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Prisoner Education Guide

Prison Legal News: November, 2013

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Volume 24, Number 11

In this issue:

  1. The Too-Many Prisoners Dilemma (p 1)
  2. From the Editor (p 8)
  3. Texas Judges Rarely Disciplined, Seldom Publicly (p 9)
  4. Habeas Hints: Staring Down the Two-Headed Monster: Richter-Pinholster (p 12)
  5. The Real Costs of Incarceration in the United States (p 15)
  6. Attorney Fees Not Exempt from Disclosure Under California Public Records Act (p 17)
  7. PLN Files Censorship Suit Against Nevada DOC (p 18)
  8. Traumatic Brain Injury Rate High Among Prisoners (p 18)
  9. Debtors' Prisons Returning to America (p 20)
  10. Hell on Earth: Sexual Victimization of the Criminally Insane (p 22)
  11. China Vows to Finance Incarceration with Public Funds, Not Prison Profits (p 23)
  12. PLN Challenges Postcard-only Policy at Tennessee Jail (p 24)
  13. Oregon Considers Subsidizing Prison Medical Costs Through Medicaid (p 24)
  14. Federal Justice Grants Favor Prosecution, Law Enforcement Over Indigent Defense (p 26)
  15. Texas Prison Population Drops but Savings Evaporate (p 26)
  16. Minnesota Judge Condemns System that Jails Mentally Ill (p 28)
  17. Federal Prisoners Paid During Government Shutdown, but Not Prison Guards (p 28)
  18. GEO Group Pulls out of Mississippi Prisons (p 30)
  19. Gun Found in Segregation Cell at Privately-operated Mississippi Prison (p 33)
  20. New York City Jail Chaplain Fined for Accepting Bribe, Pleads Guilty to Fraud Charges (p 34)
  21. New Exonerations Registry Catalogs Over 2,400 Wrongful Convictions (p 34)
  22. New Hampshire Supreme Court Revives Prisoner's Negligence Action (p 35)
  23. Prisoners in Texas Jail Providing Less Slave Labor (p 36)
  24. Book Review: Against Their Will: The Secret History of Medical Experimentation on Children in Cold War America (p 36)
  25. Second Circuit: Bankruptcy Automatic Stay is No Excuse for Non-payment of Restitution (p 38)
  26. Third Circuit Reverses More Stringent Conditions of Supervised Release (p 38)
  27. Best Criminal Defense Pleading Ever! (p 40)
  28. Connecticut Supreme Court Reverses FOIA Disclosure of NCIC Printout (p 40)
  29. California: No-Gang-Contact Probation Condition Struck Down (p 41)
  30. Four West Virginia Officials, including Circuit Court Judge, Face Federal Charges (p 42)
  31. Ninth Circuit: Adam Walsh Detention Doesn’t Toll Term of Supervised Release (p 42)
  32. Eighth Circuit Upholds North Dakota Transient’s Failure-to-Register Conviction (p 44)
  33. U.S. Department of Justice Reports Statistics on State Prosecutors (p 44)
  34. California: Enhanced Presentence Conduct Credits Not Available to Defendants Who Committed Crimes Before Statute’s Effective Date (p 45)
  35. Philippines Prison Suspends Thriller Dancers (p 46)
  36. California: State Not Liable for Failure to Provide Needed Treatment so Long as Medical Care is Summoned (p 46)
  37. ICE Directive May Limit Solitary Confinement of Immigrant Detainees (p 48)
  38. Denial of Contraceptive Pill to Prisoner States Cause of Action (p 48)
  39. Anonymous PREA Hotlines Not So Anonymous (p 50)
  40. Montana Jail Fresh Air/Exercise Lawsuit Certified as Class Action, Then Settles (p 50)
  41. D.C. Circuit Clears Terrorism Suspect after 11-Year Ordeal (p 51)
  42. Audit Reveals Federal Prison Industries Faces Declining Revenue, Job Losses (p 52)
  43. Fifth Circuit: No Right to RDAP for Non-citizen Federal Prisoner (p 53)
  44. Prison Sentence Imposed for Sole Purpose of Drug Treatment Vacated by Eighth Circuit (p 54)
  45. Court Baffled by BOP's Steel-toe Boot Requirement for Prisoners (p 54)
  46. News in Brief (p 56)

The Too-Many Prisoners Dilemma

Prisons are a vast, undercovered but important beat. Why we need more criminal justice coverage

by Dan Froomkin

There’s a growing national consensus that, as Attorney General Eric Holder stated in August, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.”

When Holder proceeded to order federal prosecutors to stop triggering mandatory minimum sentences for some nonviolent drug offenders, that was big news. But where were the follow-up stories?

It’s a familiar cycle. Despite the heavy toll that mass incarceration exacts every day and in countless ways on many American communities, families and of course the incarcerated themselves, the topic attracts remarkably little consistent coverage in the mainstream media.

“Traditionally, the coverage of this has been crisis driven,” says Ted Gest, the founder of Criminal Justice Journalists, who also oversees a daily news digest for The Crime Report news service.

Recently, a hunger strike in California and other protests called renewed attention to solitary confinement as a human rights issue. And questions about oversight were briefly raised after Baltimore jail guards were busted in April 2013 for allegedly helping a charismatic gang leader, who impregnated four of ...

From the Editor

By now all PLN subscribers should have received their annual fundraising letter. Subscription and advertising income alone does not cover the cost of producing each month’s issue. Most importantly, it does not cover the cost of the advocacy we do on behalf of prisoners and their families – for that we rely on donations from our readers and supporters. And thanks to your support we have achieved some major victories so far this year, including spurring the Federal Communications Commission to cap the cost of interstate prison and jail phone calls after the FCC had failed to act on the Wright Petition for over a decade.

But a great deal of work remains to be done and we must continue our efforts to ensure that the FCC’s order is implemented and to extend it to intrastate (in-state) phone calls. If you are someone who reads PLN but does not subscribe, please take the time to make a donation. If you can’t afford to give, ask friends or family who can make a donation on your behalf. We need to raise at least $60,000 this year to fund our part of the Campaign for Prison Phone Justice; we ...

Texas Judges Rarely Disciplined, Seldom Publicly

by Matt Clarke

In 2009, former Harris County, Texas state district judge Woodrow “Woody” Densen was caught on surveillance video keying a neighbor’s car, causing significant damage. The video received widespread media coverage. He pleaded guilty to a misdemeanor charge of criminal mischief and agreed to pay a $1,500 fine and over $6,000 in restitution. [See: PLN, June 2010, p.50; Aug. 2009, p.1].

Six months later, in October 2010, the State Commission on Judicial Conduct (SCJC) imposed disciplinary sanctions on Judge Densen: It gave him a public warning.

The slap on the wrist that Densen received was infinitely more discipline than the SCJC meted out to the vast majority of judges who were the subject of complaints. Less than 4% of the 1,192 complaints against judges received by the SCJC in fiscal year (FY) 2011 resulted in any disciplinary action.

