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Prison Legal News: May, 2012

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Volume 23, Number 5

In this issue:

  1. Prison Slave Labor Replaces Freeworld Workers in Down Economy (p 1)
  2. Work Crews Salvage Georgia Prison Contract (p 8)
  3. Report Deconstructs Urban Legend of 100,000 Missing Sex Offenders (p 8)
  4. Eighth Circuit Affirms No First Amendment Right to Lower Prison Phone Rates (p 10)
  5. From the Editor (p 10)
  6. PLN Public Records Suit Reveals Litigation Payouts for District of Columbia DOC (p 12)
  7. Prisons: An Unsustainable Jobs Program (p 16)
  8. Research Finds Capital Punishment System in California is Costly, Ineffectual (p 18)
  9. Ninth Circuit Holds Phoenix New Times Executives May Sue Special Prosecutor over Improper Arrests; Prosecutor Disbarred (p 18)
  10. New York Not Liable for DOCS’ Unauthorized Addition of Post-Release Supervision (p 20)
  11. California Pilot Program Reduces Recidivism (p 20)
  12. Georgia Court Rules Prisoners Held in County Facilities Barred from Suing State for Negligence (p 21)
  13. Private Prison Health-care Industry Grows as States Cut Costs, Bringing in Millions of Dollars (p 22)
  14. Seventh Circuit Upholds Indiana DOC’s Ban on Pen-Pal Ads (p 24)
  15. Ninth Circuit Holds Hawaii Prison Officials Entitled to Qualified Immunity when Calculating Release Dates in Accordance with State Law (p 24)
  16. $3,750 Posthumous Settlement in California Prisoner’s Medical Suit (p 26)
  17. Dramatic Increase in Number of Hispanics Sentenced to Federal Prison (p 26)
  18. Louisiana Sheriff Pleads Guilty to Corruption Charges (p 27)
  19. Pennsylvania Businessman Sentenced to 18 Months in “Kids for Cash” Kickback Scandal (p 28)
  20. Ninth Circuit Holds New Claims Need Only be Exhausted Prior to Filing Amended Complaint (p 28)
  21. Pennsylvania Prisoner’s $185,000 Jury Award Reduced to $75,005 (p 30)
  22. Florida Lawmakers Disband Correctional Medical Authority (p 30)
  23. New Director of Tennessee Corrections Institute Faces Conflict of Interest (p 31)
  24. California: Federal Court Grants Increased Attorney Fee Rates in Armstrong Disability Case (p 32)
  25. Florida Citizen Fights CCA over Public Records Request (p 32)
  26. Ohio Prison Industry Cuts Over 35% of Workforce (p 33)
  27. Ninth Circuit Rules Sheriff May be Held Liable for Violence in Los Angeles County Jails (p 34)
  28. Washington State Corrections Secretary Resigns Due to Affair with Subordinate (p 34)
  29. Tennessee Discontinues Polygraph Tests as Sex Offender Supervision Tool (p 35)
  30. Arizona Privatizes Health Care in State Prison System (p 36)
  31. Juvenile Facility Guard’s Bigamous Marriage Complicates Death Benefits (p 36)
  32. California Appeals Court Holds Release from Prison Moots Challenge to Parole Denial (p 37)
  33. New York Prison System Allows Same-Sex Partners to Participate in Family Reunion Program (p 37)
  34. Arizona DOC Makes Visitors Pay for Prison Maintenance, Repairs (p 38)
  35. Seattle Federal Halfway House Case Manager’s Reentry Plan for Prisoner Allegedly Included Sex, Heroin (p 38)
  36. Federal Bureau of Prisons Says DNA Backlog No Longer Exists (p 40)
  37. UNICOR Fraudsters Plead Guilty, Sentenced (p 40)
  38. New Washington State Law Eliminates Tolling of Community Custody upon Violation (p 41)
  39. Reports on Privatizing Ohio Prisons Indicate Savings are Illusory (p 42)
  40. Failure to Refute Expert Testimony Warrants Summary Judgment Against California Prisoner Suing for Medical Malpractice (p 43)
  41. The Criminalization of Mental Illness in Missouri (p 44)
  42. Alabama Uses Federal Stimulus Money to Prop up Prison System (p 45)
  43. Class Certified in Lawsuit Challenging Conditions at CCA-operated Indiana Jail, but Case Dismissed on Summary Judgment (p 46)
  44. Civil Commitment Must be Challenged through Commitment Proceedings Instead of Habeas Corpus (p 47)
  45. Third Circuit: § 2241 is Proper Vehicle for BOP IFRP Challenges (p 48)
  46. New Mexico Judge Arrested for Raping Prostitute (p 48)
  47. Seven Argentine Military Officials Sentenced for Crimes against Prisoners (p 49)
  48. News in Brief (p 50)

Prison Slave Labor Replaces Freeworld Workers in Down Economy

The fact that prison slave labor can cut costs and generate revenue has never been a secret. Private businesses nationwide are vying to exploit prisoner workers to reduce operating expenses and gain a competitive advantage, while government agencies are increasingly using prisoners for jobs that otherwise would go to public employees or contractors. Even farmers have turned to prison labor to harvest their crops.

Expansion of Prison Labor

For as long as there have been prisons there have been prisoner work crews. The only class of people who may be forced into slave labor under the U.S. Constitution are prisoners, as the 13th Amendment expressly permits and forever enshrines slavery “as a punishment for crime whereof the party shall have been duly convicted.” As the American penal system has evolved since the demise of the convict leasing system in the early 1900s, the use of prison labor has been mostly confined to making license plates, manufacturing office furniture, landscaping, maintenance of government buildings, and picking up trash and cutting grass along roadsides.

With state and local governments facing budget deficits due to the continuing economic downturn, however, they are looking for ways to reduce costs and fulfill government obligations ...

Work Crews Salvage Georgia Prison Contract

by David M. Reutter

The Augusta City Commission voted in July 2011 to extend a contract with the Georgia Department of Corrections to house state prisoners at the city-owned Richmond County Correctional Institution (RCCI), despite the city facing a $9 million budget deficit and the contract costing local taxpayers almost $3.23 million annually.

In July 2011, 181 state prisoners were housed at RCCI; while the state provides reimbursement payments to the city, they are not enough to cover operating expenses at the prison. From 2006 to 2011, it cost Augusta residents nearly $16.4 million to house prisoners at RCCI.

It would seem that due to that high cost and the city’s budget deficit, the contract to house state prisoners would be canceled – yet the Commission voted to renew the contract. Why? The allure of prison labor.

Most, but not all, of the state prisoners are assigned to county work squads. The Augusta Chronicle estimated that 126 prisoners are on such squads, but RCCI warden Joseph Evans said up to 180 are assigned. The Chronicle asked Augusta’s eight city departments to provide the number of hours prisoners worked. Only the Department of License and Inspection could supply ...

Report Deconstructs Urban Legend of 100,000 Missing Sex Offenders

by David M. Reutter

“Like dormitory gossip or the childhood game Whisper-Down-the-Lane,” the assertion that “over 100,000 sex offenders [are] ‘missing’ from registries across the country has galvanized the urban legend that over years of telling, took on a life of its own,” states a July 14, 2011 report published by Criminal Justice Policy Review.

