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Prisoner Education Guide

Prison Legal News: October, 2013

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Volume 24, Number 10

In this issue:

  1. How Many Inmate Deaths is too Many? (p 1)
  2. From the Editor (p 20)
  3. Sex Offenders Who Fail to Register May Receive Life Sentence Under California’s “Three Strikes” Law (p 21)
  4. Five Prisoner Deaths in Eighteen Months at Small Ohio Jail (p 22)
  5. New York Promised Help for Mentally Ill Prisoners – But Still Sticks Many in Solitary (p 24)
  6. Widespread Sexual Abuse Alleged at Alabama Women’s Prison (p 26)
  7. Idaho: Federal Court Unseals Pleadings, Holds CCA in Contempt for Violating Settlement Agreement (p 28)
  8. Third Circuit Finds Just Cause or Excuse Defense Not Applicable in Prison Assault Case (p 30)
  9. Special Sex Offender Release Conditions Vacated by Tenth Circuit (p 31)
  10. Hunger Striking Illinois Jail Prisoner Dies (p 32)
  11. Texas Prison Burials Surprisingly Well Done (p 34)
  12. Former Federal Prisoner Claims to be Most Litigious Person (p 34)
  13. IFRP Payment Schedule May Not be Delegated to BOP by Sentencing Judge (p 36)
  14. Georgia: Civil Rights Law Firm Demands Return of Fines Illegally Collected by State Court Judge (p 36)
  15. Eighth Circuit Denies Civilly Confined Minnesota Patients 1983 Action (p 38)
  16. Ninth Circuit Reverses Dismissal of Nevada Prisoner’s First Amendment Retaliation Claims (p 38)
  17. Former Georgia DOC Official Charged for Embezzling Public Funds (p 39)
  18. Effective Counsel Required in Kansas Civil Commitment Proceedings (p 40)
  19. CDCR to Block Contraband Cell Phone Signals at all Facilities (p 40)
  20. California: Court May Not Award Increased Presentence Conduct Credits to Categorically Disqualified Prisoners (p 41)
  21. D.C. District Court Reaffirms Access to Counsel for Guantanamo Detainees (p 42)
  22. Declining Prison Populations Leave Towns with Empty Jails, Debt (p 45)
  23. Private Detention Facility Forced into Bankruptcy, Sold at Auction (p 46)
  24. PLN Files Federal Lawsuit Over Censorship at Virginia Jail (p 47)
  25. Brain Imaging Research Conducted on Prisoners (p 48)
  26. Massachusetts: Overcrowding Forces Changes in Correctional Facilities (p 50)
  27. Death Row Prisoners in Two States File Suit over Hip Replacements (p 52)
  28. Oregon DOJ Intentionally Destroyed Records; Target of Abusive Criminal Investigation Settles Suit for $1 Million (p 54)
  29. Montana Agrees to Change Policies for Treatment of Mentally Ill Juveniles in Adult Prison (p 54)
  30. News in Brief (p 56)

How Many Inmate Deaths is too Many?

by Dave Maass & Kelly Davis

San Diego CityBeat

Bernard Joseph Victorianne was a 28-year-old black male with a ticking time bomb in his stomach.

Victorianne was arrested on September 12, 2012, less than two blocks from the San Diego Police Department’s Mid-City station on suspicion of driving under the influence. A week later, he was found dead in his cell—the 60th inmate to die in the custody of the San Diego County jail system since 2007.

Immediately after his arrest, Victorianne was taken to Alvarado Hospital to be treated for alcohol intoxication. Even then, police and medical staff believed the suspect—who was on probation for a number of narcotics offenses—likely had swallowed a bindle of drugs. He was observed overnight, then transferred to the San Diego Central Jail. For the next several days, Victorianne was bounced between sobriety cells, secure units and administrative segregation (a normal housing unit reserved for problematic inmates who need to be separated from the general population) due to his lasting, agitated behavior. He was prescribed Haldol, a powerful anti-psychotic, and anti-anxiety medication.

According to the medical examiner’s report, Sheriff’s deputies couldn’t say exactly when they last saw Victorianne alive. Deputies checked on him in the “early evening” of September 18. He was left unmonitored through the night.

At 4:30 a.m., guards who brought breakfast into his cell found him lying on the floor, naked, but didn’t check whether or not he was conscious. Two-and-a-half hours later, guards began their morning rounds and discovered that Victorianne hadn’t moved. By the time they entered his cell, rigor mortis had begun in his lower extremities.

The official cause of death: methamphetamine toxicity—the baggie had busted in his stomach.