For example, on August 4, 2011, PLN managing editor Alex Friedmann filed a complaint with the SCJC against Angelina County Judge Derek C. Flournoy, related to comments made by Judge Flournoy in a criminal case. Following a sentencing hearing, Flournoy was quoted in a news report as saying to the defendant, Marco Sauceda, “I ...

Habeas Hints: Staring Down the Two-Headed Monster: Richter-Pinholster

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 the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas corpus law which now governs habeas corpus practice in courts throughout the United States.

Part One of Two

Harrington v. Richter,
131 S.Ct. 770 (2011)

Cullen v. Pinholster,
131 S.Ct. 1388 (2011)

In Richter and Pinholster, the U.S. Supreme Court (SCOTUS) dealt body blows to the already slim chances for relief on federal habeas corpus by making ineffective assistance of counsel (IAC) claims even harder to win than they were before (Richter), and by all but eliminating federal evidentiary hearings as an aid to satisfy AEDPA’s requirement that a petitioner show the state court’s denial of habeas corpus relief was “unreasonable” (Pinholster). Because evidentiary hearings in federal court traditionally have been the gateway to relief on habeas corpus, and because IAC claims – which by definition bring something new to the table that wasn’t considered at trial – have until now been the staple of habeas litigation, the decisions in Richter and Pinholster ...

The Real Costs of Incarceration in the United States

It has long been an open secret that government officials go out of their way to hide from public view the true costs of the many, many different aspects of America’s top-heavy and constantly growing law enforcement system; and in no area are those efforts more devious than when it comes to hiding the true costs of incarcerating nearly 1.6 million people in America’s state and federal prisons. One famous and outspoken critic of America’s propensity to incarcerate as many people as possible once described the compelling rationale behind those secrecy efforts by writing:

“Did you really think that we want those laws to be observed? ... There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted – and you create a nation of lawbreakers ...

Attorney Fees Not Exempt from Disclosure Under California Public Records Act

The California Court of Appeal held on November 16, 2012 that billing and payment records reflecting the amount of money a government agency paid in attorney fees to defend against a pending civil rights action were not exempt from disclosure under the California Public Records Act (CPRA), Government Code § 6250 et seq., even if the information was sought by a person seeking to assist the plaintiff litigants.

Attorneys David Mann and Donald Cook represent the plaintiffs in a civil rights lawsuit that has been pending in Los Angeles County Superior Court since 1999. That suit, which arose out of the arrest and detention of a husband and wife by members of the county’s Task Force for Regional Autotheft Prevention, has been the subject of numerous appellate proceedings, including Venegas v. County of Los Angeles, 153 Cal. App. 4th 1230 (Cal. App. 2d Dist. 2007). Following an unpublished appellate decision in August 2011, the case was remanded to the lower court for trial on the sole remaining claim involving a violation of Civil Code § 52.1.

Attorney Cynthia Anderson-Barker, a colleague of Mann and Cook, filed a public records request seeking documents pertaining to billings from, and payments to, any ...

PLN Files Censorship Suit Against Nevada DOC

On June 27, 2013, Prison Legal News filed suit in U.S. District Court against Nevada Department of Corrections (DOC) Director James G. Cox and other defendants, seeking to enjoin unconstitutional censorship by state prison officials.

The lawsuit contends that the Nevada DOC has engaged in “unlawful censorship of books, magazines and other correspondence” mailed by PLN to Nevada prisoners through the enforcement of DOC policies that 1) prohibit the use of address labels on magazines, 2) ban publications not sent from “approved vendors or publishers” and 3) ban books not sent via First Class mail.

“These policy restrictions are simply proxies used to justify illegal censorship by prison officials and have no connection with legitimate security-related interests,” said PLN editor Paul Wright. “Even in federal maximum-security prisons there is no policy against the use of address labels or restrictions on what class of mail must be used to send books to prisoners. Surely Nevada prison officials have more important things to do than implement such policies.”

According to the complaint, the Nevada DOC has designated only one vendor, Amazon, as an “approved vendor” to send reading materials to prisoners. PLN argues in its lawsuit that “A single source designated ...

Traumatic Brain Injury Rate High Among Prisoners

by Matt Clarke

Studies have shown that the prevalence of traumatic brain injury (TBI) among adult prisoners is more than seven times higher than among non-incarcerated adults.

Traumatic brain injury occurs when a person suffers a disruption of brain function due to an injury – such as an impact from an accident, playing sports or an assault. The most common form of TBI is a concussion.

Medical researchers have discovered that minor TBIs, previously believed to be inconsequential and transient, can result in lasting disabilities. They also discovered that the injuries caused by TBIs are cumulative, in that a series of minor TBIs can lead to major impairment.

Most people who suffer the most minor form of TBI, a concussion, will recover more or less fully within a year. For the 15% who do not, persistent symptoms may include headaches or increased irritability that interferes with everyday functioning.

Sometimes TBI results in behavioral issues that are a direct consequence of the impact that caused the injury. For example, in a vehicle accident or assault, the impact is often to the top front of the head just above the frontal lobes, which regulate behavior. Frontal lobe TBI also can be caused by ...

Debtors' Prisons Returning to America

As the United States was becoming an independent nation with its own values and form of government, it discarded an archaic English system that drove the poor into greater poverty. When the U.S. ended the practice of debtors’ prisons in 1833, it ensured that people would not be jailed merely for the crime of being too poor to pay one’s debts.

More recently, the Supreme Court held two decades ago that government officials cannot revoke a defendant’s probation and send them to prison if they are unable to pay fines or restitution in criminal cases. See: Bearden v. Georgia, 461 U.S. 660 (1983).

Over the years, however, the prohibition against the criminalization of poverty steadily waned. The law may not allow one’s arrest and incarceration for nonpayment of bills, but the failure to attend court hearings or pay fines or fees, or displaying “contempt of court” when a creditor files suit, has been a backdoor pathway to jail for some debtors. [See: PLN, July 2011, p.40; May 2011, p.22, 26; May 2010, p.40; April 2010, p.8].

Breast cancer survivor Lisa Lindsay of Herrin, Illinois found herself in jail over a medical bill she was ...

Hell on Earth: Sexual Victimization of the Criminally Insane

Jan Brewer is the governor of Arizona and one of her three sons, Ronald, was charged in 1989 with the sexual assault and kidnapping of a Phoenix woman. He was diagnosed as suffering from schizophrenia and, in 1990, was found not guilty by reason of insanity and sent to the Arizona State Hospital in Phoenix, where he has been housed for the last two decades. Ronald Brewer is one of the lucky mentally ill or criminally insane people in the U.S. not forced to live out their sentence in a jail or state or federal prison.