The number of “missing” sex offenders has been cited as an unassailable fact without attribution. While research on the national sex offender population is hindered by the independent operation of individual state registries, the National Center for Missing and Exploited Children estimates there are around 730,000 registered sex offenders (RSOs) in the United States. The oft-cited figure of 100,000 missing sex offenders was most likely derived from a 2003 survey by an organization called Parents for Megan’s Law (PFML), which relied mainly on data from California.

“Ever since that alarming statistic was quoted in the media, it permeated the public discourse about what is ‘known’ about sex offenders,” the report states. “The fallacy, however, might be the problem of ‘missing’ sex offenders was more a reflection of failures in the operation and administration of registries than of noncompliance by individual RSOs ...

Eighth Circuit Affirms No First Amendment Right to Lower Prison Phone Rates

by Matt Clarke

On January 21, 2011, a U.S. District Court held that state prisoners in Arkansas have no First Amendment right to less expensive phone rates, a decision that was subsequently affirmed by the Eighth Circuit Court of Appeals.

Arkansas state prisoners Winston Holloway and Joseph Breault filed a civil rights action in federal court pursuant to 42 U.S.C. § 1983, alleging that excessive contractual kickbacks resulted in high telephone rates for prisoners in the Arkansas Department of Corrections (ADC), which infringed on their First Amendment rights.

The magistrate judge assigned to the case issued a report recommending that a First Amendment violation be found and that the ADC’s phone service provider, Global Tel*Link (GLT), be enjoined from paying any “commission” kickbacks to the ADC. The district judge rejected that part of the report and dismissed the suit on the defendants’ motion for summary judgment.

The ADC established telephone services for prisoners in 2006 by contracting with GTL. Under the contract, GTL pays for all costs of equipment, installation and phone service, and gives the ADC a 45% “commission” on the income the company receives from prisoner phone calls. The phone rates include a $3 ...

From the Editor

This month celebrates PLN’s 22nd year of publication. One constant in our news coverage for the duration of our existence has been the exploitation of prison slave labor. Some things change, others do not. Until fairly recently most farm work in the U.S. was done by ruthlessly exploited American laborers as chronicled by such classics as John Steinbeck’s Grapes of Wrath and Edward Murrow’s TV documentary “Harvest of Shame.” But the days when American-born workers would voluntarily pick crops for a pittance are long gone, and farm labor has been replaced extensively – if not exclusively – by immigrants, many of them undocumented.

As this month’s cover story notes, despite the popularity of racist anti-immigrant laws that have caused farm labor shortages, the fact remains that absent decent wages, Americans will not voluntarily harvest crops and growers show absolutely no inclination to pay more for field workers. So the old standby of prison slave labor has been trotted out to fill the labor gap, which illustrates how prison slave labor is used to depress wages for all workers. Deprived of illegal immigrant laborers and without prisoners to fall back on, growers would, in the mythical magic marketplace ...

PLN Public Records Suit Reveals Litigation Payouts for District of Columbia DOC

As the result of a Freedom of Information Act request and subsequent lawsuit filed by Prison Legal News, litigation payouts in cases involving the District of Columbia’s prison system have been publicly disclosed.

In January 2008, PLN filed a request with the District of Columbia’s Department of Corrections ...

Prisons: An Unsustainable Jobs Program

by Alexandra Cox

Employment has been at the center of national debates about the economy, as evidenced by the bickering in Congress and the protests on Wall Street. A number of jobs have been lost through the deinstitutionalization of prison systems in recent months, with layoffs of a number of blue-and white-collar workers in those institutions. Many of these workers come from impoverished rural communities, where jobs like theirs offer a modicum of stability and well-being. But it should also be acknowledged that prisons tear away at the stability and well-being of the individuals who are incarcerated within them, who themselves come from and return to communities with few stable jobs.

In order to address the problems that mass incarceration has created, we must look carefully at what prison does for the prospects of all people who pass through them.

Prisons are an unsustainable jobs program, as has been demonstrated by the layoffs of countless numbers of individuals who work in them over the past few months. Members of the Public Employees Federation, a white-collar public sector union in New York, recently rejected a contract offer by the state, which may result in the layoffs of over 3,000 workers ...

Research Finds Capital Punishment System in California is Costly, Ineffectual

A June 2011 law review article by Ninth Circuit Court of Appeals Senior Judge Arthur L. Alarcón and Loyola Law School Professor Paula M. Mitchell, Alarcón’s longtime law clerk, analyzes the costs to taxpayers of administering California’s capital punishment system, the misrepresentations repeatedly made to voters regarding those costs and the largely ineffectual nature of a system that exists more in theory than in practice.

Since reinstating capital punishment in 1978, California has carried out 13 executions – at a cost of approximately $4 billion. During that same period of time, 54 condemned prisoners have died of natural causes and 18 by suicide; another six died due to violent incidents or undetermined causes.

As of June 2011 there were 714 prisoners on California’s death row, and that population is expected to grow to over 1,000 by 2030. The cost of maintaining the current population of condemned prisoners adds around $184 million to the state budget each year. Those costs will only increase if the system is not changed, according to Alarcón and Mitchell in their Loyola of Los Angeles Law Review article, titled “Executing the Will of the Voters: A Roadmap to Mend or End the California ...

Ninth Circuit Holds Phoenix New Times Executives May Sue Special Prosecutor over Improper Arrests; Prosecutor Disbarred

by Matt Clarke

On June 9, 2011, the Ninth Circuit Court of Appeals held that executives with the Phoenix New Times, an alternative weekly publication, could sue a special prosecutor who arranged for their late-night arrests after the New Times criticized Maricopa County Sheriff Joe Arpaio, County Attorney Andrew P. Thomas and special prosecutor Dennis Wilenchik.

The New Times has long been critical of Arpaio. In a 2004 article that criticized the sheriff’s failure to list his personal information in the public records of his real estate transactions, the New Times published Arpaio’s home address. The address was already available on government and Republican Party websites, and would later be distributed by Arapio in campaign flyers.

After waiting almost a year for Thomas – a political ally – to be elected County Attorney, Arpaio sought to have New Times editors Michael Lacey and Jim Larkin prosecuted for violating an obscure state law that made it illegal to knowingly make available on the Internet a peace officer’s personal information if it is reasonably apparent that it would pose an imminent and serious threat to the safety of the peace officer or his or her family. Arpaio claimed that he had ...

New York Not Liable for DOCS’ Unauthorized Addition of Post-Release Supervision

The New York Court of Appeals, the state’s highest court, has held that the state cannot be held liable for the Department of Correctional Services (DOCS) adding post-release supervision to prisoners’ sentences when such supervision had not been ordered by the sentencing court.

Farrah Donald, Shakira Eanes, Jonathan Orellanes and Ismael Ortiz were convicted of felony offenses and received determinate sentences without the sentencing court orally pronouncing they were subject to a period of post-release supervision (PRS). In each case, the DOCS added PRS when they were released. All except Orellanes were reincarcerated for violating the conditions of their PRS, and they filed separate actions in the state Court of Claims alleging false imprisonment. The Court of Claims granted partial summary judgment to Donald but dismissed the other cases.

