology professor Craig Haney.4 Prof. Haney was one of the researchers in the Stanford Prison Experiment, an infamous 1971 study that revealed the psychological effects of incarceration on both prisoners and prison staff.5

“In the face of mounting evidence that the use of solitary confinement may in fact ...

Solitary Confinement: Bad for Chimps, Okay for Humans?

Maine Republican Senator Susan Collins is a key cosponsor of legislation that, among other provisions, would outlaw psychologically damaging solitary confinement for more than 500 chimpanzees caged for research in federally supported laboratories. In July 2012 the bill bipartisanly passed the Senate’s Environment and Public Works Committee on its way to a floor vote.

But the legislation, which also protects gorillas and other ape species if they are used for research, doesn’t protect the dominant primate species, Homo sapiens. Experts say at least 80,000 prisoners are in solitary confinement in tiny cells in this country.

Some prisoner-rights advocates think it’s ironic when laws give rights to animals that aren’t extended to humans. Prison Legal News editor Paul Wright noted that, for example, “there are existing laws saying how much living space primates should have in captivity.
By contrast, no such laws apply to humans in captivity.”

He concluded: “Sadly, I don’t think most people, at least not in this country, see any connection between animal and human rights.”

Laurie Jo Reynolds, an anti-solitary-confinement activist in Illinois who also is a strong supporter of animal rights, said, “Acknowledging that we must stop inflicting solitary confinement ...

California Female Prisoners Eligible for Early Release, but Disqualified Due to Lack of Local Rehabilitative Services

In the wake of the U.S. Supreme Court’s ruling in Plata v. Brown, mandating that California take immediate steps to reduce prison overcrowding, state officials have proposed innovative ideas to help accomplish that goal.

One such idea, put forth by state Senator Carol Liu, was subsequently passed by the California legislature. Liu’s bill (SB 1266) created a program that allows for the early release of female prisoners, pregnant prisoners and prisoners “who were primary caregivers of dependent children immediately prior to incarceration” if they were convicted of offenses that are deemed non-violent, non-serious and non-sexual under California law, and have less than two years remaining on their sentences and no history of escapes.

Under the initiative, called the Alternative Custody Program, qualifying prisoners would be required to live in either a sober living treatment facility, a transitional home or at their own legal residence (effectively under house arrest). They would be electronically monitored and, like other parolees, would report to parole officers. Full requirements for the program are set forth at California Penal Code § 1170.05.

Of the more than 9,500 women incarcerated in California’s prison system, state officials estimate that roughly half are eligible ...

From the Editor

Over the past 22 years Prison Legal News has been represented by dozens of lawyers around the country in a variety of cases, mostly dealing with censorship and public records requests. We have met many if not most of our attorneys because they subscribed to PLN, based on their interest in criminal justice issues and the fact that they are generally litigating prison and jail cases. That was how we happened to meet Brian Barnard.

Brian was one of the very few civil rights lawyers in Utah. When jails in Utah and the Utah Department of Corrections censored PLN in the mid 1990s, Brian was the person we turned to for advice and then legal representation. He represented PLN in five separate censorship suits over the years – four against jails and one against the Utah DOC. Brian had successfully represented prisoners in various cases since the mid 1970s; he was often the attorney of last resort for citizens in Utah whose rights were violated by government officials.

I am saddened to report that Brian died in his sleep on September 4, 2012. While in many jurisdictions there are dozens if not hundreds of lawyers who are capable and willing to ...

Ninth Circuit Judge Who Co-Authored “Torture Memos” Discloses Receipt of $3.4 Million in Legal and Consulting Help

In October 2011, the National Law Journal reported that Jay Bybee, a conservative federal judge on the Ninth Circuit Court of Appeals, had accepted $3.4 million in legal and consulting help from 2007 to 2010 as he defended himself against allegations that he violated ethics rules when, as head of the Office of Legal Counsel for the U.S. Department of Justice (DOJ) under the Bush administration, he co-authored memos that justified the use of waterboarding and other torture techniques against suspected terrorists.

To critics, the so-called “torture memos” contravened the Geneva Conventions as well as long-standing U.S. policy regarding the treatment of prisoners of war. They became a lightning rod for opponents of the war in Iraq, who argued that the memos not only lowered the moral standing of the U.S. among other nations, but acted as a powerful recruiting tool for the very terrorists the United States was fighting.

Bybee’s financial disclosures indicated that he received more than $3.25 million in assistance from the Los Angeles-based powerhouse law firm of Latham & Watkins. Several other law firms contributed about $150,000 worth of services. When lawyers from the DOJ’s Office of Professional Responsibility ...

