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Prisoner Education Guide

Prison Legal News: June, 2012

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Volume 23, Number 6

In this issue:

  1. God’s Own Warden: If you ever find yourself inside Louisiana’s Angola prison, Burl Cain will make sure you find Jesus – or regret ever crossing his path (p 1)
  2. Angola: A Prison Passion Play (p 10)
  3. From the Editor (p 12)
  4. No Budget Cuts for Federal Prisons (p 14)
  5. Death Sentences, Executions Remain at Low Levels (p 16)
  6. Dallas County Passes Jail Inspections ... Finally (p 17)
  7. Michigan Sex Offender’s Suicide Results in Changes to Sex Offender Registry Law (p 18)
  8. California Lifers: Deaths Exceed Parole Releases (p 18)
  9. Background Checks that Bar Employment of Ex-offenders May Violate Civil Rights (p 20)
  10. Class-Action Settlement Cures Constitutional Violations at Pennsylvania Prison (p 22)
  11. Hawaii ACLU Files Suit on Behalf of Women Who Want to Marry Prisoners (p 22)
  12. Wrongful Convictions Prove Costly, Especially for the Wrongly Convicted (p 24)
  13. Guard Who Identified Over 100 Prison Rioters Pleads Guilty to Contraband Charge (p 24)
  14. Oregon Increases Sex Offender Registration Requirements (p 26)
  15. Washington Prison Video Surveillance Recordings Exempt from Disclosure Under Public Records Act (p 26)
  16. Florida Closes Oldest Boy’s School, Best Known for Abusive Past (p 28)
  17. Federal Investigation, Prosecution Targets Indiana Sheriff’s Officers (p 30)
  18. Failure to Advise Defendant of Ineligibility for Early Release Credits Renders Guilty Plea Invalid (p 30)
  19. CCA Anti-Prison Rape Shareholder Resolution Fails to Pass (p 32)
  20. Ninth Circuit Rules that Washington DOC Religious Contractor Not a “State Actor” (p 33)
  21. Ohio Wrongful Conviction Results in $2.59 Million Settlement (p 34)
  22. Ninth Circuit Holds No Due Process Right Created by California’s Parole Scheme (p 34)
  23. Arizona Jails Refuse to Incarcerate Some Offenders (p 35)
  24. The Last Gasp: The Rise and Fall of the American Gas Chamber, by Scott Christianson (University of California Press, 2011). (p 36)
  25. California Study Finds State Prison Overcrowding Driven by County Policy Decisions, Not Violent Crime Rates (p 36)
  26. Pennsylvania County Prisons Not Reporting Critical Incidents (p 38)
  27. Former BOP Guard Convicted, Sentenced in Murder-for-Hire Case (p 38)
  28. Iowa Supreme Court Holds Billing for Fraudulent Prisoner Phone Calls Not a State Law Violation (p 40)
  29. No “Strike” Under PLRA When Some Claims are Heard on the Merits (p 40)
  30. Tenth Circuit Voids Albuquerque’s Attempt to Ban Sex Offenders from Libraries (p 42)
  31. $47,500 Awarded to Massachusetts Prisoner Held in Segregation Without Hearing (p 42)
  32. Second BOP Guard Convicted in Connection with Prisoner’s Murder (p 44)
  33. Seven Florida Prison Guards Arrested (p 44)
  34. Washington Prisoners Have No Right to Inspect Records Under Public Records Act (p 45)
  35. Pennsylvania Prison Guard Convicted in Drug Probe, Testifies Against Coworkers (p 46)
  36. Judge, Not Jury, Must Resolve Questions about Administrative Exhaustion (p 46)
  37. $500,000 Settlement in Pennsylvania Jail Prisoner’s Medical-Related Death (p 47)
  38. ACLU Report Proves Smart Criminal Justice Policy Reform is Possible (p 48)
  39. News in Brief (p 50)

God’s Own Warden: If you ever find yourself inside Louisiana’s Angola prison, Burl Cain will make sure you find Jesus – or regret ever crossing his path

God’s Own Warden: If you ever find yourself inside Louisiana’s Angola prison,
Burl Cain will make sure you find Jesus – or regret ever crossing his path

by James Ridgeway

It was a chilly December morning when I got to the gates of Angola prison,1 and I was nervous as I waited to be admitted. To begin with, nothing looked the way it ought to have looked. The entrance, with its little yellow gatehouse and red brick sign, could have marked the gates of one of the smaller national parks. There was a museum with a gift shop2 where I perused miniature handcuffs, jars of prisoner-made jelly and mugs that read “Angola: A Gated Community” before moving on to the exhibits, which include Gruesome Gertie, the only electric chair in which a prisoner was executed twice. (It didn’t take the first time,3 possibly because the executioners were visibly drunk).

Besides being cold and disoriented, I had the well-founded sense of being someplace where I wasn’t wanted. Angola welcomes a thousand or more visitors a month, including religious groups, schoolchildren and tourists taking a side trip from their vacations in plantation country. Under ordinary circumstances, it ...

