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Prisoner Education Guide

Prison Legal News: January, 2013

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Volume 24, Number 1

In this issue:

  1. Forms of Judicial Deference in Prison Law (p 1)
  2. Louisiana Public Service Commission Votes to Lower Prison and Jail Phone Rates (p 14)
  3. From the Editor (p 16)
  4. FBI Reports Drop in Violent Crime; DOJ Reports Increase (p 17)
  5. Venezuelan TV Station Fined $2.16 Million for Prison Reporting (p 18)
  6. Dramatic Increase in Percentage of Criminal Cases Being Plea Bargained (p 20)
  7. Pennsylvania: Former BOP Warden Pleads Guilty to Cover-up (p 21)
  8. Despite Budget Crunch, Texas Rarely Grants Medical Paroles (p 22)
  9. Iraqi Prison Breaks Likely Inside Jobs (p 23)
  10. Contraband Smuggling a Problem at Prisons and Jails Nationwide (p 24)
  11. NH Corrections Officer, Suspended After Fight, Obtains Back Pay Plus $250,000 in Damages and Attorney Fees (p 26)
  12. California Lawsuit Challenges Voting Prohibition on County-level Offenders (p 28)
  13. Louisiana Sex Offender Internet Restrictions Unconstitutional (p 28)
  14. Law Enforcement Forfeiture Corruption Scandal in Michigan Includes Police Chief (p 30)
  15. Massachusetts Prisoners Receive Refunds for Illegal Fees Imposed by Sheriff (p 30)
  16. Obama Pardons Two Turkeys, No Prisoners in 2012 (p 32)
  17. Scientific Advances in Arson Investigations Reveal Wrongful Convictions (p 34)
  18. Georgia Judge Removed from Bench for Misconduct, Files Lawsuit Claiming Conspiracy (p 38)
  19. Virginia Considers Privatizing State’s Civil Commitment Center (p 38)
  20. New Mexico Slaps Private Prison Companies with $1.4 Million in Fines (p 40)
  21. States Seek Federal Medicaid Reimbursements to Offset Prison Medical Costs (p 40)
  22. Oregon-Washington Prison Employee Logs 19-Hour Days (p 42)
  23. Nation’s Largest Private Prison Companies Trying to Do the REIT Thing (p 42)
  24. Tenth Circuit Cites PLN Case in Denying Oklahoma Newspaper’s FOIA Request (p 44)
  25. California and Oregon Prison Guards Fire Shots to Break up Fights (p 44)
  26. North Carolina Governor Pardons Wilmington 10 (p 45)
  27. Cook County, Illinois Lowers Jail Phone Rates (p 46)
  28. California: Del Norte County DA Described as “Idiotic” (p 46)
  29. 9th Circuit: Class-action by Civilly Committed Sexually Violent Predators May Proceed on Claims for Declaratory and Injunctive Relief (p 48)
  30. First Circuit: RLUIPA Does Not Provide Relief from Transfer to Remote Prison where Opportunities for Religious Exercise are Limited (p 48)
  31. News in Brief (p 50)

Forms of Judicial Deference in Prison Law

by Sharon Dolovich1

Anyone familiar with the constitutional law of prisoners’ rights knows how ready courts are to find against prisoners in the name of “judicial deference.” It is not unreasonable for courts to grant a measure of deference to state actors tasked with a job as complex, challenging and hazardous as running prisons. But it is also the role of the courts to enforce the Constitution, and if that role is not to be abdicated then the need for deference ought not to preclude good faith implementation of constitutional protections.

Of these two imperatives—judicial deference and meaningful constitutional enforcement—the former is arguably the primary driver of the Supreme Court’s prisoners’ rights jurisprudence. Yet taken as a body, the cases in this area reveal no principled basis for determining when deference is justified, what forms it may legitimately take, or the proper limits on its use. Instead, the mere mention of “deference” has emerged as a catch-all rationale for curtailing both the burden on prison officials to ensure constitutional prisons and prisoners’ prospects for recovery, even for potentially meritorious claims.

The role of judicial deference in prison law merits a longer and more in-depth treatment than that ...

Louisiana Public Service Commission Votes to Lower Prison and Jail Phone Rates

On December 12, 2012, after a “raucous” hearing with four hours of testimony, the Louisiana Public Service Commission (LPSC) voted to lower the cost of telephone calls made from state prisons and local jails. With rates of $.30 per minute and surcharges to set up phone accounts, calls made by Louisiana prisoners were previously around 15 times the cost of freeworld phone calls. The rate cut will be a relief for families of the roughly 40,000 people held in prisons and jails in Louisiana.