Many questions remain unanswered: Why was Victorianne in an administrative segregation cell rather than a cell where he could be more closely monitored? When exactly did deputies last check on his welfare? Why was he left unobserved overnight when he was suspected to have swallowed a potentially lethal amount of drugs? Why didn’t guards check to see if he was OK when they first entered his cell that morning?

Perhaps most important of all: Did Sheriff’s deputies bring Victorianne to the hospital for the visit scheduled the day before he died? The medical examiner’s report states only that “it was unknown if he attended.”

That information still isn’t publicly known. The Sheriff’s Department declined to answer CityBeat’s questions about Victorianne’s death.

What is known is that Victorianne was the latest casualty in a jail system with one of the highest mortality rates in California.

• • •

Between 2007 and 2012, 60 people died while wards of the San Diego County Sheriff’s Department’s five-jail detention system.

They were 56 men and four women. Thirty-six were white, 15 Hispanic, six African-American, one Korean-American, one Native American and one was a Chinese national. Most suffered from substance abuse and/or mental health issues, and many were transient before their arrest.

Their average age was 46. The youngest was 18—Luis Manuel Lopez from Poway. He was arrested on felony vandalism charges in the fall of 2008, around the time other kids his age would’ve been going off to college. He was transferred from one jail to another, ending up at the George Bailey Detention Facility, where he started displaying symptoms of a cold that rapidly grew worse. When his temperature hit 102 and his heart began beating abnormally fast, Lopez was transferred to UCSD Medical Center. His health continued to decline. After almost two weeks in the hospital, he flat-lined and was resuscitated, but his condition continued to deteriorate; his family chose to withdraw care and ease his suffering with pain killers.

Doctors never determined precisely what killed Lopez. The medical examiner’s report concluded it was “most likely” a bacterial infection that was masked by the antibiotics he received in jail. His death was classified as natural.

The oldest was Thomas Alexander Hough, a senile 72-year-old who was stopped by police for refusing to leave a bus station and then booked into jail for failing to register as a sex offender. Classified as “gravely disabled,” he was first involuntarily committed to a psychiatric hospital before being transferred to the Vista Detention Center. Hough suffered from diabetes, dementia and alcohol dependency, which combined to leave him subject to periods of confusion, seizures and delirium tremens (“the shakes”). At the Vista jail, Hough was a basket case for three days. He nearly choked on a bologna sandwich, had frequent angry outbursts at staff and refused to go outside during his allotted recreation time. On his fourth evening in jail, he stopped breathing and couldn’t be revived. The medical examiner classified his death as natural due to hypertensive cardiovascular disease.

Of the 60 deaths, 31 were ...

From the Editor

This month’s cover story on the San Diego County jail system illustrates that while prisons often get slightly more media attention, it is not because they are necessarily more poorly run. On any given day some 735,000 detainees are confined in local jails, and over 11 million people a year pass through jail systems nationwide. To put those numbers into perspective, the Rikers Island jail complex in New York City, with 14,000 beds, houses more prisoners than state prisons in Maine, New Hampshire, North Dakota, Rhode Island, Vermont and Wyoming … combined.

How well jails are run or managed varies widely. While prison systems have little in the way of transparency or oversight, much less accountability, jails tend to have even less – and all too often the sheriffs who run local jails are the most powerful political figures in the county, with some managing multi-million dollar budgets and patronage machines. This is frequently accompanied by little oversight or accountability, with predictable results. Human rights violations often flourish and, as this issue’s cover story indicates, all too often prisoner deaths result not from violence but rather due to neglect and indifference to basic needs such as adequate medical ...

Sex Offenders Who Fail to Register May Receive Life Sentence Under California’s “Three Strikes” Law

The California Supreme Court has held that, depending on the specifics of the underlying offense, failure to register as a sex offender may subject a defendant with two qualifying prior serious and/or violent convictions to a sentence of 25 years to life under the state’s infamous “Three Strikes” law.

Convicted sex offender Willie Clifford Coley was sentenced to a term of 25 years to life in prison for failing to update his registration within five days of his birthday in 2001. Several years later, in a case involving another sex offender convicted of the same offense, a divided panel of the California Court of Appeal held that the imposition of a 25-years-to-life sentence for this “most technical and harmless violation of the registration law” was grossly disproportionate to the gravity of the offense and hence violated the constitutional prohibition against cruel and unusual punishment. See: People v. Carmony 127 Cal.App.4th 1066 (Cal. App. 3d Dist. 2005).

Based on this later ruling, Coley filed a habeas petition alleging that his conviction was unconstitutional based on the same grounds. The Court of Appeal denied his petition, however, concluding that Carmony had been wrongly decided.

On review, the California ...

Five Prisoner Deaths in Eighteen Months at Small Ohio Jail

by Matt Clarke

The deaths of five prisoners in 18 months might pass without notice in a large jail system, but that many deaths at the 270-bed Portage County jail, located about 30 miles southeast of Cleveland, Ohio, raised red flags.