Angola: A Prison Passion Play

by John E. Dannenberg

The New Testament recounts Jesus’ plight as a prisoner: “Naked, and ye clothed me: I was sick, and ye visited me: I was in prison, and ye came unto me.” (Matthew 25:36).
Spurred on by Bible-banging Warden Burl Cain of the Louisiana State Penitentiary at Angola, a cast of 70 male and female prisoners from both Angola and the Louisiana Correctional Institute for Women – accompanied by a bevy of animals that included two horses, a lamb and a camel – put on a 3½-hour passion play, The Life of Jesus Christ, at Angola’s rodeo grounds. With an attentive audience of prisoners, relatives, church groups and ticket holders, the fully-costumed theatrical production ran for three days in May 2012.

In this unusual alliance of male and female prisoners, who were allowed to touch one another during the course of the performance, Jesus was played by Bobby Wallace, a lifer who committed a string of armed robberies, while the young Virgin Mary was portrayed by a woman who robbed a Mexican restaurant. A teenager who had killed his girlfriend and infant daughter played Joseph.

Gary Tyler, the prisoner who directed the play, has served 38 years for ...

From the Editor

For the past 22 years, PLN has been at the forefront of reporting on the gouging of prisoners’ families by prisons, jails and the telecommunications industry as prisoncrats and corporations profit by charging families exorbitant phone rates for the ability to communicate with their incarcerated loved ones. PLN’s groundbreaking report on the prison phone industry last year – see our April 2011 cover story – has led to a growing movement that seeks real change regarding this issue. To date, we are the only news media organization to tackle this topic on a national level.

To end the injustice of unfair prison phone rates, the Human Rights Defense Center, the Center for Media Justice and Working Narratives have launched a national campaign to end the kickback “commissions” routinely provided to prisons and jails by prison phone companies. We have launched two websites, and, where we have massive amounts of information on prison phone rates, contracts and corruption; these sites also include resources for people affected by prison phone rate gouging to tell their story and take action.

In March 2012 I was among a number of advocates on the topic of prison phone ...

No Budget Cuts for Federal Prisons

by James Ridgeway and Jean Casella

In the midst of an epic budget battle that could transform the American landscape for decades to come, the White House and Republicans in Congress appear to agree on one point: Federal prisons need more money.

With more people and a higher percentage of the population locked up than any other country, the United States would seem more than ripe for cuts in both its incarceration rate and its prison spending. A number of states have initiated such measures, and a growing chorus of critics on the right and left are decrying the devastating fiscal costs of mass incarceration. Yet the Obama administration’s combined budget requests for FY 2011 and FY 2012 call for a full 10 percent increase over 2010 levels in funding for the federal Bureau of Prisons (BOP), to more than $6.8 billion, which includes funding for a new federal supermax. The increase, says the BOP, is necessary to accommodate a still-growing federal prison population. And the latest budget deal reached with the Republican leadership indicates that this particular category of discretionary spending will emerge from the budget battles comparably unscathed.

There is ample precedent for an expansion of ...

Death Sentences, Executions Remain at Low Levels

According to a report released by the Death Penalty Information Center last December, there were 78 new death sentences imposed in 2011, down significantly from 104 in 2010 and the fewest new death sentences since capital punishment was reinstated in 1976.

The number of new death sentences reached its peak in 1996 when 315 prisoners were sentenced to death, and averaged 295 annually in the 1990s. Since 1996 the average number of death sentences imposed each year has decreased by about 75 percent.

Leading the way in the decline in 2011 was the state that carries out the most executions. Texas, which has averaged 34 new death sentences per year, had only 8 in 2011. Other death penalty states, including Maryland, Missouri and Indiana, had no new death sentences imposed in 2011.

The number of people sitting on death rows across the nation has also reached a new low. As of the end of 2011, the death row population nationwide was 3,251, down from 3,625 in 1999. In the years preceding 1999, the size of the death row population nationally had increased every year. But while the number of people sentenced to death on the state level has ...

Dallas County Passes Jail Inspections ... Finally

It took eight tries over seven years, but the nation’s seventh-largest jail system, located in Dallas County, Texas, has finally started passing inspections by the Texas Commission on Jail Standards (TCJS), most recently in March 2012.

Adam Munoz, executive director of the TCJS, announced the first successful inspection of the Dallas County Jail on August 11, 2010. The jail system had last passed a TCJS inspection in 2003 – one year before current Dallas County Sheriff Lupe Valdez was elected.

Despite having spent over $100 million on improving fire safety systems, maintenance and staffing ratios in recent years, the jail remained under a federal court order to improve medical and mental health services. The court order was issued after a 2006 investigation by the U.S. Department of Justice revealed that serious health care issues had contributed to the deaths or serious injuries of several prisoners. [See: PLN, May 2011, p.16; Nov. 2007, p.14].

Dallas County’s jail system had failed a surprise TCJS inspection as recently as March 2010, largely due to inadequate smoke detection and removal equipment in the north tower jail, the county’s largest and most populous facility. Also, three high-ranking sheriff’s officials ...

Michigan Sex Offender’s Suicide Results in Changes to Sex Offender Registry Law

by Matt Clarke

When 17-year-old Justin Fawcett admitted to having consensual sex with a 14-year-old student at the same high school he attended in West Bloomfield, Michigan, he probably never thought that that youthful dalliance would lead to his death, but it did.

Justin and three other teens who separately had sex with the girl were prosecuted for felony criminal sexual conduct. They were allowed to plead guilty to a lesser charge of seduction, and told they would not be listed on the state’s sex offender registry. However, a year after the plea deal, Justin was informed by his probation officer that he was going to be included on the registry after all.

