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Prisoner Education Guide

Prison Legal News: August, 2012

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Volume 23, Number 8

In this issue:

  1. Federal Sex Offender Civil Commitment Process Under Fire (p 1)
  2. Ethics Complaint Against Former Oregon Prison Official Dismissed (p 8)
  3. From the Editor (p 10)
  4. Maryland Women Prisoners Sew Commemorative 1812 Flags (p 10)
  5. Hawaii Audit Finds Offenders Rarely Pay Restitution Owed (p 12)
  6. Prisoner Lacked Standing to Challenge Georgia’s Failure to Send Absentee Ballot to Jail (p 13)
  7. Federal BOP to Let Prisoners Have MP3 Players (p 14)
  8. $975,000 Award to Former Prisoner Who Gave Birth in Seattle, Washington Jail (p 14)
  9. California Pays $295,000 to Settle Religious Discrimination Lawsuit by Sikh Barred from Employment as Prison Guard (p 15)
  10. California Supreme Court Restricts Lifer Parole Challenges (p 16)
  11. CA Court of Appeal: Documents Identifying Suppliers of Execution Drug are Public Records (p 17)
  12. Florida Town Rallies to Stop CCA Immigration Detention Facility (p 18)
  13. PLN Settles Censorship Suit Against Sacramento County, California Jail (p 20)
  14. U.S. Supreme Court Holds AG Rules Required Before SORNA Sex Offender Law is Applied Retroactively (p 20)
  15. New Mexico Sheriff Sentenced for Selling County Property on eBay (p 21)
  16. Former Florida Sheriff Cleared in Theft Investigation and PHS Contract Fraud Suit (p 22)
  17. Eleventh Circuit Upholds Florida DOC’s Ban on Pen Pal Solicitations (p 22)
  18. $50 Million in Grants Targets HIV in the Criminal Justice System (p 24)
  19. Pro Se Virginia Prisoner Settles Religious Exercise Suit (p 24)
  20. $3.5 Million Settlement in Teen’s Death at New York Juvenile Facility (p 25)
  21. Texas Legislator Uses Prisoner-Made Goods as Gifts for Campaign Contributors (p 26)
  22. Texas: Helping HIV+ Prisoners Receive Post-Release Meds (p 26)
  23. BOP’s RDAP Program Unevenly Administered and Unnecessarily Costly (p 28)
  24. Florida Reports Indicate Restoration of Civil Rights Reduces Recidivism (p 30)
  25. Tenth Circuit Holds Sex Offenders Who Leave U.S. Must Still Register (p 30)
  26. Tainted Chicken Sickens Hundreds of Prisoners, Staff at Pennsylvania BOP Facility (p 31)
  27. ACLU Challenges “Jail or Church” Program in Alabama (p 32)
  28. “Fusion Centers” Gather Intelligence on U.S. Citizens (p 32)
  29. Kentucky Supreme Court Adopts Mailbox Rule Retrospectively (p 33)
  30. Termination from Drug Treatment Program Fails to State Liberty Interest Claim (p 34)
  31. California: ADA Protections Again Extended to Disabled State Prisoners Held in County Jails (p 34)
  32. State Awarded Statutory Attorney Fees, Costs for Dismissed Washington PRPs (p 36)
  33. Fifth Circuit Rules on Prisoner’s ADA Claim; Issues Superseding Opinion (p 36)
  34. Fourth Circuit: Where Offer of Judgment is Silent as to Costs, Prevailing Party Entitled to Recover Attorney’s Fees (p 37)
  35. Ninth Circuit Grants Qualified Immunity to California Prison Officials for Denial of Outdoor Exercise During Lengthy Lock-down (p 38)
  36. Tenth Circuit Affirms Denial of Qualified Immunity to Oklahoma Jail Official Who Failed to Follow Prescribed Medical Instructions (p 38)
  37. First Circuit Holds that Delay in Treating HIV May Constitute Deliberate Indifference (p 39)
  38. New York Court of Appeals Holds Sex Offense Does Not Prove Parental Neglect (p 40)
  39. New Jersey Appellate Court Holds Attorneys for Female Prisoners Temporarily Transferred to All-Male Facility May be Entitled to Fees (p 40)
  40. Single Incident of Deliberate Indifference Insufficient to Establish Policy or Custom (p 41)
  41. Texas Teenager Killed at Private Juvenile Detention Center (p 42)
  42. No Good Time for Time Spent in State Custody before Imposition of Federal Sentence (p 43)
  43. Ninth Circuit Holds BOP Individual RDAP Determinations Not Subject to Judicial Review (p 43)
  44. Washington State Court of Appeals Holds Payments to Class II Prison Workers Are “Wages” for Time-Loss Compensation Calculations (p 44)
  45. Georgia Court Clerk Liable for Failure to Inform Prison Officials of Sentence Reduction (p 44)
  46. Florida Death Row Prisoners Cannot Challenge Sentence Pro Se (p 45)
  47. Former Mississippi Mayor Charged with Sexually Assaulting Prisoner (p 45)
  48. “Voluntary” Work Program in Private Detention Centers Pays Detained Immigrants $1 a Day (p 46)
  49. Vermont DOC Disbands Citizens’ Advisory Group that Critics Called “Window Dressing” for Transparency (p 48)
  50. News in Brief (p 50)

Federal Sex Offender Civil Commitment Process Under Fire

Among other provisions, the Adam Walsh Child Protection and Safety Act of 2006 allows the federal government to indefinitely detain “sexually dangerous” offenders through a civil commitment process, which requires mandatory court hearings after such offenders have been certified by the U.S. Department of Justice (DOJ) as eligible for commitment. The Adam Walsh Act was named for the kidnapped and murdered son of America’s Most Wanted host John Walsh. [See: PLN, June 1996, p.12].

Under 18 U.S.C. § 4248, the federal government must obtain a “Certification of a Sexually Dangerous Person” before it can proceed in a civil commitment action. Under § 4247(a)(5), a “sexually dangerous person” is defined as one who has engaged or attempted to engage in sexually violent conduct or child molestation, and who is “sexually dangerous to others” or suffers from a serious mental illness, abnormality or disorder, as a result of which he would have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”

To order civil commitment, a federal district court must find at an evidentiary hearing (no jury trial is required) that the government has met its burden of proof by clear and convincing ...

Ethics Complaint Against Former Oregon Prison Official Dismissed

As previously reported in PLN, Michael Taaffe, 56, retired from his $91,020-per-year position with the Oregon Department of Corrections (ODOC) in March 2011. He had been employed as an assistant administrator with the ODOC’s Health Services Division, and served on a three-member panel in 2009 that recommended Correctional Health Partners (CHP) as a contractor to manage the prison system’s medical care. CHP was awarded the contract, worth approximately $1.2 million annually.

Three days before his retirement Taaffe went to work for CHP, which resulted in an ethics complaint filed against him. Under Oregon state law, public employees are prohibited from having a “direct beneficial financial interest” in a contract awarded by an agency with the employee’s participation. This prohibition “continues for two years after the employee leaves public service.” [See: PLN, Feb. 2012, p.46].