An investigation by the Cleveland Plain Dealer revealed that Matthew P. DiBease, 29; Amanda Michael, 32; Kenneth R. Mantell, 26; Mark D. Shaver, 32; and Joshua D. McDaniel, 25, all Portage County jail prisoners, died during an 18-month period ending in mid-October 2011. DiBease, Michael and Mantell had all committed suicide by hanging.

Three suicides within 18 months at a 270-bed jail “far exceeds” the average for suicides in a facility that size, according to Lindsay Hayes, executive director of the National Center on Institutions and Alternatives, which conducts research on suicides in custody. Hayes noted that such a high rate should have “set off alarms with the sheriff and jail administration.”

David W. Doak, Sheriff of Portage County since he was first elected in 2008, said that although his department had increased suicide prevention training for jailers, it is difficult to assess who is a suicide risk because prisoners aren’t always honest with medical staff who perform ...

New York Promised Help for Mentally Ill Prisoners – But Still Sticks Many in Solitary

When Amir Hall entered New York state prison for a parole violation in November 2009, he came with a long list of psychological problems. Hall arrived at the prison from a state psychiatric hospital after he had tried to suffocate himself. Hospital staff diagnosed Hall with serious depression.

In Mid-State prison, Hall was in and out of solitary confinement for fighting with other prisoners and other rule violations. After throwing Kool-Aid at an officer, he was sentenced to seven months in solitary at Great Meadow Correctional Facility, a maximum-security prison in upstate New York.

Hall did not want to be moved. When his mother and grandmother visited him that spring, Hall warned them: If he didn’t get out of prison soon, he would not be coming home.

A grainy tape of Hall’s transfer on June 18, 2010, shows prison guards spraying chemicals into his cell, forcing him to come out. He barely says a word as he is made to strip, shower, bend over and cough. His head drops, his shoulders slump. His face is blank and expressionless. He stares at his hands, except for a few furtive glances at the silent guards wearing gas masks and riot ...

Widespread Sexual Abuse Alleged at Alabama Women’s Prison

On March 4, 2013, the U.S. Department of Justice’s Civil Rights Division launched a formal inquiry into widespread sexual abuse of female prisoners by male guards at the Julia Tutwiler Prison for Women in Wetumpka, Alabama.

The investigation was opened following an assessment by the National Institute of Corrections, which issued a report in November 2012 that cited rampant staff-on-prisoner sexual misconduct at the facility and retaliation against prisoners who reported the abuse. “Frequent and severe” sexual misconduct at Tutwiler had previously been described in a report released by the Montgomery-based Equal Justice Initiative, which asked the Department of Justice to investigate in May 2012.

“It’s an ongoing thing, a daily thing,” former Tutwiler prisoner Stefanie Hibbett stated at that time. “You see women raped and beaten, and nothing is ever done.”

“In my opinion, custodial sexual misconduct is the single-most egregious abuse of power, and we absolutely will not tolerate this type of behavior where it may exist,” said Alabama DOC Commissioner Kim Thomas. “As part of our efforts to improve conditions at Tutwiler, I asked for an outside, independent review of the facility. We have received that review, we are putting positive reforms in place ...

Idaho: Federal Court Unseals Pleadings, Holds CCA in Contempt for Violating Settlement Agreement

On August 16, 2013, U.S. District Court Judge David O. Carter, sitting by designation, unsealed a number of court documents related to a contempt motion seeking sanctions against Corrections Corporation of America (CCA), the nation’s largest for-profit prison company, for violating a settlement agreement in a lawsuit that alleged high levels of violence at the CCA-operated Idaho Correctional Center (ICC).

The unsealed documents revealed that current and former CCA employees had submitted sworn affidavits confirming CCA’s earlier acknowledgement that officials at ICC had falsified staffing records. The affidavits further indicated the understaffing may have far surpassed the company’s admission that ICC falsified almost 4,800 staff hours reported to state prison officials.

The district court had previously unsealed other documents related to the contempt motion on August 6, but the most recent unsealed records shed additional and unflattering light on CCA’s conduct relative to staffing discrepancies at ICC.

The underlying class-action lawsuit, litigated by the American Civil Liberties Union (ACLU), alleged excessive levels of violence at ICC that were in large part due to understaffing. In fact, a study conducted by Idaho prison officials in 2008 found that ICC had “four times more prisoner-on-prisoner assaults ...

