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Prison Legal News: September, 2012

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Volume 23, Number 9

In this issue:

  1. Interview with Conrad Black, Former Federal Prisoner and Millionaire Media Magnate (p 1)
  2. Birthing Behind Bars: A Campaign for Reproductive Justice in Prisons (p 14)
  3. From the Editor (p 14)
  4. Ex-Warden’s Wife Sentenced to One Year for Assisting Prisoner’s Escape (p 15)
  5. Prisoner Medical Care Costs Oregon Taxpayers Over $100 Million Annually (p 16)
  6. Habeas Hints: 2012 Supreme Court Habeas Highlights: Plea Bargaining Cases (p 18)
  7. PHS Hit with $312,000 Verdict for Inadequate Care of Pennsylvania Prisoner (p 20)
  8. Ventura County, California Settles Wrongful Arrest Class-action Suit for $350,000 (p 22)
  9. $657,670 Settlement in Ohio Juvenile Facility Class-action Suit (p 22)
  10. $93,000 Settlement for Georgia State Prisoners Beaten by Guards (p 24)
  11. Iowa SOTP Requirement Does Not Violate Fifth Amendment (p 24)
  12. Bureau of Prisons Houses More “Terrorists” than Guantanamo (p 26)
  13. CIA Slammed for Torture Abuses at Secret Lithuanian Prisons (p 28)
  14. Economy Forces Oregon Jails to Eliminate Beds (p 29)
  15. $2.3 Million Jury Award in Washington, D.C. Wrongful Parole Revocation Suit (p 30)
  16. The Mentally Disordered Inmate and the Law, 2nd edition (p 30)
  17. Hundreds Removed from Georgia’s Sex Offender Registry (p 32)
  18. FEMA Funds New Orleans Jail Complex (p 32)
  19. Arizona DOC Faces Lawsuit Over Inadequate Medical Care (p 34)
  20. Bail Bond Companies Profit While Poorest Defendants Remain in Jail (p 36)
  21. Proving Damages to the Jury, 1st Ed., by Jim Wren (p 40)
  22. GAO Report on Drug Courts Criticized by Drug Policy Alliance (p 40)
  23. Prisoners and Families Connect with Video Visitation, for a Price (p 42)
  24. Onerous Change in Michigan Commutation Procedures Fails to State Ex Post Facto Claim (p 42)
  25. Texas Court Orders TDCJ to Provide Hearing Impaired Telecommunications (p 43)
  26. Tenth Circuit Holds Due Process Requires Meaningful Segregation Reviews (p 44)
  27. Idaho Appellate Defender: State’s Adult Misdemeanor Probation System “Void” (p 44)
  28. Criminal Procedure – Constitutional Limitations in a Nutshell, 7th Ed., by Jerold H. Israel and Wayne R. LaFave (p 46)
  29. Arrests of Federal Prison Guards Soar 90% Over Past Decade; Misconduct Cases Double (p 46)
  30. Google Provides Law Enforcement and Courts with User Information, Censors Content (p 48)
  31. Attorney Who Brought Reporter into Prison Cleared of Ethical Violations (p 48)
  32. Book Review: A Dictionary of Criminal Law Terms, by Bryan Garner (p 48)
  33. $375,000 Settlement for Washington Female Juvenile Detainee Raped by Guard (p 49)
  34. News in Brief (p 50)

Interview with Conrad Black, Former Federal Prisoner and Millionaire Media Magnate

“I never ask for mercy and seek no one’s sympathy. I would never, as was once needlessly feared in this court, be a fugitive from justice in this country, only a seeker of it.” – Conrad Black

Conrad Black, born in Canada, is a member of the British House of Lords who controlled one of the largest newspaper publishing firms in the world, Hollinger International, Inc.

He was prosecuted in the United States in 2005 for defrauding Hollinger of $60 million by allegedly diverting corporate funds to his own use. Convicted of three counts of fraud and one count of obstruction of justice in July 2007, and sentenced to 78 months in prison plus $6.1 million in restitution, he appealed his case all the way to the U.S. Supreme Court. The Court ruled in Black’s favor, limiting the scope of the “honest services” fraud statute in a June 24, 2010 ruling. See: Black v. United States, 130 S.Ct. 2963 (2010), citing Skilling v. United States, 130 S.Ct. 2896 (2010).

Following remand, Lord Black was resentenced to 42 months after two of the fraud charges were dismissed by the Seventh Circuit Court of Appeals; the remaining ...

Birthing Behind Bars: A Campaign for Reproductive Justice in Prisons

by Victoria Law and Tina Reynolds

“I never thought of advocating outside of prison. I just wanted to have some semblance of a normal life once I was released,” stated Tina Reynolds, a mother and formerly incarcerated woman. But then she gave birth to her son while in prison for a parole violation.