Although Taaffe was not solely responsible for granting the contract to CHP, he worked closely with the company while employed by the ODOC. “Michael Taaffe did work directly with CHP, as did many other staff in Health Services,” state prison officials noted. “His role was to analyze CHP reports and to track DOC costs based on those reports.” Moreover, after ...

From the Editor

When Prison Legal News published its first issue in May 1990, it was less than one month after Washington state became the first in the nation to enact a civil commitment law for sex offenders. PLN has reported on this issue ever since as such laws have spread around the country, and as the court system has for the most part duly upheld civil commitment statutes in a results-oriented effort to imprison people based on crimes they might commit in the future.

When the federal government first announced plans to hold suspected terrorists and “enemy combatants” at Guantanamo Bay without charge or trial for essentially the rest of their lives, the mainstream media largely ignored the fact that the U.S. has been detaining citizens – mostly sex offenders – on a similar basis since 1990.


As this month’s cover story indicates, once the mechanism for repression is put in place it needs to be used, and having a civil commitment law creates a need to commit people whether they meet the applicable criteria or not. The federal civil commitment process has received relatively little attention compared to that of various states, and to date there has been a dearth of ...

Maryland Women Prisoners Sew Commemorative 1812 Flags

In July 2011, prisoners at the Maryland Correctional Institution for Women in Jessup were busy sewing 1812-style flags to be flown at Maryland public buildings.

The plan was to replace the state’s old flags with the 1812-style flags, which have 15 stars and 15 stripes, in time for the bicentennial of the War of 1812. The women prisoners engaged in that task are employed with Maryland Correctional Enterprises (MCE).

According to MCE public relations officer Renata Seergae, “The goal is to train [prisoners] ... so when they are released they don’t wind up back in here.” According to Seergae, the women who work in the sewing program produce approximately 700 state and U.S. flags a year, and are paid between $1.25 and $3.85 per hour.

Prisoners who were interviewed indicated they were proud of their work. One, Julia Applegate, said she had been sewing flags for three years and enjoyed the fact that they would be flown in front of Maryland state buildings.

Another, Natasha Fowlkes, was responsible for supervising and training the other prisoners. She said she had no prior sewing experience before she came to prison, but now appreciates the technical beauty inherent in ...

Hawaii Audit Finds Offenders Rarely Pay Restitution Owed

Thirteen years after the Hawaii Office of the Auditor issued a report critical of the state judiciary’s efforts to collect restitution payments from offenders, only a small fraction of tens of millions of dollars in restitution has been collected, which has left crime victims upset at what they perceive as a continuing injustice.

According to a series of articles published in the Star-Advertiser in June 2011, Hawaii had approximately 6,000 prisoners, 1,800 parolees and 20,000 people on probation or other court-ordered supervision who collectively owed around $25.5 million in restitution as of June 30, 2010. Prisoners and parolees were responsible for $15 million of that amount, of which at least $800,000 has been collected – though an “antiquated” computer management system has prevented officials from tracking the actual collection rate.

Restitution is based on a victim’s losses, but the amount an offender is ordered to pay depends on his or her financial resources and ability to make payments, which can be as little as $10 a month. Because ex-offenders are often unemployed and have few assets, however, even that small amount may go unpaid. And while probation officers have the authority to revoke probation ...

Prisoner Lacked Standing to Challenge Georgia’s Failure to Send Absentee Ballot to Jail

The Eleventh Circuit Court of Appeals held on February 2, 2012 that a former Georgia jail prisoner lacked standing to complain that state and local officials had failed to mail his absentee ballot to the jail, which prevented him from voting.

In anticipation of the November 4, 2008 presidential election, staff at the DeKalb County Jail held voter registration drives and encouraged prisoners to register to vote and apply for absentee ballots. Prisoner Hassan Swann was among those who completed an application for an absentee ballot. He wrote his home address in DeKalb County on the line labeled “address as registered,” but left blank the space for “address ballot to be mailed” because he didn’t know the jail’s address.

On September 29, 2008, Maxine Daniels, DeKalb County’s assistant director of registrations and elections, informed jail officials she would not mail absentee ballots to the jail. She said state law prohibited such ballots for non-disabled voters to be mailed to another address within the same county.

Swann’s absentee ballot was sent to his registered home address, but he never received it and was thus unable to vote. Jail officials had set up a drop box for relatives ...

Federal BOP to Let Prisoners Have MP3 Players

The U.S. Bureau of Prisons (BOP) has announced that it will allow federal prisoners to purchase MP3 music players, which were first tested at Federal Prison Camp Alderson, a women’s facility in West Virginia. The policy change, expected to be implemented throughout the BOP system in 2012, was hailed as a “positive step” by prisoners’ rights groups.

Various studies have indicated that keeping prisoners occupied with positive leisure-time activities is to everyone’s benefit. David Fathi, director of the American Civil Liberties Union’s National Prison Project, stated that providing prisoners with access to music “allows for an important connection [to life on the outside] that assists with their eventual re-entry” to society.

Initial reaction was mixed, however, with Republican U.S. Senator Chuck Grassley, who serves on the Senate Judiciary Committee, saying it was “difficult to see how all of the necessary safeguards can be put into place to stop prisoners from using MP3 players as bargaining chips or other malicious devices.... It appears to be a risky endeavor and raises a lot of questions that need to be answered.”

Senator Grassley did not provide details as to what could be risky or what questions should be ...

$975,000 Award to Former Prisoner Who Gave Birth in Seattle, Washington Jail

A federal jury in Washington State has awarded $975,000 to a mentally ill woman who gave birth in a cell at the King County Correctional Facility (KCCF). The jury found both the county and jail staff liable on federal constitutional and state law negligence claims.

Imka Pope was sleeping ...

California Pays $295,000 to Settle Religious Discrimination Lawsuit by Sikh Barred from Employment as Prison Guard

California Pays $295,000 to Settle Religious Discrimination Lawsuit by Sikh Barred
from Employment as Prison Guard

In August 2011, the California Department of Corrections and Rehabilitation (CDCR) settled a religious discrimination suit filed by Trilochan Oberoi, a Sikh, who was barred from becoming a prison guard because he refused ...

California Supreme Court Restricts Lifer Parole Challenges

In its second review in three years of a state prisoner’s habeas corpus petition seeking review of an adverse parole decision, on December 29, 2011 the California Supreme Court again reversed the Fourth District Court of Appeal, Div. 1, which had ordered a new hearing after finding that the Board of Parole’s decision to deny parole was not supported by “some evidence.”

Richard Shaputis was sentenced to 17 years to life for second-degree murder in the 1987 shooting death of his wife. He was found suitable for parole in 2006, after a state appellate court ordered a new parole hearing with restrictions on the Board of Paroles’ (Board) exercise of discretion. Former Governor Arnold Schwarzenegger reversed the Board, which was subsequently overturned by the appellate court. On the state’s petition for review, the California Supreme Court reversed, thus upholding the Governor’s decision. See: In re Shaputis, 44 Cal.4th 1241, 190 P.3d 573 (Cal. 2008) (Shaputis I) [PLN, April 2009, p.30].

