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Prison Legal News: December, 2013

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Volume 24, Number 12

In this issue:

  1. FCC Order Heralds Hope for Reform of Prison Phone Industry (p 1)
  2. Consolidated Footnotes – Charts A to D (p 24)
  3. Prison Phone Companies Fight for Lucrative Florida DOC Contract (p 24)
  4. From the Editor (p 26)
  5. Habeas Hints: Staring Down the Two-Headed Monster: Richter-Pinholster (p 28)
  6. BOP Compromises on Plan to Transfer Prisoners from FCI Danbury (p 32)
  7. Telemedicine Behind Bars (p 34)
  8. Third Circuit Allows Prisoner's Substitution of Deceased Guard’s Estate (p 35)
  9. Under Fire, the Federal Bureau of Prisons Audits its Use of Solitary Confinement - and Buys a New Supermax Prison (p 36)
  10. The Invisible Crisis of Correctional Health Care (p 38)
  11. BOP Settles Lawsuits Related to Food Poisoning at Pennsylvania Prison (p 38)
  12. California Supreme Court Addresses CDCR Gang Associate Validation (p 40)
  13. Ninth Circuit Affirms Finding that Claim Accrues Each Time a Request for Conjugal Visits is Denied (p 40)
  14. Kansas Supreme Court Holds Inpatient Drug Treatment Time Counts as Jail Time in Consecutive Non-Drug Case (p 42)
  15. Ninth Circuit Reinstates Disabled Prisoner's Deliberate Indifference Claim (p 42)
  16. Eighth Circuit Initially Allows Non-Delegation Challenge to SORNA, then Reverses Course (p 45)
  17. Wyoming Sheriff Granted Qualified Immunity for Jail Guard’s Sexual Assault (p 46)
  18. No Summary Judgment on Claim that Guard Stole Prisoner’s Wedding Ring (p 46)
  19. Ninth Circuit: Residential Reentry Center Walkaway is Not Escape (p 47)
  20. Kansas Supreme Court Vacates Attorney Fee Reimbursement Order (p 48)
  21. Minnesota: Favorable Resolution of Charges Establishes Rebuttable Presumption of Expungement (p 48)
  22. Possession of Cell Phone Doesn’t Violate Nevada Escape Device Statute (p 48)
  23. Iowa Voting Rights Restoration Process Becomes Slightly Less Onerous (p 50)
  24. Massachusetts Warden Removed After Eight Months on the Job (p 50)
  25. Elder Abuse in Prisons: The Call for Elder Justice and Human Rights Protections Behind Bars (p 52)
  26. British Court Blocks Sex Offender’s Extradition to U.S. Due to “Draconian” Civil Commitment Policies (p 54)
  27. New York City’s Revised Indigent Defense Services Plan Upheld (p 54)
  28. News in Brief (p 56)

FCC Order Heralds Hope for Reform of Prison Phone Industry

by John E. Dannenberg and Alex Friedmann

"After a long time – too long – the Commission takes action to finally address the high cost that prison inmates and their families must pay for phone service. This is not just an issue of markets and rates; it is a broader issue of social justice." – FCC Commissioner Jessica Rosenworcel

On August 9, 2013, the Federal Communications Commission (FCC), in a landmark decision, voted to cap the cost of long distance rates for phone calls made by prisoners and enact other reforms related to the prison phone industry. [See: PLN, Sept. 2013, p.42].

The FCC's 131-page final order was released in September and published in the Federal Register on November 13, 2013. It has not yet gone into effect due to a 90-day waiting period following publication in the Register, plus legal challenges have since been filed by the nation's two largest prison phone companies.

The order, entered in response to a petition for rulemaking submitted to the FCC, is the result of a decade-long effort to lower prison phone rates and implement much-needed changes in the prison phone industry.

Prison Phone Services: A Primer

The billion-dollar prison phone industry is ...

Consolidated Footnotes – Charts A to D

1 Alaska provides free local calls, plus free calls to the state’s Public Defender Agency, Office of Public Advocacy and Ombudsman’s Office. First-minute rates for intrastate calls range from $.17 to $.60, with subsequent minutes as indicated in Chart B.