A 2006 report for the Department of Justice’s Bureau of Justice Statistics (BJS), “Mental Health Problems of Prison and Jail Inmates,” estimated that 1.25 million people suffering from mental health problems were incarcerated in U.S. prisons and jails. This is a four-fold increase from the BJS’s 1998 estimate of 283,000 prisoners with a mental illness.

Two recent BJS studies spotlight the horrendous conditions faced by the criminally insane in the American prison gulag. They reveal that U.S. prisons have become the dumping ground for an increasing number of mentally ill people and, more troubling, these people are ...

China Vows to Finance Incarceration with Public Funds, Not Prison Profits

Despite its atrocious human rights record, China says it is taking steps to ensure that its prison system is publicly financed and that prisoners receive rehabilitative opportunities.

Wu Aiying, China’s Minister of Justice, announced last year that profits from prison-run enterprises will now primarily fund rehabilitative programs rather than the intrinsic costs of paying for China’s nearly 700 prisons nationwide and salaries for some 300,000 guards.

Those expenses, Wu told a session of the Standing Committee of the National People’s Congress, will now be financed mostly by central and provincial government spending.

Public funding of China’s prison system – which incarcerates an estimated 1.64 million prisoners – paid for almost 88% of the total costs in 2011, Wu stated. She also said safety conditions have improved now that prisoners are prohibited from working with explosive, flammable, poisonous or environmentally hazardous materials.

Wu further indicated that China’s prisons, under the direction of the Ministry of Justice, are strengthening rehabilitative and educational opportunities for prisoners. A new correctional program implemented nationwide mandates that prisoners have five days of work “experience” each week, one day of in-class study and one day off.

Since 2008, according to Ministry of ...

PLN Challenges Postcard-only Policy at Tennessee Jail

On October 10, 2013, Prison Legal News filed a federal lawsuit against Sullivan County, Tennessee, the Sullivan County Sheriff’s Office and Sheriff J. Wayne Anderson, alleging that the county jail unconstitutionally censored books, magazines, letters and other correspondence sent to prisoners and failed to provide due process to the sender of the censored items in violation of the First and Fourteenth Amendments.

According to the complaint, filed in U.S. District Court for the Eastern District of Tennessee, in October 2011 the Sullivan County Jail “adopted and implemented written mail policies and practices that violate the First Amendment by unconstitutionally restricting correspondence to prisoners to postcards only, and that prohibit delivery of book catalogs and magazines to prisoners. Further, Defendants’ policies and practices do not afford Prison Legal News due process, including notice and an opportunity to challenge the censorship.”

Postcard-only policies severely restrict correspondence between prisoners and their family members, children, friends and other contacts in the community, while affording no privacy for correspondence that involves medical, legal or religious matters. No state or federal prisons limit prisoner mail to postcards, even at maximum-security facilities.

Beginning in February 2012, PLN mailed hundreds of copies of its monthly publication ...

Oregon Considers Subsidizing Prison Medical Costs Through Medicaid

With health care expenses for prisoners consuming more than $208 million of the biennial budget for the Oregon Department of Corrections (ODOC) – a 67% increase since 2005 – prison officials are desperate to contain costs.

Correctional Health Partners (CHP), which provides medical services at ODOC facilities under a contract that lasts until 2015, is exploring how the state prison system can tap into federal Medicaid funding thanks to a rule that says Medicaid will pay the medical bills of prisoners who are otherwise eligible and are hospitalized outside a prison for more than one day.

“The rule has been around for almost 15 years now,” explained CHP CEO Jeff Archambeau. “While it seems straightforward, the mechanics of it are quite complicated.”

Currently, the federal government pays approximately 63% of Medicaid costs in Oregon; the program covers some of the state’s low-income adults, pregnant women, juveniles, people who are elderly, disabled or sight-impaired and those who receive Temporary Assistance for Needy Families benefits.

In 2014, however, Medicaid will be expanded in 25 states to cover all U.S. citizens with an income less than 133% of the federal poverty guidelines under the Affordable Care Act (also known as “Obamacare”). For an ...

Federal Justice Grants Favor Prosecution, Law Enforcement Over Indigent Defense

A report by the Government Accountability Office (GAO) has confirmed what many criminal defendants too poor to afford an attorney have long suspected: While hundreds of millions in federal tax dollars go to support prosecutors, law enforcement and prisons each year, public defenders are left out in the cold.

Citing a nationwide survey on criminal justice funding, the GAO’s report on indigent defense found that police, prosecutors and corrections agencies received around half of the overall money appropriated by the Edward J. Byrne Justice Assistance Grant Program (JAG) – the federal government’s largest criminal justice subsidy – while less than 1% of JAG funds went toward defending the poor.

“Despite repeated calls from the legal community for improved funding for indigent defense, and even though Attorney General Holder himself has declared a ‘crisis’ in the right to counsel for the poor, this study shows that state and local governments continue to give justice for the needy short shrift when they divide up the federal dollars they receive,” said Virginia Sloan, president of The Constitution Project, a non-profit organization that seeks to reform the nation’s criminal justice system and strengthen the rule of law.

According to the GAO report, the ...

Texas Prison Population Drops but Savings Evaporate

by Matt Clarke

The prospects for cost savings in the operation of the Texas Department of Criminal Justice (TDCJ), now the nation’s largest state prison system, seemed optimistic in 2011 when the state made the unprecedented decision to close a prison. The closure of the 1,000-bed Central Unit in Sugarland should have resulted in substantial savings. [See: PLN, June 2013, p.1].

Recognizing this, the Texas legislature cut $60 million from the TDCJ’s budget for 2012 and raised the co-pay that state prisoners must pay for medical treatment from $3 per visit to $100 per year, with the fantasy expectation of collecting up to $15 million from prisoners who are not paid for their labor. [See: PLN, Oct. 2012, p.42].

Additionally, the TDCJ enacted other cost-cutting measures such as reducing the number of desserts served with prisoners’ meals to once a week; serving only two meals on weekends; reducing education, rehabilitation and treatment programs; closing and consolidating prison industries; and reducing the number of staff in the already barely-constitutional prison medical system. [See, e.g.: PLN, Dec. 2012, p.24]. Finally, TDCJ Executive Director Brad Livingston said any further cuts would compromise prison security.

It all ...

Minnesota Judge Condemns System that Jails Mentally Ill

A Minnesota state court judge blamed political indifference for a justice system that warehouses the mentally ill in county jails – a practice that may have resulted in the death of a guard ten weeks after he fought with a schizophrenic prisoner.

Hennepin County Mental Health and Probate Court Presiding Judge Jay Quam made his opinions known in an April 2012 written order when he indefinitely committed Derres Laquan King, 24, to the Minnesota Security Hospital.

King, who was born HIV-positive and suffers from numerous psychiatric disorders, bit 50-year-old Hennepin County jail sergeant Bradley Berntson on the leg during an altercation after King didn’t get a spoon with one of his meals.