On appeal, the Appellate Division reversed the partial summary judgment in Donald’s case and affirmed the dismissal of the other cases. All four claimants then appealed to the Court of Appeals. [See: PLN, April 2010, p.46].

On June 23, 2011, the Court of Appeals held that Orellanes’ claim should be dismissed because, although the judge failed to orally pronounce a period of PRS, the commitment sheet from the ...

California Pilot Program Reduces Recidivism

A pilot program enacted by the California legislature in 2009 appears to be achieving its intended goal of reducing recidivism, according to a June 2011 report prepared by Dorothy Korber with the California Senate Office of Oversight and Outcomes.

With three-year recidivism rates hovering around 65 percent on average, California has the worst record in the nation when it comes to released offenders returning to prison. [See: PLN, March 2012, p.46]. In the words of criminology professor Joan Petersilia, “California epitomizes revolving door justice in the United States.”

To address this problem, the California legislature responded by passing two measures. In 2009, state lawmakers passed Senate Bill X3 18, which created a $9.5 million pilot program that established Parolee Reentry Courts in six counties (Alameda, Los Angeles, San Diego, San Francisco, San Joaquin and Santa Clara).

According to a fact sheet produced by California’s Administrative Office of the Courts, “The reentry court teams are authorized to determine the appropriate conditions of parole, order rehabilitation and treatment services to be provided, determine appropriate incentives, order appropriate sanctions, lift parole holds, and hear and determine appropriate responses to alleged violations.”

Then, in 2011, the legislature passed Assembly Bill 109 ...

Georgia Court Rules Prisoners Held in County Facilities Barred from Suing State for Negligence

The Court of Appeals of Georgia held on October 21, 2011 that a county housing state prisoners under a contract with the Georgia Department of Corrections (GDOC) is an independent contractor; therefore, the state is entitled to sovereign immunity against negligence claims brought by prisoners housed at county facilities.

That ruling came in an appeal by the GDOC in a case where the trial court had denied the state’s motion to dismiss a lawsuit brought by prisoner Anthony W. James. The suit claimed that James had sustained injuries on May 31, 2005 while on a work detail at an Effingham County ball park. At the time he was a state prisoner incarcerated at the Effingham County Prison (ECP) pursuant to a contract with the GDOC.

Although the weather was rainy, James was forced to continue pouring a concrete slab. When he lost his balance, the wet concrete came into contact with the skin on his legs. A few hours later James complained to the maintenance coordinator and a guard; he was given “burn cream” and subsequently returned to ECP.

James sought treatment for his legs at the ECP medical unit the next day. A nurse treated him for abrasions ...

Private Prison Health-care Industry Grows as States Cut Costs, Bringing in Millions of Dollars

Aleshia Napier was 18 years old in 2006 when she hung herself with a bed sheet at the Broward Correctional Institution in Fort Lauderdale, Florida, after being placed in solitary confinement despite her diagnosis of clinical depression and bipolar disorder.

The attorney hired by the young woman’s devastated family, Randall Berg, Jr., the executive director of the Florida Justice Institute, points to two culprits for ignoring the medical and mental health needs of Napier: the private prison health-care companies PHS Correctional Healthcare and MHM Services.

Napier’s family settled with the companies for $500,000, but Berg said this case is part of a larger trend.

“My main concern is the profit motive taking precedence over patient care,” said Berg, who has taken out more than ten lawsuits against private health care companies. “The second one is that once the government entity contracts with the private provider, the government entity doesn’t provide any oversight.”

The outsourcing of health care in prisons to private companies is just one multi-billion dollar industry that has grown up around incarceration in the U.S. With that expansion has come mounting evidence of injury or death from improper medical care, or under-qualified or ...

Seventh Circuit Upholds Indiana DOC’s Ban on Pen-Pal Ads

by David M. Reutter

On September 16, 2010, an Indiana U.S. District Court held that a prison regulation prohibiting prisoners from advertising for pen-pals and receiving materials from services that advertise for or provide pen-pals did not violate the First Amendment. The district court’s order was affirmed by the Seventh Circuit in July 2011.

The rulings came in a class-action suit filed on behalf of all state prisoners in the Indiana Department of Corrections (IDOC) who were subject to IDOC Administrative Policy and Procedure No. 02-01-103, which became effective July 1, 2006. Before then Indiana prisoners were allowed to advertise for pen-pals. [See: PLN, June 2009, p.9].

The policy banning pen-pal ads was enacted following an investigation by prison inspector Todd Tappy. The Commissioner of the IDOC ordered the inquiry after he had a conversation with an elderly man who allegedly was defrauded by prisoners.

Tappy found 350 IDOC prisoners listed on Internet pen-pal advertising sites.
Conversations with people who had responded to the ads and corresponded with Indiana prisoners indicated that some felt deceived about sending money to prisoners after being lied to about their sentence lengths and offenses. Most of the evidence of fraud was ...

Ninth Circuit Holds Hawaii Prison Officials Entitled to Qualified Immunity when Calculating Release Dates in Accordance with State Law

In an interlocutory appeal, the Ninth Circuit reversed a Hawaii district court’s denial of qualified immunity to prison officials who, in apparent conformity with Hawaii state law, treated a prisoner’s sentences issued at different times for different crimes as being presumptively consecutive rather than concurrent. This was despite the prisoner’s objections – which ultimately proved to be well-founded – that the sentencing court in his case had ordered the sentences to “run concurrent with each other.”

Cornelius Alston was sentenced in 1991 for robbery. In 1997, while on parole for that offense, he was sentenced on two counts of promoting a dangerous drug, which the judge ordered were to run concurrently. The judge later ordered that the sentences on the drug-related counts also run concurrent with the remainder of Alston’s robbery sentence, but a copy of that order was apparently never received by the Hawaii Department of Public Safety (DPS).

Alston’s release date was originally calculated as August 4, 2007 under a DPS policy that treated sentences issued at different times for different crimes as concurrent unless the judgment specified otherwise. That policy was inconsistent with Hawaii state law (HRS § 706-668.5), which presumes that such sentences ...

$3,750 Posthumous Settlement in California Prisoner’s Medical Suit

State officials have settled a federal lawsuit against California Department of Corrections and Rehabilitation medical staff that alleged lengthy delays in the diagnosis and treatment of a prisoner’s stomach cancer.

Gerardo Richardo Gallegos was a California state prisoner who did not speak or read English. Beginning in 1996, he ...

Dramatic Increase in Number of Hispanics Sentenced to Federal Prison

by Matt Clarke

Tougher immigration enforcement efforts coupled with fast-track procedures in immigration cases have combined to dramatically increase the number of Hispanics entering the federal prison system. Statistics released in June 2011 indicate that Hispanics, who make up only 16% of the U.S. population, accounted for almost half of the defendants sentenced to federal prison.