The proposal to reduce the phone rates first came before the LPSC for a vote on November 15, 2012. At that hearing, Commissioners Foster L. Campbell and Jimmy Field voted in favor of the proposal while Commissioners Eric Skrmetta and Clyde Holloway voted against. Responding to pleas from sheriffs, Commissioner Lambert C. Boissiere III abstained, wanting to give the sheriffs another month to review the proposal before deciding whether he would vote in favor of cutting prison and jail phone rates. The LPSC then voted 3-2 to defer the vote until December.

Former prisoners, prisoners’ family members, attorneys and advocates took the stand at the LPSC hearings in November and December to testify in support ...

From the Editor

Over almost 23 years of publishing PLN, the saddest duty I have had as editor has been noting the passing of many of our friends and supporters. One person who liked my PLN obituaries, and thought I wrote them well, was my father, Rollin Wright, who was also PLN’s publisher and our first office manager before we even had an office. He asked me to write his obituary when the time came, and I am sad to report that that time has come.
Rollin died on December 10, 2012 at the Palm Beach County Hospice in West Palm Beach, Florida from complications related to kidney cancer. He was 86 years old.

When Ed Mead and I started Prison Legal News in 1990, we were both incarcerated in different maximum-security prisons in Washington state. We needed someone who could track our donations and pay the bills to publish and mail what was, at that time, a hand-typed ten-page newsletter. Our initial volunteer proved to be unreliable and so did the next one. As Ed noted in the August 1990 PLN editorial, “The sharp eyed reader will have noticed our new return address for the newsletter. This is the 3rd new ...

FBI Reports Drop in Violent Crime; DOJ Reports Increase

Violent crime fell nationally in 2011 according to the FBI’s annual Uniform Crime Report, released in October 2012. The FBI reported a 3.8 percent drop in violent crime – including murder, forcible rape, robbery and aggravated assault – with an estimated 1.2 million violent offenses nationwide. The data was collected from 18,233 law enforcement agencies on the federal, state, tribal and local levels.

Although violent crime declined to an average rate of 386.3 offenses per 100,000 population, there were certain subcategories that showed increases. For example, the homicide rate in towns with 10,000 or fewer residents rose 18 percent in 2011; however, this was after a 23 percent drop the previous year.

There were 14,612 homicides in 2011, a slight decline from 14,722 in 2010 but the lowest number of murders in the past two decades. Firearms were used in homicides more than two-thirds of the time.

With respect to property crimes, larceny and vehicle thefts decreased while the number of burglaries rose slightly; on average, property offenses dropped .5 percent nationwide. There were approximately 9 million property crimes in 2011, or an average rate of 2,908.7 per 100,000 population ...

Venezuelan TV Station Fined $2.16 Million for Prison Reporting

by Matt Clarke

Globovisión is the last remaining Venezuelan television station that is openly critical of President Hugo Chávez. In May 2010, Globovisión president Guillermo Zuloaga was arrested for making offensive comments about Chávez while discussing a government crackdown on the Venezuelan media at an Inter-American Press Association conference.

That was only part of a years-long campaign against Globovisión authorized by President Chávez, who promised to close the station. He claimed Globovisión had backed a failed 2002 coup that attempted to depose him.

Zuloaga was forced to flee the country after arrest warrants were issued against him for spreading false news, offending Chávez in public remarks, usury and conspiracy. He sought asylum in the U.S., where he remains in exile, and said the charges were part of a vendetta by Chávez.

“We are the last independent broadcaster standing, and the government is doing what it can to shut us down,” stated Globovisión vice-president María Fernanda Flores.

On October 18, 2011, National Telecommunications Commission chairman Pedro Maldanado announced that Globovisión was being fined 9.3 million bolívares ($2.16 million) due to its “editorial conduct” during its coverage of a prison riot and standoff in June 2011. The station’s ...

Dramatic Increase in Percentage of Criminal Cases Being Plea Bargained

by Matt Clarke

Over the course of the past few decades there has been a significant increase in the percentage of criminal cases being plea bargained and a corresponding decrease in cases that are taken to trial.

According to many legal experts, the driving force behind this change is an increase in prosecutorial power. Through the use of mandatory minimums and other sentencing enhancements, the power to sentence convicted defendants is passing from judges to prosecutors as legislators continue to pass laws that remove judges’ sentencing discretion but allow prosecutors to decide whether to charge defendants under harsh or more lenient statutes. The effect of these changes has been to increase the risk exposure of defendants going to trial, which creates a greater coercive effect for them to agree to plea bargains.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” stated University of Utah law professor Paul Cassell, who was formerly a conservative federal judge and prosecutor. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”

“We now have an incredible concentration of power ...