Third Circuit Finds Just Cause or Excuse Defense Not Applicable in Prison Assault Case

Aaron Taylor, incarcerated at the Federal Detention Center (FDC) in Philadelphia, was charged with assault with a dangerous weapon under 18 U.S.C. § 113(a)(3) and assault resulting in serious bodily injury under § 113(a)(6), stemming from an attack on another prisoner. He attempted to assert the affirmative defense of “just cause or excuse” but the district court held that he failed to establish the defense as a matter of law.

On appeal, the Third Circuit found that “the elements of justification are: First, that [the defendant] was under an immediate, unlawful threat of death, or serious bodily injury to himself or to others; Second, that [he] had a well-grounded fear that the threat would be carried out if he did not commit the offense; Third, that the criminal action was directly caused by the need to avoid the threatened harm and that [he] had no reasonable, lawful opportunity to avoid the threatened harm without committing the offense ... and Fourth, that he had not recklessly placed himself in a situation in which he would be forced to engage in criminal conduct.”

The district court allowed Taylor to testify as to the elements of his defense, but ultimately ...

Special Sex Offender Release Conditions Vacated by Tenth Circuit

When Ronald D. Dougan pleaded guilty in January 2011 to robbing an Oklahoma City, Oklahoma post office of $220, he likely did not anticipate the unforeseen consequences that would result due to his previous 1978 conviction for sexual battery and 1994 conviction for aggravated battery (which was allegedly sexual in nature).

The federal Probation Office’s Presentence Investigation Report (PSR) recommended that Dougan be required to fulfill seven conditions as part of his sentence: First, to participate in a sex offender treatment program while incarcerated; second, as a condition of release, to submit to a sex offender mental health assessment and treatment; third, to waive all rights of confidentiality regarding that treatment; fourth, he would not be allowed at any residence with children under 18 years old; fifth, he could not associate with children younger than 18 without permission; sixth, he was barred from the possession of any pornography; and finally, to continue registering as a sex offender, which he had been required to do as a result of his 1978 conviction. The district court adopted these conditions and incorporated them into Dougan’s sentencing order.

Dougan appealed, arguing that the special conditions constituted an “abuse of discretion.” The Tenth ...

Hunger Striking Illinois Jail Prisoner Dies

by Matt Clarke

Against the backdrop of the recent hunger strike involving thousands of prisoners in California, the death last year of an Illinois jail prisoner who died after refusing to eat or drink is especially poignant.

Lyvita Gomes, 52, died in January 2012 following a 15-day hunger strike that began after the mentally ill woman was arrested and incarcerated at the Lake County Jail near Chicago.

Funeral home workers cleaning out a hotel room where Lyvita had lived found stacks of unopened mail. In one stack was the jury summons that initiated the series of events that led to her death. Ironically, Lyvita was not a U.S. citizen and thus ineligible to serve on a jury.

Born in India, Lyvita received a U.S. visa in 2004 and moved to Atlanta to work at the headquarters of Delta Airlines. The airline laid her off in 2007 and she relocated to Illinois using her still-valid visa to obtain a driver’s license.

It was her driver’s license that put Lyvita into the pool of potential jurors in Lake County. She received a summons to report for jury duty on July 5, 2011; the summons indicated that non-citizens were ...

Texas Prison Burials Surprisingly Well Done

If a Texas state prisoner dies or is executed, relatives or friends can pick up the body. If they don’t, he or she is buried in the largest prison graveyard in the United States – the Captain Joe Byrd Cemetery in Huntsville, Texas. Such burials occur around 100 times each year.

Named after an assistant warden at the Huntsville Unit who helped clean and restore the 22-acre graveyard in the 1960s, the cemetery is still associated with the prison unit known as “The Walls” for its 19th century brick walls. The warden or assistant warden from the facility attends each funeral.

A prisoner’s body may be unclaimed for a number of reasons. There may be no surviving friends or relatives, but a more likely explanation is that the friends or relatives are too poor to afford the burial expenses.

“I think everyone assumes if you are in a prison cemetery you’re somehow the worst of the worst,” said Indiana State University assistant professor of criminology Franklin T. Wilson, who is writing a book about the Byrd cemetery. “But it’s more of a reflection of your socioeconomic status. This is more of a case of if you’re ...

Former Federal Prisoner Claims to be Most Litigious Person

Jonathan Lee Riches, 36, bills himself as the most litigious person alive. He’s claimed that the Guinness Book of World Records wanted to list him as having filed the most lawsuits; he sued Guinness in response, arguing that they had miscounted the number of his legal actions.

“Jonathan Lee Riches is not a record holder, and a category for the most litigious man is not something Guinness World Records has ever monitored as a record category,” a Guinness spokesperson responded.

Riches, who has reportedly filed pleadings in over 3,000 federal cases in courts across the nation, claims that he has filed more than 4,500. “You try to master your craft, trying to get better at your craft,” he stated. Undoubtedly, many people hope that Riches’ legal work will improve, given that his suits are routinely dismissed as “frivolous” and “delusional,” and some courts have barred him from further filings.