The Price to Call Home: State-Sanctioned Monopolization in the Prison Phone Industry

Ed. Note: In April 2011, Prison Legal News published a comprehensive cover story on the prison telephone industry based on two years of research into prison phone contracts, rates and kickbacks nationwide. This article provides a summary and update of issues related to the prison phone industry, including the Wright Petition, which remains pending before the FCC. See the Prison Phone Justice Campaign ad on page 25 for additional information.

Exorbitant phone rates make the prison telephone industry one of the most lucrative businesses in the United States today. The industry is so profitable because prison phone companies have state-sanctioned monopolistic control over the state prison markets,1 and the sole federal agency with authority to rein in prison phone rates nationwide has thus far failed to provide meaningful relief.

Prison phone companies are awarded monopolies through bidding processes in which they submit contract proposals to the state prison systems; in all but eight states, these contracts include provisions to pay “commissions”—in effect, kickbacks—in either the form of a percentage of revenue, a fixed up-front payment or a combination of the two.2 Thus, state prison systems have no incentive to select the telephone company that offers the ...

Ninth Circuit Holds CAFRA Attorney Fees Should be Paid to Claimant, not Attorney

In a case brought under the Civil Asset Forfeiture Reform Act (CAFRA), the Ninth Circuit Court of Appeals held on April 26, 2011 that “attorneys fees awarded under CAFRA are payable to the claimant, not the attorney,” but left the total amount of the fees to be decided by the Appellate Commissioner utilizing the “lodestar” method.

The claimant, UMC Clinic (UMCC), had prevailed in a civil forfeiture proceeding initiated by the U.S. government, and thereafter invoked the fee provisions of CAFRA. The appellate court noted that it had not yet decided the method of determining a fee award under CAFRA. UMCC had proposed “that its fees be determined [using the lodestar method], but the government argues that the lodestar approach should not be used and that the fee should primarily be based on the actual agreement between UMCC and its attorney.”

The Ninth Circuit held that the lodestar method “is the method customarily used to determine attorney fees under fee-shifting statutes,” and “should be used in calculating fees in this case.” However, as UMCC’s attorney agreement may be relevant, UMCC was “required to disclose its agreement with its attorney.”

Further, the Court of Appeals followed Astrue v. Ratliff ...

New York Court Upholds Law Requiring Census Count to Use Prisoners’ Pre-Incarceration Address

On December 1, 2011, a New York Supreme Court dismissed a lawsuit that sought a judicial declaration that a state statute requiring prisoners to be counted for reapportionment purposes in their last known residence prior to their incarceration, rather than in their currently assigned prison, violated the state’s constitution.

The plaintiffs, mostly Republican state senators, were challenging Part XX of Chapter 57 of the Laws of 2010, which requires the New York State Department of Corrections and Community Supervision (DOCCS) to report to the New York State Legislative Task Force on Demographic Research and Reapportionment (LATFOR) prisoners’ residential addresses prior to incarceration, if available, instead of their prison addresses for use in drawing new legislative districts. [See: PLN, Oct. 2010, p.18]. Similar laws against prison-based gerrymandering have been passed in Delaware, Maryland and California.
The lead plaintiff in the challenge to the New York statute, state Senator Elizabeth Little,
had 12,000 prisoners in her district. The suit alleged that Part XX violates Article III, § 4 of the New York Constitution because its method of counting prisoners deviates from that recommended by the U.S. Census Bureau. The Census Bureau, however, allows states to create their own methodology ...

Fifth Circuit Holds Louisiana Prisons Can’t Ban Nation of Islam Newspaper

In 2005, Louisiana prison officials instituted a statewide ban on The Final Call, a newspaper published by the Nation of Islam. The ban was based solely on the content of a statement of beliefs called “The Muslim Program,” located on the last page of each issue of the paper. However, the Fifth Circuit Court of Appeals has held that objectionable language in “The Muslim Program” does not justify a blanket ban on The Final Call.

With the assistance of the American Civil Liberties Union of Louisiana, Henry Leonard, a Louisiana state prisoner, filed a federal civil rights action under 42 U.S.C. § 1983 challenging the ban at the David Wade Correctional Center. The district court found that the ban was an exaggerated response to security concerns, since prison officials were unable to show that any violent acts had been linked to The Final Call. Therefore, the court held the prison could not restrict or censor Leonard’s access to the newspaper. [See: PLN, Sept. 2010, p.11].

Prison officials appealed.

On November 10, 2011, the Fifth Circuit issued an unpublished ruling agreeing with the district court’s reasoning. “While we do not agree that ‘The Muslim Program’ is free ...