2 Illinois’ ICS contract changed to Securus in late 2012; the charts reflect current (2013) rates. The state’s prior contract was with Consolidated Communications Public Services (CCPS). Illinois’ contract with Securus initially had a commission rate of 87.1%, later reduced to 76%; the commission amounts in Chart D are pursuant to the state’s prior contract with CCPS, which had a commission rate of 56%.

3 Iowa only allows debit calls, with a maximum charge of $9.00 for interstate calls and $7.40 for intrastate calls. The Iowa DOC’s phone service is provided through the Iowa Communications Network (ICN), a state government agency, and PCS/GTL. The state does not receive a commission but rather retains all revenue in excess of the cost of providing prison phone services, which is termed “revenue” or “rebates.”

4 Maryland’s ICS contract changed to GTL in early 2013; the charts reflect current (2013) rates. The commission rate in Chart D (65-87%) is based on documents provided by ...

Prison Phone Companies Fight for Lucrative Florida DOC Contract

In April 2013, the Florida Department of Corrections (FDOC) issued an invitation for companies to bid on the department’s coveted prison phone contract.

The FDOC evaluated responses to the bid invitation and conducted negotiations with three companies: Global Tel*Link (GTL), Securus Technologies, Inc., which currently holds the department’s phone contract, and CenturyLink – the nation’s three largest prison phone service providers. The FDOC then issued a request for best and final offers (BAFO), and each company responded by June 18, 2013. After reviewing the final bids, the FDOC selected CenturyLink as the company that demonstrated the best value and service.

CenturyLink was able to woo the FDOC by offering an unusual proposition – increasing the department’s “commission” kickback to 62.6% of gross prison phone revenue from the current rate of 35%, while lowering the cost of a 15-minute call by approximately 25%. The 62.6% commission would be in effect for the initial contract term of five years, then change to 63.6% for the first two one-year renewals and increase to 64.1% for the third, fourth and fifth-year renewals.

CenturyLink indicated that its proposed rates did not include a per-call surcharge, which would allow prisoners to make more frequent calls at ...

From the Editor

Welcome to the last issue of PLN for 2013. As the year closes we can look back and see we have accomplished a great deal, including expanding the magazine to 64 pages, successfully urging the FCC to cap the cost of interstate prison phone calls, and prevailing in censorship and public records lawsuits. We also moved our office to Florida from Vermont and will soon be reopening a PLN office in Seattle, Washington.

All of this does not happen on its own; it depends on help and support from our readers and supporters like you. If you can afford to make a donation to PLN or the Human Rights Defense Center, PLN’s parent non-profit organization, please do so. Your support will help us advocate on behalf of prisoners, work to reform the criminal justice system, litigate to protect basic First Amendment rights and much more. What goes around, comes around. For those interested in the full depth and breadth of what PLN and HRDC do, please review our annual reports at: If you don’t have access to the Internet, send us 8 new first-class stamps and request our 2012 annual report, and we’ll mail you a copy.

This month’s ...

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 Two of Two

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

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

In Richter, the U.S. Supreme Court (SCOTUS) made ineffective assistance of counsel (IAC) claims – heretofore the staple of habeas corpus litigation – even harder to win on federal habeas corpus than they were before; and in Pinholster the Court all but eliminated federal evidentiary hearings as an aid to satisfying AEDPA’s requirement that a state court’s denial of habeas relief be shown to be “unreasonable.” The decisions in Richter and Pinholster represent a two-headed monster that habeas petitioners will frequently face and have to stare down.

In this two-part column, I discuss these two important cases and suggest some Habeas Hints for how to make the best of them. In Part One we focused on Richter. [See: PLN, Nov. 2013, p.12]. Here, in Part ...

BOP Compromises on Plan to Transfer Prisoners from FCI Danbury

In an unexpected turnabout, the Bureau of Prisons (BOP) has modified its July 2013 decision to transfer all prisoners from the only federal women’s facility in the northeast, located in Danbury, Connecticut. The BOP had planned to ship 1,120 prisoners held at FCI Danbury to a recently-opened 1,800-bed facility in Aliceville, Alabama – over 1,000 miles away. The $250 million Aliceville prison had been championed by U.S. Senator Richard Shelby of Alabama.