In fact, it’s unclear whether he has ever won a case.

Riches apparently stumbled onto litigation while serving a 125-month sentence for wire fraud at FMC Lexington in Kentucky. While there, Riches, who began including a copyright symbol after his name in 2006, hand-wrote his complaints and ...

IFRP Payment Schedule May Not be Delegated to BOP by Sentencing Judge

The U.S. Court of Appeals for the Ninth Circuit has held that “where the sentencing court has failed to consider whether the defendant has the financial resources to pay restitution immediately, ordering immediate payment impermissibly delegates to the BOP [Bureau of Prisons] the court’s obligation to set a payment schedule.” Consequently, the Court of Appeals reversed a district court’s order that let the BOP determine a prisoner’s Inmate Financial Responsibility Program (IFRP) payments.

As part of his federal prison sentence, Jack Richard Ward was ordered to pay a $1,000 Crime Victim Fund assessment and $27,885 in restitution. Once incarcerated, Ward took a job with UNICOR, the BOP’s prison industry program, and a portion of his wages was deducted for payment of his IFRP obligation. He filed motions with the sentencing judge, which were construed as a Section 2255 petition. The court moved to vacate its own restitution order, but after the government objected, ruled that it lacked jurisdiction to do so and let the original IFRP order stand.

Ward then instituted a habeas corpus proceeding, which was denied by the district court because 1) he had not exhausted his available judicial and administrative ...

Georgia: Civil Rights Law Firm Demands Return of Fines Illegally Collected by State Court Judge

On August 8, 2013, the Southern Center for Human Rights sent a letter to the governing authority for Grady County, Georgia, demanding the return of illegal “administrative costs” charged to criminal defendants convicted in the Grady County State Court.

In Georgia, “state courts” are courts of limited jurisdiction that handle, among other things, the trial of criminal cases “below the grade of felony,”1 including cases involving traffic offenses. Georgia’s 70 state courts reportedly generated over $123 million in revenue during fiscal year 2012,2 $23 million more than all of the state’s superior courts and double the amount generated by probate courts or magistrate courts.3

The Georgia Council of State Court Judges has called the state courts collectively “the little giant of the state trial court system,”4 in part because “State Courts represent only 10% of the State Trial Courts and Judges, but bring in 35% of Total Revenues!”5 A large part of those revenues comes from the fines, costs and surcharges imposed on criminal defendants processed through the courts, who are frequently placed under the supervision of private probation companies (paying the companies for the privilege) until the fines and other costs attached ...

Eighth Circuit Denies Civilly Confined Minnesota Patients 1983 Action

Civilly-committed patients in the Minnesota Sex Offender Program (MSOP) filed suit under 42 U.S.C. § 1983 against Minnesota Department of Human Services (DHS) and Minnesota Department of Corrections (DOC) officials, alleging that various conditions of their confinement were unconstitutional. The district court granted summary judgment to the defendants which was affirmed by the Eighth Circuit Court of Appeals.

The MSOP operated various facilities, including two units on the grounds of the Minnesota Correctional Facility at Moose Lake (MCF-ML) at the time the lawsuit was filed. Due to an increasing patient population, the MSOP took over the two units at MCF-ML, known as the Annex. The Annex was connected by a separate razor wire fence to the prison but DOC officials did not have contact with Annex patients or visitors. The DOC consulted with DHS to help implement security policies for MSOP patients after various security-related incidents, and the plaintiffs found those policies objectionable because they were being held in civil confinement, not as convicted prisoners.

Specifically, they alleged that they had been transferred to the Annex in retaliation for filing lawsuits; that unclothed visual body searches were unconstitutional; that use of restraints during transport to and from various facilities ...

Ninth Circuit Reverses Dismissal of Nevada Prisoner’s First Amendment Retaliation Claims

The Ninth Circuit Court of Appeals resurrected the majority of a prisoner’s lawsuit raising First Amendment retaliation claims after the case had been dismissed by the district court. The suit then settled following remand.

Raymond Watison, serving a sentence in the Nevada State Prison, sued prison officials under 42 ...

Former Georgia DOC Official Charged for Embezzling Public Funds

A former deputy director of operations for the Georgia Department of Corrections has been indicted on 35 counts of identity fraud, after admitting he used his state purchasing privileges to buy electronic items and make other unauthorized purchases for his personal use.

Benjamin Hopkins, 42, was indicted by a Fulton County grand jury on July 16, 2013. His allegedly improper purchases came to light when a vendor for the Department of Corrections, Global Government Education Solutions, flagged an order for an Xbox gaming system and two iPods in November 2010 and contacted corrections auditors. An internal investigation was launched and 35 unauthorized purchases were discovered. A two-year spending spree worth at least $20,374.91 in public funds was attributed to Hopkins.

