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Prison Legal News: April, 2012

Issue PDF
Volume 23, Number 4

In this issue:

  1. State-by-State Prisoner Rape and Sexual Abuse Round-Up (p 1)
  2. Ohio Facility is Recycling Trash, Saving Money Thanks to Prisoners’ Slave Labor (p 17)
  3. From the Editor (p 18)
  4. Indiana Prosecutor Disciplined for Conflict of Interest (p 18)
  5. HRDC, Other Organizations Send Joint Letter to Tennessee DOC Commissioner (p 20)
  6. Fourth Circuit Remands Prisoner’s Equal Protection Claim (p 21)
  7. Texas Harasses, Denies Compensation to Wrongly Convicted (p 22)
  8. Court Grants Preliminary Injunction to PLN in Sacramento County Jail Censorship Suit (p 22)
  9. Texas Prisoner Health Care Underfunded (p 24)
  10. Rumsfeld, Military Officials Immune from Suit by Foreign Nationals Alleging Torture on Foreign Soil (p 24)
  11. Challenge to BOP’s Ban on Sexually Explicit Publications Dismissed (p 26)
  12. ACLU of Arizona Surveys Taser Use in Statewide Report (p 26)
  13. New York City DOC Jail Official Resigns Amid Corruption Probe (p 27)
  14. Ninth Circuit Holds Prisoners May be Compelled to Provide Blood Samples Under California DNA Act (p 28)
  15. Thousands Referred but Very Few Qualify for Commitment as Sexually Violent Predators in California (p 28)
  16. California Prison Doctors Accused of Misconduct Get Paid to Shuffle Paperwork, Deliver Mail (p 29)
  17. Court Finds Pennsylvania Jail’s Phone Bidding Process was Rigged; Contract Awarded to Another Company (p 30)
  18. Murderer Registry Becomes Law in Illinois (p 30)
  19. Rehabilitation Finding Eliminates 30-Year Minimum Sentence for Aggravated Murder, but Oregon Parole Board Balks (p 32)
  20. Withdrawal of Approval of New Mexico Jail Class Action Settlement Not Appealable Order (p 34)
  21. Washington State Prisoner Granted Preliminary Injunction to Treat Neuroma; Case Settles for $120,000 (p 34)
  22. Illinois Governor Signs Bill Banning Death Penalty, Commutes All Death Sentences (p 36)
  23. Mississippi Oversight Committee Finds Fault in Operation of Prison Canteens (p 36)
  24. Florida Senate Rejects Privatization of 27 State Prisons – but Just Barely (p 38)
  25. Connecticut District Court Finds ICE Agents Not Shielded from Bivens Liability; Suit Settles for $350,000 (p 40)
  26. Texas Prison Guard Gets Five Years for Scalding Child (p 42)
  27. Eighth Circuit Revisits Muslim Prisoner’s Settlement with Nebraska DOC; $74,000 in Attorney Fees Awarded (p 42)
  28. BOP Staff at FMC Lexington Recover Monetary Damages and Attorney Fees for Privacy Act Violations (p 44)
  29. No Qualified Immunity for Guard Who Failed to Protect Prisoner from Sexual Abuse (p 45)
  30. Incarcerated Veterans Help Other Incarcerated Vets Obtain Disability Benefits (p 46)
  31. The Trials of Eroy Brown: The Murder Case that Shook the Texas Prison System, by Michael Berryhill (University of Texas Press, 2011). 244 pages, $29.95 (p 46)
  32. Ohio Jails Find Loophole to Again Charge Booking Fees (p 47)
  33. Pennsylvania Parole Board May Not Condition Parole of Sex Offender on Admission of Guilt Due to Ex Post Facto Violation (p 48)
  34. Oklahoma City Not Liable for Wrongful Conviction Resulting from Falsified Forensic Evidence (p 48)
  35. California: State Settles Prisoner’s Lawsuit for $10,000, then Delays Payment (p 49)
  36. News in Brief: (p 50)

State-by-State Prisoner Rape and Sexual Abuse Round-Up

by Matt Clarke and Alex Friedmann

In 2006, Prison Legal News published a cover story, Guards Rape of Prisoners Rampant, No Solution in Sight, that presented a compilation of news reports concerning the rape and sexual abuse of prisoners by prison and jail staff, police officers and other law enforcement ...