Texas Abolishes Last Meals for Death Row Prisoners, Reduces Weekend Meals

Texas served its final last meal to condemned prisoner Lawrence Russell Brewer, who, on September 21, 2011, was executed for the infamous racially-motivated 1998 dragging death of James Byrd, Jr. Brewer requested an extensive last meal and then didn’t eat any of it, which prompted state Senator John Whitmire, chairman of the Senate’s Criminal Justice Committee, to call for ending the practice of special last meals for death row prisoners.

“It is extremely inappropriate to give a person sentenced to death such a privilege,” Whitmire wrote in a letter to Texas Department of Criminal Justice (TDCJ) executive director Brad Livingston.

Livingston agreed and quickly ended the tradition of last meals. “Effective immediately, no such accommodations will be made,” he stated. “They [condemned prisoners] will receive the same meal served to other offenders on the unit.”

“It’s long overdue,” said Senator Whitmire. “This old boy last night, enough is enough. We’re fixing to execute the guy and maybe it makes the system feel good about what they’re fixing to do. Kind of hypocritical, you reckon?”

Calling the traditional last meal “ridiculous,” Whitmire noted that “Mr. Byrd didn’t get to choose his last meal. The whole ...

Report Cites Rising Violence, Other Problems at Illinois Maximum-Security Prison

by David M. Reutter

A report by the John Howard Association of Illinois (JHA) found that overcrowding and understaffing at the Menard Correctional Center (Menard) has resulted in an “alarming” increase in staff and prisoner assaults.

Opened in 1878, Menard is the second-oldest prison in Illinois. When JHA visited the facility on June 21, 2011, it housed 3,618 prisoners – a population roughly 17% above its rated design capacity of 3,098. Menard is the state’s largest maximum-security prison.

“On first entering Menard’s visitor’s center, JHA was struck by the unusually strained and tense atmosphere of the facility, even compared to other maximum-security prisons,” the report stated. “The demeanor of the security staff was remarkably hostile and aggressive towards inmates’ family members and to JHA’s own monitoring group members.”

One prisoner summed up the environment at Menard as “walking on egg shells.” JHA said that was not surprising, considering the number of violent assaults at the prison. In the first six months of 2011 there were 14 staff assaults, plus an “unusually large number” of prisoners in segregation, protective custody and the facility’s general population had reported cases of guards using excessive force or physically ...

Manhattan Prosecutor Who Moonlights as Dominatrix Suspended, Resigns

by Matt Clarke

In 2008, then-New York Attorney General Andrew Cuomo heaped lavish praise on Alisha Smith, a prosecutor in Manhattan who helped secure a $5 billion settlement in a securities fraud case involving Bank of America and other financial firms. The demurely-dressed Assistant State Attorney General spent her workdays pouring over fiscal statements. Her nights, though, were anything but boring.

When away from her day job, Smith, 36, reportedly metamorphosed into a dominatrix with the alias of “Alisha Spark.”

“They pay her to go to the events. She dominates people, restrains them and whips them,” said a source within the sado-masochistic (S&M) community.

Smith was also known to pose for photos with others involved in the S&M scene. One picture showed her wearing a skintight latex dress with heart-shaped pasties. Another displayed her in sexy attire, sandwiched between another dominatrix, “Jade Vixen,” and Vixen’s boyfriend. The source said that Smith and Vixen were close friends and frequently attended S&M parties where they “work[ed] together” on one submissive – a masochistic person who voluntarily submits to sadistic abuse.

Vixen, whose non-S&M name is Edythe Maa, has an interesting history for a close friend of a prosecutor: Three of her male associates have died due to unnatural causes.

In December 2008, Vixen’s then-boyfriend, New York lawyer Anthony Ottaviano, was shot and killed by former Vixen S&M client David Krieg. Krieg then committed suicide after briefly holding Vixen hostage.

On August 8, 2011, Vixen’s boyfriend, Peter Stelzenmuller, 49, was found dead in the attic of their home in Pennsylvania, wearing a scuba suit. Although the obituary said his death resulted from an accident while trying on scuba gear, Stelzenmuller, who reportedly had a rubber and latex fetish, is believed to have died due to autoerotic asphyxiation.

Apparently Stelzenmuller’s death didn’t upset Vixen very much; the day after she found his body, she tweeted, “Ladies night with Mistress Tyler, Alisha Spark and Lydia Mischief.”

According to a spokesman for New York Attorney General Eric Schneiderman, Smith was suspended without pay in September 2011 “pending an internal investigation.”
However, her suspension was not due to her sexual proclivities; rather, it related to her being paid for her appearances at fetish parties. An executive order in the Attorney General’s Office requires employees to “obtain prior approval from the [Employment Conduct Committee] before engaging in any outside pursuit ... from which more than $1,000 ...