Shaputis had a new Board hearing in 2009, wherein he was denied parole. The appellate court, finding no evidence in the record to support the Board’s decision, again granted his habeas petition ...

CA Court of Appeal: Documents Identifying Suppliers of Execution Drug are Public Records

On December 20, 2011, a California Court of Appeal held that the California Department of Corrections and Rehabilitation (CDCR) may not withhold the names of pharmaceutical companies and other sources from which it sought to acquire a drug used in the state’s lethal injection protocol, when a request for that information is made pursuant to the California Public Records Act (CPRA), Government Code § 6250 et seq.

In October 2010, the American Civil Liberties Union of Northern California (ACLU) submitted a CPRA request for documents related to the CDCR’s acquisition and use of sodium thiopental, the first of three drugs administered to condemned prisoners when they are executed. The CDCR declined to turn over the requested records and the ACLU filed a petition for writ of mandamus in San Francisco Superior Court.

In February 2011, relying on its perception of a “potential problem with boycott and business interests,” the Superior Court allowed the CDCR to withhold, among other information, the names of pharmaceutical companies and other businesses and individuals the CDCR had contacted in order to acquire sodium thiopental.

The ACLU appealed, and the 1st District Court of Appeal found that “the passionate nature of the death penalty debate ...

Florida Town Rallies to Stop CCA Immigration Detention Facility

by David M. Reutter

Residents in a South Florida community near a proposed 1,500-bed privately-operated immigration detention center waged a successful yearlong opposition campaign that culminated in the cancellation of the project in June 2012.

Corrections Corporation of America (CCA) purchased a 24-acre plot in the town of Southwest Ranches 15 years ago, with the intention of eventually building a prison or detention facility on the property. The land was located just outside the city of Pembroke Pines near an existing state women’s prison, and Immigration and Customs Enforcement (ICE) preliminarily selected the site for a detention center in 2010. ICE contracts with CCA to operate 13 facilities nationwide that hold immigration detainees.

Documents filed in Broward County by Southwest Ranches officials described ICE’s intention. “ICE requires approximately 1,500 to 2,000 new detention beds to meet local demand in the Miami Metropolitan area. Ideally, this demand would be met by one 1,000-1,500 bed facility, with the capacity to expand to 2,000 beds.”

The proposed CCA-run facility, the Southwest Ranches Detention Center, would be almost three times the size of the Krome Detention Center in Miami, making it the largest such facility in ...

PLN Settles Censorship Suit Against Sacramento County, California Jail

On July 17, 2012, Prison Legal News settled a lawsuit against Sacramento County, California and Sheriff Scott R. Jones for $300,000 plus policy changes in the county’s jail system.

The suit was filed in federal court in April 2011 after Sacramento County jail staff refused to deliver PLN ...

U.S. Supreme Court Holds AG Rules Required Before SORNA Sex Offender Law is Applied Retroactively

On January 23, 2012 the U.S. Supreme Court, in a 7-2 decision written by Justice Stephen Breyer, reversed the Third Circuit Court of Appeals, which had held that the federal Sex Offender Registration and Notification Act (Act) applied retroactively even in the absence of a rule by the U.S. Attorney General setting forth specifics as to registration requirements for previously-adjudicated sex offenders.

The Supreme Court found in favor of plaintiff Billy Joe Reynolds, who had challenged federal district and appellate court decisions that he had violated the Act, which requires people convicted of certain sex crimes to give state governments information such as their names and current addresses for registration purposes.

The Act also states that “[t]he Attorney General shall have the authority to specify the applicability of the [registration] requirements ... to sex offenders convicted before the enactment of this chapter...,” § 16913(d). According to the Court, “In our view, these provisions, read together, mean that the Act’s registration requirements do not apply to pre-Act offenders until the Attorney General specifies that they do apply.”

The Act became law on July 27, 2006, and on February 28, 2007 the U.S. Attorney General promulgated an Interim ...

New Mexico Sheriff Sentenced for Selling County Property on eBay

On July 20, 2011, former Santa Fe County, New Mexico Sheriff Greg Solano, 47, pleaded guilty to five counts of third-degree fraud for selling county property on eBay and keeping the proceeds. The property, which was reportedly worth over $75,000, included everything from cell phone chargers, printer cartridges and blank CDs to bulletproof vests, holsters and other law enforcement equipment.

Originally charged with 252 counts of embezzlement and fraud, and facing up to 100 years in prison, Solano entered into a plea bargain to reduce his maximum potential sentence to eight years.

“Solano was elected to protect and serve, not steal and profit,” said special prosecutor Matt Chandler. “In an era where public trust has become the topic of the day, I believe it is time to send a message that gross misconduct by public officials will be strictly punished, and I believe an eight-year prison sentence will send that message.”

Solano, free on $25,000 bail, said financial problems, including back mortgage payments, led him to embezzle from the county. However, there were also allegations that he was gambling at casinos in Nevada and New Mexico. Solano resigned in November 2010 after admitting to his misconduct; he had ...

Former Florida Sheriff Cleared in Theft Investigation and PHS Contract Fraud Suit

Following a two-year investigation and a jury verdict in a civil suit, a special prosecutor announced in June 2011 that criminal charges would not be forthcoming against Bill Balkwill, former sheriff of Sarasota County, Florida.

The jury verdict was entered in a lawsuit filed by Prison Health Services (PHS) that alleged Balkwill had improperly awarded a contract to another company to provide medical care for jail prisoners. The criminal investigation focused on Sheriff’s Office property that was found in Balkwill’s possession months after he retired.

PHS’s lawsuit, filed in circuit court, claimed that Balkwill awarded a $9 million jail medical contract to Armor Correctional Health Services in August 2006 after he received gifts and perks from Armor officials. One of those perks involved a fishing trip on Lake Okeechobee. Armor’s CEO and lobbyist also took Balkwill and his wife to expensive dinners prior to the contract being awarded. [See: PLN, Dec. 2009, p.22; Jan. 2009, p.36; March 2008, p.44].

In an attempt to prove that Balkwill had communicated with Armor executives before awarding the contract, PHS sought to examine his laptop for emails and other evidence.

The Sheriff’s Office began an investigation ...

Eleventh Circuit Upholds Florida DOC’s Ban on Pen Pal Solicitations

by David M. Reutter

The Florida Department of Corrections (FDOC) may ban all pen pal solicitations between pen pal services and Florida prisoners, the Eleventh Circuit Court of Appeals held on December 22, 2011. The appellate decision affirms a federal district court’s January 2011 summary judgment order that found the FDOC’s Pen Pal Solicitation Rule, F.A.C. Chapter 33-210.101(9), does not violate the First or Fourteenth Amendments. [See: PLN, Oct. 2011, p.11].

The challenge to the FDOC’s pen pal rule was brought by Joy Perry, who operates Freedom through Christ Prison Ministry and Prison Pen Pals, and by WriteAPrisoner.com (WAP). Each service solicits pen pals for prisoners and non-prisoners by providing them with a list of pen pals or placing pen pal ads online. WAP charges a fee to put prisoners’ ads for pen pals on its website; it also provides other services for prisoners, such as access to educational programs, an online résumé posting service and a program that grants scholarships to prisoners’ children or victims of crimes. Perry does not charge any fees for her pen pal services.