Ohio Facility is Recycling Trash, Saving Money Thanks to Prisoners’ Slave Labor

Recycling was a foreign concept to Randy Cantebury, a training officer at the medium-security Marion Correctional Institute (MCI) in Marion, Ohio.

In early 2011, MCI prisoners told Cantebury, who runs the facility’s gardening and aquatic programs, that they wanted to start a recycling program. But he had no idea ...

From the Editor

This month’s cover story on the prevalence of prisoner rape and sexual abuse by prison and jail staff is the third major article of its type PLN has run since 2006. This is in addition to the dozens of articles we publish each year on other news reports and ...

Indiana Prosecutor Disciplined for Conflict of Interest

by Matt Clarke

Delaware County, Indiana prosecutor Mark R. McKinney was suspended from practicing law for 120 days beginning on July 28, 2011. He was disciplined for engaging in professional misconduct by handling criminal prosecutions and civil forfeiture cases involving the same defendants while working as a deputy prosecutor from ...

HRDC, Other Organizations Send Joint Letter to Tennessee DOC Commissioner

On March 8, 2012, the Human Rights Defense Center (HRDC – the parent organization of Prison Legal News), in conjunction with three other organizations, sent a letter to Derrick Schofield, Commissioner of the Tennessee Dept. of Corrections (TDOC), regarding policy changes that Schofield had implemented.

Within months after being appointed TDOC ...

Fourth Circuit Remands Prisoner’s Equal Protection Claim

by Mike Brodheim

On March 17, 2011, in an unpublished per curiam decision, the Fourth Circuit remanded a prisoner’s equal protection claim that alleged black prisoners were routinely ordered to perform more degrading tasks than their white counterparts, and that such job assignment decisions were made on the basis ...

Texas Harasses, Denies Compensation to Wrongly Convicted

by Matt Clarke

Texas has a generous compensation package for prisoners who are exonerated, which includes $80,000 per year of wrongful incarceration, an annuity with annual payments in the same amount, free college tuition and free medical care. [See: PLN, July 2009, p.12].

However, some state officials are ...

Court Grants Preliminary Injunction to PLN in Sacramento County Jail Censorship Suit

On March 8, 2012, U.S. District Court Judge John A. Mendez entered a preliminary injunction against the County of Sacramento, California in a lawsuit that alleges unconstitutional censorship of publications sent to prisoners at the county’s jail.

Prison Legal News filed the lawsuit in federal court in April ...

Texas Prisoner Health Care Underfunded

On average, Texas spends less on prisoner health care than other states – about half the amount that California spends. However, medical care for California prisoners was found to be unconstitutionally inadequate, leading a federal court to order reductions in the state’s prison population to the point that sufficient care ...

Rumsfeld, Military Officials Immune from Suit by Foreign Nationals Alleging Torture on Foreign Soil

by Mike Brodheim

On June 21, 2011, a divided D.C. Circuit Court of Appeals affirmed the judgment of a district court that dismissed claims for damages and declaratory relief brought by nine foreign nationals against Donald Rumsfeld, Secretary of the Department of Defense under former President George W. Bush ...

Challenge to BOP’s Ban on Sexually Explicit Publications Dismissed

The U.S. Court of Appeals for the Tenth Circuit dismissed an appeal challenging the Bureau of Prisons’ (BOP) implementation of the Ensign Amendment, a law that prohibits the expenditure of federal funds “to distribute or make available to a prisoner any commercially published information or material that is sexually ...

ACLU of Arizona Surveys Taser Use in Statewide Report

No one can claim that the ACLU of Arizona lacks ambition.

After poring over a decade’s worth of investigations, lawsuits and public records, the ACLU of Arizona is attempting to persuade law enforcement officials in the Grand Canyon State to address their use of Tasers, as detailed in a ...

New York City DOC Jail Official Resigns Amid Corruption Probe

An alleged abuse of authority, in the form of favoritism, has led to the resignation of the second-highest ranked jail official with the New York City Department of Corrections (NYCDOC), Chief Larry Davis, Sr. An investigation into Davis resulted from questions raised by the New York Daily News regarding his ...