“When I went into labor, my water broke. The van came to pick me up, I was shackled. Once I was in the van, I was handcuffed. I was taken to the hospital. The handcuffs were taken off, but the shackles weren’t. I walked to the wheelchair that they brought over to me and I sat in the wheelchair with shackles on me. They re-handcuffed me once I was in the wheelchair and took me up to the floor where women had their children.

“When I got there, I was handcuffed with one hand. At the last minute, before I gave birth, I was unshackled so that my feet were free. Then after I gave birth to him, the shackles went back on and the handcuffs stayed on while I held my son on my chest.”

That treatment, she recalled later, was “the most egregious, dehumanizing ...

From the Editor

This month’s cover story continues our series of interviews with some of the more prominent survivors of the American criminal justice system (for our first interview with former prisoner and famous movie actor Danny Trejo, see the August 2011 issue of PLN).

Prior to his incarceration Conrad Black was, in addition to being a huge media owner, also a noted historian and biographer. Which makes his perspectives on the American carceral state more rounded and grounded in a historical perspective than that of many other prisoners. I hope our readers find his views both interesting and informative as we continue our dialogue on contemporary criminal justice issues. I interviewed Conrad while he was out on bail, shortly before he returned to federal prison to serve the remainder of his sentence. He was finally released from the Bureau of Prisons in May of this year.

We have previously reported on the Prison Phone Justice Campaign, and asked that prisoners submit their comments to the Federal Communications Commission to ask that the FCC take action to cap the rates charged for phone calls made by prisoners across state lines. See the ad on page 39 of this issue for more details ...

Ex-Warden’s Wife Sentenced to One Year for Assisting Prisoner’s Escape

On November 7, 2011, the wife of a former Oklahoma warden was sentenced to one year in prison for helping a prisoner escape 17 years earlier.

Bobbi L. Parker, 49, was married to Randy Parker, assistant warden at the Oklahoma State Reformatory, a medium-security facility in Granite, when Randolph Franklin Dial escaped from the prison on August 30, 1994. Bobbie Parker disappeared as well. Nothing was heard of the pair until authorities, acting on a tip after their story was aired on America’s Most Wanted, discovered them living as husband and wife in a mobile home on an isolated chicken ranch in Campti, Texas in 2005. [See: PLN, Nov. 2005, p.23].

Parker claimed that Dial had drugged her, kidnapped her at knifepoint and kept her as a hostage by threatening that his “mob connections” would kill her family if she fled. Dial confirmed that that was accurate.

After being captured, Dial returned to prison to serve out the life sentence for murder he was serving at the time of his escape. He died in prison of cancer in 2007 at age 62. [See: PLN, July 2007, p.34]. To his dying day he maintained that both he and ...

Prisoner Medical Care Costs Oregon Taxpayers Over $100 Million Annually

As of July 1, 2011, the first day of Oregon’s most recent budget cycle, the Oregon Department of Corrections (ODOC) had a population of just over 14,000 prisoners and a shiny new $1.36 billion budget for the 2011-2013 biennium.

Many factors contribute to such an enormous budget. One of the most significant is medical and mental health care for an aging and increasingly ill state prison population.

During the 2011-2013 biennium, the ODOC will spend approximately $203.9 million – or about 15 percent of its budget – on prisoner health care. That number has risen sharply over the past several years, from $50.4 million (6.2% of the ODOC’s budget) in the 2003-2005 budget cycle. Put another way, prison health care is now costing Oregon taxpayers more than $100 million annually.

According to a budget information report issued by the Oregon Legislative Fiscal Office in September 2011, “Rising hospital costs, competition for health professionals, and increasing pharmaceutical costs all contribute to the increase in the health services budget” for the state’s prison system.

Each year the ODOC spends an average of about $567 per prisoner for health care. As prisoners age, however, those costs spike ...

Habeas Hints: 2012 Supreme Court Habeas Highlights: Plea Bargaining Cases

by Kent Russell

This column provides “habeas hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on “AEDPA” (Antiterrorism and Effective Death Penalty Act), the federal habeas corpus law which now governs habeas corpus practice in courts throughout the United States.

Missouri v. Frye, 132 S.Ct. 1399 (2012)

Lafler v. Cooper, 132 S.Ct. 1376 (2012)

In Missouri v. Frye (Frye) and Lafler v. Cooper (Cooper), the U.S. Supreme Court (SCOTUS) held that, when a plea offer by the State is rejected due to ineffective assistance of counsel (IAC), the defendant may be entitled to a second chance at accepting the offer – even if he subsequently pleaded guilty to less favorable terms, or went to trial, was found guilty and received a longer sentence than that provided for in the original plea offer.