The FDOC said it enacted its ban on pen pal solicitation to ...

$50 Million in Grants Targets HIV in the Criminal Justice System

The National Institute on Drug Abuse (NIDA), a division of the National Institutes of Health, is awarding almost $50 million in grants to fund research projects that target HIV among prisoners, parolees and probationers.

The grants will be distributed over a five-year period to 12 research teams, which will conduct studies in locations that include the Los Angeles County Jail; the jail system in Cook County, Illinois; Rikers Island in New York; prisons in North Carolina, Illinois, Texas, Wisconsin and Rhode Island; and jails in the District of Columbia.

“These important and wide reaching research grants will focus on identifying individuals with HIV within the criminal justice system and linking them to highly active antiretroviral therapy (HAART) during periods of incarceration and after community re-entry,” stated NIDA Director Dr. Nora D. Volkow. “We hope this effort will lead to decreased HIV/AIDS-related illness and death among those in the criminal justice system, as well as decrease HIV transmission in the community at-large, making an important impact on public health.”

Illinois will receive $7 million in grants. Researchers from the University of Illinois at Chicago will focus on prisoners in the Cook County Jail and more than two dozen state prisons ...

Pro Se Virginia Prisoner Settles Religious Exercise Suit

Virginia state prisoner Rashid Qawi Al-Amin, proceeding pro se, reached a settlement with prison officials that requires them to purchase Islamic reading materials, CDs and DVDs for the prison chaplain’s library. The state also agreed to pay him $2,000.

Al-Amin, a prisoner at Greensville Correctional Center (GCC), filed ...

$3.5 Million Settlement in Teen’s Death at New York Juvenile Facility

A $3.5 million settlement has been reached in a lawsuit over the death of a juvenile offender who was restrained by two staffers at the Tryon Boys Residential Center in Fulton County, New York.

The suit claimed that the civil rights of Darryl Anthony Thompson, 15, were violated as ...

Texas Legislator Uses Prisoner-Made Goods as Gifts for Campaign Contributors

by Matt Clarke

When Republican Texas State Representative Debbie Riddle scheduled her “Riddle Executive Leadership Summit” at the Lanier Theological Library in August 2011, the agenda mentioned several “esteemed discussion leaders,” a buffet reception and special gifts for large campaign donors. According to an article in the Houston Chronicle, those gifts – which were produced by state prisoners – included heirloom-quality furniture and other items made in Texas Correctional Industries (TCI) programs.

The invitations Riddle sent to her supporters included a request for campaign donations at several “participation levels,” ranging from $1,000 to $20,000. Each participation level had a corresponding gift, such as prisoner-made replicas of furniture from the Capitol, a hand-tooled leather-topped coffee table with matching chair, a hand-tooled leather duffel bag, a Lone Star flag cutting board, a hand-tooled leather rifle case and a hand-carved rocking horse with leather saddle.

The furniture included hand-carved Capitol benches, constitutional chairs, judge’s chairs and desks. “Please note that the donor gifts are exclusive and cannot be purchased on the open market,” the invitation stated. “The descriptions seem inadequate for most of these items, and you will find an enclosure with photographs to show their beauty.”

Outside the Texas prison system ...

Texas: Helping HIV+ Prisoners Receive Post-Release Meds

by Matt Clarke

When Diana Harris was released from a Texas prison more than a decade ago, she received no information on how to continue her regimen of HIV medication. The prison issued her a 10-day supply of meds and when that ran out she basically ignored the problem for the next two years.

“I didn’t want to tell my family that I [was HIV+], so I couldn’t ask them for help,” said Harris. “I was on my own and didn’t really know where I should go to keep myself healthy.”

Harris now works to address problems with continuity of care for newly-released Texas prisoners who are HIV+. She is a peer advocate with the AIDS Outreach Center in Fort Worth, and meets with releasees in Tarrant County to help them understand the medical system in the free world.

“Navigating a hospital system is daunting if you have been incarcerated since 19 and never had to deal with it,” noted Shannon Hilgart, associate executive director of the AIDS Outreach Center. “Getting into a clinic, getting through the paperwork.... It’s a whole new learning process.”

Fortunately, the system is vastly improved compared to what was in place ...

BOP’s RDAP Program Unevenly Administered and Unnecessarily Costly

by Brandon Sample and Derek Gilna

A comprehensive review of the federal Bureau of Prisons’ (BOP) Residential Drug Abuse Program (RDAP), enacted by Congress in 1994, indicates that almost 20 years after its creation RDAP has yet to fulfill its full potential and is unnecessarily expensive.

The enactment of 18 U.S.C. § 3621, which authorized RDAP, was originally designed to provide not only substance abuse treatment to a large number of BOP prisoners but also to instill lifestyle changes that would reduce recidivism. The program was formulated by Congress to help decrease the rapidly escalating federal prison population by addressing behaviors that result in prisoners committing new crimes after they are released.

Unfortunately, although a positive initiative, RDAP was not initially embraced by BOP prisoners, who objected to the more difficult aspects of the program. As a result enrollment was low and many prisoners accepted into RDAP failed to complete it.

This low level of participation continued until the BOP elected to follow Congress’ legislative mandate in its entirety, specifically § 3621(e)(2), which provides that non-violent prisoners who successfully complete RDAP are eligible for a sentence reduction of “not more than one year.” Paragraph (e)(5)(A) of ...

Florida Reports Indicate Restoration of Civil Rights Reduces Recidivism

by David M. Reutter

Advocates of automatic restoration of civil rights for ex-offenders have long maintained that such a policy helps former prisoners reintegrate into society and therefore reduces recidivism. Two reports by the Florida Parole Commission (FPC), released in 2011 and 2012, lend support to that argument.

Since the end of the Civil War, Florida has banned the restoration of civil rights for ex-felons unless their rights are restored by the state clemency board. Historically, the restoration process has been laborious and prolonged.

Former Florida Governor Charlie Crist pushed for full restoration of rights for offenders after they completed their sentences or terms of supervised release. He greatly streamlined the restoration process in 2007, but also had to compromise.

Objections from Crist’s cabinet forced him to exclude certain violent offenders and sex offenders, but the less restrictive process still resulted in over 154,000 ex-felons regaining their rights. [See: PLN, Jan. 2009, p.26].

When Governor Rick Scott took office in January 2011, however, he and Attorney General Pam Bondi moved to rescind the Crist policies. They decided that ex-offenders must wait five years without committing another offense and then apply to have their civil rights restored. [See ...

Tenth Circuit Holds Sex Offenders Who Leave U.S. Must Still Register

The Tenth Circuit Court of Appeals held on December 23, 2011 that a Utah sex offender must register in his home state even if he intends to permanently leave the U.S. to live in another country. Kevin Daniel Murphy, convicted of aggravated sexual assault and aggravated sexual abuse of a child, absconded from the Bonneville Community Correction Center in Salt Lake City in 2007 before fleeing to California, Mexico and then to Belize.