However, almost a dozen other U.S. Senators – as well as prisoners’ rights organizations and advocates, federal district court judges and prisoners’ families – unleashed a firestorm of criticism over the proposed move, which threatened to exile prisoners at Danbury far from their families in the northeast. This was despite the BOP announcing as early as 1997 that it was committed to meeting the “different physical, social, and psychological needs” of women prisoners.

The BOP attempted to justify the wholesale transfer of women from FCI Danbury by claiming the move would “relieve overcrowding” in men’s prisons, as BOP officials intended to convert Danbury into a facility for male prisoners. The minimum-security satellite camp at FCI Danbury would continue to house around 200 women.

While there are 25 federal ...

Telemedicine Behind Bars

The National Commission on Correctional Health Care (NCCHC), which provides accreditation for medical services in prisons, jails and other correctional facilities, held its national conference in Nashville, Tennessee from October 28 to 30, 2013.

PLN managing editor Alex Friedmann attended the conference and sat in on several presentations that addressed the issue of telemedicine in the correctional setting. Telemedicine involves medical consultations over a remote connection, typically with a patient speaking with a physician or other medical practitioner on a video screen.

The first NCCHC conference session on telemedicine was conducted by Lawrence Mendel, a physician and acting medical director at the Leavenworth Detention Center, a facility operated by Corrections Corporation of America.

According to Mendel, the first prison telemedicine program began in 1978 at the South Florida Reception Center in conjunction with Jackson Memorial Hospital. The use of telemedicine expanded during the 1990s and it is now used in a variety of settings to provide long-distance medical evaluations and diagnoses.

One advantage of telemedicine in prisons and jails, according to Dr. Mendel, is the ability to provide specialty medical services at facilities located in rural areas where specialists may not be available locally. Additionally, telemedicine can result in a ...

Third Circuit Allows Prisoner's Substitution of Deceased Guard’s Estate

The Third Circuit Court of Appeals held on October 16, 2012 that a district court had improperly denied a prisoner’s motion to substitute a deceased guard’s estate as a defendant.

Delaware prisoner Wardell Leroy Giles filed suit in federal court against prison sergeant Gary Campbell and other defendants, alleging excessive force and denial of medical care during a November 2001 transfer to the Sussex Correctional Institution. As a result of an altercation with guards, Campbell suffered a broken rib, punctured lung and other injuries, and was allegedly punched and kicked while restrained.

The district court granted summary judgment on qualified immunity grounds to several of the defendants, including Campbell, in June 2004. The court ruled in favor of the remaining defendants following a bench trial.

Giles appealed the district court’s qualified immunity ruling, and the Third Circuit reversed and remanded. See: Giles v. Kearney, 571 F.3d 318 (3d Cir. 2009).

On remand, counsel for the defendants filed a suggestion of death, informing the court that Campbell had died in July 2006 while the appeal was pending. Giles responded by moving to substitute the administrator of Campbell’s estate as a defendant pursuant to Federal Rule of Civil Procedure 25(a)(1). Neither the ...

Under Fire, the Federal Bureau of Prisons Audits its Use of Solitary Confinement - and Buys a New Supermax Prison

by James Ridgeway and Jean Casella

Amidst growing criticism of its abundant use of solitary confinement, the federal Bureau of Prisons has quietly set in motion an “internal audit” to review its “restricted housing operations.” The audit, which has been contracted out to a Washington think tank and will be conducted largely by former corrections officials, seems unlikely to bring any dramatic change to the lives of the more than 12,000 people being held in isolation in the federal prison system. Meanwhile, the federal government has completed the purchase of a prison meant to house still more isolation cells.

The audit fulfils a pledge made by BOP director Charles Samuels last year, following Congress’ first and so far only hearing on solitary confinement. [See: PLN, October 2012, p.1]. At that hearing, convened by a Senate Judiciary subcommittee chaired by Illinois Senator Dick Durbin, Samuels acknowledged under questioning that he didn’t know how many people with mental illness were in isolation in federal prisons, and was short on details about the BOP’s use of solitary confinement.

Since that time, controversy surrounding the BOP’s use of solitary has only grown. Current lawsuits are challenging the treatment of individuals with mental illness at ...

The Invisible Crisis of Correctional Health Care

After 33 years behind bars, Alvin Entzminger, who was released in March, needed immediate medical attention for a host of chronic illnesses.

“I went into prison a healthy individual and came out suffering,” claimed Entzminger, now in his late 50s.