46 California Prisoners Injured in Disturbance at CCA-run Oklahoma Facility

Widespread fighting among black and Hispanic California prisoners at the privately-operated North Fork Correctional Facility in Sayre, Oklahoma last year left dozens of prisoners injured.

The disturbance began shortly before noon on October 11, 2011 and was described by some news reports as a riot and by others as a series of random, uncoordinated brawls. Six local police units responded, and order was restored after police and prison employees used chemical irritants and pepperball rounds to quell the fighting. The facility is man-aged by Corrections Corporation of America (CCA).

At least 46 prisoners suffered injuries – 57 according to one news report; of those, 8 were removed by helicopter, four were hospitalized for weeks and one lapsed into a coma.
There were no fatalities, and no staff members or law enforcement officers were hurt.

The Associated Press reported that some Hispanic prisoners had barricaded themselves in a dining hall; another news source put the number of prisoners who participated in the riot at 600. Although some of the prisoners involved were affiliated with the Surenos prison gang, it was unknown whether the fighting was gang-related.

“My considered opinion is that it looks like they had way too many inmates out of ...

Private Prison Monopolies

As the late business historian Alfred Chandler, Jr. once said, the visible hand of the corporation has been of far greater importance to capitalism than has Adam Smith’s so-called invisible hand of the market.

Although modern forms of capitalism are justified, and often sanitized, by rhetorical appeals to competition, competition contradictorily tends toward monopoly by eliminating “weaker” firms in any given market. Competition is integral to the rationalizing logic of capitalism writ large, but anathema to individual capitalist firms.
The essential inconsistencies of modern capitalism, however, often serve as the fault lines from which social movements can emerge.

And what better place to begin than with the Tennessee-based private prison firm, Corrections Corporation of America (CCA). CCA, in its own words, “is the nation’s largest owner and operator of partnership correction and detention facilities and one of the largest prison operators in the United States, behind only the federal government and three states. [The company] currently operate[s] 67 facilities, including 47
company-owned facilities, with a total design capacity of approximately 92,000 beds in 20 states and the District of Columbia.”

Very few corporations are more notoriously devoted to Chandler’s “visible hand” theory than Corrections Corporation ...

Violence in Tennessee Prisons up 20 Percent Under New Commissioner

On September 18, 2012 the Human Rights Defense Center (HRDC), the parent organization of Prison Legal News, released data indicating that levels of violence in Tennessee state prisons had increased approximately 20 percent since Tennessee Department of Correction (TDOC) Commissioner Derrick D. Schofield was appointed by Governor Bill Haslam in January 2011.

According to statistical data obtained from the TDOC pursuant to public records requests, the number of violent incidents in three categories – prisoner-on-prisoner assaults, prisoner-on-staff assaults and institutional disturbances – increased significantly during the first 18 months of Commissioner Schofield’s tenure.

Based on TDOC data from January 2010 through June 2012, the average number of assaults on prison staff systemwide increased from 55 per month in 2010, the year before Commissioner Schofield was appointed, to 67.67 per month for the first six months of 2012 – an increase of 23%.

The average rate of violent incidents per 1,000 prisoners increased from 15.57 per month in 2010 to 18.56 per month as of June 2012, or an 18% increase. And the average number of violent incidents per facility per month increased from 22.17 in 2010 to 26.24 for the first half of 2012 – an 18 ...

Washington State Post-Judgment Interest Award Required when Judgment Increased by Appellate Court in Records Case

The Division One Court of Appeals for the State of Washington held on August 15, 2011 that where an appellate court “merely modifies the trial court award and the only action necessary in the trial court is compliance with the mandate,” post-judgment interest retroactive to the date of the original judgment is mandatory.

More than a decade ago, Armen Yousoufian submitted a public records request to King County. When the county failed to comply, Yousoufian obtained a judgment under the state’s Public Records Act (PRA), which penalizes state agencies that do not comply by awarding the requester “an amount not less than five dollars and not to exceed one hundred dollars for each day” of non-compliance, in the discretion of the court.

Multiple appeals were filed in this case, but most relevant was a decision by the Washington Supreme Court affirming the appellate court’s reversal of the trial court’s $15-a-day award. See: Yousoufian v. Office of Ron Sims, County Executive, 168 Wn.2d 444, 229 P.3d 735 (Wash. 2010).

Rather than remanding, the Court increased the per-day award to $45. This increased the total award to Yousoufian to $371,340. King County had already paid $123 ...