Murphy moved to Belize under an assumed name because he erroneously thought that Belize’s government would not extradite him. However, he was deported to the United States because he lacked proper immigration papers, and was subsequently prosecuted and convicted in federal court for violating the Sex Offender Registration and Notification Act (SORNA), 48 U.S.C. § 2250. Murphy appealed his conviction and two-year sentence.

The Tenth Circuit found that Murphy’s intention to leave the country did not relieve him of his obligation to register. “For [registration] purposes, a sex offender continues to reside in a state even after a change in residence or employment, both of which trigger reporting obligations, even if the offender eventually leaves the state,” the appellate court wrote. “Therefore, even ...

Tainted Chicken Sickens Hundreds of Prisoners, Staff at Pennsylvania BOP Facility

In late June 2011, around 320 prisoners and employees at USP Canaan in Pennsylvania, north of Philadelphia, became sick due to salmonella poisoning after eating “tainted chicken” used to make fajitas. Four prisoners were ill enough to require treatment at a local emergency room for dehydration.

According to Bureau of Prisons (BOP) spokesperson Lamine N’diaye, the facility’s kitchen was closed for cleaning following the outbreak but reopened after a BOP inspector deemed it safe. Neither N’diaye nor Russell Reuthe, USP Canaan’s human resource manager, would comment on the food or its source, but Reuthe confirmed it was all “wholesale food, prepared on site.”

A Pennsylvania Department of Health official said they were investigating the incident, adding that “we did provide assistance to the facility by taking stool samples and food testing.” According to the same official, all of the food in the kitchen was disposed of following the outbreak.

Salmonella is rarely fatal but can be serious if it spreads to the blood stream or the intestines, where it can cause a form of arthritis. The Associated Press first learned about the outbreak at USP Canaan from the Seattle-based law firm of Marler Clark, which specializes ...

ACLU Challenges “Jail or Church” Program in Alabama

On September 26, 2011 the American Civil Liberties Union of Alabama (ACLU) sent a cease-and-desist letter to the City of Bay Minette, demanding that city officials “immediately end Operation Restore Our Community (ROC), which requires first-time, non-violent misdemeanor offenders to choose between jail time or attending church once a week for a year.”

While the ACLU said it supported alternative sentencing programs, it condemned Operation ROC because its use of the city’s “police power to mandate and enforce church attendance flagrantly violates the Establishment Clause of the First Amendment to the U.S. Constitution,” as well as Section 3 of the Alabama Constitution.

“The government is not supposed to serve as a conduit for church recruitment,” noted ACLU of Alabama legal director Allison Neal.

The ACLU’s letter addressed three specific points. First, that Operation ROC violates the Establishment Clause’s anti-coercion principle, which prohibits government officials from compelling church attendance or other participation in religious exercise. The letter cited numerous legal precedents which had “consistently held that the government may not condition offenders’ sentencing, probation, parole or release on their refusal or willingness to attend church or engage in other religious exercise.”

The ACLU contended that Operation ROC ...

“Fusion Centers” Gather Intelligence on U.S. Citizens

Homeland Security-financed agencies called “fusion centers,” ostensibly formed to collect information to prevent 9/11-type terrorist attacks, have expanded their scope of operations to include ordinary street-level crime. The American Civil Liberties Union (ACLU) recently expressed concerns about a fusion center in Cleveland, Ohio, claiming the center’s secrecy and data-mining practices pose a threat to privacy.

“It really is an unprecedented amount of surveillance of Americans,” stated Mike Brickner, communications and public policy director for the ACLU of Ohio. “That’s a very big jump in my mind from where the mission started to where they are now.”

Julia Shearson, executive director of the Cleveland chapter of the Council on American-Islamic Relations, agreed, saying, “at minimum, we join those requesting that fusion centers be held accountable to taxpayers through increased oversight and transparency.”

The Department of Homeland Security describes fusion centers as “focal points within the state and local environment for the receipt, analysis, gathering, and sharing of threat-related information....”

William Schenkelberg, director of the Cleveland-based Northeast Ohio Regional Fusion Center, said the centers arose from the perceived failure of law enforcement agencies, pre-9/11, to share intelligence data. According to Schenkelberg, fusion centers share criminal trends, tips and ...

Kentucky Supreme Court Adopts Mailbox Rule Retrospectively

The Supreme Court of Kentucky, in a modified ruling, adopted the “mailbox rule,” allowing notices of appeal in criminal cases to be considered filed when they are placed in the prison’s internal mail system.

Joe B. Jones and Michael Allen Hallum, Kentucky state prisoners, each filed a motion for post-conviction relief pursuant to RCr 11.42. Both motions were denied and Jones and Hallum separately filed notices of appeal and motions to proceed in forma pauperis. The Court of Appeals dismissed the motions because they and the notices of appeal arrived at the court and were filed more than 30 days after entry of the judgment being appealed, in contravention of RCr 12.04(3).

Both men had placed their pleadings in the prison’s internal mail system several days before the 30-day period had expired, but they were not received and filed by the Court of Appeals until after the expiration date had passed. Jones and Hallum appealed to the Kentucky Supreme Court, which consolidated the cases.

While the cases were pending on appeal, the Supreme Court changed RCr 12.04(5) to read, “If an inmate files a notice of appeal in a criminal case, the notice ...

Termination from Drug Treatment Program Fails to State Liberty Interest Claim

The Eighth Circuit Court of Appeals has held that the decision of prison officials to remove a prisoner from a drug treatment program, which made him ineligible for a probated sentence, was insufficient to confer a liberty interest for due process purposes.

Missouri state prisoner Michael Louis Persechini brought a 42 U.S.C. § 1983 action against five officials at the Ozark Correctional Center (OCC), alleging they had violated his federal due process rights by terminating him from a long-term substance abuse treatment program. He sought damages and re-entry into the program. The district court dismissed his suit for failure to state a claim upon which relief could be granted.

After being convicted of second-degree burglary, Persechini was sentenced to fifteen years in prison. Following applicable state law, the court obtained permission from the Missouri Department of Corrections to sentence him as a chronic nonviolent offender with a serious drug addiction to OCC’s long-term substance abuse treatment program. Successful completion of the program would make Persechini eligible for probation.
Persechini, however, was subsequently charged with violating a “cardinal rule” of the program. He was found guilty of theft and disobeying an order by taking a new towel from the ...

California: ADA Protections Again Extended to Disabled State Prisoners Held in County Jails

On January 13, 2012, sixteen months following remand from the Ninth Circuit in the case of Armstrong v. Schwarzenegger, U.S. District Court Judge Claudia Wilken issued an order that again extended the protections of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., to disabled state prisoners housed in county jails.

The order requires California officials with responsibility over the state’s corrections and parole systems to track and accommodate the needs of disabled state prisoners and parolees (referred to as Armstrong class members) who, for various reasons, are held in county jails, and to ensure that those class members have access to a workable grievance procedure. Similar protections had previously been ordered, and largely been in effect, since 1996 with respect to disabled prisoners housed in state prisons (including segregation units and reception centers). See: Armstrong v. Wilson, 124 F.3d 1019 (9th Cir. 1997) [PLN, Sept. 1998, p.13].

On any given day, California houses a significant number of state prisoners and parolees facing revocation hearings in county jails – a number that is increasing due to the state’s recent “realignment” initiative in response to the U.S. Supreme Court’s ruling in ...