According to data from the U.S. Sentencing Commission, convictions for immigration felonies, including illegally re-crossing the border and smuggling aliens into the U.S., made up about 87% of the past decade’s increase in the number of Hispanics entering federal prisons. Critics say that a large part of the increase is due to rapid, mass immigration hearings which began in the Del Rio, Texas sector of the U.S.-Mexico border in 2005 under a program called Operation Streamline, then rapidly expanded to other parts of the border. Currently, U.S. Attorneys in all four southern border states have approved fast-track programs for immigration violations.

Prior to the fast-track initiative, immigration offenses were handled under a policy known as “catch and release.” Pursuant to that policy only a few members of any group of immigrants caught illegally in the U.S ...

Louisiana Sheriff Pleads Guilty to Corruption Charges

An October 5, 2011 federal Bill of Information charged Louisiana’s Plaquemines Parish Sheriff Irvin F. “Jiff” Hingle, Jr., 59, with conspiracy to commit mail fraud and bribery concerning a program involving federal funds.

Hingle, the sheriff of Plaquemines Parish since 1992, entered into a contract with Benetech, LLC in 2007 to provide services related to recovery from previous and future natural disasters. On two separate occasions in March and April 2008, Hingle approved invoices and issued Benetech checks for work purportedly performed under the contract.

Within weeks of those payments, Benetech’s owner, W. Aaron Bennett, gave Hingle $20,000 in two equal cash installments which were intended to influence him in connection with the contract. Bennett was charged with bribery and conspiracy to commit bribery as a result of his cash payments to Hingle.

The Bill of Information also claimed that Hingle used over $100,000 in reelection campaign funds for personal matters. His campaign finance report for 2008, filed with the Louisiana Board of Ethics – an agency that receives federal funds – falsely indicated the money was used for campaign-related expenditures when it was really used for personal expenses.

“We place greater trust in our law enforcement officials ...

Pennsylvania Businessman Sentenced to 18 Months in “Kids for Cash” Kickback Scandal

In November 2011, a Pennsylvania U.S. District Court sentenced the former owner of two for-profit juvenile detention centers to 18 months in prison for his role in a kickback scheme that included two judges. The scandal, involving the juvenile justice system in Luzerne County, Pennsylvania, came to be known nationally as “Kids for Cash.” [See: PLN, June 2010, p.26; Nov. 2009, p.42; May 2009, p.20].

The owner of the two juvenile facilities was high-powered businessman and attorney Robert J. Powell. Once Luzerne County closed its dilapidated public juvenile detention center, Judges Mark A. Ciavarella, Jr. and Michael T. Conahan supported sending youthful offenders to Powell’s for-profit facilities.

Powell, 52, testified at Ciavarella’s trial in February 2011 that the judges’ support came at a cost. He said the two jurists extorted him and made him pay them more than $750,000 between 2003 and 2007. Over that same time period, Powell’s company received around $30 million from Luzerne County to house juvenile offenders, many of whom were sent to the facilities by Judge Ciavarella.

“Even though they were in positions of power and influence, I had the ultimate ability to do the right thing ...

Ninth Circuit Holds New Claims Need Only be Exhausted Prior to Filing Amended Complaint

The Ninth Circuit has held that a § 1983 prisoner litigant who wants to raise new claims based on conduct that occurred after an initial complaint was filed may do so by exhausting available administrative remedies (relative to the new claims) prior to filing an amended complaint. In so doing, the appellate court rejected an interpretation that would have required the exhaustion of all claims prior to filing suit – an obvious impossibility in the case of claims that only arise later.

State prisoner Kavin Maurice Rhodes filed suit pursuant to 42 U.S.C. § 1983 in 2002, alleging that prison staff at the California Correctional Institution at Tehachapi had retaliated against him for exercising his First Amendment right to file grievances. After the district court dismissed his complaint, the Ninth Circuit reversed.

In an important published opinion the appellate court detailed the elements of a First Amendment prisoner retaliation claim, clarifying, in the process, that a prisoner could satisfy the adverse-effect element of such a claim even if his protected First Amendment communications had not been totally silenced, so long as they had been chilled. See: Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005).

On remand to the district ...

Pennsylvania Prisoner’s $185,000 Jury Award Reduced to $75,005

by Matt Clarke

On June 7, 2011, a Pennsylvania federal judge issued an order reducing a prisoner’s jury award for destruction of legal materials to $75,005. The award had previously been reduced from $185,000 to $115,000.

Andre Jacobs, a Pennsylvania state prisoner, filed a pro se ...

Florida Lawmakers Disband Correctional Medical Authority

The Florida legislature did an end-run around a veto by the Governor by eliminating funding for the state’s prison medical oversight agency, thereby causing it to disband.
With Florida turning to private companies to provide prisoner healthcare services, there is concern that medical care will decline and potentially subject the state to litigation absent adequate oversight.

The Florida Correctional Medical Authority (CMA) was created in July 1986 in response to a class-action lawsuit. Brought in 1972, Costello v. Wainwright, U.S.D.C. (M.D. Fla.), Case No. 72-109-Civ-J-S, challenged conditions in Florida’s prison system. The federal district court maintained jurisdiction over the state’s prison medical services until 1993, when the state committed to using CMA to oversee healthcare in its prisons. [See: PLN, Aug. 1993, p.14].

The legislature’s decision to slash the CMA’s $796,151 budget came after Governor Rick Scott vetoed a bill to close the agency. At the time, Scott said the CMA was a “valuable layer of oversight,” and its elimination “could cause public health and safety risks.”

When CMA closed its doors on August 18, 2011 after being de-funded by state lawmakers, supporters of the agency spoke out about ...

New Director of Tennessee Corrections Institute Faces Conflict of Interest

The new executive director of the Tennessee Corrections Institute (TCI), an agency that oversees standards, inspections and certification of the state’s jails, faces an inherent conflict of interest in certifying the Wilson County Jail, as that county’s sheriff is her husband.

Despite being made aware of the conflict, Governor Bill Haslam appointed Beth Ashe to the director’s position. Supporters of Ashe say she is the most qualified for the $80,000-a-year job: She is a former Louisiana sheriff and worked with the Tennessee Sheriff’s Association to develop a victim notification system that alerts victims when offenders are released, transferred or escape.

However, her marriage to Wilson County Sheriff Terry Ashe is the greatest concern to those worried about conflicts of interest. “Her agency is responsible for inspecting and certifying her husband’s jail,” noted attorney Jerry Gonzalez, who has represented prisoners in civil litigation, including some who challenged conditions at the Wilson County Jail. “You don’t have to be a rocket scientist or an ethical philosopher to recognize that that is an inherent conflict of interest.”

In her new position at TCI, Ashe will supervise trainers and inspectors charged with upholding standards for administration, personnel ...

California: Federal Court Grants Increased Attorney Fee Rates in Armstrong Disability Case

On August 8, 2011, a California federal district court approved an increase in the hourly rates for the plaintiffs’ attorneys due to additional experience the attorneys had accrued since the beginning of the litigation.