In Frye, the defendant was charged with a felony for a fourth offense of driving with a revoked license. The prosecutor sent Frye’s lawyer a letter offering to reduce the charge to a misdemeanor if Frye pleaded guilty within a specified time period and agreed to a 90-day sentence ...

PHS Hit with $312,000 Verdict for Inadequate Care of Pennsylvania Prisoner

PHS Hit with $312,000 Verdict for Inadequate Care of Pennsylvania Prisoner

On February 17, 2012, a Pennsylvania state jury slapped Prison Health Services (PHS) with a $400,000 verdict for inadequate medical care of a prisoner at State Correctional Institution (SCI) Albion. The award was reduced to $312,000 ...

Ventura County, California Settles Wrongful Arrest Class-action Suit for $350,000

In September 2011, the Ventura County Sheriff’s Office (VCSO) agreed to settle a class-action civil rights lawsuit alleging that innocent people had been jailed when VCSO officials failed and/or refused to use readily available technological means (such as fingerprint identification) to verify that people being booked into the ...

$657,670 Settlement in Ohio Juvenile Facility Class-action Suit

Less than a year after the filing of a federal civil rights class-action, a settlement was reached in the lawsuit, which challenged conditions of confinement at the Washington County Juvenile Center (WCJC) in Marietta, Ohio. In October 2011, the parties to the suit submitted a consent decree for approval by ...

$93,000 Settlement for Georgia State Prisoners Beaten by Guards

The Georgia Department of Corrections has paid $93,000 to settle a federal lawsuit filed by four state prisoners who were subjected to retaliatory beatings by guards at Hays State Prison.

At approximately 2:00 p.m. on August 12, 2010, the plaintiff prisoners – Miracle Nwakanma, Cornelius Spencer, Gregory Haines ...

Iowa SOTP Requirement Does Not Violate Fifth Amendment

The Iowa Supreme Court has held that prison officials do not violate the Fifth Amendment by depriving convicted sex offenders of earned-time sentence reductions when they refuse to participate in a sex offender treatment program (SOTP) that requires them to admit their guilt.

On March 21, 2006, Iowa resident Robert Harkins was convicted of a sex offense and sentenced to 10 years in prison. After his conviction was affirmed on appeal, the district court imposed a special life sentence pursuant to Iowa Code § 903B.1 in addition to the 10-year sentence.

While incarcerated at the Mount Pleasant Correctional Facility, Harkins was on the waiting list for an SOTP. A position in the SOTP became available on July 2, 2008, but eligibility was contingent on Harkins signing a “Treatment Contract” that required him to agree “to be completely honest and assume full responsibility for [his] offenses and [his] behavior.”

Harkins refused to sign and thus could not participate in the SOTP. The Iowa Department of Corrections (IDOC) responded on July 9, 2008 by suspending his earned-time pursuant to Iowa Code § 903A.2(1)(a) (2007). Under that statute, “an inmate required to participate in a sex offender treatment program shall not ...

Bureau of Prisons Houses More “Terrorists” than Guantanamo

According to the New York Times, the federal Bureau of Prisons (BOP) confines more than twice as many prisoners for “terrorism-related” offenses than the controversial and oft-maligned U.S. military detention facility in Guantanamo Bay, Cuba.

“As of October 1, 2011, the ... [BOP] reported that it was holding 362 people convicted in terrorism-related cases, 269 with what the bureau calls a connection to international terrorism, up from just 50 in 2000. An additional 93 inmates have a connection to domestic terrorism,” the Times stated. The Times also noted that many of those prisoners were prosecuted as part of the government’s “zero-tolerance” approach to any conduct remotely related to terrorism. The BOP, for its part, has set up two special Communication Management Units (CMUs) to house such prisoners, who are disproportionately black and Muslim.

At a time when many legal experts of both conservative and liberal persuasions are calling for an end to the draconian federal sentencing guidelines and decrying the rising federal prison population, the U.S. government is unrelenting in seeking maximum penalties for defendants with ties to terrorism, no matter how attenuated they may be.

The 9/11 terrorist attacks galvanized federal and state law enforcement into ...

CIA Slammed for Torture Abuses at Secret Lithuanian Prisons

Despite a lawsuit filed in the European Court of Human Rights by Saudi-born alleged terrorist Abu Zubaydah, Lithuanian prosecutors have declined to pursue charges related to two CIA-operated prisons located in that country. Human rights groups Amnesty International and Reprieve have claimed, according to the Associated Press, that Zubaydah was secretly flown by the CIA from Morocco to Lithuania in 2005.