Entzminger’s story was one of several poignant testimonies provided by ex-prisoners at an October 9, 2013 conference on the health care challenges facing corrections systems.

As their stories demonstrated, such care is desperately needed by former prisoners like Edwin Lopez, 59, who had cycled in and out of jails and prisons since he was in his teens following the death of his mother. When he left prison, his HIV was untreated.

The lack of care has consequences far beyond its effect on an individual prisoner, Lopez warned.

“The community forgets we won’t spend all of our life in prison – we will come home,” Lopez told the conference. “If there is no medical or other support, we mostly will turn to violence and crime.”

The prisoners were joined by correctional care physicians, researchers and academics from around the U.S. at the New York Public Library’s Schomburg Center for Research in Black Culture in New York for a conference entitled, “Making ...

BOP Settles Lawsuits Related to Food Poisoning at Pennsylvania Prison

As previously reported in Prison Legal News, hundreds of federal prisoners at USP Canaan, a high-security federal prison northwest of Scranton, Pennsylvania, became sick after eating salmonella-contaminated chicken in June 2011. [See: PLN, August 2012, p.31].

Although Bureau of Prisons (BOP) officials denied reports of widespread food poisoning at the facility, saying at the time that there was “no truth in the rumors,” the number of prisoners who had to be transported by ambulance to nearby medical centers resulted in coverage by the local news media.

Apparently, chicken that had been stored at room temperature for a week was used to prepare fajitas served to the prison population. Almost two hundred prisoners fell ill and dozens received some form of medical treatment. More than 90 food poisoning-related lawsuits were filed, resulting in average settlements of about $1,750 per claim according to an August 20, 2013 news report.

The BOP has long prided itself on how little it spends on prisoner food, noting that it saves money by buying food in bulk from brokers who know they have a ready market for expired and out-of-date commodities. Financial pressure means that prison staff sometimes serve food that probably should be thrown away. ...

California Supreme Court Addresses CDCR Gang Associate Validation

In October 2012, the California Supreme Court reversed a grant of habeas relief by the Court of Appeal, which had interpreted a California Department of Corrections and Rehabilitation (CDCR) regulation regarding the validation of a prisoner as a gang associate. The Supreme Court held the appellate court had failed to accord due deference to the CDCR’s interpretation of its own regulations. On remand, the appellate court again granted habeas relief.

The CDCR validated state prisoner Elvin Cabrera as an associate of the Mexican Mafia (EME) in 2008, following an assault on prison employees in which Cabrera was not involved. By regulation (Cal. Code Regs., tit. 15, § 3378), the validation of a prisoner as an “associate” requires at least three independent source items indicative of association with a known gang member or associate, with at least one of the sources providing a “direct link” to a current or former gang affiliate.

Cabrera’s validation was based on the discovery of four photocopied drawings in his cell that contained symbols distinctive to EME; two of the drawings were signed by validated EME members. Cabrera, who was enrolled in a hobby craft program, possessed “a large quantity of drawings from a variety of ...

Ninth Circuit Affirms Finding that Claim Accrues Each Time a Request for Conjugal Visits is Denied

On November 21, 2012, the Ninth Circuit Court of Appeals affirmed a district court’s finding that a prisoner’s challenge to the denial of his request for conjugal visits was not barred by the statute of limitations, notwithstanding the fact that 1) the prisoner had been denied a similar request six years earlier and 2) the denial was based on the same regulation in effect at the time his previous request was denied.

Madero L. Pouncil, a California state prisoner serving a sentence of life without parole, submitted a request for conjugal visits with his wife in 2002. His request was denied pursuant to a regulation (currently codified as CCR 3177(b)(2)) that prohibits certain prisoners, including those serving life without parole, from participation in the California prison system’s family visiting program.

Pouncil later divorced and remarried, and again applied for conjugal visits in 2008. That request also was denied.

Pouncil grieved the denial, then filed suit in 2009 alleging violations of his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment, because a tenet of his Islamic faith requires him to marry, consummate his marriage and father children.

The defendant prison officials filed a motion ...

Kansas Supreme Court Holds Inpatient Drug Treatment Time Counts as Jail Time in Consecutive Non-Drug Case

The Supreme Court of Kansas has held that a prisoner is entitled to have time spent in an inpatient drug treatment facility while on probation count as jail time in a consecutive non-drug case.