State Awarded Statutory Attorney Fees, Costs for Dismissed Washington PRPs

The Washington State Court of Appeals has held that the state is entitled to statutory attorney fees following the dismissal of a personal restraint petition (PRP).

After pleading guilty to witness tampering and burglary, Gregory Scott Bailey filed a PRP challenging the voluntariness of his plea. The petition was dismissed on October 7, 2010 and five days later the state filed a cost bill, seeking statutory attorney fees of $200 plus $206 for preparation of the 103-page response brief – at $2.00 per page – for a total of $406. On November 1, 2010, Bailey objected to the cost bill.

The Court of Appeals refused to dismiss Bailey’s objection as untimely. Any purported untimeliness was waived because “the State’s entitlement to statutory attorney fees in the costs for dismissed PRPs is an issue of first impression,” and given “the number of PRPs the court considers each year, a decision on the merits would serve the ends of justice.”

Washington law establishes the statutory attorney fee as $200 for judgments entered by the Court of Appeals. Bailey argued, however, that RCW 10.73.160(2) prohibits such fees because attorney fees are “expenditures to maintain and operate government agencies.”

The ...

Fifth Circuit Rules on Prisoner’s ADA Claim; Issues Superseding Opinion

On October 14, 2010, the Fifth Circuit Court of Appeals found that Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, does not abrogate a state’s sovereign immunity when the misconduct complained of does not violate the Fourteenth Amendment. In a May 2011 superseding opinion following rehearing, however, the appellate court did not reach that question, instead finding the plaintiff had failed to adequately plead an ADA claim.

John Hale, a Mississippi state prisoner, filed a pro se federal civil rights action against prison officials under the ADA, 42 U.S.C. §§ 12131-12165, alleging that he was prevented from using community work centers, accessing satellite and regional prison facilities, working in the kitchen or attending school because he suffered from Hepatitis C, post-traumatic stress disorder, chronic depression, intermittent explosive disorder and antisocial personality disorder. The district court dismissed his lawsuit pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) after finding the defendants were entitled to state sovereign immunity. Hale appealed.

The Fifth Circuit appointed counsel to brief the issue of “whether Title II of the ADA validly abrogates Eleventh Amendment sovereign immunity for claims that violate Title II but are not ...

Fourth Circuit: Where Offer of Judgment is Silent as to Costs, Prevailing Party Entitled to Recover Attorney’s Fees

The Fourth Circuit Court of Appeals has held that “in an action brought under 42 U.S.C. § 1983, an offer of judgment pursuant to Fed.R.Civ.P. 68(a) which makes no mention of costs or attorney’s fees cannot be interpreted, after the fact, to have included those costs and fees. Rather, in such a case, the prevailing party is entitled to recover costs and fees pursuant to 42 U.S.C. § 1988.”

Brenda Bosley filed suit against law enforcement officials of Mineral County, West Virginia after her estranged husband, Dr. James Bosley, killed himself while the officials, alerted by a complaint from Mrs. Bosley attesting to her husband’s instability, were attempting to take him into custody for a psychiatric examination.

After removing the case to federal court, the defendants served on Brenda Bosley an offer of judgment pursuant to Fed.R.Civ.P. 68(a) for $30,000 “as full and complete satisfaction of [Bosley’s] claim against ... Defendants.” After accepting the offer, Bosley moved for attorney’s fees; the officials opposed the motion on the ground that their $30,000 offer was inclusive of attorney’s fees and costs.

The district court determined that ...

Ninth Circuit Grants Qualified Immunity to California Prison Officials for Denial of Outdoor Exercise During Lengthy Lock-down

On March 17, 2011, the Ninth Circuit Court of Appeals granted qualified immunity to California prison officials who had denied a prisoner outdoor exercise during a 15-month lockdown precipitated by a “particularly violent armed riot ... against staff.”

Steve Joseph Noble IV was incarcerated in Facility “C” at the Substance Abuse Treatment Center at Corcoran State Prison. A former Crip gang member, he was classified as Level IV, the highest security level.

On January 9, 2002, Corcoran staff members were attacked by Crips and other prisoners on the Facility “C” exercise yard. The riot, which included an attempt to kill a prison guard, left more than 20 other officers with injuries. The incident led to a formal declaration of a state of emergency and the imposition of another in a long series of lockdowns at Corcoran.

During that lockdown, prison officials conducted an investigation into the immediate causes of the riot. The investigation ended on January 30, 2002 but was not conclusive. Over the following months, prison officials gradually restored privileges, including visitation in April, modified day room access in June, full day room access in July and, finally, limited outdoor exercise on August 1, 2002. The next day, however, another ...

Tenth Circuit Affirms Denial of Qualified Immunity to Oklahoma Jail Official Who Failed to Follow Prescribed Medical Instructions

On October 14, 2011 the Tenth Circuit Court of Appeals affirmed a district court’s denial of summary judgment, on the ground of qualified immunity, to Payne County, Oklahoma jail administrator Brandon Myers. The appellate court held that a reasonable jury could find that Myers was deliberately indifferent to pretrial detainee John David Palmer’s serious need for medical treatment, in violation of the Due Process Clause of the Fourteenth Amendment. PLN readers should note that deliberate indifference claims for pretrial detainees are brought under the Fourteenth Amendment while similar claims involving convicted prisoners are brought under the Eighth Amendment.

In August 2007, while being held pending trial at the Payne County Jail, Palmer suffered from a serious infection commonly known as MRSA. He was transported to an outside doctor, who administered an injection of an antibiotic. The doctor instructed Palmer to return for a follow-up visit in two days, but warned that if he developed a fever or reported increased pain, he should be taken to a hospital immediately. It was undisputed that this information was conveyed to Myers.

Upon his return to the jail, Palmer’s level of pain increased to the point that he was vomiting and ...

First Circuit Holds that Delay in Treating HIV May Constitute Deliberate Indifference

The First Circuit Court of Appeals reversed the grant of summary judgment to a physician assistant at the York County Jail (YCJ) in Maine, concluding that a material dispute existed as to whether the physician assistant acted with deliberate indifference to the serious medical needs of an HIV-positive detainee.

In April 2008, Raymond D. Leavitt, a Maine state prisoner, filed suit pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act (ADA), seeking injunctive relief and monetary damages against various correctional officials and healthcare providers. He alleged that he was denied HIV treatment for the entirety of his 167-day stay at YCJ and for the first 17 months of his incarceration at the Maine State Prison (MSP), where medical care was provided by Correctional Medical Services (CMS).

Leavitt, who had been taking HIV medications before he was incarcerated, claimed that the delay in reinitiating his antiretroviral therapy for HIV resulted in short- and long-term negative consequences to his health.

Initially proceeding pro se, Leavitt eventually obtained the services of an attorney. In March 2010, the district court granted summary judgment in favor of the defendants, finding insufficient evidence that they had acted with deliberate indifference to Leavitt ...