Hounded by the public shame that he would be listed on the state’s sex offender registry website for more than two decades, Justin despaired of ever having a normal life. Who would hire, or date, a registered sex offender? Despite his father’s assurances that the registration law would eventually be changed, Justin saw no future ... no life for himself. Which led him to commit suicide when he was 20.

Seven years after Justin’s parents found his body in his bedroom, dead from an ...

California Lifers: Deaths Exceed Parole Releases

by John E. Dannenberg

Between 2000 and 2010, 775 California lifers died in prison while 674 were granted parole. Those statistics, released by the California Department of Corrections and Rehabilitation (CDCR) pursuant to a public records request, reflect the grim reality that parole-eligible lifers are more likely to die in prison than to be granted release.

A good deal of the downward pressure on the number of lifer paroles, and the concomitant upward pressure on the number of deaths, can be attributed to two initiatives enacted by California voters. The first, in 1988, politicized the parole process by giving the governor unprecedented unilateral power to reverse grants of parole to life-sentenced prisoners. Between 1988 and 2010, all California governors have abused this power to reverse 75 to 99 percent of the few such grants of parole.

The second initiative, effective in 2009, tripled the intervals between parole hearings from a range of 1-5 years to a range of 3-15 years following an unfavorable parole decision, with a presumption of a 15-year delay until the next parole hearing unless a prisoner shows by “clear and convincing evidence” that he or she is deserving of a shorter interval. [See: PLN, May 2009 ...

Background Checks that Bar Employment of Ex-offenders May Violate Civil Rights

A report by the National Employment Law Project (NELP) released in March 2011 concluded that the growth in background checks by employers, combined with a lack of enforcement of civil rights and consumer protections for an estimated 65 million people with criminal records, subjects ex-offenders to a lifetime of social and economic disadvantage. In response to such concerns, the U.S. Equal Employment Opportunity Commission (EEOC) issued new background check guidelines in April 2012.

The NELP report begins by pointing out that as background checks have become more popular and inexpensive, “the share of the U.S. population with criminal records has soared to over one in four adults.” A 2010 survey by the Society of Human Resources Management, the largest association of human resources personnel in the nation, found that 92 percent of their members – mostly large employers – perform background checks on some or all job candidates.

“Across the nation there is a consistent theme: people with criminal records ‘need not apply’ for available jobs,” the NELP report states. The report lists companies that impose overbroad background checks, including Bank of America, Aramark, Lowes, Accenture, Domino’s Pizza, Adecco USA, Burlington Northern Santa Fe Railroad Co., RadioShack and Omni ...

Class-Action Settlement Cures Constitutional Violations at Pennsylvania Prison

A settlement has been reached in a class-action lawsuit challenging conditions at Pennsylvania’s Northumberland County Prison (NCP). Since the suit was filed in February 2008 on behalf of 12 prisoners by the Lewisburg Prison Project, NCP officials had disputed claims that the 134-year-old facility was unsafe and failed to provide adequate medical care.

The parties concluded that a settlement would be the best result and the County Commissioners approved a settlement agreement, arrived at following adversarial negotiations, in October 2010. The class received notice of the proposed settlement in February 2011, which was approved by the district court on April 29, 2011.

The first issue addressed in the 37-page settlement is the provision of medical and dental care. Under the agreement, a physician, physician assistant or certified nurse practitioner must be on site at NCP at least six hours per week when the average daily population is below 200 prisoners, and seven hours a week when the population exceeds 201 prisoners for six consecutive months. Medical personnel must also be on call seven days a week, 24 hours a day for emergencies.

A full-time registered nurse is to be on duty 40 hours per week, as well as a ...

Hawaii ACLU Files Suit on Behalf of Women Who Want to Marry Prisoners

On May 15, 2012, the ACLU of Hawaii filed a lawsuit in federal court accusing the state Department of Public Safety (DPS) of unlawful discrimination by prohibiting four women from marrying Hawaii prisoners housed at a mainland facility.

According to the complaint, the women submitted multiple applications to wed their fiancés, who were incarcerated at the CCA-operated Saguaro Correctional Facility in Eloy, Arizona. Their applications were denied. State officials sent form letters to the prisoners, informing them that “[a]s a Ward of the State incarcerated in a correctional facility, you are incapable of providing the necessary emotional, financial and physical support that every marriage needs in order to succeed.”

The letters also stated, “We believe that a healthy relationship effort (marriage) established at this time while you are in prison and unable to work and communicate effectively face-to-face with your fiancée will be detrimental to any future re-integrative efforts.” Which is fairly ironic: First the DPS ships Hawaii prisoners to a distant mainland prison, then denies them the right to marry because they cannot “communicate effectively face-to-face” with their would-be spouse who remains in Hawaii.

The U.S. Supreme Court held 25 years ago that prison officials may not ...

Wrongful Convictions Prove Costly, Especially for the Wrongly Convicted

by Matt Clarke

On June 6, 2011, the Better Government Association (BGA) and the Center on Wrongful Convictions (CWC) at Northwestern University School of Law released a joint report on the cost of wrongful convictions. The report, which examined 85 wrongful convictions in Illinois since the advent of modern DNA ...

Guard Who Identified Over 100 Prison Rioters Pleads Guilty to Contraband Charge

A Kentucky prison guard who identified more than 100 prisoners who allegedly participated in a 2009 riot was later arrested for bringing contraband into the same facility where the riot occurred. PLN previously reported on the riot at the Northpoint Training Center, which resulted in the destruction of numerous buildings and injuries to eight prisoners and eight guards. [See: PLN, April 2010, p.10; Oct. 2009, p.40].