Pennsylvania: Former BOP Warden Pleads Guilty to Cover-up

Troy Levi, the former warden of Federal Detention Center (FDC) Philadelphia, was indicted by a federal grand jury on September 13, 2011. Levi, 49, was charged with multiple counts of obstruction of justice, witness tampering and making false statements to federal officials.

According to the indictment, he attempted to conceal the fact that an unnamed FDC employee accidentally entered the facility with a bag containing a personal firearm, contrary to FDC rules, after coming directly from his second job as an armed security guard.

Levi encouraged the employee, who at the time was the subject of an unrelated workplace violence investigation, to falsely state that Levi had given him permission to enter the prison with the gun for the purpose of securing it in an institutional weapons locker. He also induced the employee to falsely say that the trunk lock of his vehicle was broken, to explain why he couldn’t leave the firearm in his car.

Levi further instructed the employee to obtain a receipt from an auto mechanic in Philadelphia that falsely indicated the trunk lock had been serviced, in order to cover-up his efforts to ensure the employee did not face discipline for bringing the firearm onto ...

Despite Budget Crunch, Texas Rarely Grants Medical Paroles

by Matt Clarke

Faced with a $23 billion shortfall in its 2011-2012 budget, Texas officials nevertheless have refused to take advantage of a potential money-saver: paroling state prisoners who are elderly, infirm or terminally ill, who pose little threat to public safety.

The Texas Public Policy Foundation (TPPF), a conservative think tank, estimates that $76 million per biennium could be saved if parole officials would grant medical parole to the backlog of more than 1,000 terminally ill or extremely disabled prisoners who have applied for early release.

“We’re not saying everybody” should be granted medical parole, said Marc Levin, director of the Center for Effective Justice at the TPPF. “We’re just saying there’s room to expand the use of this.”

Undoubtedly the TPPF is correct. In fiscal year 2010, 1,443 prisoners applied or were referred by medical personnel for medical parole consideration. Of those only 428 cases were referred to the parole board by the Texas Correctional Office on Offenders with Medical or Mental Impairments for release on medically recommended intensive supervision, and a mere 102 were granted medical parole. During the same time period, 159 of the 1,443 prisoners who had applied or ...

Iraqi Prison Breaks Likely Inside Jobs

On September 27, 2012, prisoners at the Tasfirat prison in Tikrit seized weapons after breaking into a storage room, overpowered guards and engaged in a gun battle with security forces during an escape attempt.

The late evening incident, which lasted several hours, left 16 guards dead. Four prisoners also were killed and at least 32 people were injured, including both guards and prisoners. Government officials said they had regained control of the facility by the following morning.

“Everything is under control now. Our security forces are chasing the escaped prisoners and have already recaptured some,” said Mohammed al-Assi, a spokesman for Salahuddin province, which includes Tikrit.

Over 100 prisoners escaped, including 47 with links to Al-Qaeda who had been sentenced to death. A curfew was imposed in the city and 23 of the escapees were quickly captured.
A local official, Hakim al-Zamili, opined that the prison break was an inside job.

“This incident shows that Iraqi security troops are still unable to control the situation and that they are still being infiltrated by terrorists,” he stated.

Iraq’s Interior Ministry later issued a statement that confirmed there was “clear collusion” between prisoners and prison staff. Prior to the escape, “[t ...

Contraband Smuggling a Problem at Prisons and Jails Nationwide

by Matt Clarke

The smuggling of illicit items such as drugs, cigarettes and cell phones into prisons and jails continues to be a significant problem throughout the United States. Often the people doing the smuggling are guards or other corrections employees, who, motivated by greed, accept bribes from prisoners.

Prison and jail staff are not the only ones involved in contraband smuggling, though; prisoners and their outside contacts, including friends and family members, are sometimes prosecuted on contraband-related charges.

The following recent arrests and convictions across the nation are indicative of the scope of this problem.


Belinda Keith, a former training officer at the Bureau of Prisons FCI Talladega, was indicted on September 26, 2012 on charges of graft and smuggling contraband. She pleaded guilty in November 2012, admitting that between October 2010 and October 2011 she accepted thousands of dollars in bribes to bring 31 bags of tobacco into the prison. She has not yet been sentenced.


In September 2012, Nicoll Koval, 25, serving a year in jail for a fatal hit-and-run incident, pleaded guilty to helping an-other prisoner smuggle greeting cards soaked in liquid meth into the Las Colinas Detention Facility near San Diego. She was ...

NH Corrections Officer, Suspended After Fight, Obtains Back Pay Plus $250,000 in Damages and Attorney Fees

NH Corrections Officer, Suspended After Fight, Obtains Back Pay Plus $250,000
in Damages and Attorney Fees

On October 31, 2011, a state court jury found that the New Hampshire Department of Corrections (NHDOC) had interfered with the free expression rights of Mark F. Jordan, 43, a prison guard and ...