New York Court of Appeals Holds Sex Offense Does Not Prove Parental Neglect

The New York Court of Appeals, the state’s highest court, has held that the fact that a defendant was convicted of a sex offense against a minor, was a level-three registered sex offender and had not received any sex offender treatment was insufficient to prove that he or the mother who allowed him to continue living with her and his minor children were guilty of parental neglect.

In this case brought against an anonymous defendant, a New York father had pleaded guilty to charges related to his having sex with a prostitute under the age of 15. He was released on time served and not required to participate in sex offender treatment. The state Sex Offender Registration Act (SORA) required him to register as an untreated level-three sex offender. He returned home to live with his wife and five children, who were between the ages of four and fourteen.

The Dutchess County Department of Social Services (DSS) filed neglect petitions against both the father and mother pursuant to Article 10 of the Family Court Act. The DSS’s theory was that, because the father was an “untreated” sex of-fender whose crimes involved minors, he was a danger to his ...

New Jersey Appellate Court Holds Attorneys for Female Prisoners Temporarily Transferred to All-Male Facility May be Entitled to Fees

The Appellate Division of the Superior Court of New Jersey has held that the attorneys who represented a class of female prisoners temporarily transferred to the all-male New Jersey State Prison (NJSP) may qualify for an award of attorney’s fees.

The answer will hinge on whether the prisoners are ultimately deemed to be “prevailing parties” in the litigation despite the fact that there was no trial court ruling on the merits of their claims. Instead, the underlying action was dismissed as moot after the female prisoners were transferred back to the Edna Mahan Correctional Facility (EMCF), from which they had been sent to NJSP.

The trial court had denied the prisoners’ motion for attorney’s fees on the ground that, in its view, there was no factual nexus between their lawsuit and the decision by prison officials to return the women to EMCF. In the court’s words, the latter was simply “an operational decision made independent of this suit.”

The Appellate Division reversed the denial of the prisoners’ motion for attorney’s fees and remanded for reconsideration in light of legal principles articulated by the New Jersey Supreme Court in Mason v. City of Hoboken, 951 A.2d ...

Single Incident of Deliberate Indifference Insufficient to Establish Policy or Custom

The Eleventh Circuit Court of Appeals has affirmed a district court’s grant of summary judgment on the grounds that the plaintiff’s evidence, which indicated a single case of a constitutional violation, did not prove a private medical provider had a policy, practice or custom of deliberate indifference.

The appellate ruling was entered in a civil rights action that alleged an Eighth Amendment violation for deliberate indifference to the serious medical needs of Henry Craig, who was approached by a police officer in Rome, Georgia on July 4, 2006. Craig had consumed methamphetamine hours earlier, was acting erratically and told the officer to shoot him.

Two other police officers arrived and one used a Taser on Craig. When he fell, a puddle of blood formed on the ground beside his head. He was transported to a hospital and examined. A doctor cleared him to be taken to the Floyd County Jail (FCJ), where he was placed under the care of the jail’s medical provider, Georgia Correctional Health, LLC.

The next day, nurse practitioner Susan Hatfield determined that the dried blood around Craig’s right ear was from a ruptured eardrum. He was coherent and expressed no other complaints ...

Texas Teenager Killed at Private Juvenile Detention Center

by Matt Clarke

On October 10, 2011, 14-year-old Jordan Adams was found unconscious on the floor of his isolation cell at the Granbury Regional Juvenile Justice Center (GRJJC) in Granbury, Texas. A sheet was wrapped around his neck. He died six days later at the Cook Children’s Medical Center in Fort Worth without regaining consciousness, after being removed from life support. The cause of his death was manual strangulation.

The GRJJC is a 96-bed facility that houses juvenile offenders from various Texas counties; it is operated by 4M Granbury Youth Services, a for-profit company. Jordan’s death at GRJJC was the first of a juvenile prisoner in Texas since 2003, according to Lisa Capers, deputy executive director and general counsel of the Texas Juvenile Probation Commission (TJPC). The TJPC and local police launched investigations.

“The sheet was around his neck,” noted Granbury Police Captain Alan Hines. “We are investigating to determine whether this was an accident or there needs to be criminal charges for homicide.”

The mystery is how someone could kill a child held in a locked isolation cell. Tanya Hernandez, 37, Jordan’s mother, struggled with that question. “We’ve heard several different stories,” she said. “I ...

No Good Time for Time Spent in State Custody before Imposition of Federal Sentence

Good conduct time (GCT) may not be awarded to a federal prisoner for time spent in state custody before receiving his federal sentence, the U.S. Court of Appeals for the Ninth Circuit has held.

Russell Schleining was arrested in 2003 for burglary and attempted burglary. At the time of his arrest, he was discovered with a firearm. He was sentenced to ten years in state prison on the burglary charges; while serving his state sentence, Schleining was indicted in federal court for being a felon in possession of a firearm.

He pleaded guilty to the firearms charge, received his federal time and was returned to state custody for completion of his state sentence. After finishing his state time, Schleining was transferred to the custody of the Bureau of Prisons (BOP) to begin his federal sentence.

While at FCI Sheridan, Schleining complained to the BOP that he had been improperly denied good conduct time for the time he spent in state custody before receiving his federal sentence. He eventually filed a habeas corpus petition over the matter, which was denied. Schleining appealed.

Affirming the judgment of the district court, the Ninth Circuit held that “a prisoner can receive GCT only ...

Ninth Circuit Holds BOP Individual RDAP Determinations Not Subject to Judicial Review

Individualized decisions related to the federal Bureau of Prisons’ (BOP) Residential Drug Abuse Program (RDAP) are not subject to judicial review under the Administrative Procedure Act (APA), the U.S. Court of Appeals for the Ninth Circuit has held.

Philip T. Reeb sought habeas relief after he was expelled from the RDAP at FCI Sheridan in Oregon in 2008 for “exhibiting disruptive behavior in group counseling sessions on several occasions.” In response to Reeb’s petition, the government argued that the district court lacked jurisdiction to hear his claims because 18 U.S.C. § 3625 bars judicial review under the APA of “any determination, decision, or order under 18 U.S.C. §§ 3621-3625.”

The district court disagreed that it lacked jurisdiction, but nonetheless found no error in the BOP’s decision to remove Reeb from the RDAP. Reeb appealed and the government reasserted its jurisdictional argument before the Ninth Circuit.

Finding “no ambiguity” in § 3625, the Court of Appeals determined that “any substantive decision by the BOP to admit a particular prisoner into RDAP, or to grant or deny a sentence reduction for completion of the program is not reviewable by the district court.” Further, the appellate court wrote, “the ...

Washington State Court of Appeals Holds Payments to Class II Prison Workers Are “Wages” for Time-Loss Compensation Calculations

by Matt Clarke

On April 13, 2011, a Washington state Court of Appeals held that money paid to Class II prison workers counted as “wages” for purposes of calculating time-loss compensation.

James B. Hill, a former Washington state prisoner, was injured while performing a Class II prison job for which he was paid $0.85 per hour. After his release from prison, Hill applied for time-loss compensation from the Washington State Department of Labor and Industries (L&I). L&I allowed compensation, calculating that Hill worked 7.5 hours per day for six days a week at $0.85 per hour.

