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Prisoner Education Guide

Prison Legal News: April, 2012

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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 officials. [See: PLN, Aug. 2006, p.1].

Three years later PLN ran another cover article, titled Sexual Abuse by Prison and Jail Staff Proves Persistent, Pandemic, which described dozens of reports involving prisoner rape and sexual assault in correctional facilities across the U.S. [See: PLN, May 2009, p.1].

Despite the enactment of the optimistically-named Prison Rape Elimination Act (PREA) by Congress, the criminalization of sex acts between prisoners and those who guard them, and the adoption of “zero tolerance” policies by many prison and jail systems, the situation has not greatly improved. This is partly because reducing prisoner rape and sexual abuse is simply not a priority for corrections officials. Indeed, rape and sexual assault are integral elements of American prison and jail management. How else to explain the prevalence, tolerance and acceptance if not encouragement of the practice?
Unfortunately, “rape camps” is a term only used to ...

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 where to begin.

“I didn’t recycle myself,” Cantebury told the Marion Star, “so they suggested I start.” After reaping the benefits of recycling at home, where Cantebury estimated he saved hundreds of dollars every year, he applied his new skill set to MCI’s population of 2,600 prisoners and 448 employees, who generate plenty of garbage.

A sorting center opened in April 2011 and began diverting 25 to 30 tons of trash from the prison each month. The center employs 23 prisoners who drive forklifts, load trailers and operate a compactor. According to MCI deputy warden Tim Milligan, because the prison pays to have its waste taken to a landfill, recycling is saving the facility over $1,000 a month.

Now, Sims Brothers, a local recycling company, is paying MCI to have prisoners sort, compact and prepare bulk loads of plastics for shipping. Along with a $10,000 ...

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 lawsuits related to prison and jail employees raping prisoners, plus the short write-ups we run in our News in Brief (NIB) section in each issue.

The genesis for these “round up” compilations came when we would save all the source articles for our News in Brief section. As I would compile materials for the NIB, I would seek a cross-section of reports, both geographic and news-wise. Since most NIB sections had at least 2-3 items about prisoners being raped by employees, I would put the excess reports aside, thinking I would use them in the next month’s issue. Otherwise the NIB section would become the “Prisoners Raped by Employees” section of PLN.

Alas, by the time the next month’s NIB section was ready there would be still more stories on the topic, and thus the pile of news articles on prisoner rape and sexual abuse would grow. After ...

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 1995 until 2006. The reason this was deemed misconduct was that many prosecutors routinely keep most or all of the forfeited money for “law enforcement expenses.” Under the Indiana Constitution, however, such funds are supposed to be turned over to the state’s Common School Fund.

Two other prosecutors have been strongly criticized for similar misconduct, but McKinney’s case was especially egregious because he contracted with the prosecutor’s office as a private attorney to handle forfeiture cases in return for keeping 25% of the seized assets.

The Indiana Supreme Court’s scathing disciplinary order said McKinney’s dual role “created a conflict of interest between his duties as a public official and the private gain he realized in forfeiture proceedings.” Further, “on numerous occasions when the ethics of asset forfeiture proceedings were called into question, [McKinney] turned a blind eye and acted to protect his private interest in ...

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 of race “with the intent to humiliate and embarrass the black inmates.”

The district court had dismissed Cornell F. Daye’s § 1983 complaint at the initial screening stage pursuant to 28 U.S.C. § 1915A. Daye had sued West Virginia prison officials in 2009, alleging that the treatment he received at his prison job was unconstitutional.

Daye raised two claims: 1) that the treatment at his prison job was racially discriminatory, and 2) that he was fired for complaining about the discrimination in violation of the First Amendment.

While the Fourth Circuit vacated the district court’s dismissal on the equal protection claim, it affirmed the dismissal of Daye’s First Amendment claim, holding that his verbal complaints to prison officials were not constitutionally protected.

PLN readers should note that to the extent Daye was complaining about racial discrimination, the latter holding may conflict with decisions of other circuit courts ...

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 2011. According to the complaint, Sacramento County jail officials refused to deliver PLN’s monthly publication to prisoners and failed to notify PLN of that censorship in violation of the First and Fourteenth Amendments to the U.S. Constitution.

The jail claimed that PLN’s publication was rejected because it contains small staples (used to hold the magazine together) and includes mailing labels or stickers. Jail officials said the staples and labels presented a security risk.

In his order granting PLN’s motion for a preliminary injunction, Judge Mendez rejected that rationale, finding the jail’s censorship of publications sent to prisoners was “an exaggerated response to any security concerns posed by PLN.”

