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Prisoner Education Guide

Prison Legal News: February, 2013

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Volume 24, Number 2

In this issue:

  1. LaSalle Corrections: A Family-Run Prison Firm (p 1)
  2. Tenth Circuit: Terrorism Prisoners Lack Liberty Interest in Transfer to ADX (p 8)
  3. From the Editor (p 8)
  4. The Battle to Open Prisons to Journalists (p 10)
  5. Two Companies Acknowledge Exporting U.S. Prisoner-Made Goods to Canada (p 13)
  6. Reintroducing the Private Prison Information Act: An Interview (p 14)
  7. GAO Examines How BOP Can Reduce Prisoners’ Time in Prison (p 16)
  8. In Memory of Jon E. Yount (1938-2012) (p 18)
  9. Supreme Court Extends Qualified Immunity to Private Attorney (p 22)
  10. U.S. Imprisons the Most Women, Tops International List (p 22)
  11. Supreme Court Adopts Strickland Prejudice Standard for Rejected Plea Bargains (p 24)
  12. NY Federal Judge Deals Rare SHU Placement Defeat to BOP (p 24)
  13. Oregon Jail Guard Convicted of Assaulting Prisoner, Gets 30 Days in Jail (p 26)
  14. Texas Court of Criminal Appeals Sets Aside Convictions Based on Actual Innocence (p 26)
  15. The Collapse of American Criminal Justice, by William J. Stuntz (Belknap Press of Harvard University Press, 2011). 432 pages, $35.00 (p 28)
  16. Illinois: Current Insurer Must Pay Wrongful Conviction Award after Exoneration (p 30)
  17. Pay-to-Stay Jail Programs Growing (p 30)
  18. Nevada DOC Audit: Doctors Work 5 Hours, Get Paid for 10 (p 31)
  19. Idaho Supreme Court Affirms Firing of PHS Medical Director (p 32)
  20. Oregon Prosecutor’s Son Escapes Mandatory Prison Time for Sexual Assault (p 32)
  21. Life After Murder: Five Men in Search of Redemption, by Nancy Mullane (Public Affairs Books, 2012). 384 pages, $26.99 (hard-cover) (p 33)
  22. Former California Prison Guard Resentenced Following Assault Conviction (p 34)
  23. Texas Supreme Court Rules Compensation Required in Schlup-type Innocence Cases (p 34)
  24. FBI Loses Prisoner’s Property but Sovereign Immunity Foils Recovery (p 35)
  25. Supreme Court: No Bivens Actions for Federal Prisoners in Private Prison (p 36)
  26. Pregnant Woman Suffers Needless Death in Oklahoma Jail (p 36)
  27. Seventh Circuit Approves Illinois Prison’s Rejection of PDR and Drug Guide (p 38)
  28. Alabama Law Meant to Ensure Transparency in Judicial Elections Not Enforced for 16 Years (p 38)
  29. Idaho DOC Settles 30-year-old Class-action Lawsuit (p 40)
  30. New York Jail Profits from TV Ads (p 41)
  31. Federal Prison Industries Contract Leads to Freeworld Job Losses (p 42)
  32. California: Denial of Kosher Diet to Messianic Jew Violates RLUIPA (p 44)
  33. New Hampshire: $450,000 Settlement in Suit Over Prisoner’s Opiate Detoxification Death (p 44)
  34. Ohio Supreme Court Sides with Defendant in Sex Offender Registration Case (p 45)
  35. FCC Finally Moves on Wright Petition After Almost a Decade of Inaction (p 46)
  36. TASER Liability Verdict Upheld, but Remittitur Granted (p 46)
  37. New York Court Limits Costs to $.25 per Page for Prison Medical Records Requests (p 47)
  38. Johnny Cash and His Prison Reform Campaign (p 48)
  39. News in Brief (p 50)

LaSalle Corrections: A Family-Run Prison Firm

by Matt Clarke

Unique circumstances have combined to make northern Louisiana a prime location for private prisons, as Louisiana sheriffs can profit by letting a private company build and operate facilities that house both local prisoners and prisoners from other jurisdictions.
Meanwhile, other parish prisons – especially those in the densely-populated southern part of the state – and Louisiana’s state prisons are severely overcrowded and provide a steady stream of prisoners to fill the for-profit facilities in the north.

Currently, over half of the state’s approximately 40,000 prisoners are incarcerated in local parish prisons, which are operated by sheriffs or a private company.