Following the August 21, 2009 riot at Northpoint, guards identified over 170 prisoners who took part in the disturbance. Prison guard Jesus Cabrera, 38, identified 124 of those prisoners, including six of ten who were criminally charged.

However, Cabrera’s own July 28, 2010 arrest for introducing 12 Diazepam (AKA Valium) pills – used for anxiety relief and as a muscle relaxer – into the facility put his credibility into question. “I’m very concerned that an officer who claims to have identified over 100 inmates in this event has, within a matter of months, himself been charged,” said attorney Theodore Shouse, who represents prisoner Aaron Fisk. “It clearly causes anyone to doubt his credibility.”

Fisk contends he did not participate in the riot, but faces charges of first-degree arson, first-degree riot and being ...

Oregon Increases Sex Offender Registration Requirements

The State of Oregon posts online, in a publicly-accessible registry, information related to around 700 “predatory” or sexually violent sex offenders. A bill introduced in the state legislature in 2011 would have increased the number of sex offenders listed online to more than 14,000. That legislation failed to pass, but another bill, which expanded certain sex offender registration requirements, did.

There are nearly 18,000 convicted sex offenders living in Oregon at any given time. About 3,100 are juvenile offenders. All must register with the state, but less than four percent currently have their information posted on the website of the Oregon State Police (OSP).

That would have changed under Senate Bill 67 (2011 session). According to SB 67, the OSP could post information on the Internet about all of the state’s registered sex offenders, whether they are on active supervision or not and whether or not they are classified as predatory or violent.

For adult offenders who are not designated predatory, SB 67 would have allowed the OSP to post their name, date of birth, city of residence, zip code, physical description, a contact name and telephone number at the supervising agency, and the name of ...

Washington Prison Video Surveillance Recordings Exempt from Disclosure Under Public Records Act

by Mike Brodheim

In an unpublished opinion, the Court of Appeals of the State of Washington affirmed a trial court’s order dismissing an action filed by a state prisoner who alleged that the Department of Corrections (DOC) had violated the Public Records Act (PRA) when it refused to release prison surveillance video recordings. In so doing, the appellate court held the DOC had established that the recordings included intelligence information that was essential to effective law enforcement, and therefore were statutorily exempt from disclosure.

Through counsel, Frederick Fischer, a state prisoner confined at the Monroe Correctional Complex, submitted a request under the PRA for copies of surveillance video recordings which purportedly showed that he had been assaulted in the prison law library on November 20, 2007. Why Fischer needed the video footage was not reported. After the DOC denied his PRA request, Fischer filed for relief in state court, which took evidence at a show cause hearing in October 2009 and then dismissed the action.

On appeal, the appellate court noted that, upon request, public records must be disclosed unless specifically exempted by statute. It further noted that RCW 42.56.240(1) exempted from disclosure intelligence information gathered ...

Florida Closes Oldest Boy’s School, Best Known for Abusive Past

Despite a reputation for brutality, the Arthur G. Dozier School for Boys in Marianna, Florida remained in operation until budget cuts forced its closure in June 2011. The facility, which opened in 1900 as the Florida State Reform School, housed youthful offenders ages 13 to 21. While the public came to know the school for abuses inflicted on young prisoners at the facility, the 50,000 residents of Jackson County, located in a rural area of the panhandle, viewed it as an economic engine that drove their community.

Four years ago the state placed a plaque in front of the Dozier School that acknowledged its dark history. During the 1950s and early 1960s, staff members would beat boys in a small building known as the White House. Offenses as minor as having a “bad attitude” or talking to black prisoners at the segregated facility would result in employees hitting youths up to dozens of times with a three-foot leather strap, often leaving them bloodied and bruised. Boys were forced to lie on a blood- and urine-stained cot while they were beaten, and an industrial fan was turned on to drown out their screams. There were also accusations of rape and ...

Federal Investigation, Prosecution Targets Indiana Sheriff’s Officers

Several Lake County, Indiana Sheriff’s Department employees were the subject of a federal investigation into a gun-running scheme that resulted in criminal charges.

Lake County Sheriff John Buncich placed six staff members on administrative leave and stripped them of their law enforcement powers in May 2011 after they were served with subpoenas in the investigation. Those employees were Lt. Michael Reilly, Sgt. Joseph R. Kumstar, Capt. Marco Kuyachich and officers Ronald D. Slusser, Edward O. Kabella and Scott Shelhart.

The federal investigation culminated in the September 23, 2011 indictments of Kumstar, Kabella and Slusser on charges that they used their positions with the Sheriff’s Department to buy and sell fully automatic machine guns for personal profit. Kumstar was a former deputy chief, while Slusser was a SWAT officer; both Slusser and Kabella had federal firearms licenses. All three were charged with conspiring to provide false information to a federal firearms licensee, conspiring to defraud an agency of the United States and making false statements under oath on a tax return.

Kumstar, Kabella and Slusser were accused of ordering dozens of machine guns and laser sights from firearms manufacturers, such as H&K, by claiming they were for law ...

Failure to Advise Defendant of Ineligibility for Early Release Credits Renders Guilty Plea Invalid

A trial court’s failure to advise a defendant of his or her ineligibility for early release credits renders a guilty plea unknowing and involuntary, the Division Three Court of Appeals for the State of Washington held in an unpublished ruling.