The court further held that PLN “has demonstrated a likelihood of success on the merits of its First Amendment claim,” and that the defendants’ “policies and practices including refusing to deliver PLN publications and mailings to prisoners ...

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 can be provided. That order was upheld in 2011 by the U.S. Supreme Court. [See: PLN, July 2011, p.1].

During the last legislative session, both the University of Texas Medical Branch at Galveston (UTMB), which provides health care for about 80% of Texas prisoners, and the Texas Tech University Health Sciences Center, which provides or subcontracts health care services for the state’s remaining prisoners, complained that they were underfunded.
UTMB claimed it had lost around $45 million over two years by supplying medical care to prisoners.

A May 2011 financial analysis of UTMB’s cost of providing prisoner health care seemed to support the contention that insufficient funds were being appropriated. The report predicted prisoner medical care costs of between $879.6 million and $930 million over the next two years – up to 20% more than was appropriated by the state legislature.

Since 1993, Texas has used ...

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, and three high-ranking Army officers, alleging that, in 2003-2004, while detained at U.S. military facilities in Iraq and Afghanistan, they were subjected to acts of torture and abuse.

The former detainees – four Afghan and five Iraqi citizens – had filed suit in U.S. District Court, raising claims under the Fifth and Eighth Amendments to the U.S. Constitution, the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and the Third and Fourth Geneva Conventions. Upon motion by the defendants, the district court dismissed all of the claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), “and on the ground that the defendants are entitled to qualified immunity.” See: In re Iraq & Afghanistan Detainees Litigation, 479 F.Supp.2d 85 (D.D.C. 2007). On appeal, the plaintiffs challenged only the dismissal of their constitutional and ATS claims.

As to the constitutional claims, the ...

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 explicit or features nudity.” 28 U.S.C. § 530C(b)(6)(D).

According to the appellate court’s decision, prisoner Mark Jordan’s appeal was rendered moot as a result of his subsequent transfers to other facilities.

When Jordan originally filed suit, he was incarcerated at the BOP’s supermax prison in Florence, Colorado. He alleged that the Ensign Amendment, both facially and as applied to him, was unconstitutional. Jordan also challenged the BOP’s implementing regulations. Following a two-day bench trial, the district court upheld the Ensign Amendment and the BOP’s regulations. Jordan appealed.

While his appeal was pending, Jordan was transferred from the supermax in Colorado to the Special Housing Unit at the U.S. Penitentiary in Lee, Virginia. He was then transferred to the Special Management Unit in Lewisburg, Pennsylvania.

Due to the transfers, the Tenth Circuit directed the parties to submit supplemental briefing as to ...

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 June 2011 report.

The ACLU examined Taser use relative to other uses of force against criminal suspects, including pepper spray, batons and lethal firearms, against a backdrop of documented Taser policies for 20 law enforcement agencies across Arizona. And Taser opponents are certain to feel vindicated by the results of the analysis, which supports the long-held theory that the availability of Tasers doesn’t dissuade police officers from drawing, and using, their guns.

After three of Maricopa County’s largest police forces – Phoenix, Mesa and Glendale – deployed Tasers agency-wide between 2001 and 2003, data indicates that officers continued to use lethal force against combative subjects just as often as they had before the advent of Tasers. In fact, it was the use of pepper spray and batons that declined, not firearms.

“The information provided by departments thus suggests that Tasers have been deployed in situations where lethal force would not ...

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 relationship with guard Dale Reyes.

Assigned to the NYCDOC’s transportation division, Reyes had a base salary of approximately $79,000, but earned $124,000 in 2010 due to working hundreds of hours of overtime. He also drove a NYCDOC-owned Ford SUV when he wasn’t on the job. When he couldn’t explain to investigators why he was driving the vehicle, Reyes was suspended.

“I have no idea why I was suspended,” he stated. “I did no favors for Larry Davis, that is number one. Larry Davis is chief of the department and I am an employee.” But a source close to the probe said that prior to the investigation, Reyes repeatedly bragged to co-workers that Davis was “in his pocket,” and that he was not required to wear a uniform. “Nobody knows what he did,” said the source.

Davis was already under investigation at the time he resigned ...

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 prisoner serving a sentence of 39 years to life, filed suit in federal court alleging that Corcoran prison officials violated his rights under the Fourth, Eighth and Fourteenth Amendments when, in 2003, they forcibly extracted a blood sample from him for DNA identification.

The district court dismissed the suit at the screening stage (28 U.S.C. § 1915A) for failure to state a claim upon which relief can be granted. On appeal, the Ninth Circuit noted that California’s DNA Act was adopted for the purpose of assisting law enforcement agencies in identifying and prosecuting individuals responsible for committing crimes, as well as for excluding individuals erroneously deemed to be suspects.