It costs the state an average $55 per day to house a prisoner in a state facility. Yet the state pays sheriffs a mere $24.39 per diem to house state prisoners in parish prisons. When factoring in private prison companies’ need to generate profit from the meager per diem rate, plus a cut for the sheriffs, it is easy to see that despite the state spending $182 million annually to house prisoners in local facilities, very little of that amount is spent on rehabilitative programs and services for those prisoners.

Yet sheriffs, and the private ...

Tenth Circuit: Terrorism Prisoners Lack Liberty Interest in Transfer to ADX

Omar Rezaq, Mohammed Saleh, El-Sayyid Nosair and Ibrahim Elgabrowny, convicted of terrorism-related offenses and confined at the federal supermax ADX facility in Florence, Colorado, filed suit contending they had a liberty interest in “avoiding transfer without due process to the high-security prison.” The district court denied relief, which was affirmed by the Tenth Circuit on April 20, 2012.

ADX, according to the Bureau of Prisons (BOP), serves two primary penological interests: 1) “maintaining the safety of both staff and inmates, while eliminating the need to increase the security of other penitentiaries,” and 2) “confin[ing] prisoners under close controls while providing them opportunities to demonstrate progressively responsible behavior ... and establish readiness for transfer to a less secure institution.”

In this case the plaintiffs were transferred to ADX from a U.S. Penitentiary, itself a high-security facility, but during the course of the litigation were moved from ADX to one of the BOP’s two Communications Management Units (CMUs). The CMUs are located in Marion, Illinois and Terre Haute, Indiana. [See: PLN, Sept. 2012, p.26]. While CMUs are also highly-controlled, they include the added feature of heavily-restricted communications with the outside world.

The plaintiffs’ complaints, later consolidated into one case ...

From the Editor

I would like to thank everyone who has donated to the Human Rights Defense Center/Prison Legal News annual fundraiser. As of mid-January 2013 we had raised a little over $29,000 of our $60,000 goal to continue the Campaign for Prison Phone Justice, and still need more support to be able to carry it through the rest of the year. We are making significant progress with the Federal Communications Commission (FCC), which on January 22, 2013 published a formal Notice of Proposed Rulemaking on interstate prison phone rates.

Our hard-fought efforts are paying off and we need your financial support to continue to keep the campaign going. The FCC has asked specific questions concerning the Notice of Proposed Rulemaking, and in the Phone Justice ad on page 37 we list information that you can submit to the FCC. One factor in motivating the FCC to act on this issue, after sitting on it for almost a decade, has been letters and submissions from prisoners and their families plus concerted actions by the Campaign for Prison Phone Justice.

If you can make a tax-deductible donation to support the campaign, please do so. Our opponents in this struggle are the ...

The Battle to Open Prisons to Journalists

Many states make it extremely difficult for journalists to visit their prisons, interview prisoners and report with any regularity or authority on what goes on inside America’s prison system.

Take the case of Illinois.

In March 2012, after hearing reports of black mold, insect and vermin infestations, and busted-out windows at the Vienna Correctional Center, a minimum-security prison in the southernmost tip of Illinois, criminal justice and courts reporter Rob Wildeboer of Public Radio station WBEZ in Chicago began trying to arrange a tour of the facility.

His request was denied by the Illinois Department of Corrections’ public information officer, the commissioner of the department and even the governor’s office. He reported on his efforts regularly in an effort to exert pressure on the state, but to no avail.

“It isn’t Club Med,” Illinois Governor Pat Quinn told reporters. “Prisons are not country clubs. They’re not there to be visited, and looked at, and toured by this, that and the other.”
It wasn’t until after lawyers took up WBEZ’s case pro bono and met with the state’s attorneys that the state caved—sort of.

Media Tours

It announced that “due to increased interest ...

Two Companies Acknowledge Exporting U.S. Prisoner-Made Goods to Canada

by David M. Reutter

South Carolina-based Anderson Hardwood Floors formally announced in January 2012 that it had been violating Canadian law by exporting products partly manufactured by prisoners into Canada for the past 15 years. The announcement implicitly means the company also violated U.S. law by failing to clearly label the goods as being produced using prisoner labor.

Anderson, a division of Shaw Industries Group, which is owned by Warren Buffet’s Berkshire Hathaway, Inc., wrote a memo to its customers advising them that “After 15 years of selling Anderson products in Canada, it only recently came to our attention that by bringing those products with prison inputs into Canada, Anderson was in contravention of Canada Border Services Agency (CBSA) Memorandum D9-1-6. This was discovered by the Shaw Export Department and was immediately voluntarily disclosed to the CBSA. As a result, Shaw/Anderson immediately and voluntarily stopped all shipments with any [prison-made] content into Canada.”