Zubaydah had been arrested in Pakistan as a suspected high-level al-Qaeda operative who was involved in the 9/11 attacks. He said he spent about a year in the Lithuanian CIA prison before being moved to Afghanistan; he is currently being held in U.S. military custody in Guantanamo Bay, Cuba.

Zubaydah’s attorney filed a complaint with the European court alleging that Zubaydah was a victim of torture and secret imprisonment, and was subjected to simulated drowning and other torture techniques that included forced nudity, confinement in small boxes and sleep deprivation.

Amnesty International and Reprieve said they had provided “sufficient evidence” to the Lithuanian Prosecutor General’s Office to proceed with a probe into the existence of the secret CIA prisons. ABC television ran a story in 2009 that claimed Lithuanian officials had supplied the CIA with ...

Economy Forces Oregon Jails to Eliminate Beds

Commissioners in Marion County, Oregon voted on October 19, 2011 to cut 128 jail beds, closing one pod and reducing the jail’s capacity to 400 prisoners. In reality, however, only 56 beds were cut because the county is reopening 72 work center beds that had been downsized previously due to budget cuts. The commissioners also eliminated five guard positions at the jail that were vacant.

The changes came in response to a $600,000 state funding reduction during the 2011-2012 fiscal year, according to Marion County Sheriff Jason Myers. Work release is half as expensive as detaining offenders in jail, he noted. For example, prisoners on work release must pay for their own medical care but those in jail receive medical treatment at the county’s expense.

The loss of jail beds is not expected to cause a mass exodus of prisoners, Myers stated. The county will use a risk-assessment tool to determine the risk of reoffending posed by each jail and work center prisoner. When the jail is at capacity, the lowest risk offenders will be released; most affected prisoners, however, will be transferred from jail to the work center.

“It’s disappointing we have to close jail ...

$2.3 Million Jury Award in Washington, D.C. Wrongful Parole Revocation Suit

A District of Columbia (D.C.) federal jury has awarded $2.3 million to a former prisoner who spent ten years in prison after his parole was wrongfully revoked based on unreliable hearsay evidence.

Charles Singletary was convicted of robbery, armed robbery and assault in D.C. Superior Court. He ...

The Mentally Disordered Inmate and the Law, 2nd edition

The Mentally Disordered Inmate and the Law, 2nd edition, by Fred Co-hen (Civil Research Institute, 2008). 1,114 pages, $237.50; and Practical Guide to Correctional Mental Health and the Law, by Fred Cohen (Civil Research Institute, 2011). 788 pages, $149.50

Book review by Julia Etter

The second edition of Fred Cohen’s exhaustive reference book on mentally ill prisoners is a must-have resource. Divided into two volumes, The Mentally Disordered Inmate and the Law provides guidance to prison officials, civil rights attorneys, jailhouse lawyers and those involved in creating public policy around the treatment of prisoners with mental illness in the United States.

Fred Cohen is hailed as one of the nation’s “foremost experts on correctional law and ... the leading scholar and practitioner in correctional mental health law.” He has acted as a court monitor to ensure improvement of conditions for mentally ill prisoners in six jurisdictions over the past two decades, including the state of Ohio in Dunn v. Voinovich. Cohen currently serves as editor of the Correctional Mental Health Report and Correctional Law Reporter; most importantly, he is well-versed in the reality of prison reform and advocates the use of litigation as the only effective ...

Hundreds Removed from Georgia’s Sex Offender Registry

A May 2010 revision to Georgia’s sex offender law, one of the toughest in the nation, has resulted in more than 440 people being removed from the state’s sex offender registry as of October 2011.

Georgia has 20,676 registered sex offenders. The new law, passed as HB 571, removes those least likely to commit sex crimes from registration requirements. Additionally, about 13,000 registered sex offenders will no longer have to comply with housing restrictions that prohibit them from living within 1,000 feet of a church, school, park or other place where children gather. Previously, the law was applied retroactively to offenders who committed crimes before the statute’s original enactment date of June 4, 2003.

Further, disabled and elderly sex offenders may be exempt from residency restrictions, and sex offenders will not have to provide law enforcement officials with their Internet passwords.

Legislators moved to change the state’s sex offender law due to setbacks from court challenges [see: PLN, March 2011, p.28; June 2008, p.40], and because the harsh requirements had resulted in extreme situations such as homeless sex offenders living in outdoor camps. [See: PLN, May 2010, p.20]. Further, law ...