Based on overwhelming precedent, including the plurality opinion in United States v. Kincade, 379 F.3d 813 (9th Cir. 2004) (en banc) [PLN, Jan. 2005, p.22], the Court of Appeals had little trouble characterizing as “minimal” the degree ...

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 civil commitment as sexually violent predators (SVPs). The result, a July 2011 report, found that although DMH evaluates thousands of sex offenders each year, only a tiny percentage are civilly committed as SVPs.

The audit report determined, moreover, that the process used by the CDCR to identify potential SVPs is inefficient and results in DMH being overloaded with unnecessary work.

In 1996, the California legislature enacted the Sex Offender Commitment Program to target a narrow subpopulation of sex offenders – those it believed posed a continuing threat to public safety due to mental disorders that predisposed them to engage in sexually violent criminal behavior. To qualify for civil commitment as an SVP, an offender must have been convicted of a qualifying sex crime and diagnosed with a mental disorder that renders him (or her) likely to engage in sexually violent behavior in the future if not retained in custody and given ...

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 the risk of allowing them to provide medical care, however, supervisors relegate them to desk duty where, according to a July 2011 Los Angeles Times article, they are paid for doing little or no work.

One of those physicians, Dr. Jeffrey Rohlfing, 65, employed at the High Desert State Prison, took home $777,423 in 2010, making him the highest-paid state employee in California. A surgeon with a history of mental illness who reportedly engaged in “bizarre, irrational and delusional communications,” Rohlfing has not been allowed to treat patients since July 2005, following the death of a prisoner under his care that led to the revocation of his clinical privileges.

Dr. Rohlfing was fired in 2007 after a review of his cases led a supervisor to conclude that he had provided “significantly substandard” medical treatment to two other prisoners. After appealing his termination to the state’s Personnel Board, Rohlfing ...

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 an effort to void the contract.

Previously, Common Pleas Judge Judith Friedman ruled in May 2006 that ACJ’s former Internal Affairs Chief, Capt. Thomas R. Leicht, Jr., conspired with other county employees to rig the bids on the jail’s telephone contract the last time it was put out for bid. See: Lemansky v. Allegheny County, Court of Common Pleas of Allegheny County (PA), Case No. GD 06-3583.

An appellate court ordered the 2006 contract bid to be reopened, and Securus Technologies subsequently won the jail’s phone contract after Leicht was prohibited from participating in the re-bid process. See: Lemansky v. Allegheny County, 926 A.2d 1003 (Pa.Cmwlth. 2007). However, Leicht was again assigned to evaluate bids when the phone contract was up for renewal in 2009, and he gave a low score to Securus based on a failed system test.

“Despite Judge Friedman’s opinion and ...

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 the first-degree murder of an adult to have their personal information posted in an online database for 10 years after their release from prison. The law went into effect on January 1, 2012 and will be applied retroactively to offenders released since 2002.

Andrea’s Law was spearheaded by Illinois State Rep. Dennis Reboletti on behalf of the family of 18-year-old murder victim Andrea Will.

Justin Boulay, who was then 20 years old, strangled Will with a telephone cord in 1998 when they were both students at Eastern Illinois University. Boulay was sentenced to 24 years, but was released in November 2010 because state law granted him one day of earned credit for each day he served without disciplinary problems.

For Will’s mother, Patricia Rosenberg, the legislation that created a registry of first-degree murderers allowed her to exact a measure of revenge. “This is my way of fighting back ...

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 1977 the Oregon legislature created the crime of aggravated murder, the state’s most serious offense. Offenders convicted of aggravated murder may be sentenced to death, life without parole or life imprisonment with a 30-year mandatory minimum.

Prisoners sentenced to a 30-year minimum are not eligible for a release date under the Board’s parole matrix system. After serving 20 years, however, they are entitled to receive a “rehabilitation hearing” – referred to by the Board as a “Murder Review hearing” – to determine whether they are likely to be rehabilitated within a reasonable period of time.
The timing of that hearing was increased to 25 years in 1995, then 30 years in 1999. The law in effect at the time of the prisoner’s commitment offense determines when the hearing is held.

“The sole issue” at the hearing “shall be whether or not the prisoner is likely to be rehabilitated within ...

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 final decision, and marks the case for renewed litigation.”