Canadian border officials were unaware of the violation until after the disclosure, but Anderson was still required to comply with U.S. law. Under the Ashurst-Sumners Act, 18 U.S.C. §§ 1761-62, it is illegal to ship goods made using prison labor across state ...

Reintroducing the Private Prison Information Act: An Interview

Christopher Petrella and Alex Friedmann are leading a coalition of organizations urging U.S. Representative Sheila Jackson Lee (D-TX) to reintroduce the Private Prison Information Act during the 113th Congress. I reached them both on the phone on a busy afternoon on January 9, 2013. Alex spoke from his office in Nashville, Tennessee while Christopher was on the road in Boston.

Christopher Petrella is a doctoral student in U.C. Berkeley’s Department of African American Studies; his dissertation focuses on the intersection of race, class and prison privatization. He also teaches classes at San Quentin State Prison.

Alex Friedmann is the managing editor of Prison Legal News, associate director of the Human Rights Defense Center and president of the Private Corrections Institute, which opposes prison privatization. He spent ten years behind bars, including six years at a facility in Tennessee operated by Corrections Corporation of America (CCA).

• • •

MEL MOTEL: So let’s talk about this bill, the Private Prison Information Act (PPIA). Why is this bill important? Who should care about this issue?

ALEX FRIEDMANN: The PPIA would apply to private prison contractors on the federal level – it would subject them to the same obligations under the Freedom of ...

GAO Examines How BOP Can Reduce Prisoners’ Time in Prison

The U.S. Government Accountability Office (GAO) has released a study on the Bureau of Prisons’ authority to shorten a federal prisoner’s sentence. The Bureau of Prisons (BOP) was found to have three principal authorities with respect to sentence reduction: prisoners can earn up to twelve months off for successfully completing the Residential Drug Abuse Treatment Program (RDAP); eligible prisoners can be transferred to community corrections for up to the final 12 months of their sentences; and prisoners can theoretically earn up to 54 days a year for good conduct while incarcerated.

Unfortunately, according to the GAO’s review of data from 2009 to 2011, due to budgetary constraints, mismanagement or bureaucratic indifference, the BOP does not fully utilize all of the sentence-reduction resources at its disposal. As a result, federal prisoners spend more time away from their families and communities, which costs the taxpayers millions of dollars and contributes to prison overcrowding.

RDAP consists of coursework and counseling that addresses both drug and alcohol abuse. According to the GAO the problem of substance abuse among prisoners is staggering, as the “BOP estimates that 40 percent [of those] entering federal custody have a substance abuse disorder....” Despite that fact ...

In Memory of Jon E. Yount (1938-2012)

Sometime in the early morning of April 26, 2012, in his cell in a remote Pennsylvania prison, a 74-year-old jailhouse lawyer serving a life sentence hung himself. He was a quiet man who avoided taking credit for his work, so many people in and outside of prison don’t know about the debt they owe to Jon E. Yount.

I knew Jon well, although not as well as I’d have liked. We corresponded a few hundred times, with him writing more than me, and I visited him four or five times. Some might recognize Jon’s name from the Prison Policy Initiative advisory board, but very few people know that Jon was the first person to recognize how the Census Bureau’s prison miscount could distort state legislative redistricting.

In the late 1990s, Jon and filmmaker Tracy Huling, working independently, linked the Census Bureau’s practice of counting incarcerated people as residents of the location where they were imprisoned to negative political and economic effects. Tracy and Jon’s efforts started people talking about the issue, and it was this “rumor” that I initially set out to debunk. I was skeptical that the prison system was large enough for ...

Supreme Court Extends Qualified Immunity to Private Attorney

The U.S. Supreme Court has extended qualified immunity to a private lawyer who was retained by a city to serve as an internal affairs investigator.

In August 2006, Rialto, California firefighter Nicholas Delia became ill while responding to a fire. His doctor ordered him to take three weeks off work, but his employer did not believe he was sick.

The city hired a private investigator to conduct surveillance on Delia. When he was observed buying several rolls of insulation and other building supplies, the city concluded that Delia was not ill but was taking time off to do home construction.

An internal affairs investigation was initiated and Delia was ordered to appear for an investigative interview.

City officials hired Steve Filarsky, an experienced employment lawyer who had represented the city in several previous investigations, to conduct the interview. During the interview, Filarsky asked Delia about the building materials. Delia admitted he had purchased the items but said he had not yet done any work on his house.