Heather Hopkins was convicted of possession of cocaine and sentenced to 18 months on probation with an underlying sentence of 11 months and a requirement that she complete mandatory inpatient substance abuse treatment. She was subsequently convicted of attempted aggravated robbery and obstruction of legal process, and received a consecutive sentence of 36 months on probation with an underlying sentence of 41 months.

Hopkins absconded and her probation in both cases was revoked. The district court then ordered her to serve the underlying sentences consecutively and denied her request to credit her non-drug sentence with the time she spent in the inpatient drug treatment facility prior to the revocation. Hopkins appealed.

The Court of Appeals affirmed the judgment of the trial court, finding there was no evidence that inpatient treatment had been recommended by Hopkins’ probation officer or imposed as a condition of probation in the non-drug case.

On review, the Kansas Supreme Court held that the right to jail time credit is statutory and covered ...

Ninth Circuit Reinstates Disabled Prisoner's Deliberate Indifference Claim

On November 5, 2012, the Ninth Circuit reversed a district court’s dismissal of a lawsuit filed by a disabled prisoner with limited English proficiency who alleged that prison officials violated his constitutional rights by failing to honor a doctor’s order to house him in a ground-floor cell.

In December 2008, Javiad Akhtar, a disabled California state prisoner at Mule Creek State Prison, was informed that he was being moved from his cell to a triple bunk in a dayroom dormitory. Akhtar refused after showing staff documentation signed by a doctor indicating that his various medical conditions, as well as his mobility impairment, limited the locations in which he could safely be housed.

After twice being disciplined for refusing to move, Akhtar was moved to a triple bunk in the dayroom, around 75 feet from the nearest urinal. He subsequently fell from the bunk bed and broke his wrist. Further, he suffered embarrassment and humiliation on several occasions when, unable to reach the restroom in time, he urinated on himself.

Akhtar filed suit in federal court in October 2009, alleging deliberate indifference to his serious medical needs. He attached exhibits to his complaint indicating that he had exhausted his administrative remedies. ...

Eighth Circuit Initially Allows Non-Delegation Challenge to SORNA, then Reverses Course

Another challenge to the federal Sex Offender Registration and Notification Act (SORNA) initially met with limited success, but ultimately failed.

Lindon Roy Knutson pleaded guilty to failing to register as a sex offender under SORNA stemming from a 1974 rape conviction but reserved several issues on appeal, including a challenge under the non-delegation doctrine as well as challenges to the validity of the Attorney General’s interim rule and accompanying guidelines related to SORNA. The Eighth Circuit, after rejecting the latter arguments, remanded the case for consideration of Knutson’s non-delegation challenge.

SORNA, which went into effect in July 2007, requires “those convicted of certain sex crimes to provide state governments with (and to update) information, such as names and current address, for inclusion on state and federal sex offender registries.” Reynolds v. United States 132 S.Ct. 975 (2012) [PLN, Aug. 2012, p.20]. The Court of Appeals noted that it had “previously held that pre-Act offenders lack standing to challenge SORNA,” a position that was reversed by Reynolds.

The appellate court declined, however, to adopt Knutson’s argument that the interim rule promulgated by the Attorney General under the “good cause” exception of the Administrative Procedure Act was inappropriate, holding that the interim ...

Wyoming Sheriff Granted Qualified Immunity for Jail Guard’s Sexual Assault

The Wyoming Supreme Court has held that a county sheriff was improperly denied qualified immunity on claims that a guard in his employ sexually assaulted a female prisoner.

While working as a jail guard in Utah, Todd Hoover underwent back surgery, became addicted to pain pills and stole prisoners’ medication. He then moved to Wyoming and was hired as a detention officer by Uinta County Sheriff Louis Napoli in 2006. Hoover’s addiction and medication thefts were not known at the time he was hired.

Hoover overdosed while on duty, leading to an internal investigation which revealed his history of addiction and theft. Nevertheless, Sheriff Napoli and Hoover agreed that Hoover would only be suspended without pay for two weeks, undergo counseling and urinalysis testing, serve an extended probationary period and disclose his medical records as part of a disciplinary plan.