The court had entered an order on September 20, 1996, granting an injunction that required California prison officials to develop plans ensuring that state prisoners and parolees were afforded their rights under the Americans with Disabilities Act (ADA), including state prisoners and parolees held in county jails. [See: PLN, Nov. 2011, p.28; July 2003, p.14; Sept. 1998, p.13; Sept. 1997, p.3].

The district court also held the plaintiffs were the prevailing party, which entitled them to fees and litigation costs. A March 26, 1997 order governed the payment of attorney’s fees and any dispute over fees.

The parties agreed in 2009 that the plaintiffs’ attorneys, paralegals and other legal support staff would be compensated at 2008 hourly rates for work completed in 2009. At the end of the first quarter for 2010, however, they were unable to agree on rates for work performed in 2010. The plaintiffs sought an increase, which the defendants rejected. Mediation efforts failed to reach an accord ...

Florida Citizen Fights CCA over Public Records Request

Prison officials tend to frown on public records requests. In fact, employees at a Florida facility operated by Corrections Corporation of America (CCA) were so ruffled by a citizen’s request for records that they called the cops.

Joel Chandler, 47, has made himself the self-appointed leading advocate for Florida ...

Ohio Prison Industry Cuts Over 35% of Workforce

The workforce for Ohio Penal Industries (OPI) has been reduced by more than 35% since 2007. With budget cuts due to the economic downturn forcing state agencies – OPI’s largest customers – to reduce spending, revenue at OPI has spiraled downward.

Net sales at OPI were $36.4 million in FY 2007. Sales for FY 2010 were only $28.2 million. “It’s a lack of demand,” said Carlo LaParo, a spokesman for the Ohio Department of Rehabilitation and Correction. “Many government entities have had their budgets cut.”

In 2008, OPI closed 13 of its 42 prison industry programs. That caused a decline in prisoner workers from 2,097 to 1,347. OPI manufactures numerous products, including license plates, office furniture, trash can liners, bedding, clothing, toilet paper, eyeglasses, and state and U.S. flags. It also has a meat processing plant and refurbishes salt trucks for the Ohio Department of Transportation.

OPI announced the closure of additional prison industry programs in February 2010, which resulted in another reduction in its prisoner workforce. [See: PLN, Sept. 2010, p.28]. The agency still operates 24 manufacturing programs at 16 facilities.

OPI recently exited an “extensive furniture-making endeavor” because private businesses, amazingly, were ...

Ninth Circuit Rules Sheriff May be Held Liable for Violence in Los Angeles County Jails

The Ninth Circuit Court of Appeals held in a revised ruling that Los Angeles County Sheriff Leroy Baca could be held liable for his subordinates causing dangerous conditions in the Los Angeles County Jail system (LACJ). The appellate court also found that Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) [PLN, July 2009, p.18] did not eliminate supervisory liability claims in prison conditions cases brought under 42 U.S.C. § 1983.

Dion Starr was an LACJ prisoner when he was assaulted by other prisoners and beaten, stabbed, and severely and permanently injured in 2006. The deputies at the jail, far from ensuring Starr’s safety, allegedly assisted his attackers by opening his cell door to let them in. After the other prisoners left, deputies allegedly entered Starr’s cell, called him racial slurs, beat him and delayed medical assistance.

Starr filed a § 1983 suit in federal court against the deputies who assaulted him and Sheriff Baca, alleging that Baca knew of numerous incidents of prisoner-on-prisoner violence and LACJ employee misconduct but had failed to take corrective action, thus making him liable for the assault. The district court dismissed Baca as a defendant because Starr did not allege that the ...

Washington State Corrections Secretary Resigns Due to Affair with Subordinate

by Matt Clarke

Eldon Vail, the Secretary for the Washington Department of Corrections, submitted a letter of resignation on July 1, 2011 when it was publicly revealed that he had been having an affair with a subordinate.

Shortly before Vail resigned, several Seattle-area television stations received copies of a video purporting to show Vail and a subordinate employee leaving a motel less than two miles from the Department of Corrections (DOC) head-quarters in Tumwater after a noontime tryst. According to the person who shot the video, rumors of the affair had been circulating throughout the DOC.

The unidentified videographer said he waited outside the motel for about an hour and caught Vail and the woman, a 49-year-old program manager, as they exited and left in separate vehicles. A Seattle television station verified that the white pickup shown in the video was registered to Vail.

“Being as he is the head of an agency, I don’t feel that it is right for him having inappropriate contact with a subordinate, possibly on state time. And the department should hold themselves to a higher standard,” said the videographer, an anonymous DOC employee.

Vail, 59, who is married, acknowledged having an “inappropriate” relationship ...

Tennessee Discontinues Polygraph Tests as Sex Offender Supervision Tool

Legal concerns have led the Tennessee Board of Probation and Parole (BOPP) to order probation officers to discontinue the use of polygraphs, better known as lie detector tests, in their supervision of sex offenders.

Polygraphs are to be used for treatment purposes only, said Gary Tullock, director of field services for the BOPP. Probation officers were asked years ago to ensure that sex offenders took at least one polygraph test a year. That led officers to believe they had the authority to question sex offenders about their compliance with parole and probation conditions during their polygraphs.

“Over the course of time, some officers thought it was part of supervision, not treatment,” said Tullock. “Our attorneys say we can’t do that. We can’t force someone to take a polygraph and incriminate themselves.”

Psychologists, counselors and other treatment providers use polygraph tests to formulate a treatment plan that ad-dresses an offender’s problems. “It motivates them to be truthful,” stated Dr. Donna Moore, a psychologist in Brentwood, Tennessee. “And if they’re not truthful, that’s obviously something we need to work on in treatment, too.”

Some, however, believe polygraphs should continue to be used in the supervision of sex ...

Arizona Privatizes Health Care in State Prison System

On April 27, 2011, Arizona Governor Jan Brewer signed into law House Bill 2154, which resulted in the privatization of medical care for prisoners in the Arizona Department of Corrections (ADC). The move comes three years after ADC’s food services were privatized. The Republican-dominated state government favors privatization as a means to cut costs and help reduce a large budget deficit.

The idea of privatizing the ADC’s health care system seemed dead in January 2011, but HB 2154 moved quickly through the legislature to the governor’s desk as an emergency measure. In a May 9, 2011 email, ADC Director Charles Ryan described the privatization debate as “a long and tedious issue for ADC and Health Services employees,” and urged prison medical staff to comply with the law and assist in the privatization transition.

The ADC began developing a plan to contract for medical services for the state’s 34,000 prisoners in July 2011. Understandably, ADC health care employees, who faced around 750 job losses due to privatization, were not happy.

Previous legislation introduced in 2009 (HB 2010) required that privatization of the ADC’s health care services not exceed the department’s cost for providing medical ...

Juvenile Facility Guard’s Bigamous Marriage Complicates Death Benefits

Following the death of a guard at a Cleveland, Ohio juvenile detention center, the Public Safety Officers’ Benefits program (PSOB), which provides payments to the families of law enforcement officers killed in the line of duty, made an award of $157,873 to the guard’s widow. However, that award is now the subject of a lawsuit filed by another woman who also was married to the guard.