Michael Duke Coombes pleaded guilty to first-degree murder. Under Washington law, defendants convicted of first-degree murder must serve a mandatory minimum of 20 years before becoming eligible for earned release credits. RCW 9.94A.540(1)(a).

Coombes was not advised of this restriction prior to entering his guilty plea, and did not realize that he was ineligible for early release credits until he began serving his 300-month sentence. In fact, his judgment and sentencing orders left blank a section regarding the mandatory minimum, and a similar provision was struck from the plea agreement. Coombes subsequently filed a personal restraint petition seeking to withdraw the guilty plea.

Recognizing that “a defendant must be informed of all direct consequences of a guilty plea,” the Court of Appeals granted Coombes’ personal restraint petition and remanded the case to allow him to withdraw the plea.

“A recognized direct consequence of a guilty plea is the statutory prohibition against earned release credit during ...

CCA Anti-Prison Rape Shareholder Resolution Fails to Pass

As previously reported in Prison Legal News, PLN associate editor Alex Friedmann, who owns a small amount of stock in Corrections Corporation of America (CCA), filed a shareholder resolution with the company in November 2011. The resolution requested that CCA issue reports every six months on its efforts to reduce incidents of prisoner rape and sexual abuse at its for-profit facilities, including statistical data related to all such incidents during each reporting period. [See: PLN, April 2012, p.14; March 2012, p.18].

According to Friedmann, who served six of his ten years in prison at a CCA-operated facility in Tennessee in the 1990s, the resolution was intended to prompt the company to focus on the issue of sexual assaults, particularly by CCA employees.

“If CCA has to report this information they will have a greater incentive to reduce rape and sexual abuse because it will make the company look bad if they have very high numbers,” he said. “And if they have to report this, the public, i.e., CCA shareholders, will be able to judge the effectiveness” of the company’s efforts.

In a letter to CCA’s board of directors, Friedmann wrote, “My resolution could not be ...

Ninth Circuit Rules that Washington DOC Religious Contractor Not a “State Actor”

Congregation Pidyon Shevuyim, N.A., a private Jewish organization that contracted with the Washington Department of Corrections (DOC), may not be sued under 42 U.S.C. § 1983 or the Religious Land Use and Institutionalized Persons Act (RLUIPA), the U.S. Court of Appeals for the Ninth Circuit held, as the organization is not a “state actor.”

Dennis Florer, a Washington state prisoner, sued the Congregation after his requests for a Torah, Jewish calendar and consultation with a rabbi were denied. Florer had contacted the Congregation for assistance with his requests for religious materials and services. The Congregation, however, refused to help him until he proved he was Jewish.

For example, Florer was asked to fill out a form so the Congregation could determine whether he was born to a Jewish mother or had undergone a proper conversion to Judaism. The Congregation’s decision to send Florer the form was the result of extensive talks between the Congregation and the DOC about limiting access to Jewish services to only those prisoners who were considered “really” Jewish. Florer, however, refused to complete the form.

In his subsequent lawsuit, he alleged that the Congregation’s refusal to provide him with access to ...

Ohio Wrongful Conviction Results in $2.59 Million Settlement

On April 25, 2011, Raymond D. Towler, 53, received a settlement of $2,592,571 after serving almost 29 years for a rape he didn’t commit. The award included a $600,000 annuity to provide ongoing monthly payments plus a $1.91 million lump sum payment; $78,800 of ...

Ninth Circuit Holds No Due Process Right Created by California’s Parole Scheme

The Ninth Circuit Court of Appeals has decisively dismissed any lingering hopes that the federal courts might continue to review denials of parole to California prisoners, in order to determine whether such denials were supported by “some evidence” of the prisoner’s current dangerousness as required by state law.

Echoing the words of an appellate panel that had ruled similarly a week earlier, the Ninth Circuit stated that, in the recent decision of Swarthout v. Cooke, 131 S.Ct. 859 (2011) [PLN, March 2011, p.40], the U.S. Supreme Court “was unequivocal in holding that if an inmate seeking parole receives an opportunity to be heard, a notification of the reasons as to denial of parole, and access to their records in advance, that should be the beginning and the end of the inquiry into whether the inmate received [federal] due process.”

California prisoner Kenneth Roberts was convicted in 1986 of second-degree murder. He was denied parole at a 2006 hearing, due to the parole board’s professed concerns about the nature of his offense – at the time, the judicially-approved standard for such denials.

Roberts unsuccessfully sought relief in state courts, claiming that the parole board’s decision was ...

Arizona Jails Refuse to Incarcerate Some Offenders

In 2007, Glendale, Arizona resident Robert Ortis, 41, had an appetizer and a few drinks at a business lunch. Driving from the lunch to his nephew’s house, he began to feel weak and turned red. He recognized a high blood pressure event and was able to get off the highway but collapsed in the front seat before he could get out of his car.

Paramedics were called; they told Peoria police that Ortis smelled of alcohol. That led to a DUI conviction with a mandatory jail sentence in 2008. Ever since then, Ortis has been trying to serve his sentence. The only problem is that the jail refuses to accept him as a prisoner.

Peoria is in Maricopa County; thus, as instructed by his trial judge, Ortis reported to the Lower Buckeye Jail for booking into the Maricopa County Jail (MCJ) system. That’s when the problems began.