FEMA Funds New Orleans Jail Complex

The Federal Emergency Management Agency (FEMA) has committed approximately $114 million to build a new jail complex that will be overseen by the Orleans Parish Sheriff’s Office in New Orleans, Louisiana. The Orleans Parish Prison and sheriff’s administration facilities suffered significant damage in the aftermath of Hurricane Katrina. [See: PLN, April 2007, p.1].

Before the storm, the prison complex contained close to 7,500 beds and housed city, state and federal prisoners in seven jail facilities.

Orleans Parish Sheriff Marlin N. Gusman originally proposed that a 4,300-bed prison complex be constructed using FEMA funds. The New Orleans City Council agreed in February 2011 to build 1,438 beds at an estimated cost of $78.6 million. The old prison buildings are to be torn down upon completion of the new complex. [See: PLN, June 2011, p.28]. Gusman announced the closure of one of the old buildings, the Orleans Parish Prison House of Detention, on April 10, 2012.

FEMA has committed $50.4 million towards the prison construction project, but there was haggling over cost increases and FEMA’s contribution as the project was redesigned and expanded. Part of the amended plan is a new administration ...

Arizona DOC Faces Lawsuit Over Inadequate Medical Care

There are cuts to health care and there are health care cuts. At least one Arizona prisoner has personal knowledge of the unfortunate difference.

Prisoners and their advocates have accused the Arizona Department of Corrections (ADC) of being so obsessed with reducing costs that prison officials routinely deny medical care for serious, even life-threatening conditions.

A diabetic prisoner alleged that he lost sight in one eye and partial sight in the other after waiting months for his insulin injections. Another claimed he was denied medication for epilepsy and suffered repeated seizures for weeks. And one prisoner’s face was permanently disfigured after medical staff failed to treat a cancerous growth on his lip for seven months; consequently, doctors had to remove most of his lip and mouth.

But arguably the worst cut occurred after a prisoner discovered a growth on his penis which then went untreated for two years. The growth was ultimately diagnosed as a cancerous tumor, forcing the amputation of his penis. The cancer then spread to his stomach.

Coupled with Arizona’s prisoner suicide rate, which is more than double the national average (14 suicides were reported in fiscal year 2011), critics such as Arizona Prison Watch ...

Bail Bond Companies Profit While Poorest Defendants Remain in Jail

by David M. Reutter

As America’s prison population has swelled over the past three decades to become the largest per capita in the world, the number of special interests that feed off the so-called prison industrial complex has grown. The expansion of companies that benefit from crime and incarceration is no accident; it is the result of extensive lobbying by businesses that profit from other people’s misfortune – primarily the misfortune of the poor, who are vastly overrepresented in our nation’s prisons and jails.

Often overlooked among the special interests that profit from the criminal justice system in the U.S. is an industry that portrays itself as one dedicated to helping people get out of jail. In actuality, though, it is involved in keeping people incarcerated in order to protect its bottom line.

Just twenty years ago in most jurisdictions nationwide, the services of bail bondsmen were only required by defendants who had a high bond set by the court, which typically occurred in cases involving serious crimes or repeat offenders. Most defendants were released through publicly-funded pretrial services that granted release on personal recognizance based on a promise to appear at future court dates.

Currently only ...

Proving Damages to the Jury, 1st Ed., by Jim Wren

James Publishing, 2011). 800 pages (with CD), $70.00

Book review by John E. Dannenberg

Proving Damages to the Jury is a detailed “how-to” manual that takes the reader through the psychology, reasoning, preparation and execution of a civil damages trial. The object lesson is to learn how to select, prime and sell the jury on a maximum damage award for the plaintiff.

The author, Jim Wren, a law professor at Baylor University, has 30 years of trial experience and has been honored as a “Texas Super Lawyer.” Proving Damages is an incredibly insightful, pragmatic treatise for both litigants and attorneys who want to “win big.” The book’s 21 chapters are written in a succinct style with numerous helpful subheadings; the detailed table of contents alone is 30 pages.

Proving Damages begins with a study of juror motivations, fears and biases – identifying and analyzing 15 types of juror biases. The book explains that biases are shortcuts to decision-making, and occur naturally or can be acquired. Positive motivations are stronger than negative ones, Wren notes, when it comes to damages. Fears generally can be allayed by working to establish credibility through honesty and forthrightness throughout the trial. Indeed, one chapter ...

GAO Report on Drug Courts Criticized by Drug Policy Alliance

The Drug Policy Alliance (DPA), the nation’s “leading organization promoting alternatives to current drug policy,” often has to wade through murky data to expose the ineffectiveness of the nation’s drug court system. But a recent federal study touting drug court successes only required the DPA to perform some simple math.