California Lawsuit Challenges Voting Prohibition on County-level Offenders

On March 7, 2012, the League of Women Voters, two prisoners’ rights organizations and a female prisoner filed suit against California election officials, alleging that offenders in county jails or on county supervision were being improperly disenfranchised.

In an attempt to ease severe overcrowding in California’s prison system, the state legislature passed a “realignment” initiative in October 2011. As part of the initiative, low-level convicted offenders are held in county facilities rather than state prisons. The realignment plan also replaced parole with a similar program called “post-release community supervision” for prisoners released under county supervision.

California, along with 48 other states and the District of Columbia, prohibits incarcerated felons from voting. Only Maine and Vermont allow prisoners to vote.

Thirty-five states prohibit parolees from voting, according to The Sentencing Project, a Washington, D.C.-based criminal justice advocacy group. Thirty of those states also bar probationers from voting. California allows county probationers to vote but not state parolees.

Following adoption of the realignment plan, California Secretary of State Debra Bowen issued an 18-page memo to election officials in December 2011 that stated offenders sentenced to county-level incarceration or supervision were ineligible to vote under California law.

The memo disenfranchised ...

Louisiana Sex Offender Internet Restrictions Unconstitutional

In a February 16, 2012 opinion, a Louisiana federal court held that restrictions placed on sex offenders’ Internet access were unconstitutional.

John and James Doe are pseudonyms for two Louisiana registered sex offenders who filed a federal civil rights action, pursuant to 42 U.S.C. § 1983, that challenged the constitutionality of a state statute, LSA-R.S.14:91.5. The statute, known as the Unlawful Use or Access of Social Media Law, prohibited persons convicted of indecent behavior or pornography involving juveniles, computer-aided solicitation of a minor, video voyeurism or any sex offense involving a minor from using social networking websites, chat rooms or peer-to-peer networks.

The law, which took effect in August 2011, included penalties of up to ten years in prison for a first offense and five to twenty years for a subsequent violation. It provided an exception for sex offenders who received permission to visit a specific website from their probation or parole officer or the court of original jurisdiction in their criminal cases. The ACLU of Louisiana helped challenge the law on the grounds that it was unconstitutionally overbroad and vague.

The district court noted that the definition of “social networking website,” “peer-to-peer network” and ...

Law Enforcement Forfeiture Corruption Scandal in Michigan Includes Police Chief

The former chief of police in Romulus, Michigan, his wife and five detectives have been charged with dozens of criminal offenses related to their alleged misuse of funds seized under forfeiture laws. Romulus is located just outside Detroit, in Wayne County.

Ex-police chief Michael C. St. Andre, 50; his wife Sandra Kay Vlaz-St. Andre, 50; Detective Sgt. Richard Allan Balzer, 50; Detective Richard Bruce Landry, 39; Detective Jeremy J. Channells, 35; Detective Larry R. Droege, 32; and Detective Donald R. Hopkins, 38, face felony charges that include embezzlement, misconduct in office, obstruction of justice and conducting a criminal enterprise.

The police officials are accused of spending at least $40,000 in drug forfeiture funds to pay for marijuana, prostitutes and alcohol while conducting an “investigation” into Michigan Liquor Control Commission violations, prostitution and drug dealing at two strip clubs – Subi’s Place in Southgate and the Landing Strip Bar in Romulus. St. Andre is accused of knowing about the detectives’ criminal activities and using $75,000 in forfeiture money to purchase a tanning salon for his wife, who was charged with receiving and concealing stolen property.

The detectives were assigned to the police department’s Special Investigation Unit (SIU). However ...

Massachusetts Prisoners Receive Refunds for Illegal Fees Imposed by Sheriff

A class of prisoners at the Bristol County House of Correction in Massachusetts has received settlement checks from a lawsuit challenging an illegal $5-a-day fee imposed by the sheriff for room-and-board. The checks were mailed out on May 3, 2012, more than two years after the Massachusetts Supreme Judicial Court ...

Obama Pardons Two Turkeys, No Prisoners in 2012

Barack Obama has served as president since January 2009. From that time until the end of 2012, he has issued just 22 pardons and one commutation of sentence.

His first nine pardons, on December 3, 2010, mainly went to people who had received probation or short prison terms for minor offenses and drug-related crimes. [See: PLN, May 2011, p.36]. At that time, the Office of the Pardon Attorney had received 4,614 clemency petitions, most of which remained pending.