Medical screening revealed that Ortis’ blackout had been caused by runaway high blood pressure. He still suffers from uncontrollable high blood pressure and a rare ear disease that rendered him nearly deaf. That left county authorities unwilling to book him into the jail system despite multiple attempts by Ortis to serve ...

The Last Gasp: The Rise and Fall of the American Gas Chamber, by Scott Christianson (University of California Press, 2011).

The Last Gasp: The Rise and Fall of the American Gas Chamber, by Scott Christianson
(University of California Press, 2011).

344 pages, $18.95 paperback

Book review by Julie Etter

Scott Christianson’s new book, released in paperback in July 2011, continues the author’s prolific examination of the history of the U.S. criminal injustice system. The Last Gasp looks at the American gas chamber by juxtaposing the gruesome specifics of this form of capital punishment against the social and political influences surrounding the chamber’s popularity and eventual decline as a means of execution.

Christianson’s research illustrates how the development of chemical warfare in World War I encouraged the “chemical-wartime-industrial-education complex” to lobby for the creation of peacetime uses for lethal gas after the war. Commercial uses included fumigation of immigrants at Ellis Island, and pesticides for agriculture as an efficient way to kill off pests and reduce threats of disease. Unfortunately, the concurrent popularity in the belief of eugenics and euthanasia led policy-makers to reason that lethal gas could also be used as a form of capital punishment. Pseudo-scientific support helped influence the public to romanticize the use of hydrogen cyanide as a “painless” way to ...

California Study Finds State Prison Overcrowding Driven by County Policy Decisions, Not Violent Crime Rates

A June 2011 study by Santa Clara University criminal law professor W. David Ball examines the extent to which overcrowding in California’s prisons is a function of decisions made at the county level about how to deal with crime. Ball’s report compiles data from a ten-year period (2000-2009) to show that California’s 58 counties use state prison resources at dramatically different rates, and that 18 counties in particular – dubbed “high use” counties – send many more felons to state prisons than their violent crime rates would seem to justify.

Ball’s report asks whether the citizens of one county should subsidize the decisions made by officials of another county, including district attorneys, judges, police and probation officers (all elected or appointed locally), to address crime with prison (as opposed to jail or probation) more often than their own law enforcement officials may deem appropriate. Given differences in local policy choices – and the fiscal impact of those differences – Ball argues that state officials should “create incentives for counties to behave differently” in terms of their response to crime.

The report proposes the use of a new metric, the “violent crime coverage rate” – the ratio of new felon admissions (NFA ...

Pennsylvania County Prisons Not Reporting Critical Incidents

The Pennsylvania Department of Corrections (PDOC) requires county prisons to submit monthly “extraordinary occurrence” reports as part of the department’s duty to inspect local lock-ups and identify deficiencies. However, the accuracy of the self-reported data has been faulty in some cases and many county prisons fail to file the ...

Former BOP Guard Convicted, Sentenced in Murder-for-Hire Case

Michael Eugene Rudkin, 41, a former BOP guard employed at the Federal Correctional Institution (FCI) in Danbury, Connecticut, apparently did not learn his lesson following his first conviction.

In 2008, Rudkin pleaded guilty to engaging in oral sex with a female prisoner at FCI Danbury in exchange for candy, cigarettes and alcohol. He had also plotted with the prisoner to kill his wife, offering her $5,000 from his wife’s life insurance policy. Rudkin was charged after the prisoner gave investigators a cup that she had been using to save his semen. As a result, he received a 180-month prison sentence. [See: PLN, May 2009, p.1].

While serving his sentence at FCI Coleman in Florida, Rudkin solicited other prisoners to find someone willing to kill his ex-wife, her new boyfriend, the female prisoner he had sex with at FCI Danbury, and a federal investigator.

Rudkin gave one of the prisoners a handwritten note that listed the locations of each of the victims and how he wanted them to suffer. As a down payment, he mailed $500 from his prison account to the “hit man.”

He was subsequently charged with a multitude of offenses, including attempted murder of an ...

Iowa Supreme Court Holds Billing for Fraudulent Prisoner Phone Calls Not a State Law Violation

On October 14, 2011 the Iowa Supreme Court held that a prison telephone company did not commit a “cramming” violation by improperly billing a third party for fraudulent collect calls made by a prisoner.

Evercom Systems, Inc. provides phone services to more than 2,900 detention facilities nationwide, including the Bridewell Detention Center (Bridewell) in Bethany, Missouri.
On January 25, 2006, Evercom informed Iowa resident Ken Silver that on the previous day “over fifty dollars of collect calls had been accepted by his (Des Moines, Iowa) business line and that Evercom was placing a temporary block on his line.”

Silver denied accepting or having any knowledge of the calls. Evercom agreed to investigate and get back with him in 7-10 days. The next day, however, the company sent Silver a letter stating the charges would not be removed because “a thorough investigation” found no system deficiencies. Silver did not receive the letter because Evercom mailed it to an incorrect address; his local telephone company billed him $78.21 for the collect calls.

After several unsuccessful attempts to get Evercom to remove the charges, on February 27, 2006, Silver filed a complaint with the Iowa Attorney General’s office. Evercom quickly ...