Berntson died several months later from what a medical examiner officially called “acute alcohol toxicity,” though it’s believed that he suffered fatal complications due to medication he took in an effort to avoid potential HIV infection from King. Berntson’s wife, Julie, has since filed a wrongful death suit against the county, claiming he was not adequately protected at the jail.

“It is fair to conclude that the bite Mr. King inflicted contributed to Sergeant Berntson’s death,” Judge Quam wrote.

“While they are sitting in jail ...

Federal Prisoners Paid During Government Shutdown, but Not Prison Guards

One of the ironies of the recent 16-day federal government shutdown, which ended on October 16, 2013, is that prisoners in the federal Bureau of Prisons (BOP) continued to receive their paychecks while BOP workers did not. FCI Forrest City, Arkansas prison employee and local union president Jeff Roberts, and his counterpart at FCI Oxford in Wisconsin, Dave Dauman, as well as other prison staffers, apparently failed to see the humor in that situation.

While Roberts, Dauman and other BOP employees are dependent on Congress to approve the Bureau of Prisons’ budget (and thus their paychecks), wages for federal prisoners – which range on average from less than $20 to slightly over $100 a month – come from different funding sources that do not rely on annual appropriations, including UNICOR and commissary accounts.

What this means is that while BOP guards, among other federal workers, were held hostage to the partisan bickering in Washington, prisoners were not. Some BOP employees expressed frustration that prisoners continued to receive their pay while staff members, who were deemed “essential” employees and still had to report to work, didn’t – though it was unclear whether they were angry with the prisoners or with members of Congress ...

GEO Group Pulls out of Mississippi Prisons

by David M. Reutter

Last year, the GEO Group – the nation’s second-largest for-profit prison company – announced that it was pulling out of its contracts to operate three Mississippi prisons. That development came shortly after a federal court announced sweeping changes at the GEO-run Walnut Grove Youth Correctional Facility (WGYCF) in Leake County, Mississippi following the settlement of a lawsuit.

U.S. District Court Judge Carlton W. Reeves wrote that WGYCF, a prison for youthful male offenders ages 13 to 22 convicted as adults, “has allowed a cesspool of unconstitutional and inhuman acts and conditions to germinate, the sum of which places the offenders at substantial ongoing risk.”

A March 20, 2012 report by the U.S. Department of Justice (DOJ) found “systemic, egregious practices” at WGYCF, including “brazen” sexual activity between staff and offenders that was “among the worst that we’ve seen in any facility anywhere in the nation.” Poorly trained guards at WGYCF beat youths and used excessive pepper spray. Employees sold drugs at the facility. Prisoners were denied adequate medical care and not afforded “even the most basic education services.” There was a culture of “deliberate indifference” to possessing homemade knives used in gang fights and ...

Gun Found in Segregation Cell at Privately-operated Mississippi Prison

According to documents produced by the Mississippi Department of Corrections pursuant to a public records request, a semi-automatic pistol and other contraband was found at the Wilkinson County Correctional Facility in Woodville on September 13, 2013. The prison is operated by Management & Training Corporation (MTC), a for-profit company.

According to emails from MTC officials, an anonymous phone call to the facility indicated that contraband was going to be “thrown over the fence on the south end of the prison which house [sic] Long Term Segregation offenders and there was to be a gun in the package.” The fence line was “walked twice” before a package with contraband was located, which contained three cell phones and tobacco but no firearm.

Based on the anonymous call, staff located a broken cell window in G Pod. A search of the cell resulted in the discovery of a semi-automatic Model MP .25 pistol in the possession of a prisoner. Other contraband found in the cell included tobacco, a cell phone charger and a “6 in. sharpened weapon made of the cell light fixture.”

There was no indication how the firearm ended up inside the segregation cell. The gun was found in the cell of Isaac Garner; another prisoner, Gary Long, was reportedly implicated in the incident. Both were transferred to other prisons.

The south end of the Wilkinson County Correctional Facility was placed on lockdown after the firearm was found. MTC did not publicly announce that a gun had been brought into the facility and company spokesperson Issa Arnita declined to comment about the incident, citing an ongoing investigation.

According to Mississippi Department of Corrections Communications Director Grace Simmons Fisher, no firearms were found in state-run secure correctional facilities last year and thus far in 2013; the only gun discovered was at the MTC-managed Wilkinson County prison.

“The introduction of a firearm into a correctional facility is a serious security breach,” said PLN managing editor Alex Friedmann, who also serves as president of the Private Corrections Institute (PCI), a non-profit watchdog group that opposes the privatization of correctional services. “It’s telling that since 2012, the only gun found in a Mississippi prison ...

New York City Jail Chaplain Fined for Accepting Bribe, Pleads Guilty to Fraud Charges

A politically-connected New York City jail chaplain was fined for accepting a gift from a prisoner’s family, then charged with stealing federal housing funds in an unrelated case. He was ordered to serve 45 days in federal prison.

Rabbi Leib Glanz, 54, admitted accepting a silver wine goblet and plate worth about $500 during a lavish bar mitzvah for Jewish prisoner Tuvia Stern’s son at the downtown New York City jail known as “The Tombs,” which included a band and catered food. [See: PLN, Feb. 2010, p.24]. Glanz, who coordinated the December 30, 2008 event, said he tried to reject the gift.

“But the family and other guests insisted I accept it,” he explained to the city’s Conflict of Interest Board. “I believe that to have refused this gift under these circumstances would likely have caused the Stern family significant embarrassment in front of their relatives and friends.”

Jail employees are prohibited from accepting gifts from prisoners’ families. Glanz was fined $2,500 in December 2011 for accepting the goblet and plate, and resigned from his part-time chaplaincy position. Three other jail employees resigned after details of the bar mitzvah were leaked to the press.

In ...

New Exonerations Registry Catalogs Over 2,400 Wrongful Convictions

According to the National Registry of Exonerations, more than 1,230 criminal defendants who were wrongfully convicted have been exonerated since 1989. Another 1,170 cases involving wrongful convictions were not included in the Registry’s database because they were “collective exonerations” in police misconduct scandals in which officers fabricated evidence – for example, by planting drugs or guns on suspects.

The criminal justice system does not keep an official record of exonerations. As such, the University of Michigan Law School partnered with the Center on Wrongful Convictions at Northwestern University School of Law to found the Registry in May 2012.

The Registry’s database includes cases gathered from court records and catalogs of exonerations maintained by wrongful conviction organizations, such as the Innocence Project.

One of the most recent exonerations in the Registry is that of Sheldon Mosley, who was convicted of child sexual abuse in 1996 in Texas, sentenced to 60 years and released on October 11, 2013. Mosley was falsely accused of molesting his 4-year-old daughter, who recanted in 2012, saying she had been coerced into testifying about the abuse by other family members. The Texas Court of Criminal Appeals vacated Mosley’s conviction and the district attorney ...