William Lynn Hesson died on April 29, 2009 while employed at a juvenile detention facility. A teen offender pleaded guilty in January 2010 to involuntary manslaughter for hitting Hesson, 39, in the chest during horseplay, which caused his death. [See: PLN, March 2010, p.50]. Hesson’s on-duty death made his family eligible for PSOB benefits.

His wife, Julia Ann Hesson, 29, applied for those benefits, but the PSOB instead awarded them to another woman, Julie Keady Hesson, 41. On May 31, 2011, Julia Ann filed a lawsuit in Circuit Court in Pinellas County, Florida that seeks a “pure bill of discovery” to prove that Julie Keady, who lives in St. Petersburg, has held herself out as being divorced for more than ten years.

William Hesson married Julie Keady in 1995 in ...

California Appeals Court Holds Release from Prison Moots Challenge to Parole Denial

The California Court of Appeal, Third District, has held that release from prison moots a prisoner’s habeas corpus petition challenging an adverse decision by the Board of Parole Hearings (“Board”).

Convicted of second-degree murder in 1984, Damian Miranda was sentenced to an indeterminate term of 19 years to life. In June 2003 the Board found Miranda suitable for parole, but the Governor subsequently reversed that decision.

In November 2004, after the superior court granted his petition for writ of habeas corpus, Miranda was released from prison. The Court of Appeal, however, reversed that decision in 2006; nonetheless, Miranda remained free pending a new parole consideration hearing.

That hearing was held in January 2007, at which time the Board, disagreeing with its previous 2003 decision, found that Miranda was not suitable for parole.

Despite the Board’s determination, Miranda was not returned to prison until May 2008. He then filed a petition challenging the 2007 parole denial. The superior court denied his petition in June 2009. Later that same month, however, the Board held another hearing and found Miranda suitable for parole. This time the Governor did not reverse that decision and Miranda was released on parole in November 2009 ...

New York Prison System Allows Same-Sex Partners to Participate in Family Reunion Program

In late April 2011, the New York Department of Correctional Services (DOCS) formally adopted a regulation permitting same-sex married partners and those in civil unions to participate in the prison system’s family reunion program, also referred to as conjugal visiting. The regulation, Directive No. 4500, formalizes a policy change initiated three years ago by then-Governor David Paterson, who ordered all New York state agencies to recognize civil unions and same-sex marriages legally performed in other states.

In an unusual twist, New York’s prison system found itself ahead of the social curve, as same-sex marriages were not approved by the state legislature until June 2011. DOCS spokesperson Peter Cutler said he was aware of one prisoner in a same-sex relationship who had requested a conjugal visit, and the request was pending. Previously the family reunion program had been available only to those in traditional marriages. About a third of New York’s prisons allow conjugal visits.

With the adoption of the new regulation, New York joins California as one of only a few state prison systems to allow conjugal visits for same-sex partners. Since late 2007, California’s prison regulations have permitted “family visits” (i.e., extended overnight visits ...

Arizona DOC Makes Visitors Pay for Prison Maintenance, Repairs

Two lawsuits have challenged the Arizona Department of Corrections’ newly-adopted policies of imposing a background check fee on prison visitors and deducting a fee from deposits made into prisoners’ accounts.

On July 20, 2011, Arizona began charging visitors what prison officials termed a “background check fee” of $25, requiring the payment before visitors are allowed to see prisoners at any of the state’s 15 prison complexes.

Since confirming that the background checks don’t cost the DOC anything, however, state officials have admitted that the fees – along with a one percent charge on all deposits made to prisoners’ accounts – were being deposited into the DOC’s Building Renewal Fund to pay for prison maintenance and repairs.

The fees, then, are an “unconstitutional tax on a single group of people” and a “special law,” according to declaratory judgment suits filed by an Arizona-based prison reform group and a state prisoner.

“The legislature in Arizona needs to stop thinking of prisoners and their families, who often are economically disadvantaged, as cash cows,” said Donna L. Hamm, executive director of Middle Ground Prison Reform. Hamm’s lawsuit, filed in September 2011 with her husband, James J. Hamm, as a co-plaintiff, argued that ...

Seattle Federal Halfway House Case Manager’s Reentry Plan for Prisoner Allegedly Included Sex, Heroin

A former case manager at Pioneer Fellowship House, a halfway house in Seattle, Washington, has been accused of having a sexual relationship with one of the released prisoners she supervised and providing him with money to buy heroin.

According to records filed in federal court by Special Agent Wayne Hawney with the Office of the Inspector General (OIG) of the U.S. Department of Justice, the former halfway house employee, who quit her position in March 2011, befriended the ex-prisoner after he was released from federal prison upon completing a sentence for robbing numerous banks.

PLN contacted both the OIG’s office and the U.S. Attorney’s office, but both declined to provide the name of the case manager or the former prisoner involved in the investigation. PLN later determined the ex-prisoner was Christopher S. Webb. We have not yet determined the identity of the case manager.

The matter came to light after Webb, described as a habitual heroin user in court records, absconded from the half-way house, saying he would fail a drug test administered by another worker at the facility. He then offered to provide evidence against the case manager, whom he claimed had given him money ...

Federal Bureau of Prisons Says DNA Backlog No Longer Exists

In July 2011, the federal Bureau of Prisons (BOP) announced that it had eliminated a backlog of over 90,000 DNA samples from federal prisoners. This milestone occurred more than a decade after Congress passed the DNA Analysis Backlog Elimination Act in 2000.

Florida Congressman Vern Buchanan, who had drawn attention to the backlog, was pleased with the long-delayed results. “DNA is an extremely important and effective tool for law enforcement,” he stated. “I will continue to work with the Bureau of Prisons to ensure that DNA evidence is available in a timely manner to help prevent violent crimes in the future.”

DNA samples are now taken from BOP prisoners when they enter the prison system rather than when they leave, and the samples are processed within 30 days after receipt by the FBI laboratory.

According to a September 2011 report from the Office of the Inspector General (OIG) of the U.S. Department of Justice, “Our review determined that as of September 2010, the FBI Laboratory’s Federal DNA Database Unit had effectively eliminated its backlog of convicted offender, arrestee, and detainee DNA samples. We determined that the FBI reduced this backlog from over 312,000 samples in December ...

UNICOR Fraudsters Plead Guilty, Sentenced

A former federal Bureau of Prisons (BOP) employee and a former contractor were indicted and have pleaded guilty to conspiring to defraud UNICOR, the prison industries arm of the BOP.

The indictment, handed down by a grand jury in the Northern District of Florida, alleged that James Bailey, formerly employed at the UNICOR electronics recycling program at a BOP facility in Marianna, Florida, conspired with Lee Temples, a former UNICOR contractor, to manipulate the sale of electronics from the recycling program for their personal gain.

Bailey was the factory manager at the Marianna UNICOR plant, which recycles computers and other electronics primarily received from local, state and federal agencies. Salvageable electronics are sold by UNICOR for profit, typically by a third party.

As factory manager, Bailey was able to steer the best electronics to Temples for resale through his businesses, Fast-Lane Computers and E-Surplus Solutions, according to the indictment. Bailey failed to disclose, though, that he was a silent partner in those business ventures and that Temples was his cousin.