When investigators confronted Hopkins with evidence of the purchases, he reportedly admitted having made them and was terminated. A warrant for Hopkins’ arrest was issued by the Fulton County Superior Court.


Effective Counsel Required in Kansas Civil Commitment Proceedings

The Kansas Supreme Court has held that prisoners facing civil commitment under the Kansas Sexually Violent Predators Act (KSVPA) have a due process right to effective assistance of counsel. The Court also held that ineffective assistance of counsel claims may be raised on appeal or in a state habeas corpus proceeding.

Before Robert C. Ontiberos was released from prison after completing his sentence for a 2001 aggravated sexual battery conviction, the state moved to have him civilly committed under the KSVPA.

Counsel was appointed to represent Ontiberos at a jury trial. The jury found Ontiberos to be a sexually violent predator, and he was civilly committed.

The Court of Appeals “vacated the commitment and remanded for a new trial because it held that Ontiberos received ineffective assistance of counsel and that the State’s attorney committed misconduct during the trial.”

On review, the Kansas Supreme Court first held that offenders facing KSVPA proceedings have a due process right to counsel under both the United States and Kansas Constitutions. The Court also noted that it had previously “held that when there is a right to counsel there is necessarily a correlative right to effective counsel – regardless of whether the right derives ...

CDCR to Block Contraband Cell Phone Signals at all Facilities

The California Department of Corrections and Rehabilitation (CDCR) has awarded a six-year system-wide telephone contract to Global Tel*Link (GTL), which requires the company to install equipment capable of blocking signals from contraband cell phones at the state’s 33 adult correctional facilities. In exchange for installing the equipment, as well as shouldering operational costs, GTL will receive all revenue generated from the Inmate/Ward Telephone System less an annual “administration fee” of $800,000.

The installation costs of the cell phone blocking system, called a managed access system, are estimated to be between $16.5 million and $33 million. To compensate for that expense, the revenue generated from prison phone services necessarily must be much greater. And it is, for two related reasons.

First, in most cases CDCR prisoners must use the prison phone system to make calls, as GTL has a monopoly on in-prison phone services. Second, because the rates charged for prison calls are not subject to the moderating forces of competition, they are much higher than non-prison phone rates. A typical intrastate (in-state) 15-minute call from a CDCR facility costs up to $2.00, while a 15-minute interstate (long distance) call costs $6.60. [See: PLN ...

California: Court May Not Award Increased Presentence Conduct Credits to Categorically Disqualified Prisoners

On July 19, 2012, the California Supreme Court held that a trial court’s discretionary power to dismiss a criminal action “in furtherance of justice” pursuant to Penal Code Section 1385 did not extend so far that it could disregard the facts that categorically disqualify a prisoner held in local custody (i.e., jail) from earning conduct credits at an increased rate under a former statute that allowed such increased credits.

As part of its response to a state fiscal emergency, the California legislature increased the rate at which certain prisoners in local custody could earn conduct credits to reduce their terms of incarceration. The increased credit-earning statute, former Penal Code Section 4019, went into effect in January 2010 but was short-lived; it excluded, among others, prisoners with prior convictions for a serious or violent felony.

Ricardo Antonio Lara was arrested and charged with several crimes committed in February 2010, when former Section 4019 was in effect. Due to a prior conviction for burglary, however, he was disqualified from earning conduct credits at the increased rate specified by that statute.

Pursuant to the terms of a negotiated plea bargain, the trial court exercised its discretion under Section 1385 to strike ...

D.C. District Court Reaffirms Access to Counsel for Guantanamo Detainees

In a September 6, 2012 memorandum opinion, the U.S. District Court for the District of Columbia once again asserted an “obligation to assure that those seeking to challenge their Executive detention by petitioning for habeas relief have adequate, effective and meaningful access to the courts.” In doing so, the district court held that a 2008 protective order entered by the court was the controlling legal directive concerning access to counsel for detainees held at the U.S. military prison in Guantanamo Bay, Cuba.

The executive branch of the federal government had attempted to control the detainees’ access to their attorneys through a unilaterally-imposed Memorandum of Understanding (MOU), which the court found objectionable and contrary to the clear language of the protective order.

Six separate motions filed by long-term Guantanamo detainees were consolidated for the purpose of resolving the issue of whether the district court’s protective order constituted an “abuse of discretion as it would result in a permanent injunction without the required showing of actual harm necessary for such an ‘extraordinary remedy,’” as the government argued in its opposition to the motions.

The court reviewed various prior decisions that had been entered regarding the detainees, including Rasul v ...