New Hampshire Supreme Court Revives Prisoner's Negligence Action

Last year the New Hampshire Supreme Court reversed a lower court’s dismissal of a prisoner’s negligence claims, finding they were permitted under RSA 507-B:2.

On September 9, 2007, New Hampshire county prisoner Dana Chatman was part of a work crew assigned to clean the Lee County Fair site. Strafford County Dept. of Corrections (DOC) employee Paul Giampa supervised the crew.

Giampa ordered Chatman and other prisoners to load numerous tables and chairs onto an unhitched trailer sitting on uneven, soft ground. Once the trailer was fully loaded, Giampa directed Chatman and others to lift and hitch it to a pickup truck. In the process, however, a weld on the trailer jack or hitch failed, causing the trailer to fall on Chatman’s left leg and ankle. He suffered permanent injuries.

Chatman filed a state court negligence action against Giampa, Strafford County and the DOC, seeking to hold the county liable under the doctrine of respondeat superior. The trial court granted the defendants’ motion to dismiss, finding that Chatman’s claims were barred by RSA 507-B:2 because they did not arise out of the ownership, occupation, maintenance or operation of a motor vehicle.

On appeal, the New ...

Prisoners in Texas Jail Providing Less Slave Labor

According to Taylor County, Texas Sheriff Les Bruce, prisoners at the county jail in Abilene are performing less free labor than in the past.

Bruce allowed low-risk prisoners convicted of non-violent offenses to perform work for the county in exchange for three days of good conduct time for each day of labor. Prisoners have traditionally worked on crews that clean up the roads, pick up trash at illegal dump sites, and perform lawn care and grounds maintenance on county-owned property.

“It’s hard to put a dollar figure on what work crews have saved the county,” said Precinct 1 County Commissioner Randy Williams. “But over the past 10 years, it has to be in the millions.”

However, Sheriff Bruce began running a greatly reduced set of work crews in 2012. Several years ago he regularly had over 30 prisoners who qualified to work in the crews; the average is now between 10 and 15. And just because prisoners qualify doesn’t mean they’re ready to work.

“Before you turn an inmate loose with a chainsaw or a Weed Eater, you have to do some training,” stated Precinct 3 County Commissioner Stan Egger. “Now, by the time you have someone ...

Book Review: Against Their Will: The Secret History of Medical Experimentation on Children in Cold War America

by Allen M. Hornblum, Judith L. Newman
and Gregory J. Dober

(Palgrave MacMillan, 2013). 266 pages. $27.00

Book review by Christopher Zoukis

According to Oswald Spengler, writing in The Decline of the West, “Moral is a conscious and planned causality of conduct, apart from all particulars of actual life and character, something eternal and universally valid, not only without time but hostile to time and for that very reason ‘true.’” He adds that “Every moral action is a piece of this sacrifice, and an ethical life-course is an unbroken chain of such sacrifices. Above all, the offering of sympathy, compassion, in which the inwardly strong gives up his superiority to the powerless.”

What happens when educated, powerful people withhold sympathy and compassion from those without power? What happens when individuals set aside Spengler’s definition of morality and adopt a philosophy that the end justifies the means? Answer: despicable events occur, events like those described in Against Their Will – a difficult and frankly frightening book by Allen M. Hornblum, who has written extensively on medical experimentation on prisoners, Judith L. Newman and occasional PLN writer Gregory J. Dober.

This book is difficult to read not because it’s dry ...

Second Circuit: Bankruptcy Automatic Stay is No Excuse for Non-payment of Restitution

Philip Colasuonno, a defendant in the U.S. District Court for the Southern District of New York, was resentenced to 4 months in prison after the court found he had “willfully violated probation by failing to pay ordered restitution.” Colasuonno filed for Chapter 7 bankruptcy following his initial sentencing, then argued that the automatic stay provision of 11 U.S.C. § 362(a) temporarily relieved him of his obligation to pay the court-ordered restitution in his criminal case. The district court disagreed with his reasoning, as did the Second Circuit.

The appellate court wrote that Colasuonno’s argument “presents us with a question of first impression in this Circuit as to what effect, if any, the Bankruptcy Code’s automatic stay provision has on court-ordered conditions of a criminal sentence or proceeding to address violation of those conditions.” Colasuonno also maintained that he “relied in good faith on advice of counsel in not paying restitution and that the record evidence does not support the district court’s rejection of this defense.”

The Court of Appeals rejected both arguments, finding that the restitution order was exempt from the automatic stay provision of the Bankruptcy Code because it constituted a “continuation of ...

Third Circuit Reverses More Stringent Conditions of Supervised Release

In 2004, Charles F. Murray was sentenced to 95 months in federal prison after pleading guilty to possession of child pornography and traveling interstate to engage in illicit sexual conduct with a minor. As part of his sentence he was required to comply with “various special conditions of supervised release that, for example, require[d] him to register as a sex offender and to submit to unannounced searches of his computer.”

After completing his prison sentence in 2010, Murray moved to the Western District of Pennsylvania, which assumed jurisdiction over him for the remainder of his three-year term of supervised release. The Probation Office in the Western District proposed conditions that were duplicative of those previously imposed by the Eastern District of Pennsylvania and District of New Jersey, but also included more stringent conditions “to reflect the language approved by the Court in the Western District of Pennsylvania relative to individuals convicted of similar offenses.”

The Probation Office required Murray to participate in a mental health/sex offender treatment program, submit to polygraph testing, register as a sex offender, not possess sexually explicit materials, consent to the installation of computer monitoring software on any computer he might use, consent to ...

Best Criminal Defense Pleading Ever!

PLN primarily reports on civil litigation involving prisons and jails rather than criminal cases. There are other resources that address criminal law; for example, Punch & Jurists (, which covers issues related to federal criminal cases.

However, when we ran across a pleading filed in a criminal court proceeding in Tennessee, it was simply too good not to report.

The pleading, a response to a May 2013 motion for limine filed by a Williamson County prosecutor in a case involving defendant Donald Powell, requested that the court prohibit Powell’s defense counsel, appropriately named Drew Justice, from referring to the District Attorney or Attorney General as “the Government.”

“The State has noticed in the past few years that it has become commonplace during trials for attorneys for defendants, and especially Mr. Justice, to refer to State’s attorneys as ‘the Government’ repeatedly during trial,” Assistant DA Tammy J. Rettig wrote. “The State believes that such a reference is used in a derogatory way and is meant to make the State’s attorneys seem oppressive and to inflame the jury.”

Justice filed a response on May 31, 2013 that squarely addressed the DA’s motion, which he summarized thusly: “The ...

Connecticut Supreme Court Reverses FOIA Disclosure of NCIC Printout

The Connecticut Supreme Court held on September 27, 2012 that a National Crime Information Center (NCIC) printout was exempt from production under the state’s Freedom of Information Act (FOIA), because a federal regulation barred its disclosure.