A report released by the U.S. Government Accountability Office (GAO) in December 2011 found that 18 of 32 drug courts or prior drug court research reports surveyed – from Sacramento, California and Kalamazoo, Michigan to Queens, New York and Guam – produced “statistically significant” reductions in recidivism. Of course, if just over half of those drug courts produced statistically significant results, it stands to reason that the rest did not.

“The message here is: enter a drug court at your own risk,” said Margaret Dooley-Sammuli, deputy director of the DPA’s Southern California office. “The chance you’ll enter a drug court that might help you avoid getting arrested again is about 50-50, the equivalent of a coin toss. Clearly, the popularity that drug courts enjoy is not supported by the evidence.”

It’s difficult to extract from the GAO report what is considered “statistically significant.” The report’s ...

Prisoners and Families Connect with Video Visitation, for a Price

Since 2006, family members and friends of Virginia prisoners have been able to use modern videoconferencing equipment to enjoy visits with loved ones held in state prisons hundreds of miles away.

The Video Visitation Program, operated by two Richmond-based nonprofit groups, Assisting Families of Inmates and the New Jubilee Educational and Family Life Center, in cooperation with the Virginia Department of Corrections, is designed to make it easier for prisoners to keep in touch with their families. Staying connected, prison officials and prisoner advocates agree, improves the likelihood that prisoners will achieve long-term success once they are released.

For prison officials, there is the added bonus that participation in the video visitation program gives prisoners an incentive to maintain good behavior. A prisoner who has not remained disciplinary-free for six months is generally not allowed to take part.

For families, the video visiting program is user friendly. A half-hour video chat costs $15 while an hour-long visit costs $30; by comparison, an in-person visit – taking into account the cost of gas, food and overnight lodging – can run $500 or more, according to Fran Bolin, executive director of Assisting Families of Inmates.

The Video Visitation Program is offered at ten Virginia ...

Onerous Change in Michigan Commutation Procedures Fails to State Ex Post Facto Claim

The Sixth Circuit Court of Appeals has held that a change in procedures for commutation of sentence does not constitute an ex post facto violation.

The appellate court ruled in a case involving Michigan prisoner Keith Lewis-El, who was serving a non-parolable life sentence for first-degree felony murder. Lewis-El appealed after the federal district court summarily dismissed his 42 U.S.C. § 1983 complaint against members of the Michigan Parole Board (MPB).

Although Lewis-El’s sentence was non-parolable, the MPB has the power to review a prisoner’s sentence and recommend to the governor that the sentence be commuted.
Lewis-El claimed that prison officials had advised him upon early admission that the Guidelines for Commutation Recommendations, known as “the grid,” were used to determine the earliest date when the MPB could recommend commutation.

With a score of twenty-seven, Lewis-El was told he would have to serve 27 years before such a recommendation.

In 2005, the Michigan Department of Corrections altered its guidelines for determining whether to recommend commutation. The new policy abandoned the grid, which specified a number of years before a recommendation could be made, and adopted a policy that sets an interview after ten years of incarceration with ...

Texas Court Orders TDCJ to Provide Hearing Impaired Telecommunications

On April 5, 2011, a Texas state court issued a temporary injunction ordering the Texas Department of Criminal Justice (TDCJ) to provide telecommunications to hearing impaired prisoners using the Texas Relay Service (TRS).

Leslie Arrington, Janet Lock, Kathy Williams and Laura Beeman are Texas state prisoners who, with the assistance of the Texas Civil Rights Project (TCRP), filed a lawsuit in state court challenging the unavailability of telecommunications for hearing impaired prisoners. Aided by TCRP attorneys Abigail Frank and Scott Medlock, they filed a motion for a temporary injunction which the court granted.

The temporary injunction requires the TDCJ to immediately make TRS services available to hearing impaired prisoners so they can communicate with people on their approved lists under conditions similar to those applied to prisoners without hearing impairments.
The only exception is that hearing impaired prisoners must submit a written request to the warden or designee two hours in advance of the requested TRS phone call.

The TDCJ was also ordered to “investigate ways to implement the use of videophone technology to accommodate inmates with disabilities within TDCJ facilities.” See: Arrington v. Securus Technologies, Inc., 419th J.D. Court, Travis Co. (TX), Case No. D-1-GN-10-000515.

The TDCJ appealed ...

Tenth Circuit Holds Due Process Requires Meaningful Segregation Reviews

Prisoners indefinitely confined to administrative segregation are entitled to meaningful, periodic reviews of their segregation status, the U.S. Court of Appeals for the Tenth Circuit held on June 20, 2011, while granting qualified immunity to the prison official defendants. The appellate court issued an amended opinion in April 2012; however, the outcome remained the same.