Declining Prison Populations Leave Towns with Empty Jails, Debt

by David M. Reutter

Several Texas towns are bemoaning their bad business decision to enter into the for-profit incarceration industry as the bottom began dropping out of that market 5 or 6 years ago. Over a two-decade boom in prison building, rural communities in Texas and other states were able to rely on the “if you build it, they’ll come” approach of constructing jails as a form of economic development.

However, research by the Austin American-Statesman indicates that declining crime rates, budget cuts and increased use of treatment programs in lieu of incarceration have left some towns saddled with debt due to empty prison and jail beds. For example, the Two Rivers Authority in Hardin, Montana recently agreed to surrender its empty prison to bondholders due to an inability to find prisoners to fill the facility since it first opened in 2007. [See: PLN, August 2013 p.42].

Texas, which boasts the nation’s largest state prison system, has been in constant need of bed space for the past several decades, though a fairly recent change in criminal justice policy has reversed that trend. However, that change has left local jurisdictions which rely on expanding prisoner populations in a ...

Private Detention Facility Forced into Bankruptcy, Sold at Auction

The Irwin County Detention Center (ICDC) in Ocilla, Georgia has been sold at auction after the facility’s owner, Municipal Corrections LLC, was forced into bankruptcy court by bondholders.

A 2007 agreement between Irwin County and Municipal Corrections demonstrates the risks that government agencies assume when they issue bonds to invest in prisons and jails. The agreement allowed the county to house up to 30 of its own prisoners at ICDC at no charge, excluding medical costs. In return, the county – which also hoped to create more jobs – issued $55 million in tax-exempt lease revenue bonds to pay off other bonds and finance a 512-bed expansion at ICDC, bringing the facility’s total capacity to 1,201.

The bonds were to be paid with revenue received from Immigration and Customs Enforcement (ICE) and the U.S. Marshals Service, for holding detainees at ICDC. However, the facility failed to house enough prisoners to generate sufficient income to make the bond payments – a problem that has plagued a number of other detention centers built by cities and counties hoping to cash in on for-profit incarceration. [See previous article, “Declining prison populations leave towns with empty jails, debt”].

Consequently, in January 2012 an ...

PLN Files Federal Lawsuit Over Censorship at Virginia Jail

On July 30, 2013, Prison Legal News filed a lawsuit in federal court against Virginia Beach Sheriff Kenneth Stolle and other sheriff’s office officials due to the censorship of books, magazines and correspondence mailed to prisoners at the Virginia Beach Correctional Center (VBCC).

The suit contends that Sheriff Stolle and employees at VBCC, which is the largest jail in the Commonwealth of Virginia, “have disapproved or refused to deliver publications that contain constitutionally protected speech.”

According to the complaint, PLN mailed numerous publications to VBCC prisoners – including sample issues of Prison Legal News, book and subscription brochures, a self-help book entitled “Protecting Your Health and Safety,” and copies of court rulings.

Beginning in April 2012, VBCC officials began rejecting and returning dozens of publications sent to prisoners by PLN. Some of the returned publications were stamped “not here” even though “a check of the prisoner subscriber’s custody status revealed them to be in custody at VBCC at the time....” Issues of PLN were rejected because they allegedly included ads with “sexually explicit material,” although the ads did not contain any nudity or depictions of sex acts. Staff at VBCC also stated that “ordering forms with prices, catalogs [and ...

Brain Imaging Research Conducted on Prisoners

Prisoners might not be able to obtain aspirin for their headaches or insulin for their diabetes while incarcerated, but if researchers get their way, an MRI for brain imaging may be free of charge. That is no cause for celebration, though, because the MRI results could someday be introduced as evidence at trial or used to deny parole.

Researchers at Mind Research Network (MRN), a nonprofit organization, have been conducting brain imaging on prisoners in Wisconsin and New Mexico since 2007. The goal of their research is to determine if MRIs can detect changes in brain activity that might indicate a person’s propensity for being a psychopath. Thousands of prisoners have thus far volunteered for the research; in exchange they receive a small hourly payment and a copy of their brain scan.

In a July 2013 article, Dr. Kent Kiehl, an executive science officer at Mind Research Network, told the Los Angeles Times, “The trove of data they have gathered has revealed telltale abnormalities in the structure and functioning of psychopaths’ brains. On the whole, they have less gray matter in the paralimbic system – believed to help regulate emotion – which may help account for their characteristic glibness, pathological lying ...

Massachusetts: Overcrowding Forces Changes in Correctional Facilities

by David M. Reutter

Prisons and jails in Massachusetts have a problem: Almost every correctional facility in the state is operating above its capacity. Budget cuts have compounded the overcrowding problem because there is no money for new construction or expansion, and longer prison and jail terms due to tougher sentencing laws have resulted in rising population growth estimates.