Hill appealed the order to the Board of Industrial Insurance Appeals, claiming that the money paid to Class II prison workers was a gratuity, not wages. The Department of Corrections (DOC) answered interrogatories stating that it did not pay wages to prisoners and did not report the gratuities to the Internal Revenue Service (IRS). Therefore, Hill moved for summary judgment. L&I filed a cross-motion for summary judgment and the DOC filed a brief supporting L&I.

The industrial appeals judge (IAJ) denied Hill’s motion and granted summary judgment to L&I. Hill unsuccessfully petitioned the Board for ...

Georgia Court Clerk Liable for Failure to Inform Prison Officials of Sentence Reduction

The Georgia Supreme Court has held that a court clerk is not entitled to official immunity in a lawsuit claiming negligent performance of a ministerial duty. At the heart of the case was the clerk’s failure to inform prison officials about a court order that reduced a prisoner’s sentence.

Calvin McGee filed suit against Juanita Hicks and Geneva Blanton, in their respective capacities as clerk of the Superior Court of Fulton County and an employee of that office, for negligence for failing to perform their ministerial duty under OCGA § 42-5-50(a), which requires the court clerk to notify the commissioner of the Department of Corrections within 30 working days following receipt of a prisoner’s sentence.

The trial judge had signed a one-page “amended order” that changed McGee’s sentence to provide for a May 27, 2001 maximum release date rather than a previously-ordered release date of June 27, 2003. Blanton received the order on July 20, 2000; she placed it in processing to be filed and took no other action. McGee was not released from prison until March 2003 – 22 months after his amended release date.

Blanton and Hicks moved to dismiss the claim against them in ...

Florida Death Row Prisoners Cannot Challenge Sentence Pro Se

Citing its “constitutional responsibility to ensure the death penalty is administered in a fair, consistent and reliable manner, as well as having an administrative responsibility to work to minimize the delays inherent in the post-conviction process,” the Florida Supreme Court held on October 6, 2011 that prisoners sentenced to death do not have a constitutional right to act pro se in post-conviction proceedings.

That ruling came in a case involving death row prisoner Robert Gordon. The trial court had granted Gordon leave to file a successive post-conviction petition in a pro se capacity. When the court summarily denied the petition, Gordon filed a pro se notice of appeal with the Florida Supreme Court.

The Court temporarily relinquished jurisdiction so the trial court could offer Gordon appointed counsel, and an attorney was ultimately appointed for the appeal.

Before briefs were filed, Gordon and his appointed counsel filed separate motions to discharge or withdraw counsel. The Supreme Court then held that death-sentenced prisoners have no federal constitutional right to act pro se in direct appeals of post-conviction proceedings under U.S. Supreme Court precedent.

The Supreme Court in Martinez v. Court of Appeal of California, 538 U.S. 152 (2000) left the ...

Former Mississippi Mayor Charged with Sexually Assaulting Prisoner

Federal prosecutors have charged the former mayor of Walnut Grove, Mississippi with sexually assaulting a prisoner while acting under color of law. He also was charged with telling the prisoner to lie during an investigation into the incident. [See: PLN, April 2012, p.1].

William Grady Sims, 61, was first elected mayor of Walnut Grove in 1981. He was accused of sexually assaulting a female prisoner held at the Walnut Grove Transition Center (WGTC) operated by GEO Group, the nation’s second-largest private prison company.

WGTC houses prisoners from the Mississippi Department of Corrections. Ironically, Sims was employed as WGTC’s warden in 2009 when he took the prisoner to a motel room and had sex with her.

Separately, state auditors found that Sims’ relationship with private prison firms was illegally costing local taxpayers. On October 25, 2011, State Auditor Stacey Pickering ordered Sims to repay $31,150 for ordering private prisons in the area to be serviced by city employees and equipment.

“The demand against Mayor Sims represents multiple instances where city employees were directed by the mayor to do work at a private prison facility in Walnut Grove,” Pickering said in a news release. “Taxpayers of Walnut Grove ...

“Voluntary” Work Program in Private Detention Centers Pays Detained Immigrants $1 a Day

In the Stewart Detention Center in rural Lumpkin, Georgia, Pedro Guzman cleaned the communal areas, cooked, painted walls, ran paperwork and buffed floors. But Guzman was not brought into Stewart as an employee – he was a detained immigrant taking part in the detention center’s “voluntary” work program.

“I didn’t go more than a month without a job,” said Guzman, who spent almost 20 months waiting, and working, inside Stewart while his immigration case was resolved.

In private prisons around the country, immigrants languishing in detention centers are being put to work by profit-making companies like the Corrections Corporation of America (CCA) for far below the minimum wage. For doing a range of manual labor in the facility, the immigrants, many of whom are not legally permitted to work in the United States, are paid between $1-$3 a day.

The Obama administration’s move away from the workplace raids of the Bush years and toward an increasing reliance on Secure Communities, which critics say has functioned as a dragnet for immigrants who have committed low-level crimes or none at all, has flooded detention centers across the country.

Between 1996 and 2011, deportations increased by 400 percent and the ...

Vermont DOC Disbands Citizens’ Advisory Group that Critics Called “Window Dressing” for Transparency

Andy Pallito was on the hot seat on July 19, 2012 at a meeting of the Joint Legislative Corrections Oversight Committee. Vermont’s commissioner of corrections had failed to notify lawmakers that he had disbanded a citizen panel charged with advising his department.

Sen. Dick Sears, who chairs the Legislative Corrections Oversight Committee, first learned of Pallito’s decision via an Associated Press story that ran on July 16.

“I apologize for catching you off-guard,” Pallito told Sears and other lawmakers on the committee. “Frankly, in the realm of things I usually call you on, postponing the Corrections Citizens’ Advisory Group for 60 days didn’t seem like it rose to that level.”

Pallito explained: After he canceled its quarterly meeting scheduled for July 13, a CCAG member accused him of not taking the group seriously and “wasting his time.”

“That’s not the first time I’ve heard a member say ‘It’s a waste of my time,’” Pallito told legislators. “Those are pretty serious comments. So, I decided to put the group on hold, take a step back and see how the department has been utilizing it.”

Current and former CCAG members have complained for years that the ...

News in Brief

Arizona: ASPC Florence prison guard Jeffrey Williams, 46, was arrested and booked into the Pinal County jail on April 20, 2012 after child pornography was found on his computer. Williams had taken the computer to a repair shop, which notified the sheriff’s office about the child porn. He reportedly confessed to having downloaded the illicit images and videos, and was charged with ten counts of sexual exploitation of a minor.

Australia: Sean Stephen Hatten, 29, serving a 13-year sentence at the Capricornia Correctional Centre for attempted murder, slashed another prisoner’s throat with a prison-issued razor on April 13, 2011. In court for that offense in May 2012, prosecutors said he told guards at the time that he was “having a bad day.” Hatten received a 15-year prison term for the “calculated and premeditated attack” on the other prisoner, which occurred while he was standing in line to make a hot drink.

California: Anthony “Chopper” Garcia was in the news in 2011 when he was arrested for and convicted of murder, partly because he had had a picture of the crime scene tattooed on his chest. In March 2012, it was reported that Garcia received over $30,000 in ...

 

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