Obama’s sole commutation was issued on November 21, 2011 to Eugenia Marie Jennings, 34, a mother of three from Illinois who pleaded guilty in 2001 to selling less than 14 grams of crack cocaine. Jennings, who had been diagnosed with cancer and was receiving treatment at a medical prison in Texas, was released in December 2011. She still must serve 8 years on supervised release.

Jennings’ brother, Cedric Parker, had testified before a U.S. Senate Judiciary Subcommittee in 2009 that his sister was a drug addict, alcohol abuser and victim of sexual assault who was trying to provide for her children. He noted that she would have received a prison sentence approximately half as long had she been ...

Scientific Advances in Arson Investigations Reveal Wrongful Convictions

by Mike Rigby

Current scientific knowledge is shattering the long-held traditional beliefs of arson investigators and exposing wrongful convictions in the process. Still, old-school fire inspectors, detectives and even some judges have been slow to embrace new scientific methods and findings related to arson investigations. In Texas, such reluctance led to the execution of a man, convicted in connection with a fatal fire, who was almost certainly innocent.

Bad Science

For generations, poorly-trained arson investigators have relied on assumptions, akin to folklore, to explain how fires start and behave. But as new science confronts old cases, it has become clear that over the past few decades potentially hundreds of people have been convicted based on archaic beliefs about arson-related fires. Many of those individuals are still incarcerated, hoping that someone will come to their defense by debunking the outdated forensics evidence used to obtain their convictions. [See: PLN, Oct. 2010, p.1].

“A lot of bad science has been applied to arson investigation,” said fire expert John Lentini, who has provided testimony in over 40 arson cases since 2000. One of his recent cases involved a Massachusetts man, Victor Rosario, who was convicted of arson by Molotov cocktail even though ...

Georgia Judge Removed from Bench for Misconduct, Files Lawsuit Claiming Conspiracy

The Georgia Supreme Court has ordered that Catoosa County Magistrate Judge Anthony Peters be permanently removed from the bench, and barred him from ever holding or seeking elected or appointed judicial office in the state of Georgia.

The court’s September 6, 2011 decision followed the recommendation of the Judicial Qualifications Commission (JQC), which initiated an investigation and hearing after receiving complaints from, among others, Chief Magistrate Judge Donald “Sonny” Caldwell. The JQC’s formal complaint accused Peters of seven violations of the Code of Judicial Conduct.

Peters admitted to the first count, that from March to May 2010 he smoked marijuana at least once a week. The second charge was that he inappropriately used his judicial office to advance the personal interests of a family member by showing up at the house of his sister-in-law’s estranged husband, identifying himself as a judge, and then kicking in two interior doors at the man’s home to gain access to the bedrooms.

The third misconduct count accused Peters of pulling a gun in the spring of 2009 at the courthouse and pointing it at himself in the presence of another judge, while saying “I’m not scared. Are you all ...

Virginia Considers Privatizing State’s Civil Commitment Center

A November 2011 standoff between police and two sex offenders threatening suicide at the Virginia Center for Behavioral Rehabilitation (VCBR), the state’s civil commitment facility near Richmond, raised concerns about the safety and treatment of residents held at the center.

Two residents – identified only as a 29-year-old from Richmond and a 32-year-old from Delaware – climbed about 15 feet to the roof of the VCBR on November 21, 2011 and tied sheets around their necks. They demanded to speak with an official about treatment at the facility.

“We got two people up on the roof with nooses around their necks because they’re violating people’s rights here,” said a man who claimed to be a VCBR resident when he called the Richmond Times-Dispatch during the standoff. “We’re trying to talk to [administrators] and they aren’t doing anything for us.”

The two residents voluntarily descended from the roof after three hours and were examined by medical staff. They were then interviewed by Virginia State Police and returned to the center, which holds around 290 residents – mainly convicted sex offenders who have completed their prison sentences but have been civilly committed because they are deemed too dangerous to release ...

New Mexico Slaps Private Prison Companies with $1.4 Million in Fines

The departure of Bill Richardson as New Mexico’s governor has changed the previously lax business environment for the state’s private prison contractors. The new administration of Governor Susana Martinez is taking a more aggressive tone in demanding contractual compliance at privately-operated facilities that house state prisoners.

In March 2012, the New Mexico Corrections Department (NMDOC) imposed nearly $300,000 in fines against GEO Group, which operates three private prisons in the state. Corrections Corporation of America (CCA) was also hit with $11,779 in fines for failing to properly staff the women’s prison in Grants.