No “Strike” Under PLRA When Some Claims are Heard on the Merits

A prisoner does not incur a “strike” under the Prison Litigation Reform Act (PLRA) unless his or her suit is dismissed entirely as frivolous, malicious or for failure to state a claim, the U.S. Court of Appeals for the Seventh Circuit held on November 2, 2010. On remand, the district court denied the defendants’ motion for summary judgment, crediting the plaintiff’s testimony that he had tried to exhaust the prison’s grievance process.

The PLRA prohibits prisoners from proceeding in forma pauperis (IFP) if they have “brought” three or more actions or appeals that were dismissed by a court as frivolous, malicious or for failure to state a claim. 28 U.S.C. § 1915(g). The only exception to this three-strikes denial of IFP status is if the prisoner can show that he or she is in “imminent danger of physical injury.”

Gregory J. Turley, an Illinois state prisoner housed at the Menard Correctional Center, sued various Illinois prison officials alleging retaliation for grievances that he had filed. The district court denied Turley’s request for IFP status on the basis that he had accumulated at least three “strikes” under the PLRA.

The court based this conclusion on ...

Tenth Circuit Voids Albuquerque’s Attempt to Ban Sex Offenders from Libraries

In a case of first impression, on January 20, 2012 the Tenth Circuit Court of Appeals affirmed a district court’s judgment invalidating an ordinance of the City of Albuquerque, New Mexico that prohibited registered sex offenders from entering the City’s public libraries.

The district court had granted summary judgment in favor of a John Doe plaintiff, ruling that the ban “burdened Doe’s fundamental right to receive information under the First Amendment and that the City failed sufficiently to controvert Doe’s contention ... that the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum.”

The Court of Appeals noted that had the City of Albuquerque presented evidence as to the reasons or justifications for the ban, or whether the ban was narrowly tailored to specifically deal with the interest sought to be protected, or whether there was any alternative method for the banned class to obtain information available in libraries, the result might have been different.

Doe filed the lawsuit in response to a March 4, 2008 “Administrative Instruction” that barred all registered sex offenders from using Albuquerque public libraries. The suit, filed in October 2008, alleged violations of ...

$47,500 Awarded to Massachusetts Prisoner Held in Segregation Without Hearing

On January 27, 2012, a Massachusetts U.S. District Court awarded $47,500 to a prisoner for due process violations that resulted in 375 days of solitary confinement.

Massachusetts state prisoner Albert Ford filed a civil rights action alleging that his placement in the Department Disciplinary Unit (DDU) at MCI-Cedar ...

Second BOP Guard Convicted in Connection with Prisoner’s Murder

A second federal Bureau of Prisons (BOP) guard who helped arrange an assault on a prisoner that resulted in the prisoner’s death has been convicted of federal civil rights violations.

On July 8, 2010, Michael Kennedy was found guilty of violating the civil rights of Richard Delano, a former prisoner at the U.S. Penitentiary I in Coleman, Florida. Delano was killed in 2005 after his cellmate, John Javilo “Animal” McCullah, attacked him in exchange for a pack of cigarettes provided by Kennedy.

Kennedy helped arrange the assault after one of his BOP coworkers, Erin Sharma, was injured a month earlier by Delano. Delano had allegedly grabbed Sharma’s arm through the food trap in his cell door, leaving her with bruises.

As payback, Sharma and Kennedy conspired to have Delano assaulted; for example, they lied to the shift lieutenant in order to have him moved into a cell with McCullah.
McCullah, who was serving a life sentence, beat Delano into a coma in exchange for the pack of smokes and because Delano had a reputation as a snitch. Delano died 13 days later and McCullah was transferred to the BOP’s supermax facility in Florence, Colorado.

Sharma was ...

Seven Florida Prison Guards Arrested

Seven Florida state prison guards, employed at two facilities at opposite ends of the state, have been charged with criminal misconduct in unrelated incidents.

The first four arrests occurred on June 10, 2011, when U.S. Marshals arrested South Florida Reception Center (SFRC) guards Alexander McQueen, 30, Guruba Griffin, 31, Scott Butler, 32, and Steven Dawkins, 30. All were indicted on federal charges of conspiring to violate the civil rights of prisoners at SFRC.

The four guards were accused of attacking juvenile prisoners in “Bravo” dorm with a broom and mop in February 2009. They then forced the prisoners to fight each other. When an unidentified guard walked by and saw injuries to one prisoner, the guards who were later indicted told him, “You need to go.”

McQueen was also charged with trying to “corruptly persuade” the guard who had walked by, who became a witness in the case. Additionally, McQueen and Dawkins were charged with obstructing an investigation by filing false reports that claimed one of the prisoner’s injuries resulted from a fall in the shower.

“I have ordered the immediate termination of the officers arrested today at the South Florida Reception Center,” said then-Florida Department of Corrections ...

Washington Prisoners Have No Right to Inspect Records Under Public Records Act

Prisoners who request records from the Washington Department of Corrections (DOC) under the Public Records Act (PRA) do not have a right to inspect records without cost, the Court of Appeals, Division II held in a corrected ruling entered on March 4, 2011. The appellate court’s opinion joins a similar, earlier decision reached by the Court of Appeals, Division III.

DOC prisoners Derek E. Gronquist and Byron A. Mustard requested that they be allowed to inspect various records maintained by the DOC. The PRA allows requesters to ask for inspection instead of copies of records, but the DOC only allows prisoners to inspect their central file and medical file. Gronquist and Mustard wanted to inspect other records.