After returning to work, Hoover met Uinta County Detention Center prisoner Judee Pennington, who had been terminated from a drug court program and was awaiting placement in a treatment program. Hoover gave Pennington drugs and sexually assaulted her, resulting in his termination, prosecution and a prison sentence.

Pennington filed suit in U.S. District Court, but the court dismissed her federal ...

No Summary Judgment on Claim that Guard Stole Prisoner’s Wedding Ring

The Oklahoma Supreme Court has held that factual disputes about a guard’s alleged theft of a prisoner’s wedding ring precluded summary judgment in a lawsuit that has been pending for the past eight years.

In November 2004, Oklahoma Department of Corrections (DOC) staff at the John Liley Correctional Center (JLCC) confiscated prisoner Sonny L. Harmon’s wedding ring, watch and other personal property. Prison guard Paul Cradduck placed the ring in a desk, where it disappeared.

Harmon’s efforts to informally resolve the loss of his ring were unsuccessful and he filed a grievance on January 5, 2005. His grievance was rejected on January 28 for failure to comply with DOC procedures. The response directed Harmon to appeal within 15 days but his appeal was rejected as premature, with directions to resubmit the initial grievance. The resubmitted grievance was then rejected, however, because Harmon had failed to correct the original grievance within 10 days of the January 28 response.

Harmon filed suit in state court, seeking the return of his ring or compensation for its value. On April 18, 2006 the defendants filed an affidavit from Cradduck in which he stated the ring had been placed in an unsecured desk and stolen ...

Ninth Circuit: Residential Reentry Center Walkaway is Not Escape

The Ninth Circuit Court of Appeals has held that walking away from a residential reentry center does not constitute escape under 18 U.S.C. § 751(a).

In 2008, Anthony E. Burke was convicted of federal offenses in Washington State and sentenced to 37 months in prison and 36 months of supervised release. On March 19, 2010, Burke entered the Spokane Residential Reentry Center (SRRC) to comply with a supervised release condition that he serve 180 days in a reentry center. The following month, Burke checked out of SRRC and did not return.

He was arrested in Montana the next day.

Burke was charged with escape from custody in violation of § 751(a). However, the district court granted his motion to dismiss the indictment, finding he was not in custody while at SRRC. The government appealed and the Ninth Circuit affirmed.

The Court of Appeals held “that Burke was not in ‘custody’ when he left the SRRC. He was not serving a prison sentence, nor was he confined to SRRC under conditions equivalent to custodial incarceration.” In fact, the appellate court found, “the conditions of his release ‘were much more analogous to probation than they were to imprisonment.’”

“Like an individual on ...

Kansas Supreme Court Vacates Attorney Fee Reimbursement Order

The Kansas Supreme Court vacated a sentencing court’s order requiring a criminal defendant to reimburse Board of Indigents’ Defense Services (BIDS) attorney fees, for failing to make appropriate findings on the record.

Morgan Wade was convicted of killing his former girlfriend and the mother of his son. His convictions were reversed, however, and the case remanded for a new trial. See: State v. Wade, 284 Kan. 527, 161 P.3d 704 (Kan. 2007).

On remand, Wade was again convicted and the trial court sentenced him “to a hard 25 life sentence” on one charge and a consecutive 55-month sentence on another. “The court also ordered that Wade reimburse BIDS attorney fees of approximately $6,400 based on the BIDS fee table.”

The Kansas Supreme Court affirmed Wade’s convictions but vacated the BIDS reimbursement order. Under K.S.A. 22-4513, a sentencing court may require a defendant to reimburse BIDS for attorney fees. However, the court “must consider on the record at the time of assessment the extent of the defendant’s financial resources and the burden upon the defendant that will result from such a payment order.” See: State v. Robinson, 281 Kan. 538, 132 P.3d 934 (Kan. 2006).

The state agreed that the sentencing ...

Minnesota: Favorable Resolution of Charges Establishes Rebuttable Presumption of Expungement

The Minnesota Supreme Court held that the favorable resolution of criminal proceedings establishes a rebuttable presumption in favor of expungement under state law.

In May 2009, a defendant identified only as RHB was charged with first- and third-degree assault for injuring a young child. He was found not guilty by a jury and the trial court entered a judgment of acquittal. In January 2011, RHB petitioned the court for an order of expungement to seal his criminal records.