From 2004 to 2007, Bailey allegedly received $228,252 from Temples – half the profits from the sale of all the electronics Bailey steered to him.

Temples and Bailey were charged ...

New Washington State Law Eliminates Tolling of Community Custody upon Violation

The Washington State Court of Appeals, Division Three, has ruled that a 2011 state law “eliminates tolling of the term of community custody while the offender is serving a sanction for violation of the conditions of that community custody.” The appellate court also held the law applies retroactively.

Christopher Brady Howard petitioned for his immediate release from prison based on Engrossed Substitute Senate Bill (ESSB) 5891, which went into effect on June 15, 2011.
Howard was sentenced to 68 months in prison and 18 months of community custody following his July 22, 2002 guilty plea to domestic violence felonies of second degree kidnapping, second degree assault and harassment.

He was released to community custody on April 17, 2006 and repeatedly violated the conditions of his supervision, which included the commission of new crimes. Under the terms of RCW 9.94A.171 (2008), this served to toll his term of community custody as he served a 240-day sanction imposed by the Washington State Department of Corrections (WDOC).

The WDOC admitted that applying ESSB 5891 § 1(3)(a) to Howard’s case would leave him with “no remaining days of community custody to serve at the time he began to serve his ...

Reports on Privatizing Ohio Prisons Indicate Savings are Illusory

by David M. Reutter

Was Ohio’s attempt to sell off and privatize five of its state prisons in 2011 a race to the bottom? That’s the question raised and analyzed in a report titled Cells for Sale: Understanding Prison Costs & Savings, released by Policy Matters Ohio in April 2011.

Ohio is ten years into its prison privatization experiment, which state officials laud as having saved taxpayers more than $45 million over that time period. However, an in-depth examination of the calculations used for those seemingly robust savings found them “not only riddled with errors, oversights and omissions of significant data, but also potentially tainted by controversial accounting assumptions that many experts consider deeply flawed,” according to Policy Matters Ohio.

The calculations used to determine savings from prison privatization came under scrutiny after Governor John Kasich proposed in March 2011 to sell five of the state’s prisons to private companies for $200 million. The idea gained momentum with the need to close the state’s $8 billion budget gap.

At the time Ohio already had two privately-operated state prisons, the Lake Erie Correctional Institution (LECI) and the North Coast Correctional Treatment Facility, both run by Management and Training Corporation (MTC). State officials have admitted that previous efforts to calculate savings were inconsistent and imprecise, and said they were creating a new model for such calculations. Under state law, private prisons must achieve a minimum five percent cost savings.

The debate over prison privatization is heated and decisive, and opinions on the issue tend to be more emotional than analytical. “A lot of the arguments are very hypothetical and more based on theory than on fact, more on ideology than anything,” said Dr. Gerry Gaes, a former director of research for the Bureau of Prisons and a visiting scientist with the National Institute of Justice from 2002-2007. “Direct comparisons of cost and quality neither favor the public nor the private sector.”

To determine cost savings, Ohio used a hypothetical prison identical to the privately-operated facility, then determined what it would cost the state to operate that imaginary prison. “You fabricate a cost savings that way,” noted Dr. Travis Pratt, an Arizona State University criminologist who studies privatization issues.

Spreadsheets obtained by Policy Matters Ohio through a public records request revealed that the purported cost savings were largely illusory and also created potential security issues. The model for the calculations required an imaginary prison identical to LECI, and estimated what it would cost to staff the prison with state employees; to stock, supply and equip the facility to provide an appropriate array of services; and to provide the prison with heat, electricity, water and sewer services.

Of those three components, utilities are the least costly expense and are consistent whether a prison is privately or publicly operated. Calculating costs for equipment, supplies and contract services is more complex, as it requires comparing costs with a facility that has the same characteristics.

In calculating savings for LECI, state officials used comparable state prisons that are more expensive to operate because they have mental health residential components, prescribe more medication, have higher staffing levels, and house older and less healthy prisoners. Additionally, costs for prisoner pay and hospitalization expenses above $20,000 were not calculated in the expenditures for the hypothetical model. Finally, the model did not take into account state prison “central office” overhead costs.

“The problem of overhead costing is so pervasive and difficult,” wrote Dr. Gaes, “that ...

Failure to Refute Expert Testimony Warrants Summary Judgment Against California Prisoner Suing for Medical Malpractice

In an unpublished opinion, the California Court of Appeal affirmed a trial court’s grant of summary judgment against a prisoner who sued a surgeon for medical malpractice, but then failed (due to limited resources) to refute the expert testimony submitted on behalf of the surgeon, which established that the treatment provided was within the professional standard of care.

In 2001, California state prisoner Lorenzo Cunningham had surgery intended to alleviate the back pain he had suffered for nearly 20 years. The surgery was not successful; Cunningham’s pain increased over time.

In 2007, Cunningham consulted with surgeon Jason Huffman, who performed additional surgery. Although he initially recovered well from the surgery, Cunningham experienced incremental increasing pain. After receiving follow-up care in 2008, Cunningham sued Huffman for medical malpractice.

Huffman moved for summary judgment in 2010, arguing that his treatment complied with the accepted standard of care. In support of his motion he submitted a declaration from a board-certified orthopedic surgeon, who concluded that Huffman’s treatment decisions were competent.

In response, Cunningham moved for appointment of counsel and an expert to assist him, arguing that the issues were too complex for him to litigate alone. The trial court denied ...

The Criminalization of Mental Illness in Missouri

In response to the 1999 U.S. Supreme Court ruling that prohibits states from forcing people with mental health disabilities to live in state mental institutions when they are capable of living in community settings, state governments turned to using jails and prisons instead. Although this trend continues today, there is very little evidence that prisoners with mental disabilities receive necessary treatment and services while incarcerated.

Sol Wachtler, former chief judge of the New York Court of Appeals, once wrote that “Few judges can fully sense or relate to determinations concerning sentencing, or the inhumanity or cruelty of punishment.” Wachtler was arrested in November 1992 on extortion, racketeering and blackmail charges; he resigned and served time in prison, which is when he discovered he had mental health problems. [See: PLN, Nov. 1995, p.6].

Judges do not fully consider the long-term ramifications for both society and defendants with mental disabilities who are sentenced to serve time in jails and prisons, particularly given the lack of necessary mental health programs and services provided to prisoners. It is naïve to believe that people are not sentenced to jail or prison because they have mental disabilities, which is a reality that has perpetuated ...

Alabama Uses Federal Stimulus Money to Prop up Prison System

Alabama allocated 11% of its federal education stimulus funds to its prison system. Of the $1.1 billion the state received from the U.S. Department of Education from 2009 to 2010, the state gave more than $118 million to the Alabama Department of Corrections (ADOC).

Not a penny of that money went to educational or rehabilitative programs for prisoners, however; instead, it partly funded the salaries and benefits of about 4,200 guards and other prison employees for three-and-a-half months. The rest was spent on costs related to health care for the state’s 26,000 prisoners.