Rashad El Badrawi was arrested by Immigration and Customs Enforcement (ICE) agents in October 2004 for civil immigration law violations. He was detained at the Hartford Correctional Center.

During El Badrawi’s confinement, Department of Corrections (DOC) officials requested information about him from the NCIC database. That inquiry produced a record indicating that El Badrawi was included in the NCIC’s “violent gang and terrorist organization file.” DOC officials printed the record and placed it in his file.

Following his release, El Badrawi submitted a FOIA request for all public records pertaining to his detention. When the DOC refused to provide the NCIC printout, he appealed to the Freedom of Information Commission.

The Commission concluded that disclosure of the printout was not barred by 8 C.F.R. § 236.6, as that rule applies only to current detainees. The rule states: “No person, including any state or local government entity or any privately operated detention facility, that houses, maintains, provides services to, or ...

California: No-Gang-Contact Probation Condition Struck Down

On October 24, 2012, the California Court of Appeal modified a no-gang-contact condition of probation placed on a defendant who had pleaded no contest to possessing methamphetamine. The appellate court held that because neither the defendant nor his family had any ties to gangs, and the defendant’s criminal history was unconnected to gang activity, the probation condition imposed by the trial court was not reasonably related to a risk that he would reoffend.

After pleading no contest but objecting to the no-gang-contact condition of his probation, António Brandão challenged the condition on appeal, arguing that it infringed on his First Amendment rights and constituted an abuse of discretion.

The Court of Appeal concluded that state law “stopp[ed] short of authorizing conditions [that] shield probationers from exposure to people and circumstances that are less than ideal but are nonetheless unrelated to defendant’s current or prior offenses or any factor suggesting a risk of future criminal conduct.”

Finding that the trial court had abused its discretion on state law grounds, the Court of Appeal held it was unnecessary to address Brandão’s claim that the no-gang-contact condition also violated his right to peaceably assemble under the First Amendment – a ...

Four West Virginia Officials, including Circuit Court Judge, Face Federal Charges

A former West Virginia judge is facing up to ten years in federal prison after pleading guilty to charges that he conspired to protect a county sheriff from allegations of drug-related activity.

Former Mingo County Circuit Court Judge Michael Thornsbury, 57, pleaded guilty on October 2, 2013 in the U.S. District Court for the Southern District of West Virginia, and will be sentenced in January 2014. He resigned from his elected post the same day and consented to voluntary disbarment in a letter to the state Office of Disciplinary Counsel.

Thornsbury was charged with conspiring with Mingo County Sheriff Eugene Crum and other officials to offer a lighter sentence to a defendant from whom Crum had bought drugs and owed a $3,000 debt for campaign signs. According to federal prosecutors, that defendant, George White, is now serving a 1-to-15-year sentence imposed by Thornsbury, who offered a more lenient sentence if White would fire his attorney and hire another one preferred by the judge. The offer was intended to silence White’s lawyer, who was providing information about Sheriff Crum to federal investigators and the news media.

“For a judge to violate someone’s constitutional rights is really beyond ...

Ninth Circuit: Adam Walsh Detention Doesn’t Toll Term of Supervised Release

In a case of first impression, the Ninth Circuit Court of Appeals held that the period of time spent in civil confinement under the Adam Walsh Act does not constitute “imprisonment,” and that a defendant’s period of supervised release is thus not tolled and continues to run during that time.

Marc Christopher Turner, who initially served a federal prison sentence for sexually explicit conduct and returned to custody after violating his supervised release, was civilly confined for “Adam Walsh Act review” at the end of his prison term. While held in custody pending the civil commitment proceedings, “Turner filed a motion to terminate his term of supervised release on the ground that the term had run during his civil detention.” The district court denied his motion.

However, following five years of civil detention and a bench trial, the district court entered judgment in Turner’s favor, finding that the “government had failed to prove by clear and convincing evidence that, as a result of a serious mental illness, abnormality or disorder, Turner would have serious difficulty refraining from sexually violent conduct or child molestation if released.” He was ordered to be freed.

On appeal, the Ninth Circuit examined the ...

Eighth Circuit Upholds North Dakota Transient’s Failure-to-Register Conviction

The Eighth Circuit Court of Appeals has upheld the conviction of a sex offender who failed to register because he temporarily had no permanent address.

David L. Meador moved to North Dakota and was required to register as a sex offender. He lived in his truck in a gas station parking lot and registered that address. Five days later, the police evicted him from the lot. Unable to find a permanent residence, he contacted the police and attorney general’s office and asked what he should do as a transient required to register. The police told him to let them know where he was staying, and he did so. Six days after being evicted from the gas station, Meador found a place to live; two days later he registered that address with the county.

Nonetheless, prosecutors filed a criminal complaint against him for failure to register, a class C felony violation of N.D. Cent. Code § 12-1-32-15(7), for the six days he was without a residence. The statute requires that “upon a change of address, the individual required to register shall also register within three days at the law enforcement agency having local jurisdiction of the new place of ...

U.S. Department of Justice Reports Statistics on State Prosecutors

by Matt Clarke

The Bureau of Justice Statistics (BJS) of the U.S. Department of Justice has released the most recent in a series of statistical reports on state prosecutors.

The report covers 2,330 prosecutors’ offices serving judicial districts in the 50 states and the District of Columbia. Other than D.C., no federal prosecutors’ offices were included in the report, nor were county or municipal prosecutors. The first national survey of state prosecutors was conducted in 2001; the BJS’s most recent report covers statistical data for 2007.

The judicial districts surveyed ranged in population from 500 to 9.9 million; 85% of the districts corresponded to county boundaries, but Alaska, Delaware, Connecticut and Rhode Island had one prosecutor’s office for the entire state.

The estimated budget for all the prosecutors’ offices combined was $5.8 billion, down from $6.1 billion in 2001 in inflation-adjusted dollars. Despite the budgetary decrease, the number of full-time equivalent (FTE) assistant prosecutors increased about 7% to nearly 25,000 nationwide.

Assistant prosecutors handle the bulk of prosecutions and work under an elected chief prosecutor known as the district attorney, commonwealth attorney, county attorney or state’s attorney, depending on the ...

California: Enhanced Presentence Conduct Credits Not Available to Defendants Who Committed Crimes Before Statute’s Effective Date

In an October 15, 2012 unpublished ruling, the California Court of Appeal rejected a claim that the denial of enhanced presentence conduct credits to a defendant who committed his offense before October 1, 2011 – the effective date of an amendment to Penal Code section 4019 which doubled the rate at which jail detainees could earn conduct credits – violated equal protection principles.

In July 2011, when section 4019 provided for the accrual of conduct credits at the rate of two days for every four days of actual time served in presentence custody, Adelso Perez Huerta pleaded no contest to felony assault by means of force likely to produce great bodily injury. Three months later an amendment to section 4019 became effective that provided for accrual of conduct credits at the rate of two days for every two days served. However, by its express terms the amendment stated it was prospective only; that is, it only applied to crimes committed after its effective date.