Minnesota’s expungement law, Minn. Stat. § 609A.03(5)(b), mandates that the court “‘shall grant the petition’ unless the party opposing the petition ‘establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record.’”

The court granted RHB’s petition, concluding that the “‘State has failed to prove by clear and convincing evidence’ that the public’s interests outweigh RHB’s interests.”

The Court of Appeals, however, held the trial court had abused its discretion by failing to identify any specific disadvantage that RHB would suffer in the absence of expungement. It also held that a petitioner cannot rely solely upon the fact that criminal proceedings were resolved in his or her ...

Possession of Cell Phone Doesn’t Violate Nevada Escape Device Statute

The Nevada Supreme Court has held that a statute prohibiting prisoners from possessing escape devices does not encompass possession of a contraband cell phone.

Pursuant to NRS 212.093(1), prisoners are prohibited from having “any key, picklock, bolt cutters, wire cutters, saw, digging tool, rope, ladder, hook or any other tool or item adapted, designed or commonly used for the purpose of escaping.”

Pershing County jail prisoner Nickolas Mark Andrews was charged with violating NRS 212.093(1) when guards discovered a cell phone hidden in a box under his bunk. The trial court agreed with Andrews, however, that the statute does not prohibit cell phone possession. The charge was dismissed and the state appealed.

The Nevada Supreme Court affirmed, finding that the statute’s plain language “does not prohibit the possession of cell phones.” Therefore, the district court had correctly dismissed the charge against Andrews. Nevertheless, the state argued “that the phrase ‘designed or commonly used for the purpose of escaping’ brings cell phones within the scope of the statute.”

Rejecting this “overambitious reading,” the Court held it is “clear that the aim of the statute is to prohibit the possession of devices used to forcibly break out of, or physically flee from, ...

Iowa Voting Rights Restoration Process Becomes Slightly Less Onerous

Iowa is one of the toughest states in the nation for disenfranchised felons who want to obtain reinstatement of their voting rights, a review by the Associated Press found.

When Republican Governor Terry Branstad took office in 2011, he reversed a six-year-old policy instituted by former Governor Tom Vilsack, a Democrat, which had automatically reinstated felons’ voting rights upon their release from prison or discharge from community supervision. [See: PLN, Aug. 2011, p.37].

More than 8,000 felons in Iowa have completed their prison sentence or been released from supervision since Branstad took office, but less than a dozen had regained their voting rights as of mid-2012.

“Wow – that seems pretty low,” observed Rita Bettis, a lobbyist for ACLU Iowa.

Branstad, who was Iowa’s governor from 1982 to 1998, implemented a policy similar to one that preceded Vilsack’s administration. Under Branstad’s policy, former offenders must navigate an onerous bureaucratic process to obtain reinstatement of their citizenship rights, including the right to vote.

The process includes a 31-question application; one of the questions requires the applicant to supply the current address of the judge who handled his or her conviction. A criminal history report, which costs $15 and takes weeks to ...

Massachusetts Warden Removed After Eight Months on the Job

The superintendent of the Souza-Baranowski Correctional Center in Shirley, Massachusetts was removed from his job only eight months after being promoted to the position.

Anthony Mendonsa started as a guard in 1978 and worked his way up through the ranks; he was appointed superintendent at Souza-Baranowski in November 2011, then removed on June 8, 2012.

“Superintendents like Mr. Mendonsa serve at the pleasure of the commissioner,” said Terrel Harris, a spokesman for the state’s Executive Office of Public Safety. “The commissioner received information that led to Mendonsa being detached with pay pending an investigation. After that, he was removed and [retired on] June 30, 2012.”

State officials called Mendonsa’s removal a personnel matter and declined to comment further. Other officials and prisoner advocates who requested anonymity said Mendonsa’s abrupt departure was related to allegations of sexual harassment involving a female employee.

It is hoped that positive change will come with a new superintendent at Souza-Baranowski. “Massachusetts prisons are grossly overcrowded and at a breaking point,” said Leslie Walker, the executive director of Massachusetts Correctional Legal Services. “Idleness and violence reign. If any prison in Massachusetts needs a leader who is fair, wise, and respectful to prisoners and staff, it is ...