Mug Shot Websites Based on Extortion Business Model

by David M. Reutter

One of the most insidious businesses to grow out of the prison industrial complex revolves around mug shots. Natural curiosity compels many people to view jail booking photos taken by law enforcement agencies when someone is arrested, which are usually considered public records. Profiteers are now using publicly-available mug shots to generate profit.

Booking photos catch people at one of the worst moments of their lives; many have blank stares following the shock of being arrested. Some, like the infamous mug shot of Nick Nolte with frazzled hair while wearing a Hawaiian shirt, can be entertaining. That entertainment value, and a desire to see whether someone they know has been busted, drives the public’s interest in jail booking photos. The result is that mug shots have become very popular – particularly on websites devoted to that topic.

And when something is popular, someone will find a way to make money off it. With respect to mug shot-related sites, profit can be generated in two ways. The first is from advertising revenue by providing ad space on the websites, which are attractive to advertisers because they tend to generate high Internet traffic. The other is by posting ...

Advanced Criminal Procedure in a Nutshell, 2nd Ed., by Mark E. Cammack and Norman M. Garland (Thomson West, 2006). 505 pages, $38.00

Book review by John E. Dannenberg

Advanced Criminal Procedure in a Nutshell is an informative book that covers procedural aspects of a criminal case after an investigation by the police has resulted in a decision to prosecute. A less accurate but more colorful title would be “Criminal Procedure from Bail to Jail.”

Differing substantially from the similar-sounding Criminal Procedure in a Nutshell – Constitutional Limitations [see: PLN, Sept. 2012, p.46], this text tackles the legal doctrines from a prosecutor’s decision to file charges all the way through appeal and collateral attack of a conviction. The book’s 15 chapters address in detail each of the following topics: the decision to prosecute, pretrial detention and release, preliminary hearing, grand jury, discovery, time limitations, venue, joinder and severance, double jeopardy, plea bargaining, assistance of counsel, trial rights, sentencing and appeals.

Authors Cammack and Garland are seasoned law professors who offer this book as a concise summary of the courses they teach in criminal procedure. Noting that each state has its own specific procedures, the authors chose as their “typical” model the federal law system, so as to give readers the broadest background. That having been said, they advise readers to consult ...

California Federal Judge Denies Habeas Petitions after Sitting on Them for Years

A federal judge’s treatment of prisoner habeas petitions gives new meaning to the old adage that justice delayed is justice denied. U.S. District Court Judge Percy Anderson, who was named to the federal judiciary in 2002 by President George W. Bush, has established a track record of allowing potentially meritorious habeas corpus petitions to languish in his court in the Central District of California for years.

In July 2011, the Daily Journal, a legal publication, reported that Judge Anderson had sat on three habeas cases for periods ranging from 5½ to 8 years after magistrate judges had recommended granting relief.

California state prisoner Omer Harland Gallion filed a habeas petition claiming that he had been wrongfully convicted. A magistrate judge recommended that his petition be granted. However, Gallion died in prison six years later, in 2010, still waiting for Judge Anderson to act. When an attorney brought Gallion’s death to his attention, Anderson finally did something – he dismissed the petition as moot.

Two other prisoners’ petitions were denied on the same day in July 2011 that the Daily Journal asked Judge Anderson to account for the lengthy delays in habeas cases in his court. For prisoner Adilao ...

Florida: Two Men Sentenced in Prison Canteen Kickback Scheme

A federal district court in Jacksonville has sentenced two men to short prison terms after they pleaded guilty to conspiracy charges related to paying kickbacks to former Florida Department of Corrections (FDOC) Secretary James V. Crosby, Jr. and former FDOC regional director Allen Wayne Clark.

Over a two-year period, Edward Lee Dugger and Joseph Arthur Deese paid Crosby and Clark to establish a business relationship between the FDOC and Keefe Commissary Network, LLC. Dugger and Deese created a company in 2004, American Institutional Services (AIS), to act as a subcontractor for Keefe to provide canteen services at the FDOC’s prison visiting parks. [See: PLN, Feb. 2011, p.42; Dec. 2006, pp.1, 4].

In return for the contract to operate the visiting park canteens, Dugger and Deese agreed to pay Crosby and Clark $1,000 to $14,000 a month. They also agreed to pay former Keefe Commissary President Jack Donnelly and another Keefe executive, Tyler Alcorn, about $260,000 of the $1.5 million in annual revenue generated by the canteens.

Both Dugger and Deese were indicted in June 2010 and pleaded guilty. They were sentenced on January 13, 2012, with Dugger receiving 26 months in federal prison ...