Those fines were on top of another $1.1 million in penalties assessed in November 2011 due to GEO’s failure to adequately staff the Lea County Correctional Facility (LCCF). According to Shannon McReynolds, inspector general at the NMDOC, GEO Group agreed to pay the $1.1 million fine but was “not completely happy” about it. Additionally, the company agreed to spend $200,000 over the next year to recruit more employees at LCCF.

The penalties imposed against the company in March 2012, also for inadequate staffing, resulted from GEO’s failure to have enough guards in staffed positions at LCCF. There ...

States Seek Federal Medicaid Reimbursements to Offset Prison Medical Costs

States Seek Federal Medicaid Reimbursements to Offset Pris-on Medical Costs

State prison systems nationwide are looking to federal Medicaid reimbursements to partly offset escalating healthcare expenses for prisoners. The Medicaid law expressly excludes coverage for people who are incarcerated, but since 1997 has provided coverage for cases where prisoners are transported to outside medical facilities and stay at least 24 hours.
Another Medicaid eligibility restriction is that a prisoner’s own “poverty” status may not exceed 133% of the federal poverty guidelines.

“The rule has been around for almost 15 years now, and while it seems straightforward, the mechanics of it are quite complicated,” stated Jeff Archambeau, CEO of Correctional Health Partners, a private company that provides prison medical services.

When seeking Medicaid reimbursement, the state has the burden of investigating and certifying that a prisoner meets the poverty restriction. Unsurprisingly most prisoners have few assets and little income, and thus readily qualify. This leaves the states to determine how much money can be recovered if prison officials go through the process of submitting reimbursement requests to Medicaid. The funding available under the current law provides for 2/3 of medical bills for an outside hospital treatment meeting the 24-hour ...

Oregon-Washington Prison Employee Logs 19-Hour Days

To say that Ming Zhu is an industrious employee would be an understatement of epic proportions.

Zhu works the graveyard shift at the Eastern Oregon Correctional Institution (EOCI) in Pendleton, Oregon. Then, when his shift ends at 6:30 a.m., he drives an hour to the Washington State Penitentiary (WSP) in Walla Walla, Washington to log another eight-hour shift as a mental health counselor, before driving an hour to his home in Kennewick, Washington for four hours of rest. Then he drives another hour back to EOCI for his next shift.

For those who aren’t good at math, that’s 19 hours at, or on the way to or from, his two jobs on any given day. More impressive yet, Zhu has been working that schedule for over five years.

“We are all shaking our heads on how he could do that,” said Gary Blackmer, Director of the Oregon Audits Division. “I just can’t imagine. I work long days, but I couldn’t do two jobs.”

Zhu was hired by WSP in November 2005, earning an annual salary of $46,188. Yet in August 2006 he took the EOCI position for another $54,060 per year.

His ...

Nation’s Largest Private Prison Companies Trying to Do the REIT Thing

In early January 2013, both Corrections Corporation of America (CCA) and the GEO Group – the nation’s two largest private prison companies that control a combined 75 percent of the for-profit prison market in the United States – announced that they had each completed preliminary plans to convert their corporate structure to a Real Estate Investment Trust (REIT).

REITs are designed for companies that primarily invest in and generate revenue from real estate holdings, such as hotel chains; like other publicly-held corporations they trade on the stock market. There are special tax advantages for REITs, which generally pay no income tax. They also must distribute at least 90 percent of their income to shareholders in the form of dividends.

Although CCA and GEO operate prisons as their primary form of business, the prisons themselves constitute real estate. By creating an entity called a taxable REIT subsidiary (TRS), the companies can separate the operational side of their private prison management from the real estate side of owning and generating income from correctional facilities.

There are various rules and regulations governing REITs; for example, at least 95 percent of a REIT’s income “must be derived from ‘passive’ financial investments ... as opposed to ...

Tenth Circuit Cites PLN Case in Denying Oklahoma Newspaper’s FOIA Request

by Derek Gilna

In 2008, World Publishing Company, the publisher of the Tulsa World newspaper, requested six booking photos from the U.S. Marshals Service under the Freedom of Information Act (FOIA). The Department of Justice denied the request, relying upon Exemption 7(C). The paper filed suit, lost in the district court and appealed. The Tenth Circuit affirmed the dismissal, citing Prison Legal News v. Executive Office for U.S. Attorneys, 628 F.3d 1243 (10th Cir. 2011), cert. denied, where disclosure was also denied based on a 7(C) exemption. [See: PLN, Nov. 2011, p.48; March 2010, p.36].

FOIA Exemption 7(C), according to the appellate ruling, exempts “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).

Based on the statutory language, “a three-part test has emerged to determine if information is covered by Exemption 7(C). A court must (1) determine if the information was gathered for a law enforcement purpose; (2) determine whether there is a personal privacy interest at ...