Huerta argued that section 4019 violated equal protection principles because it treated a defendant who committed a crime before October 1, 2011 differently than if he or she had committed the same offense after that date.

Relying on ...

Philippines Prison Suspends Thriller Dancers

On February 24, 2012, guards at a maximum-security facility in the Philippines were so spooked following an incident involving a prisoner with a homemade weapon that they temporarily suspended the prison’s dance troupe, which became internationally famous for its 2007 choreographed homage to Michael Jackson’s hit song, “Thriller.” [See: PLN, Oct. 2007, p.42].

According to prison officials, guards halted a near-riot in the quadrangle of the Cebu Provincial Detention and Rehabilitation Center (CPDRC), where the prisoners were rehearsing. The dance troupe typically includes over 1,000 prisoners.

Gwendolyn Garcia, Cebu’s then-governor, told reporters that prisoner Carillo Balueza, 26, brandished an improvised ice pick and was mobbed by fellow prisoners and suffered minor injuries. A subsequent search turned up “other sharp objects.”

“We will see if the prisoners are ready to behave in an orderly and disciplined manner, then we will resume,” Garcia said. “We will again allow some of these privileges. These are privileges, not rights.” Once a month, members of the public are allowed into the facility to watch the dance performance.

Curiously, other troubling events at CPDRC – including the 2011 beating death of a prisoner and two escapes – didn’t shut down the dance ...

California: State Not Liable for Failure to Provide Needed Treatment so Long as Medical Care is Summoned

On January 15, 2013, the California Court of Appeal held that state prison officials were immune from liability, as a matter of law, for decisions that resulted in a prisoner failing to receive the medical treatment he needed. Those decisions led to the amputation of the prisoner’s penis after his cancer had metastasized, and to his eventual death.

Following his 2004 conviction for possession of a controlled substance with intent to sell, Francisco Castaneda complained of pain during urination and a growth that had been on his penis for several years. An initial medical intake screening in 2005 resulted in a referral for a urology consult and biopsy to rule out cancer. Castaneda was transferred to another prison, however, then released to federal authorities in 2006 before the referral – which was at first considered “routine” but ultimately deemed “urgent” – was acted upon.

Days after he was released from federal custody in 2007, Castaneda was diagnosed with penile cancer. His penis was amputated and he died a year later; he was 36 years old. [See: PLN, Dec. 2011, p.40; June 2011, p.24; Oct. 2010, p.44; April 2010, p.46; Sept. 2008, p.32].

Before his death, Castaneda ...

ICE Directive May Limit Solitary Confinement of Immigrant Detainees

Many human rights activists have noted that Immigration and Customs Enforcement (ICE), which is protected by draconian post-9/11 legislation and U.S. Department of Homeland Security (DHS) rule-making power, has been prone to abusive detention practices – especially in the area of solitary confinement. However, courts have been reluctant to criticize all but the most egregious violations committed by ICE.

Thus, a 13-page ICE directive issued on September 4, 2013, purporting to modify some of the agency’s policies related to the solitary confinement of immigrant detainees, was met with a degree of cautious suspicion.

ICE officials realize that immigrant detainees are virtually powerless, with little money and limited legal standing, and thus have virtually no political clout. This makes the immigrant detention system a perfect setting for less enlightened penologists to pursue carceral practices that they might hesitate to implement in the federal Bureau of Prisons (BOP).

The concept of “supermax” confinement for the most violent and dangerous offenders has been around for decades, but post-9/11, DHS and ICE have taken the practice of solitary confinement to a new level. In fact, the BOP has taken a page out of DHS policy by creating even more restrictive prison ...

Denial of Contraceptive Pill to Prisoner States Cause of Action

A U.S. District Court in Florida has held that the denial of a prisoner’s access to a contraceptive pill to prevent pregnancy, based on a jail employee’s religious beliefs, states a cause of action.

The plaintiff in the case, identified only as R.W., was raped on January 27, 2007 by an unknown assailant. After she reported the crime to the Tampa Police Department, R.W. was taken to a Rape Crisis Center. There she was given two anti-conception pills following an examination. The first, at the doctor’s directions, was taken immediately; the second was to be taken twelve hours later.

A police officer then returned R.W. to the scene of the crime. During the investigation, it was discovered that she had an outstanding arrest warrant for failure to appear and failure to pay restitution. She was arrested and taken to the Hillsborough County Jail.

R.W. remained in jail overnight and the next morning advised Michele Spinelli, an employee with Armor Correctional Health Services, the jail’s private medical contractor, about the rape and her need to take the prescribed anti-conception pill to ensure she did not become pregnant. In response, “Spinelli told the ...

Anonymous PREA Hotlines Not So Anonymous

Following a decade of delays, the Prison Rape Elimination Act (PREA) standards, promulgated by the U.S. Department of Justice, went into effect in August 2013. [See: PLN, September 2013, p.1].

One of the PREA rules, 115.51, states that correctional agencies “shall provide multiple internal ways for inmates to privately report sexual abuse and sexual harassment, retaliation by other inmates or staff for reporting sexual abuse and sexual harassment, and staff neglect or violation of responsibilities that may have contributed to such incidents.” The rule further specifies that “Staff shall accept reports made verbally, in writing, anonymously, and from third parties and shall promptly document any verbal reports.”

Although PREA does not require prisons and jails to establish internal telephone hotlines for prisoners to report sexual abuse and harassment, many have done so. When the PREA standards were being developed, some prisoners’ rights advocates expressed concerns that prisoners would not have faith in the hotlines, or be willing to use them, unless they provided true anonymity.

Most of the PREA hotlines in prisons and jails profess to accept anonymous reports, in that prisoners are not required to identify themselves or enter their phone PIN number to access the ...

Montana Jail Fresh Air/Exercise Lawsuit Certified as Class Action, Then Settles

The U.S. District Court for the District of Montana granted class certification in a lawsuit alleging that the Missoula County Detention Facility (MCDF) deprives prisoners of fresh air and outdoor exercise. Following the class certification, the suit settled a year later in October 2013.

The plaintiffs in the case had moved to certify a class consisting of present and future MCDF prisoners who are held in Housing Unit 2 and the Juvenile Detention Center for at least a month and are denied fresh air and outdoor exercise. They also proposed a subclass of female prisoners held at MCDF.

The defendants did not oppose the motion, which was granted by the district court on October 17, 2012. The court found that the requisite class certification requirements of Federal Rule of Civil Procedure 23(a) and (b) had been satisfied.

The district court first held that the numerosity requirement was satisfied due to the “fluid composition” of MCDF’s prisoner population. “The commonality requirement is met ... because the plaintiffs and the proposed class have all allegedly suffered the same injury,” the court wrote. Moreover, the typicality requirement was satisfied because “the claims of the named, representative parties are the same as ...