Colorado state prisoner Janos Toevs filed suit against prison officials in federal court, arguing that he was denied due process while participating in the Colorado DOC’s Quality of Life Level Program (QLLP). The QLLP is a behavioral modification program that uses administrative segregation in conjunction with a tiered system of privileges to promote improved behavior among “problem” prisoners.

The QLLP has six levels. Level 1, the most restrictive, offers little to no privileges. As prisoners progressively move through each level, more privileges are afforded. After completing Level 6, QLLP participants are eligible for return to the general prison population. There is no maximum amount of time a prisoner can spend at each level, but there are minimums; it takes at least thirteen months and seven days to complete the QLLP.

Toevs was placed in the QLLP after attempting to escape in 2002. While ...

Idaho Appellate Defender: State’s Adult Misdemeanor Probation System “Void”

A memo authored by Sara B. Thomas, chief of the Idaho State Appellate Defender’s appellate unit, has concluded that the state’s adult misdemeanor probation system is unconstitutional, calling it “null, void and unenforceable.”

According to the August 15, 2011 memo, the legislative delegation of authority to the counties to supervise misdemeanor probationers violates Article X, Section 5 of the Idaho Constitution, as amended in 1942, which provides that a “state board of correction ... shall have the control, direction and management of ... adult probation and parole....” Felony probation cases are handled by the Department of Correction.

The memo calls into question the state’s delegation to each county of the obligation (and authority) to fund and administer adult misdemeanor probation cases.

Thirty-eight of Idaho’s 44 counties operate their own misdemeanor probation programs. Ada, Adams, Boise, Power and Gem counties contract with a private company to provide the services.

Ada County commissioners have expressed concern over the State Appellate Public Defender’s Office memo, with Commissioner Sharon Ullman saying, “I just hope we don’t have a lot of liability for all of the years that county commissioners all around the state have been running misdemeanor probation programs. I ...

Criminal Procedure – Constitutional Limitations in a Nutshell, 7th Ed., by Jerold H. Israel and Wayne R. LaFave

Criminal Procedure – Constitutional Limitations in a Nutshell,
7th Ed., by Jerold H. Israel and Wayne R. LaFave

(West Group, 2006). 539 pages, $38.00

Book review by John E. Dannenberg

Criminal Procedure – Constitutional Limitations in a Nut Shell is best understood by first understanding what it is not – it is not a text on the broader subject of general criminal procedure. Rather, this text approaches criminal procedures that are more narrowly circumscribed by specific constitutional constraints. With an emphasis on leading case law defining such constraints, Criminal Procedure addresses in detail each of the following topics: Arrest, search and seizure; wiretapping and use of secret agents; police interrogation and confessions; lineups; the exclusionary rule; right to counsel; the privilege against self-incrimination; bail; and appellate review.

Authors Israel and LaFave, seasoned law professors, are careful to point out there is no substitute for reading and discoursing on the seminal court decisions that have come to define constitutional limitations in criminal procedure. That being said, it is also true there is no substitute for studying a succinct treatise on constitutional criminal procedures when you are already confined and seek to understand your rights. Criminal Procedure offers prisoners just such a self-paced study ...

Arrests of Federal Prison Guards Soar 90% Over Past Decade; Misconduct Cases Double

According to a September 2011 report by the U.S. Justice Department’s Office of the Inspector General (OIG), arrests of federal Bureau of Prisons (BOP) guards increased almost 90% over the previous ten years, while staffing in the BOP grew only 24% over the same period of time. From fiscal year 2001 to 2010, a total of 272 BOP guards were arrested. The report did not state how many cases originated from privately-operated prisons.

The OIG also noted that misconduct investigations involving BOP guards had doubled from 2,299 in FY 2001 to 4,603 in FY 2010, with more than half of the offenses committed during the guards’ first two years on the job, and recommended that the BOP improve its hiring, training and supervision of rookie officers. Also affecting the rise in misconduct cases was an increasing number of female prisoners and young offenders, and an increase in the number of private facilities holding federal prisoners.

The BOP’s past hiring practices for guards often resulted in a lower quality of applicants, according to the report. Salaries and benefits for state prison guards have generally tended to be lower than for sworn officers in municipal police departments ...

Google Provides Law Enforcement and Courts with User Information, Censors Content

Tech giant Google congratulated itself in October 2011 for refusing two “takedown” requests from U.S. law enforcement agencies that claimed videos of police brutality posted on YouTube were defamatory. Google owns YouTube, the Internet’s most popular video-sharing site.