California and Oregon Prison Guards Fire Shots to Break up Fights

Between September and November 2012, California state prison guards at three high-security facilities used live rounds to quell fights on prison yards. One prisoner was killed by the gunfire; two others were injured.

On September 19, over 60 prisoners engaged in a large scale brawl in the yard at CSP-Sacramento, also known as New Folsom. Guards initially fired non-lethal rounds, which did not dissuade the rioters. Switching to live ammo they fired six rounds, injuring one prisoner. At least a dozen other prisoners were stabbed or slashed in the fight and taken to local hospitals.

High Desert State Prison was the scene of two recent disturbances. On October 31, 2012, a 36-year-old prisoner was shot in the hip after ignoring two warning shots when he was kicking another prisoner in the head, with the aid of two friends. The victim of the assault, who was knocked unconscious, was doing 33 years to life for murder; his assailants were serving fixed terms for drug offenses and kidnapping.

Just 9 days later, on November 9, 2012, a 23-year-old High Desert prisoner serving 82 years to life for murder was shot dead by guards as he was stabbing and kicking another prisoner in ...

North Carolina Governor Pardons Wilmington 10

In 1971, during a time of racial unrest in Wilmington, North Carolina, shortly after schools were integrated and amid protests and race-based violence, a white-owned business, Mike’s Grocery, was firebombed. Responding firefighters claimed they were targeted by gunfire from unknown shooters at a nearby church.

Ten people were arrested, including Rev. Benjamin L. Chavis, Jr., a civil rights activist, and Connie Tindall, Marvin Patrick, Wayne Moore, Reginald Epps, Jerry Jacobs, James McKoy, Willie Earl Vereen, William Wright, Jr. and Ann Shepard. All except Shepard were black.

Following an initial mistrial they were convicted of arson and conspiracy in 1972 in connection with the firebombing, and sentenced to prison terms ranging from 15 to 34 years. The evidence against them included testimony from several witnesses, one of whom later recanted while another said he received a minibike in exchange for his testimony.

In 1978, then-Governor Jim Hunt reduced the sentences of the ten defendants, who became known as the Wilmington 10; two years later their convictions were overturned by the Fourth Circuit, which found that prosecutors had suppressed evidence in the case. See: Chavis v. State of North Carolina, 637 F.2d 213 (4th Cir. 1980). The Wilmington 10 were ...

Cook County, Illinois Lowers Jail Phone Rates

On December 18, 2012, the Board of Commissioners for Cook County, Illinois voted to lower the outrageous cost of telephone calls made by prisoners at the Cook County Jail.
The county has a contract with Securus Technologies, which operates phone systems in 2,200 jails and prisons across 44 states. The county’s contract with Securus guaranteed a 57.5% kickback commission from gross phone revenue, which translated to around $300,000 per month.

Cook County Board President Toni Preckwinkle led the charge to lower the jail phone rates. She said she thought it was wrong to view prisoners as a revenue source. For one thing, the people who must pay the high cost of prisoners’ phone calls are often already poor; she noted that many prisoners in the Cook County Jail cannot afford to post bond.

“The county pays $143 a day to keep someone in jail. That’s a high cost for taxpayers to pay because defendants are too poor to make their bond payments,” said Preckwinkle.
Poor and working families in Cook County have been hit hard by the high phone rates, too. Monica Ingram, a nurse who provides homecare, was distraught when she realized, after spending ...

California: Del Norte County DA Described as “Idiotic”

Attorney Jon Michael Alexander, 63, has been a meth addict. He’s spent time in jail, he’s been homeless, he’s contemplated suicide, he’s been suspended by the State Bar several times, he’s been investigated by the FBI and is presently awaiting the outcome of yet another bar complaint. He’s also the District Attorney of Del Norte County, California, and his questionable behavior has been dubbed “idiotic” by Stanford University law professor Robert Weisberg, a legal ethics scholar.

As far back as 1989, Alexander was suspended from the practice of law for failing to pay his bar dues. Undeterred, he continued to practice law. For that, as well as for taking money from clients without performing legal services, he was later disciplined. The bar cited him for “moral turpitude, dishonesty or corruption.”

In 1996, while managing a successful criminal defense practice in Orange County, Alexander again ran into trouble. The stress of taking care of his mother, an Alzheimer’s patient and insomniac, overwhelmed him, he said. Deprived of sleep, he “started chipping away on meth, just to stay awake during the day.”

Alexander was ultimately arrested and spent time in jail. He was suspended, again ...