This case has a “long and complex” history that began in 1995, with two classes certified. The first class covered all prisoners who are presently, or will be, confined at New Mexico’s Bernalillo County Detention Center (BCDC). A sub-class included “persons with mental and/or developmental disabilities who are now, or in the future will be, detained at BCDC.” It was alleged that the conditions at BCDC were unconstitutional due in large part to overcrowding. [See: PLN, March 2003, p.38; Sept. 1999, p.18].

The parties reached a settlement in 1997. The settlement agreement was modified due to the opening of the Metropolitan Detention Center (MDC) in 2003. By their terms, the two new settlements, reached in 2005, governed conditions only at MDC. The county had signed an Inter-Governmental Agreement with the federal government that allowed federal detainees to ...

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 been moved to maximum-security facilities. One is in a medium-security prison that includes a mental health facility. Meanwhile, death row has been converted into a special maximum-security unit for prisoners leaving the supermax Tamms Correctional Center.

Before signing the legislation banning capital punishment in Illinois, Quinn debated the issue at length. “For me, it was a difficult decision, quite literally the choice between life and death,” he wrote in his signing statement. “This was not a decision to be made lightly, or a decision that I came to without deep personal reflection.

“Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it.
With our broken system, we cannot ensure that justice is achieved in every case ...

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 to address eight problem areas.

The Mississippi Department of Corrections (MDOC) contracted its canteen services out for the first time in November 2007 to G.T. Enterprises. G.T. assigned the contract to Centric Group, doing business as Keefe Commissary, the following year.

PEER took issue with how the MDOC procured the contract, because rather than using a competitive process to locate a commissary provider, the department negotiated with the company from which it had previously purchased goods. When renewing the contract it should be put out to competitive bid “to select a commissary services provider to make goods of acceptable quality available for purchase while maximizing commissary revenues at least cost,” PEER stated.

The MDOC replied it was “not opposed” to this recommendation and would “consider requesting proposals for these services ... with several specifications.”

The department also agreed the contract should have quality assurances as a contract performance requirement ...

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, Florida-based GEO Group, the nation’s second-largest private prison firm.

The backdoor proviso attempt failed, however, after the Florida Police Benevolent Association (PBA), which at the time represented Florida Department of Corrections (FDOC) employees, filed suit challenging the prison privatization plan enacted as part of the budget bill. A circuit court judge ruled in the PBA’s favor in September 2011, finding the proviso language was “illegal without authority in violation of law.” The legislature’s appeal of that decision remains pending.

PLN’s February cover story concluded with the Republican-dominated Florida Senate considering two bills introduced in January 2012 – SB 2036 and SB 2038 – that would accomplish the same goal as the proviso language; i.e., privatizing 27 correctional facilities in South Florida, known as Region IV, that house approximately 16,000 state prisoners.

SB 2038 required the privatization of almost all FDOC Region IV facilities, with “actual cost ...

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 the incident occurred. Benson was accused of holding Emilio in scalding-hot water after the child soiled him-self. Emilio suffered burns on his feet.

According to prosecutors, Benson told several stories to investigators as to how the injuries occurred. “Lies are really hard to keep straight ... but the truth is really easy,” said prosecutor Jessica Frazier.

Benson’s ex-wife, Roxanne, refused to testify to a number of prior incidents that indicated Benson had previously engaged in abusive conduct. Those incidents included a domestic violence call in which Roxanne told police that Benson had choked her, and an incident when Benson allegedly slammed their son’s head to the ground.

“I was still going through a divorce and if I said anything I might have exaggerated,” Roxanne stated.

Prosecutors accused Benson of manipulating his ex-wife to retract her previous complaints about him, including that he “treat[ed] his family like inmates,” according ...

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.

Russell Bishop, a small 19-year-old with a slight build, was arrested and placed in the Mental Health Step-Down unit at a jail in Macomb County, Michigan on December l, 2004. Bishop had a history of mental problems. His cellmate, Char-lie Floyd, was a sexual predator.

Floyd sexually assaulted Bishop for nine days. Bishop allegedly informed guards about the assaults, but no action was taken until he told a jail psychologist what was happening.

According to Bishop, Floyd forced him to touch his penis, laid in bed with him, forced his pants down, tried to have sex with him and masturbated on him. Floyd also attempted to force Bishop to perform oral sex.

After Bishop was released from jail, he filed a 42 U.S.C. § 1983 suit against Macomb County Sheriff Mark Hackel and numerous jail employees.

Bishop alleged that the defendants failed to protect him from sexual assault. He ...

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 to which they are entitled.

To date, Munis and Piper have helped collect more than $5 million in disability benefits, with the bulk of those funds going to the dependents of incarcerated veterans.