A “local law enforcement agency,” which Google did not identify, was one of the authorities that requested removal of the police brutality videos, “which we did not remove,” Google said.

However, the company’s own data shows that Google often complies when authorities want content removed, and nearly always turns over sensitive user information when requested by courts and law enforcement officials.

Google’s online transparency report, which is updated every six months, indicates that the company complied with around 48 percent of U.S. court orders and executive or law enforcement takedown requests in 2011.

“Police seem to be advising Google on what material might be breaking the law, and then Google decides to censor this material without a court order” in some cases, said Jim Kilock, executive director of the Open Rights Group.

Kilock added that YouTube and other public media platforms are becoming police tools to gather evidence, and are sometimes co-opted by law enforcement to potentially ...

Attorney Who Brought Reporter into Prison Cleared of Ethical Violations

A Kansas lawyer who took an investigative reporter into the Topeka Correctional Facility (TCF), a women’s prison, has had the cloud of a pending ethics complaint lifted after two years. The complaint was filed with the Kansas Board for Discipline of Attorneys (Board) by Charles Simmons, then-deputy secretary of the Kansas Department of Corrections.

Attorney Keen A. Umbehr took Tim Carpenter, an investigative reporter with the Topeka Capital-Journal, into TCF to uncover a pattern of sexual abuse. Carpenter interviewed prisoners and the interviews were reported in news stories that detailed illegal sexual relationships and contraband trafficking involving prison employees. Simmons’ ethics complaint, filed in October 2009, charged Umbehr with misrepresenting Carpenter’s occupation when they visited TCF. [See: PLN, May 2010, p.18].

On November 9, 2011 the Board issued a letter dismissing the complaint. It said the ethics violation must be proven by “clear and convincing evidence,” which was lacking. While Umbehr said he was pleased with the result, he took issue with the Board’s statement that he should have researched the issue of members of the media visiting the prison or identified Carpenter as a media representative. Umbehr stated that under the same circumstances he would ...

Book Review: A Dictionary of Criminal Law Terms, by Bryan Garner

(Thomson West, 2000). 751 pages, $29.00

by John E. Dannenberg

PLN readers will recognize this compact 751-page pocketbook as a “junior” version of the venerable 1,920-page Black’s Law Dictionary, which is also the work of seasoned legal lexicographer Bryan Garner. The Dictionary of Criminal Law Terms gains its compactness not by skimping, but by focusing on criminal law terms – dealing with criminology, criminal procedures and penology. As such, its 3,000 words and phrases are particularly useful to jailhouse lawyers.

Compared to the standard Black’s dictionary, this edition is, refreshingly, much more brief and concise in its definitions; one doesn’t need yet another dictionary to translate them.
Listings are conveniently alphabetical even for multiple word phrases. For example, “in forma pauperis” is located between “informant” and “information.” Because the definitions are in plain, concise language, they are not intimidating but are rather very easy to use, and, importantly, to learn from. Where a definition has been determined by venerable case law, the legal citation is given. The publisher uses good size print, notwithstanding the book’s compact size, making it readable in dim cell lighting.

The Dictionary of Criminal Law Terms has two bonus sections ...

$375,000 Settlement for Washington Female Juvenile Detainee Raped by Guard

On July 7, 2011, the Washington State Department of Social and Health Services (DSHS) agreed to a $375,000 settlement in a lawsuit that alleged a guard had raped a female detainee at the Echo Glen Children’s Center.

The detainee, Brittney Brown, was 19 at the time she was ...

News in Brief

Indiana: Lynsey Stangel, 26, formerly employed as a federal prison guard at Terre Haute, pleaded guilty on May 2, 2012 to having sex with a prisoner in a patrol car while on duty. “Unfortunately, there were firearms in the vehicle at the time the tryst occurred, including a 12-gauge shotgun, a 9mm pistol, and I also believe there was an M-16 assault rifle,” said U.S. Attorney Joe Hogsett. Stangel received three years’ probation and will have to register as a sex offender.

Kentucky: Former state prison guard Ted Ray Schlenker, who operates a gun shop called Kentucky Gun Runners, was arrested on April 28, 2012 after sending a threatening letter and a 9mm pistol to an ATF agent who was investigating Schlenker’s activities. He was charged in federal court in May 2012 with mailing threatening communications and mailing a firearm.

Kentucky: In May 2012, former Greenup County Detention Center guard Causetta Michelle Tackett, 24, received a 10-year prison sentence after pleading guilty to first-degree drug trafficking and first-degree promoting contraband. Tackett and her husband, Charles, were arrested in August 2011 and accused of selling drugs to prisoners. She had requested probation, which the judge said he could not ...

 

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