“It’s getting steadily worse,” said Leslie Walker, executive director of Prisoners’ Legal Services, based in Boston. “I don’t recall the numbers ever being this high.”

The Massachusetts Department of Corrections (DOC) projects its 2011 population of 11,892 will grow by almost 24% to 14,735 by 2019. The state’s expanding prison and jail populations have resulted in more prisoners being squeezed into cells designed for fewer occupants.

That is the case at the Norfolk County Correctional Center (NCCC), where a typical cell is the size of a walk-in closet. NCCC is housing three prisoners in such cells; two have a bunk while the third sleeps on a stack-a-bed – also known as a “canoe” or “boat.”

The Old Colony Correctional Center (OCCC), a state facility, was designed to house 480 prisoners but now holds over 800.

The population ...

Death Row Prisoners in Two States File Suit over Hip Replacements

by David M. Reutter

The fact that prisoners have a constitutional right to adequate medical care under the Eighth Amendment has long been established. Since the U.S. Supreme Court made that pronouncement in Estelle v. Gamble, 429 U.S. 97 (1976), most lawsuits challenging deliberate indifference by guards and medical staff to a prisoner’s serious medical needs have alleged that such indifference stems from malice or apathy.

However, lawsuits filed by death row prisoners in two states have highlighted other improper rationales for denying necessary medical care: political concerns and financial considerations. The first suit was the subject of a ruling by the Ninth Circuit Court of Appeals, while the other, filed in March 2012, remains pending.

Nevada Department of Corrections (NDOC) prisoner John Oliver Snow, 69, is on that state’s death row. He first complained about hip and leg pain in 2005. Late that year he was seen by Dr. Steven MacArthur, an NDOC staff physician, who told Snow he would schedule him for an appointment with an orthopedic surgeon but never completed a referral or scheduled the appointment.

In response to a January 2006 medical kite, Snow was prescribed Ibuprofen and received X-rays, which were ...

Oregon DOJ Intentionally Destroyed Records; Target of Abusive Criminal Investigation Settles Suit for $1 Million

The Oregon Department of Justice (DOJ) deliberately destroyed emails and withheld records related to a botched high-profile criminal investigation, a state court found. One of the targets of that investigation filed a lawsuit against the DOJ which recently settled for $1 million.

In August 2010, Oregon Attorney General John R ...

Montana Agrees to Change Policies for Treatment of Mentally Ill Juveniles in Adult Prison

by David M. Reutter

To settle a lawsuit filed by a juvenile prisoner, the Montana State Prison (MSP) has agreed to adopt or change policies that regulate the care and treatment provided to prisoners under the age of 18.

The plaintiff who filed the suit, Raistlen Katka, can only be described as a difficult young man to manage in prison. Whether it was mental illness or his treatment at MSP that caused his “antisocial behavior” was a matter of dispute in the litigation. The state court’s order on a motion for a preliminary injunction spelled out the rocky road that Katka had traveled.

At the age of fifteen, Katka waived his right to be transferred to youth court. He then pleaded guilty to two counts of felony assault on a peace officer, and the prosecutor agreed in return to dismiss two other felony charges for assaulting guards at the Pine Hills Youth Correctional Center.

Following the imposition of concurrent five-year prison terms for each count, Katka was taken to the Missoula Assessment and Sanction Center (MASC) for boot camp screening. At a February 20, 2008 meeting with the MASC screening committee, Katka became uncooperative and vulgar, threatened to “bash ...

News in Brief

Arkansas: The Phillips County jail closed on April 30, 2013 after it failed to pass a state inspection. Sheriff Neal Byrd would not go into detail as to why the 30-year-old facility failed the inspection, but said 60 prisoners had been transferred to other jails and 18 employees would lose their jobs. According to news reports, the inspection cited broken locks, human waste overflowing into cells and no working smoke detectors or fire alarms. Additionally, prisoners had access to items they could fashion into weapons, including extension cords and pieces of metal.

California: Two days after a state prison guard filed a disability claim alleging an injury to his back, he posted entries to a Facebook page that included video from a mountain bike race in which he was participating. As a result, Ryan Patrick Wenker, 35, was ordered to pay $5,000 in restitution to the state and spend 45 days in the Sacramento County Jail following his conviction for disability fraud. To announce Wenker’s conviction, District Attorney Jan Scully posted the news on Facebook on April 9, 2013.

California: USP Atwater officials released initial details about a shooting that occurred on the prison’s recreation yard on March 26 ...


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Disciplinary Self-Help Litigation Manual



Federal Prison Handbook




Disciplinary Self-Help Litigation Manual