Elder Abuse in Prisons: The Call for Elder Justice and Human Rights Protections Behind Bars

by Tina Maschi, Ph.D., LCSW, ACSW

“Prison is a hard place. Pure Hell! As long as you are in khaki, you are considered non-human. The elder suffer the most because there isn’t much for them, us. I have the start of osteoporosis and seeing how some people young and old are treated makes me suffer and deal with it. Overall it’s horrible and wouldn’t wish this on my worst enemy.” – Mary, a 64-year-old incarcerated woman serving a 20-year sentence

As the movements for elder justice and human rights of older persons are gaining national and international momentum, we must not neglect the safety and protection of older adults in prison. So what is meant by elder abuse? According to the World Health Organization, elder abuse is defined as “a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.” Elder abuse may take many forms and consists of physical, sexual, psychological or emotional abuse, financial exploitation and intentional or unintentional neglect, including medical neglect.

Most of the elder abuse prevention, detection and intervention efforts are geared towards community-dwelling older adults ...

British Court Blocks Sex Offender’s Extradition to U.S. Due to “Draconian” Civil Commitment Policies

In June 2012, Britain’s High Court of Justice blocked the extradition of a defendant wanted in Minnesota for sex crimes, stating a “flagrant denial” of his human rights would result if he were subjected to civil commitment under U.S. law.

Shawn Sullivan, 43, a dual U.S.-Irish citizen, is wanted for indecent assault of two 11-year-old girls; he also allegedly had unlawful sex with a 14-year-old girl. The crimes occurred between 1993 and 1994. Shortly after being questioned about the indecent assaults, Sullivan fled the United States and traveled to the UK. He wasn’t arrested on the charges until June 28, 2010.

The U.S. requested Sullivan’s extradition and a lower British court found there was “no question” that he should be returned to face prosecution. On appeal, the only issue was whether Sullivan’s extradition would be incompatible with Article 5 of the European Convention on Human Rights or breach the rule against specialty (which provides that a person who is extradited may only be prosecuted for the crimes specified in the extradition request).

Although civil commitment is a process available in 20 states, including Minnesota, it is unknown in European justice systems. “Minnesota’s law is said to be more draconian than ...

New York City’s Revised Indigent Defense Services Plan Upheld

The New York Court of Appeals – the state’s highest court – held last year that changes to New York City’s system of indigent defense, which permit the assignment of conflict cases to institutional providers without the involvement of county bar associations, do not violate state law.

In response to Gideon v. Wainwright, 372 U.S. 335 (1963), the 1965 New York legislature enacted County Law § 722, which mandated the creation of an indigent defense plan. Under the established plan, the Legal Aid Society was the primary indigent defense provider for New York City. When a conflict of interest among co-defendants existed, the court would appoint counsel, known as conflict counsel, from a list of qualified attorneys identified by the county bar associations. At the time, the Legal Aid Society was the only institutional provider of indigent legal services in the City.

In 1996 the City began contracting with other institutional providers to provide indigent defense services, but conflict counsel was still selected in accordance with the 1965 plan.

New York City did away with portions of the 1965 plan in January 2010 and allowed institutional providers to supply conflict counsel. Under the revised plan, the county bar associations no ...

News in Brief

Arizona: On May 28, 2013, a former staff member at FCI Phoenix was convicted of six counts of sexual abuse of a ward. A federal jury found that Jose Arnulfo Martinez, 49, sexually abused a prisoner on three separate occasions in 2008 and victimized another prisoner three times in 2010. Each conviction carries a prison sentence of up to 15 years and/or a $250,000 fine.

Arizona: Alcohol appears to have been a factor in a single-vehicle rollover accident on June 14, 2013 that injured five off-duty prison guards from ASPC-Yuma. The accident occurred in a personally-owned vehicle in the desert near the city of San Luis, in an area where people commonly go off-roading. The crash trapped one of the occupants inside the vehicle, requiring rescue workers to use the Jaws of Life. The incident is under investigation and ADOC spokesman Andrew Wilder said the names of the employees involved would not be released.

Arizona: On June 4, 2013, Cochise County Sheriff’s detention officer Mario Serrano was arrested and charged with 17 other suspects as a result of a year-long Drug Enforcement Agency investigation into a narcotics distribution ring. The group, including Serrano, would import kilos of cocaine from Mexico, ...