California’s Experiment with Community Correctional Facilities Coming to an End?

From August to November 2011, the California Department of Corrections and Rehabilitation (CDCR) closed all but one of its community correctional facilities (CCFs).

In the past, the CDCR used CCFs to house low-level (minimum and medium security) prisoners in a dormitory-style environment at a cost-effective average daily rate of just under $56 per bed, or about $20,000 annually. By comparison, it now costs an average of around $49,000 a year to incarcerate a convicted felon in state prison.

Use of CCFs had helped the state address its prison overcrowding problem, which recently led the U.S. Supreme Court, in Plata v. Brown, to affirm a lower-court ruling requiring California to reduce its adult prison population from approximately 200 percent to 137.5 percent of design capacity. [See: PLN, July 2011, p.1].

The CDCR had contracted with as many as 13 public and private CCFs, which in 2008 housed up to 5,913 prisoners – roughly 3.5 percent of the state’s adult prison population at the time. Today the CDCR continues to contract with only the Golden State Modified CCF in Kern County. That facility houses 600 Level I and Level II adult male prisoners, less than ...

UTMB Challenges Texas State Audit, while Legislature Imposes $100 Prisoner Health Care Co-Pay

by Matt Clarke

The University of Texas Medical Branch at Galveston (UTMB) has challenged the findings of a state audit of the prisoner health care services it provides. The challenged audit reported that UTMB improperly charged the state for about $40 million in prison medical-related costs while reporting a $95.1 million deficit. UTMB also complained that the $900 million allocated by the Texas legislature for prisoner health care for FY 2011-2012 was inadequate, and threatened to cancel its contract. The legislature later approved a supplement to UTMB’s funding. Meanwhile, in a glaringly inappropriate attempt to close the state’s budget gap on the backs of its most disadvantaged citizens, Texas lawmakers passed a bill that imposes a $100 annual medical co-pay on prisoners.

UTMB provides health care services to about three-quarters of the more than 152,000 state prisoners in Texas. The audit found that UTMB charged the state for over $16.2 million in disallowed costs not directly related to prisoner health care, charged $6.6 million that was not allowed under the prison health care contract over a two-year period, and gave its prison health care employees $14.1 million in pay increases over a three-year ...

Oregon Adopts 5% Prison Trust Fund Account “Service Fee”

Tasked with cutting $28 million from its massive $1.36 billion budget, Oregon prison officials had to look under every couch cushion for loose change. That means they once again turned their focus to prisoners and their loved ones, who present an easy and convenient target for generating additional revenue.

Consequently, the 2011 Oregon legislature enacted House Bill 3285, which grants the Oregon Department of Corrections (ODOC) expanded authority to seize money from prisoners, including funds received from friends and family members.

HB 3285 amends ORS 421.125 to authorize the ODOC to “assess and collect fees from inmates from funds to be credited to, or received for deposit in, inmate trust accounts, not to exceed five percent of the amount of the credit or deposit, to offset the costs of administering inmate trust accounts.” ORS 421.125(2)(f).

The new legislation raises several important, yet unanswered, questions. For example, given that prisoner pay is “credited to ... inmate trust accounts” by the ODOC, the amendment appears to authorize a five percent pay cut for all state prisoners. This is on top of the five percent that is already deducted from prisoners’ gross pay for a “general victim fund.”

HB ...

North Dakota Farmers Help Flush Out Escaped Florida Sex Offender

A Florida prisoner picked the wrong state when he fled from a private transport van and ran into a 310-acre corn field. “This is unique in the sense that, God bless North Dakota, we bring everybody together to solve the problem and we put guys up on combines,” said Cass County Sheriff Paul Laney.

Convicted sex offender Joseph Matthew Megna, 29, was being transported from Florida to Washington state by Extradition Transport of America. During the evening of October 4, 2011, Megna escaped from a rest stop near Tower City, North Dakota. He was not handcuffed and was wearing street clothes when he fled, according to authorities, and the transport guards had left the van’s side door open and the padlock to the transport cage unlocked.

In true cooperative spirit, local farmers fired up six combines and harvested about 100 acres of corn under SWAT team escort to flush Megna out of the field. The manhunt ended when he surrendered 22 hours after escaping.

Sitting in the backseat of a police vehicle, Megna was confused to see a throng of media.
“Am I famous for running into a cornfield?” he asked a reporter. He said he had fled because ...

New Hampshire Court Invalidates City’s Sex Offender Residency Ordinance

A New Hampshire Superior Court has invalidated a local ordinance that prohibits sex offenders from living within 2,500 feet of a school, day care center, playground, athletic field, public beach or ski area, finding that it violated the Equal Protection clause of the New Hampshire Constitution.