9th Circuit: Class-action by Civilly Committed Sexually Violent Predators May Proceed on Claims for Declaratory and Injunctive Relief

Following remand from the U.S. Supreme Court, the Ninth Circuit reversed in part its previous published ruling, Hydrick v. Hunter, 500 F.3d 978 (9th Cir. 2007) [PLN, April 2007, p.34], which had held that the administrators of Atascadero State Hospital, the defendants in a class-action lawsuit initiated by people civilly committed under California’s Sexually Violent Predator Act (Cal. Welf. & Inst. Code § 6600 et seq.), were not entitled to qualified immunity with respect to claims for monetary damages. At the same time, the appellate court ruled that the plaintiffs’ claims for declaratory and injunctive relief could proceed.

In 2002, the plaintiffs, confined at Atascadero State Hospital, filed an amended complaint in federal district court alleging that the conditions of their confinement violated their constitutional rights under 42 U.S.C. § 1983. They sought declaratory and injunctive relief, as well as money damages from the defendants in their individual capacities.

The defendants sought dismissal of the plaintiffs’ claims for monetary damages based on qualified immunity. When the district court denied their motion, the defendants filed an interlocutory appeal. The Ninth Circuit held that while the defendants were entitled to qualified immunity with respect to the plaintiffs’ ex post facto, double jeopardy, procedural due process, Eighth Amendment and First Amendment “refusal of treatment” claims, they were not entitled to qualified immunity with respect to Fourth Amendment and First Amendment retaliation claims.

The defendants then petitioned for certiorari. The Supreme Court granted the writ, vacated the Ninth Circuit’s judgment and remanded the case for reconsideration in light of intervening precedent, i.e., Ashcroft v. Iqbal, 129 S.Ct. 1937 (2007) [PLN, July 2009, p.18].

In Iqbal, the Supreme Court seemingly raised the bar for § 1983 pleadings, at least in cases involving supervisory liability, holding that in order to survive a motion for dismissal on qualified immunity grounds, a complaint needs to do more than make “bald” and “conclusory” allegations; rather, it needs to allege specific facts sufficient to “plausibly suggest” each defendant’s personal involvement in a constitutional violation.

The Ninth Circuit noted on remand that the plaintiffs’ complaint was based on conclusory allegations and generalities, and “devoid of specifics.” Accordingly, pursuant to Iqbal, on January 12, 2012 the appellate court granted qualified immunity to the defendants.
Because claims for injunctive and declaratory relief are unaffected by qualified immunity, however, the plaintiffs were allowed to proceed on those claims. See: Hydrick v. Hunter, 669 F.3d 937 (9th Cir. 2012).

First Circuit: RLUIPA Does Not Provide Relief from Transfer to Remote Prison where Opportunities for Religious Exercise are Limited

On March 29, 2012, the First Circuit Court of Appeals held that the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§2000cc et seq., does not provide a basis for relief where a prisoner’s opportunities for exercise of religion are limited due to his transfer to a prison that is too remote for religious volunteers to visit.

In December 2010, Seth Bader, an Orthodox Jew serving a life sentence for murder without the possibility of parole, was transferred from the New Hampshire State Prison in Concord (NHSP) to the Northern Correctional Facility located in Berlin, New Hampshire (NCF).

While at NHSP, Bader was able to participate in Jewish religious activities on a regular basis because a local rabbi, as well as other outside volunteers, visited the facility. For example, he could participate in celebrations of Passover, Purim, Yom Kippur, Rosh Hashanah and Chanukah. At NCF, by contrast, the remote location of the prison made it all but impossible for volunteers to conduct services or otherwise minister to Bader.

Bader was transferred because Major John Fouts, the director of security at NHSP, was concerned that Bader had “undue influence” in certain areas of the prison and ...

News in Brief

Arkansas: While held at the Independence County jail, Michael Dennis Grubbs was charged with theft and breaking and entering after he reportedly used a comb to pick the lock to the property room and stole items belonging to other prisoners. Jail officials searched Grubbs’ cell after reviewing surveillance camera footage, and found $55 and several cigarette lighters.

California: On September 1, 2012, San Diego jail prisoner Anthony Dunton was shot to death at the UCSD Medical Center when he struggled with deputies and a medical technician. Dunton managed to slip out of his restraints when he was undergoing a CT scan at the hospital. Deputies used a Taser and batons, but Dunton reportedly swung his waist chain and charged at them, resulting in one of the deputies firing fatal shots.

California: Jailhouse lawyer John Pratt testified in Sacramento Superior Court on September 13, 2012 against prisoner Steven A. Duarte, whom he had previously helped with his criminal case. Pratt claimed that while they were celled together, Duarte got drunk on pruno and repeatedly confessed to killing a woman because he thought she had infected him with HIV. Pratt contacted the DA’s office and agreed to testify against Duarte, who ...


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