Ninth Circuit Holds Prisoners May be Compelled to Provide Blood Samples Under California DNA Act

The Ninth Circuit has held that prison officials may forcibly extract a blood sample from a California prisoner for purposes of compliance with California’s DNA and Forensic Identification and Data Bank Act of 1998 (codified in sections 295-300.3 of the California Penal Code).

George Hamilton, a California state ...

Thousands Referred but Very Few Qualify for Commitment as Sexually Violent Predators in California

Responding to a legislative request, California’s Bureau of State Audits reviewed the process used by the California Department of Corrections and Rehabilitation (CDCR) to refer sex offenders to the Department of Mental Health (DMH) and, in turn, the process used by DMH to determine whether those offenders qualify for ...

California Prison Doctors Accused of Misconduct Get Paid to Shuffle Paperwork, Deliver Mail

Unable to take decisive action due to state civil service protections, California’s prison system is saddled with the expense of paying the salaries of dozens of physicians who have been deemed unfit to treat patients. Such doctors typically receive base salaries of more than $200,000; unwilling to accept ...

Court Finds Pennsylvania Jail’s Phone Bidding Process was Rigged; Contract Awarded to Another Company

The bidding process used to select the telephone contractor for Pennsylvania’s Allegheny County Jail (ACJ) was rigged by an official previously accused of improperly influencing a prior phone contract at the jail. That was the basis of a lawsuit filed by a local taxpayer, Matthew E. D’Eramo, in ...

Murderer Registry Becomes Law in Illinois

For ex-prisoners hoping for a fresh start upon their release, the slope is becoming increasingly slippery.

A bill signed by Illinois Governor Pat Quinn on July 21, 2011 has established the state’s first registry for convicted murderers. Also known as “Andrea’s Law,” the legislation requires offenders convicted of ...

Rehabilitation Finding Eliminates 30-Year Minimum Sentence for Aggravated Murder, but Oregon Parole Board Balks

In Oregon, a rehabilitation finding under ORS 163.105(3) eliminates the 30-year mandatory minimum sentence for state prisoners convicted of aggravated murder and requires the Board of Parole (Board) to immediately set a parole release date, according to two unanimous en banc decisions by Oregon’s Supreme Court.

In ...

Withdrawal of Approval of New Mexico Jail Class Action Settlement Not Appealable Order

The Tenth Circuit Court of Appeals has held that an order withdrawing approval of a class action settlement does not qualify as a “final order” subject to appeal under 28 U.S.C. § 1291. The appellate ruling declared that such an order “simply presses the reset button, vacates any prior ...

Washington State Prisoner Granted Preliminary Injunction to Treat Neuroma; Case Settles for $120,000

On Sept. 17, 2010, a federal district court in Washington State granted a preliminary injunction to a state prisoner, requiring prison officials to provide necessary medical treatment.

The preliminary injunction was issued in a civil rights action brought by Jean Rhea, incarcerated at the Washington Corrections Center for Women (WCCW ...

Illinois Governor Signs Bill Banning Death Penalty, Commutes All Death Sentences

by Matt Clarke

On March 9, 2011, Illinois Governor Pat Quinn signed legislation banning the death penalty for state crimes in Illinois. He also commuted the sentences of the state’s 15 death row prisoners to life without the possibility of parole. All but one of those prisoners have since ...

Mississippi Oversight Committee Finds Fault in Operation of Prison Canteens

by David M. Reutter

In June 2011, the Joint Legislative Committee on Performance Evaluation and Expenditure Review (PEER) issued a report to the Mississippi legislature concerning the state’s prison canteen contract, the operation and oversight of that contract, and the disposition of its profits. The report provided 15 recommendations ...

Florida Senate Rejects Privatization of 27 State Prisons – but Just Barely

PLN’s February 2012 cover story described how the Florida legislature tried to privatize almost thirty state prisons, work camps and work release centers in 2011 by slipping proviso language into the state’s budget appropriations bill. That wholesale attempt at prison privatization was widely perceived as benefiting Boca Raton ...

Connecticut District Court Finds ICE Agents Not Shielded from Bivens Liability; Suit Settles for $350,000

In a lawsuit brought by the Yale Law Clinic on behalf of Hispanics swept up in an Immigration and Customs Enforcement (ICE) raid in New Haven in June 2007, the U.S. District Court for the District of Connecticut held that ICE officials are not immune from liability for federal ...