In May 2007 the City of Franklin adopted ordinance § 247, which included three sections. The first concerned a residency restriction for sex offenders and the third related to landlords not being allowed to rent to sex offenders when the rental residence was within the 2,500-foot exclusion zone. The second section, which was not challenged, prohibited sex offenders from entering a school or daycare center.

When William Thomas and a friend moved from Massachusetts to New Hampshire, they rented an apartment in Franklin within the 2,500-foot zone. Thomas had been convicted of sexually assaulting a minor about 27 years earlier; he served three years in prison and was subject to sex offender registration laws. When he registered as a sex offender with the Franklin Police Department, he was informed that he was in violation of the ordinance and had 30 days to relocate.

Rather than move, Thomas filed a lawsuit challenging the ...

Fourth Circuit Upholds North Carolina Sheriff’s Bribery Conviction

On November 7, 2011, former Buncombe County, North Carolina Sheriff Bobby Lee Medford’s conviction on federal bribery and conspiracy charges was upheld by the Fourth Circuit Court of Appeals. The decision highlighted a scheme in which Medford and his co-conspirators misused their office to illegally profit from the regulation of video poker machine operations.

Medford served as Sheriff of Buncombe County from 1994 through 2006. A 2000 state law required North Carolina sheriffs to supervise the operation of video poker machines in their respective counties; unfortunately, Medford and various officers under his direct supervision misused their official powers to solicit illegal bribes and campaign contributions.

According to the Fourth Circuit, Medford and his co-conspirators “accepted cash payments from the operators of video poker machines and store owners in which the video poker machines were located ... [and] allowed certain of the video poker machines to be registered and operated in violation of the 2000 law ... including allowing the operation of ... machines that on occasion paid out large sums of money.”

The former sheriff also sponsored semi-annual golf tournaments as fundraisers, and received large donations from video poker machine operators and store owners. The donations were used for Medford’s re-election ...

Texas Compensates Exonerees Unequally

by Matt Clarke

A succession of laws, cumulating in the most generous compensation package for wrongly convicted prisoners in the nation, has left Texas exonerees stuck at different levels of compensation depending on when they were proven innocent. Consequently, some earlier exonerees now claim they should receive compensation at the current higher rate.

Initially, Texas had no compensation law for wrongly convicted prisoners, and the only way for exonerees to recover damages for the time they spent in prison was to file a lawsuit. Even then, Texas juries rarely granted meaningful compensation. Between 1985 and 2001 only two exonerees were successful, receiving a combined total of $50,970.

Starting in 1992, Texas exonerees could apply for compensation of up to $25,000 for pain and suffering, with their total damages capped at $250,000 – provided they had pleaded not guilty and received a full pardon from the governor.

In 2001 the compensation was raised to $25,000 per year of wrongful incarceration with a cap of $500,000. The compensation amount was increased again in 2007 to $50,000 per year ($100,000 per year if on death row), with no cap. And in 2009 Texas lawmakers changed the compensation ...

Criminal Law in a Nutshell, 5th Ed., by Arnold H. Loewy (West Law School, 2009). 387 pages, $38.00

Book review by John E. Dannenberg

Loewy, a law professor, warns his students not to substitute reading this book for doing the hard work of mastering course material in their criminal law classes. Yet he admits that Criminal Law in a Nutshell constitutes the “succinct exposition of substantive criminal law” that his students must learn. For the non-law student, this book provides a compact, powerful summary of all facets of criminal law in a format suitable for self-study. As such, it is an ideal self-paced text for incarcerated readers.

Criminal Law in a Nutshell is divided into seven major topics that define all aspects of criminal law, each further divided into concise chapters. Professor Loewy begins by analyzing punishment, as that is the distinguishing feature of criminal law that separates it from other types of law. The first chapter covers the purposes of punishment, including the concepts of reformation, restraint, retribution and deterrence. Also examined are inequality in punishment, judicial discretion, disproportionality and capital punishment.

The next two chapters deal with all forms of homicide and their causation. Two more chapters cover other crimes against the person, including a special section on rape. A good discussion ensues on defenses to ...

Former Delaware Prisoner Settles Sexual Assault Suit for $287,500 and Policy Changes

by Derek Gilna and Brandon Sample

Former Delaware state prisoner Michelle Bloothoofd has settled a federal lawsuit filed against the Delaware Department of Correction (DOC), the Baylor Women’s Correctional Institution (BWCI), Warden Patrick Ryan, guard Anthony Antonio and other prison officials, after she was sexually assaulted by Antonio on ...