Between the bureaucracy of the U.S. Department of Veterans Affairs and their disabilities, veterans often remain unaware of their entitlement to benefits; others don’t know how to navigate the paperwork. That’s the need that Piper and Munis identified and have been attempting to address.

They managed to win enough support from prison staff to set up a small office at CTF to assist other imprisoned veterans; it is, apparently, the only office of its kind in the nation. According to Munis, they use the Freedom of Information Act to research and file claims on behalf of veterans in prisons in 17 states, and hope to expand their services in the future.

For Munis and ...

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 Corrections (TDC) exposes Texas-style criminal justice during a time of revolution in the U.S. and its prisons. Berryhill’s true tale of a prisoner accused of killing two prison officials, and the three jury trials that resulted, reveals a history that is indeed uncomfortable – a history of resistance, reform and retaliation in Texas’ prison system.

The action of The Trials of Eroy Brown occurs on the heels of the pivotal 1980 Ruiz v. Estelle ruling, in which a federal judge (aptly named Judge William Justice) declared Texas prisons unconstitutional due to terrible and brutal conditions. Ruiz vindicated both prisoners and their advocates who had grieved systemic abuse and overcrowding in the TDC; the case also fueled prisoner activism and increased the public’s sympathy for the plight of the incarcerated.

It is shortly after the Ruiz ruling that Berryhill introduces 30-year-old Eroy Brown. Brown had arrived in prison in ...

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 fees” jail prisoners were paying to both counties were unconstitutional. [See: PLN, Sept. 2010, p.30; Aug. 2003, p.21]. According to Butler County Chief Deputy Anthony Dwyer, the jails have since found a loophole: Only convicted prisoners will be required to pay the fees.

“Any revenue stream out there is worth going after,” Dwyer told the Cincinnati Enquirer.
In July 2011, Butler County began collecting $20 booking fees, which presumably will be applied to the jail’s annual operating expenses of $5 million.

Hamilton County resumed charging fees ($40 per convicted prisoner) in 2008. County data indicates the fees amount to almost $200,000 annually.

After losing in court a decade ago, Hamilton County was ordered to reimburse jail prisoners approximately $1 million and spend another $150,000 for prisoner education.
Butler County, which detains fewer prisoners, had to refund $64,000 and donate $5,000 to the Legal ...

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 not exist at the time of his conviction, in violation of the constitutional proscription against ex post facto laws. In an unpublished opinion, the Court of Appeals granted Mickens-Thomas, now 82, unconditional habeas corpus relief.

Mickens-Thomas was convicted of the rape and murder of a 12-year-old girl in 1966, a crime for which he has stead-fastly maintained his innocence. His life sentence was commuted in 1995 and he became eligible for parole a year later. His parole applications were repeatedly denied by the Board, however, with each denial predicated on pre-1996 statutory requirements enacted after Mickens-Thomas’ conviction; namely, that before being granted parole he must complete a treatment program and in the process admit his guilt.

In December 1999, Mickens-Thomas filed a habeas corpus petition alleging that his parole applications had been denied in violation of the ex post facto clause of the U.S. Constitution. The district court granted ...

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 years in prison for a rape he did not commit due to forensic evidence falsified by Gilchrist could not force the city to indemnify her.

Gilchrist testified at David Johns Bryson’s 1983 trial, stating that hair and semen found at the crime scene were consistent with samples taken from Bryson. Seventeen years later DNA test results proved that he didn’t commit the crime, and Bryson was released from prison. It took another 3½ years before the charges against him were finally dismissed. Subsequent retesting of the forensic evidence used by Gilchrist indicated that the evidence should have excluded Bryson, and that contrary to Gilchrist’s testimony at trial, Bryson could not have been the semen donor.

Bryson filed a civil rights suit against Gilchrist and Oklahoma City in federal district court pursuant to 42 U.S.C. § 1983. He agreed to settle with Gilchrist for $16.5 million ...

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. He has not yet been sentenced.

Colorado: A prison transport van crashed in Lincoln County on December 19, 2011, killing a 22-year-old female guard and a prisoner. The van, owned by Corrections Corp. of America (CCA), was en route from the Kit Carson Correctional Center to the Limon Correctional Facility when it rolled at least twice. Speeding and an inexperienced driver were cited as factors that contributed to the crash. The guard who was killed was identified as Grace Cortez; the prisoner who died was Andres Valdez, 57. Eight other prisoners and one guard who survived the accident were treated for injuries.

Congo: Nine prisoners were killed and 50 injured during an escape attempt at a prison in the city of Bukavu. As part of the escape, one prisoner tried to use a hand grenade. “The [prisoner] did not know how to use a grenade, he pulled the pin out ...

 

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