D.C. Circuit Clears Terrorism Suspect after 11-Year Ordeal

An October 16, 2012 decision by the D.C. Circuit Court of Appeals has ended the lengthy ordeal of Salim Ahmed Hamdan, who was originally captured in Afghanistan in 2001 and detained at the U.S. military prison in Guantanamo Bay, Cuba after he was accused of being an “unlawful enemy combatant.”

Hamdan was tried and convicted by a military commission for “material support for terrorism” under the Military Commissions Act of 2006 (Act), for having served as Osama bin Laden’s personal driver. He was sentenced to 66 months imprisonment then transferred to Yemen in 2008, where he was released the following year. He persisted in the appeal of his conviction, however, and finally prevailed in his legal fight against the U.S. government.

Hamdan had originally challenged his detention and trial before a military commission as an unlawful enemy combatant, and the Supreme Court, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) [PLN, Sept. 2006, p.27], agreed that the military commission rules then in place contravened statutory limits because they did not comply with certain restrictions set forth in 10 U.S.C. § 836.

Hamdan’s appeal of his conviction pertained to three separate issues: whether ...

Audit Reveals Federal Prison Industries Faces Declining Revenue, Job Losses

A recent audit by the Office of the Inspector General of the U.S. Department of Justice highlights the many challenges the Bureau of Prisons (BOP) and its wholly-owned government corporation, Federal Prison Industries, Inc. (FPI), face with respect to the FPI’s increasing financial problems. The audit, which covers FPI’s operations from 2001 to 2012, also documents growing losses in prisoner job positions.

Congress created FPI, also known as UNICOR, “to provide a meaningful work program to inmates in federal penal institutions. To minimize its impact on the private sector, Congress authorized FPI to sell its products only to the federal government, and the Executive Order establishing FPI required it to diversify its product offerings so that no single private industry would bear a disproportionate burden of competition.”

Further, according to BOP Program Statement 8120.02, “FPI was designed to allow inmates the opportunity to acquire the knowledge, skills, and work habits that will be useful when released from prison.”

However, as previously reported in Prison Legal News, prison industry programs can negatively impact free-world businesses and result in free-world job losses when businesses are unable to compete with low-cost prison slave labor. [See: PLN, Feb. 2013, p ...

Fifth Circuit: No Right to RDAP for Non-citizen Federal Prisoner

The Fifth Circuit Court of Appeals held last year that a non-citizen federal prisoner had no constitutional right to participate in a substance abuse rehabilitation program that could reduce his sentence by up to a year.

Ricardo Gallegos-Hernandez, a federal prisoner and Mexican national who had an Immigration and Customs Enforcement (ICE) detainer lodged against him, filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2241, alleging that a Bureau of Prisons’ (BOP) policy that excluded prisoners with ICE detainers from participating in and benefiting from the BOP’s Residential Drug Abuse Treatment Program (RDAP) under 28 U.S.C. §§ 3621 and 3624 violated his due process and equal protection rights.

The district court dismissed the habeas petition for lack of subject matter jurisdiction because the claims should have been brought under 42 U.S.C. § 1983, for failure to exhaust administrative remedies and for failure to state a claim upon which relief could be granted. Gallegos-Hernandez appealed.

The Fifth Circuit held that § 2241 was the proper statute to challenge the policy because participation in RDAP could reduce his imprisonment by one year. The Court of Appeals also held that Gallegos-Hernandez was not required to pursue administrative ...

Prison Sentence Imposed for Sole Purpose of Drug Treatment Vacated by Eighth Circuit

In a “plain error” reversal of a district court’s order imposing a 24-month sentence on a defendant who violated the terms of his supervised release for the sole purpose of ensuring that he could participate in a prison-based substance abuse program, the Eighth Circuit reasserted the rule set forth in Tapia v. United States, 131 S.Ct. 2382 (2011), which prohibits such sentencing rationales.

Colt Matthew Taylor originally received a 42-month prison sentence for a drug offense, then received an additional six months in prison and 30 months of supervised release for using drugs after he was initially released. As a condition of his supervised release he was required to stay at a particular residential facility for 120 days following his completion of the six-month sentence.

Taylor failed to report to the facility and admitted he had used alcohol, and the district court sentenced him to an additional 24 months in prison with no post-release supervision, stating that it was “using that number because that makes him eligible to participate in the 500-hour drug program available in the Bureau of Prisons (BOP).” Taylor appealed.

In Tapia, the Supreme Court held that a sentencing court may not “‘select [] the length ...

Court Baffled by BOP's Steel-toe Boot Requirement for Prisoners

In reviewing the appeal of federal prisoner York Wilson, convicted by a jury of “assault resulting in serious bodily injury,” the Seventh Circuit criticized the Bureau of Prisons’ (BOP) policy that requires most prisoners to wear steel-toe boots. This mandate, according to the appellate court, could have resulted in the death of the victim when Wilson assaulted him while wearing steel-toe boots.

As a result of repeated kicks to the head, the victim, prisoner Efrain Rodriquez, “probably had suffered a concussion, which might or might not cause a complete loss of consciousness. He was bloody, had difficulty walking, there were two large lacerations on his forehead that required 16 stitches to close, there was bruising behind his ear, and he had scratches, abrasions, and contusions. His nose was broken and his eyes swollen shut and he complained of headache and of pain in his face and shoulders.... He was having difficulty sleeping and difficulty thinking and exhibited signs of post-traumatic stress syndrome, for which Zoloft was prescribed.”

Following his conviction, Wilson received an additional 46 months in prison for the assault.

The appellate court noted that the facility where the incident took place, FCI Greenville in Illinois, manufactures army combat ...

News in Brief

California: Reggie Alcantar, 31, was charged with felony battery and elder abuse on May 14, 2013 following an incident at the popular Tom’s Farms attraction near Corona. An investigation determined that Alcantar pushed a 71-year-old security guard to the ground, causing him to suffer a broken wrist. Alcantar was placed on paid administrative leave from his job as a guard at the Robert Presley Detention Center in Riverside; he had been employed with the Sheriff’s Department since 2006.

Colorado: On May 23, 2013, Matthew Andrews, 36, resigned from his position as a sheriff’s deputy; he faces felony charges for helping a prisoner escape from the Downtown Denver Detention Center in April. Surveillance video showed Andrews and prisoner Felix Trujillo, both dressed in deputy’s uniforms, getting on an elevator and leaving the facility together. Andrews said he then drove Trujillo to a waiting getaway car. Andrews reportedly told co-workers that he helped Trujillo, 24, walk out of the jail because he received an anonymous phone call threatening him and his family unless he facilitated the escape. He has pleaded not guilty to the charges.

Colorado: Federal prisoner Gary Anthony Cole, 49, filed a lawsuit from his cell ...


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