The DOC offered to provide Gronquist and Mustard with copies of the requested records, but they refused to pay for the copies, insisting that they be allowed to inspect the records instead. The DOC declined to permit inspection.

Gronquist and Mustard then filed suit, arguing that the DOC’s refusal to allow them to inspect the requested records without cost violated the PRA. The trial court entered judgment in favor of the DOC, and Gronquist and Mustard appealed.

Citing the decision of ...

Pennsylvania Prison Guard Convicted in Drug Probe, Testifies Against Coworkers

Former Luzerne County Correctional Facility guard John Gonda, known as “G-Unit,” was the subject of an investigation called Operation Avalanche after authorities received tips he was selling “large quantities [of drugs] in the Wilkes-Barre area.” The probe targeted the Outlaws Motorcycle Club, and Gonda was among 22 people charged in connection with a $3.6 million cocaine distribution ring.

When investigators raided Gonda’s home they found six bags of cocaine, a marijuana pipe, a digital scale and seven firearms. The charging affidavit said he was an “associate” of the Outlaws. He was convicted on charges of participating in a corrupt organization, conspiracy to deliver cocaine and delivery of cocaine.

Sentenced in November 2010 to one-to-two years in prison, Gonda was made immediately eligible for work release by Luzerne County Senior Judge Chester B. Muroski. Gonda obtained a job as a property manager, which permitted him to leave prison during the work week from 8:00 a.m. to 7:00 p.m.

Shortly after Gonda was sentenced, Judge Muroski also granted his request for weekend furloughs, which allowed him to be released from 8:00 a.m. to 4:00 p.m. on weekends for “family care hours.” His ...

Judge, Not Jury, Must Resolve Questions about Administrative Exhaustion

Factual disputes surrounding whether a prisoner properly exhausted administrative remedies under the Prison Litigation Reform Act (PLRA) prior to filing suit must be resolved by the court, not a jury, the U.S. Court of Appeals for the Second Circuit held on July 26, 2011. In so ruling, the Second Circuit aligned itself with similar decisions from the Third, Fifth, Seventh, Ninth and Eleventh Circuits.

Rafael Messa sued numerous New York Department of Correctional Services (NYDOCS) employees after he was injured during an altercation with guards. Messa did not file any grievances about the incident before filing his lawsuit. Instead, he argued that he was not required to exhaust because he had been threatened with further violence by guards if he complained about the incident. Additionally, he alleged that NYDOCS staff refused to assist him in preparing his grievances. Messa contended that he needed help because he spoke only Spanish and was illiterate.

Messa’s case was set for trial after the district court denied summary judgment to the defendants. However, several days prior to trial, the court decided sua sponte to conduct a hearing on the exhaustion issue. After considering testimony from Messa and NYDOCS officials, the district court ...

$500,000 Settlement in Pennsylvania Jail Prisoner’s Medical-Related Death

A $500,000 settlement has been reached in a federal lawsuit involving the death of a prisoner at Pennsylvania’s Fayette County Prison. Terry Johnson, 48, died in his cell in February 2007 after he was denied medical care.

The suit, filed by Johnson’s wife, Lorraine, named several prison ...

ACLU Report Proves Smart Criminal Justice Policy Reform is Possible

by David M. Reutter

The American Civil Liberties Union released a report in August 2011 that calls for reforming the U.S. criminal justice system. The report makes recommendations for systematic reforms, front-end reforms and back-end reforms; it reviews policy changes and their results in six states that have successfully implemented bipartisan criminal justice reforms, and details similar efforts in four other states.

“Since President Richard Nixon first announced ‘the War on Drugs’ forty years ago, the United States has adopted ‘tough on crime’ criminal justice policies that have given it the dubious distinction of having the highest incarceration rate in the world,” states the report’s introduction. “These past forty years of criminal justice policy making have been characterized by over-criminalization, increasingly draconian sentencing and parole regimes, mass incarceration of impoverished communities of color, and rapid prison building.”

However, recent budget deficits of historic proportions have caused some policy makers to look for ways to reduce the enormous expense of the justice system. The ACLU report describes how states with long histories of being “tough on crime” have embraced alternatives to imprisonment with less punitive measures. Such reforms “not only make more fiscal sense, but also better protect our ...

News in Brief

California: Saul “Scrappy” Perez, 23, and William Lloyd Coats, 45, incarcerated at the Glenn County jail, were charged with drug-related offenses after being caught smoking pot in the jail’s exercise yard on January 24, 2012. A guard noticed unusual activity near the toilet area on the yard, and a search uncovered an undisclosed amount of marijuana and a lighter. Both Coats and Perez tested positive for marijuana use.

California: Zachary William Johnson, 32, escaped from the John Latorraca Correctional Facility in El Nido on February 14, 2012 with help from both his wife and girlfriend. After managing to abscond from the jail, Johnson’s girlfriend, Jeanette Segovia, 40, helped him take a taxi to his wife, Dawn Hathaway, 25. When sheriff’s deputies tried to stop the taxi, the driver got out and Johnson drove off, leading the deputies on a high-speed chase that ended when officers used a spike strip. Johnson was booked into the Merced County Jail and his wife and girlfriend were arrested on charges of aiding and abetting. Sheriff Mark Pazin opined that Johnson had escaped because he “wanted to spend some time with his lady friends on Valentine’s Day.”

Florida: On December 28 ...


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