Eight Puerto Rican Prisoners Drown in Flooded Van

On November 7, 2011 in Puerto Rico, eight prisoners died in a transport van trapped in rising floodwaters. The van contained two guards and ten shackled prisoners, all of whom were pre-trial detainees; most had been unable to afford bail and were being transported to a detention center in Arecibo. Two of the prisoners who drowned were to be released that day.

The tragedy occurred during a torrential downpour when the guards took a shortcut in Arecibo to avoid flooded streets. On the new route, the transport van met two vehicles coming from the opposite direction, both of which stopped to warn of impassable water ahead. Undeterred, the guards drove on until the van became stuck in rising water.

The guards refused to unshackle the prisoners, fearing they might escape. Nearby residents heard the prisoners’ cries for help as the van began to submerge. Hector Serrano said he and another man rescued the guards and two prisoners through a hole they cut in the van’s roof. However, he said the guards refused to give them their keys so they could free the remaining prisoners.

“They were nervous,” said Serrano. “The guards did not want to let them out ... supposedly ...

Oregon Passes Legislation to Move Juveniles Out of Adult Jails

“Youth who are held in adult jail[s] are at significantly increased risk of experiencing violence, committing suicide, and they’re actually at much higher risk of recidivating as well,” stated David Rogers, executive director of the Partnership for Safety and Justice (PSJ), based in Portland, Oregon. Thus, Rogers and PSJ have lauded the June 6, 2011 enactment of Oregon’s House Bill (HB) 2707 as a progressive sentencing reform measure.

In 1994, Oregon voters passed Measure 11 (M11), which imposed mandatory prison sentences for 16 (later increased to 21) offenses. M11 also requires that 15-, 16- and 17-year-old offenders charged with an M11 crime be tried as adults.

Prior to the passage of M11, juveniles awaiting trial were held in youth detention facilities regardless of the offenses they were accused of committing. Since M11 was enacted, however, the default place of pretrial confinement for 16- and 17-year-old offenders has been adult jails. Although county sheriffs and juvenile justice officials retained discretion to hold juveniles in youth facilities, adult jails were generally the rule for M11 offenders.

“Research published in the past 15 years has shown that the juvenile system is better equipped to keep youth safe while they are ...

Oregon Guard Shoots, Wounds Prisoner; Unreported Earlier Prisoner Murder Exposed

An Oregon state prisoner was shot by a tower guard on the recreation yard at the Snake River Correctional Institution (SRCI) last year, after he ignored orders to stop fighting. That incident followed an unreported prisoner murder on the same yard three months earlier.

On August 17, 2011, prisoner Brian C. Cole, 38, serving a life sentence, was transferred to SRCI. While on the recreation yard at about 8:15 p.m. the next evening, he was attacked by prisoners Kevin W. Jackson, 21, and Joel D. Stobbe, 23. At the time of the assault there were 188 prisoners and three guards on the yard, plus two armed tower guards monitoring the area.

Tower guard Jeff Curtis spotted Cole curled up on the ground as Jackson and Stobbe kicked him in the head and stomach. Curtis alerted other SRCI staff and ordered the prisoners to stop fighting.

“The attackers were unrelenting,” reported guard Christopher Hovey. When Jackson and Stobbe did not stop their attack, Curtis fired one round from his Ruger Mini-14 rifle that struck Jackson in the hip.

“They were ordered to stop and refused,” said Jeanine Hohn, an acting public affairs administrator for the Oregon Department of Corrections ...

News in Brief

Alabama: On June 13, 2012, two state prisoners picking up trash on an outside road crew were hit by a vehicle on Interstate 10 near Loxley. One, Kenric Turner, was killed; the other, Kelvin Dejan Jordan, was transported by helicopter to the University of South Alabama Medical Center. The Department of Public Safety and local police are investigating the accident.

Arizona: A federal prison employee at FCI Phoenix was indicted on June 20, 2012 on 13 counts of sexual assault. Joe A. Martinez, 48, is accused of sexually abusing two female prisoners from 2008 to 2010, according to a joint investigation by the Bureau of Prisons and the FBI. Most of the assaults occurred near a scrapyard at the facility.

Arizona: Shortly after being convicted of arson for burning down his $3.5 million mansion, ex-Wall Street trader Michael Marin, 53, appeared to put something in his mouth while sitting in the courtroom, then went into convulsions and quickly died. The June 2012 incident was caught on camera; law enforcement officials later found a container labeled “sodium cyanide” in Marin’s vehicle. He reportedly torched his house because he couldn’t make the $17,000 mortgage payments, and faced almost ...

 

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