Texas Prison Guard Gets Five Years for Scalding Child

On February 29, 2012, former Texas Department of Criminal Justice prison guard Henry Benson III, 31, was convicted by a state court jury of “recklessly” burning a child he was babysitting.

Benson, formerly employed at the Connally Unit in Kenedy, was looking after 3-year-old Emilio Taylor in October 2009 when ...

Eighth Circuit Revisits Muslim Prisoner’s Settlement with Nebraska DOC; $74,000 in Attorney Fees Awarded

In a detailed ruling, the U.S. Court of Appeals for the Eighth Circuit rejected an attempt by a Muslim prisoner to obtain additional attorney fees for alleged violations of an agreed injunctive order, and remanded for further proceedings. Following remand, the district court awarded over $74,000 in fees ...

BOP Staff at FMC Lexington Recover Monetary Damages and Attorney Fees for Privacy Act Violations

In a lengthy decision, the Court of Appeals for the Sixth Circuit held that approximately 100 employees of the Bureau of Prisons (BOP) could recover damages under the Federal Tort Claims Act for violations of the Privacy Act at the Federal Medical Center (FMC) in Lexington, Kentucky. The defendants in ...

No Qualified Immunity for Guard Who Failed to Protect Prisoner from Sexual Abuse

On February 1, 2011, the U.S. Court of Appeals for the Sixth Circuit affirmed a district court’s denial of qualified immunity to a guard accused of failing to protect a vulnerable prisoner from sexual assault, but reversed as to the denial of qualified immunity to three other guards ...

Incarcerated Veterans Help Other Incarcerated Vets Obtain Disability Benefits

by Mike Brodheim

Ed Munis and Michael “Doc” Piper, two Vietnam vets incarcerated at the Correctional Training Facility (CTF) in Soledad, California, have quietly been working over the past six years to ensure that other imprisoned veterans, now numbering roughly 200,000 in the United States, receive the disability benefits ...

The Trials of Eroy Brown: The Murder Case that Shook the Texas Prison System, by Michael Berryhill (University of Texas Press, 2011). 244 pages, $29.95

Book review by Mel Motel

The Trials of Eroy Brown: The Murder Case that Shook the Texas Prison System opens with a Tony Judt quote about how truthfully embracing history is an uncomfortable process. Michael Berryhill’s engaging account of one man’s journey through the then-named Texas Department of ...

Ohio Jails Find Loophole to Again Charge Booking Fees

Lockups in suburban Cincinnati just aren’t as profitable as they once were. So sheriff’s offices in southwestern Ohio’s Hamilton and Butler counties are charging prisoners for the time they’re forced to spend in jail.

More than 10 years ago, a federal judge ruled that the “reception ...

Pennsylvania Parole Board May Not Condition Parole of Sex Offender on Admission of Guilt Due to Ex Post Facto Violation

The Third Circuit Court of Appeals has held that in denying parole to convicted sex offender Louis Mickens-Thomas for his refusal to participate in a sex offender program that required he admit his guilt, the Pennsylvania Board of Probation and Parole retrospectively subjected him to a statutory requirement that did ...

Oklahoma City Not Liable for Wrongful Conviction Resulting from Falsified Forensic Evidence

by Matt Clarke

The Tenth Circuit Court of Appeals has held that Oklahoma City can not be held liable for the actions of disgraced forensic chemist Joyce A. Gilchrist, who was employed in the city’s police crime lab for over two decades, and that a man who served 17 ...

California: State Settles Prisoner’s Lawsuit for $10,000, then Delays Payment

In June 2010, Cion Adonis Peralta signed a Full Release of All Claims in a federal lawsuit he filed in 2005, alleging that officials at CSP-Lancaster had violated his rights under the Eighth and Fourteenth Amendments. In exchange for agreeing to voluntarily dismiss his complaint pursuant to Federal Rule of ...

News in Brief:

California: Former San Quentin prison guard Robert Alioto, 48, pleaded guilty on December 5, 2011 to smuggling drugs into the facility. Alioto was a warehouse supervisor at the prison when he was found with six cell phones and marijuana during a search of his vehicle as he arrived for work ...