The stimulus money allocated to the ADOC amounts to around $4,500 per prisoner – about four times what is spent on each student in kindergarten through the 12th grade in Alabama. Some critics said the money would have been better spent on education for children.

“If we had that $118 million,” stated Alan Lee, superintendent of the Baldwin County school system, “we could have given the prisons less business.” Studies have repeatedly indicated that students who fail or drop out of school are more likely to end up in prison.

With 62,000 students, Mobile County’s school system is the state ...

Class Certified in Lawsuit Challenging Conditions at CCA-operated Indiana Jail, but Case Dismissed on Summary Judgment

by David M. Reutter

An Indiana federal district court certified a class and allowed claims to proceed that challenged unsafe conditions, lack of medical privacy and an alleged incentive scheme that rewarded staff for providing less medical care to prisoners at the Marion County Jail #2 (MCJ) in Indianapolis. Four months later, however, the court granted summary judgment to the defendants, dismissing the class-action suit.

Corrections Corporation of America (CCA) operates MCJ under a contract with the Marion County Sheriff’s Office. A lawsuit, filed in 2008, alleged violations of state and federal law in areas such as conditions of confinement, mail policies, availability and handling of grievances, medical care, and privacy of medical information at the jail. The district court dismissed the claims related to grievances for lack of subject matter jurisdiction.

In a July 2, 2010 ruling, the court entered an order on the defendants’ affirmative defense that the plaintiffs had failed to exhaust their administrative remedies before filing suit. At a hearing on that matter it became evident there was no reliable system in place for recording the details associated with the filing and resolution of prisoner complaints at MCJ.

As to some of the individual plaintiffs ...

Civil Commitment Must be Challenged through Commitment Proceedings Instead of Habeas Corpus

A federal prisoner challenging his or her civil commitment detention under the Adam Walsh Act (Act) as a “sexually dangerous person” may not resort to habeas corpus for such challenges, the U.S. Court of Appeals for the Fourth Circuit held on December 6, 2010. Following remand and another appeal, all challenges raised by a federal prisoner to his civil commitment proceedings were rejected.

Gerald Wayne Timms filed a 28 U.S.C. § 2241 petition challenging his continued detention three days after the U.S. government initiated civil commitment proceedings against him. Timms was finishing a 100-month federal prison sentence for receipt of child pornography when his release was stayed by the government’s civil commitment petition.

Counsel was appointed for Timms in the commitment action and his habeas case. The judge in the commitment action stayed all proceedings pending the Fourth Circuit’s decision in United States v. Comstock, which, at the time, was reviewing whether the federal civil commitment scheme was a proper exercise of Congress’ authority.

After the Fourth Circuit held in Comstock that Congress had exceeded its authority in enacting the statute (which was subsequently reversed by the U.S. Supreme Court) [See: PLN, July 2011 ...

Third Circuit: § 2241 is Proper Vehicle for BOP IFRP Challenges

Third Circuit: § 2241 is Proper Vehicle for BOP IFRP Challenges

by Mark Wilson

The Third Circuit Court of Appeals held on December 2, 2010 that a federal habeas corpus petition under 28 U.S.C. § 2241 is the proper vehicle to challenge the Bureau of Prison’s (BOP) Inmate Financial Responsibility Plan (IFRP). Following remand, a Pennsylvania U.S. District Court granted partial habeas relief in November 2011.

Steven A. McGee was convicted of federal drug charges and sentenced to 120 months in prison and a $10,000 fine. Due to his indigence, the court ordered that McGee pay the fine from his prison earnings at a rate of $20 per month.

In 2004 or 2005, McGee was placed in the IFRP. “He agreed to pay a minimum of $25 per quarter toward his fine in exchange for not (1) being limited to spending $25 per month in the commissary, (2) being ineligible for placement in a halfway house prior to his release, (3) receiving an increased security designation, and (4) receiving an undesirable housing designation.” Other consequences for refusing the IFRP were possible under 28 CFR § 545.11(d)(1)-(11).

The BOP later requested that McGee “increase the ...

New Mexico Judge Arrested for Raping Prostitute

New Mexico State District Judge Albert S. “Pat” Murdoch – the chief criminal court judge in Albuquerque – was arrested on July 19, 2011 and charged with criminal sexual penetration and intimidation of a witness. According to the criminal complaint, a detective was told by an informant that Murdoch had raped a prostitute and the incident had been videotaped. The informant helped the detective locate and purchase a DVD of the sexual assault for $400.

When interviewed by police, the alleged victim said Murdoch had solicited her on a prostitution website. She said she met with the judge about eight times and charged him $200 per visit. During one encounter, she claimed he used force to perform oral sex on her against her will. She then began secretly recording their liaisons and caught a second forcible oral sex rape on video.

The victim asked Murdoch what he would do if someone made allegations against him, and he reportedly said he would “use the police and his connections to take care of the situation,” according to a police affidavit.

Murdoch posted $50,000 bond after his arrest and police said he was cooperating in the investigation. His attorneys filed a motion to dismiss ...

Seven Argentine Military Officials Sentenced for Crimes against Prisoners

During the time of Argentina’s American-backed dirty war against political dissidents, from 1976 to 1983, the military junta that was running the country ran a network of prisons and concentration camps, including a prison in a working class suburb of Buenos Aires. About 2,500 prisoners passed through the army’s “El Vesubio” prison during that time. Few survived.

“The detainees were hooded and chained together, and the guards gave them almost nothing to eat,” said Rodrigo Borda, an attorney for the Center for Social and Legal Studies, which has charted Argentina’s progress in prosecuting the people responsible for an estimated 13,000 deaths during the dirty war. Human rights groups contend the actual number is around 30,000.

Eight prison officials from “El Vesubio” were charged with a total of 156 crimes against humanity – including the rape, kidnapping and torture of political prisoners, plus 19 executions. Their trial began in February 2011.

Witnesses testified that Col. Pedro Duran Saenz, who was in charge of the facility, frequently raped female prisoners and forced them to live with him in rooms inside the prison compound. He died in June 2011 while his trial was pending.

On July 14, 2011 ...

News in Brief

Arizona: Former state prison guard Anthony Rinaldi, 26, allegedly shot and killed his wife on December 13, 2011, telling a 911 operator, “She is definitely dead – I put two to the chest and one to the head.” He then left his house, drove up behind a police officer and turned himself in. Rinaldi had a history of domestic violence and threatening to commit suicide. He was immediately fired by the Department of Corrections.

Arkansas: On January 20, 2012, Sgt. Barbara Easter, 47, a guard at the East Arkansas Regional Unit, was killed by a prisoner serving a life sentence. Easter worked as a property officer; she was reportedly stabbed in the side, chest and abdomen when she went to the cell of La Tavius Johnson to check whether he had an unauthorized pair of shoes. Johnson has since been transferred to the supermax Varner facility and is expected to face murder charges.

California: Calipatria State Prison guard David Santos Zamudio was indicted by a federal grand jury on December 15, 2011 on multiple counts of taking bribes from prisoners to smuggle cigarettes and cell phones into the facility. He reportedly received over $33,000 in bribes to deliver the contraband ...

 

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