Filarsky and fire officials asked to enter Delia’s home to view the unused building materials. Delia refused. Filarsky then asked Delia if he would bring the materials outside so his employer ...

U.S. Imprisons the Most Women, Tops International List

It’s almost a cliché that the world’s freest country imprisons by far the most people. And yet the pure mathematics of the issue remain cruelly ironic, especially for America’s female prisoners.

The second edition of the World Female Imprisonment List, released in March 2012, reveals that the United States incarcerates almost a third of the more than 625,000 women and girls held in prisons and jails globally. In fact, the U.S. imprisons nearly as many women – 201,200, according to the most recent data compiled by the International Centre for Prison Studies (ICPS) at London’s University of Essex – as do China (84,600), the Russian Federation (59,200), Brazil (35,596) and Thailand (29,175) combined.
The ICPS released the data absent extended analysis; however, the list included a few indicators showing that rates of imprisoning women aren’t just trending upward in the U.S. but are rising worldwide.

For example, the total female prison population – for both pre-trial detainees and those convicted and sentenced – in 187 countries has collectively increased by more than 16%, “with the largest increase being in the Americas (up 23%),” since the first edition of the list was ...

Supreme Court Adopts Strickland Prejudice Standard for Rejected Plea Bargains

The U.S. Supreme Court, in a 5-4 ruling, has extended Strickland guarantees of effective legal representation to defendants entering into plea bargains. According to Justice Anthony Kennedy, who delivered the majority opinion of the Court, “The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities ... that must be met to render the adequate assistance of counsel that the Sixth Amendment requires.”

According to Justice Kennedy, “criminal justice today is for the most part of pleas, not a system of trials.... Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” [See: PLN, Jan. 2013, p.20]. The two cases considered by the Supreme Court, Missouri v. Frye and Lafler v. Cooper, both involved claims in which all parties agreed that defense counsel had failed to properly represent their clients.

In the case of Galin Frye, his attorney never advised him of a plea offer by Missouri prosecutors that would have resulted in ten days in jail for driving with a revoked license. Instead, he later pleaded guilty and was sentenced to three years in prison. The case of Anthony ...

NY Federal Judge Deals Rare SHU Placement Defeat to BOP

Viktor A. Bout, a Russian international arms dealer ensnared in a DEA sting in 2008, extradited from Thailand and held in the Special Housing Unit (SHU) of the federal Metropolitan Correctional Center (MCC) in New York, won a court order compelling the Bureau of Prisons (BOP) to transfer him to general population.

U.S. District Court Judge Shira A. Scheindlin noted that Bout had been convicted on November 2, 2011 of conspiracy to kill United States nationals; kill officers and employees of the U.S.; acquire, transfer and use anti-aircraft missiles; and provide material support to a designated foreign terrorist organization – the Revolutionary Armed Forces of Colombia (FARC).

Bout’s attorney had argued that his long SHU confinement at MCC was “both punitive and unnecessary.” According to the court, “Bout is in solitary confinement residing in a one-man cell in which he eats, sleeps, and washes. He spends 23 hours a day in this cell and is taken out for one hour of exercise per day in a room only slightly larger than his cell. He is alone for his exercise period.... Other than visits with counsel, trips to court, a family visit once a week, or trips upstairs to ...

Oregon Jail Guard Convicted of Assaulting Prisoner, Gets 30 Days in Jail

On April 6, 2012, a jury convicted a former Oregon jail guard of assaulting a prisoner. The following month he was sentenced to 30 days in jail and a two-year term of probation.

One day before his 65th birthday, in August 2010, Gary Willis Baumgardner was arrested for DUI and booked into the Clackamas County Jail. His blood-alcohol content was .22 percent – nearly three times Oregon’s legal limit of .08. He was so drunk, belligerent and uncooperative that jail guards locked him in an isolation cell to sleep it off.

About four hours later, veteran guard Troy Alan Steiner, 44, entered the cell, awakened Baumgardner and escorted him down the hall. At 230 pounds, Steiner weighed almost twice as much as Baumgardner, whose movement was limited by a broken rib.

Steiner later filed a “use of force report” indicating he had had a struggle with Baumgardner, which triggered an internal investigation and Steiner’s December 10, 2010 indictment on several misdemeanor charges. He was arrested, placed on administrative leave and subsequently “medically laid off” due to a non-work related injury, according to a sheriff’s spokesman.

“We’ve got a set of standards to uphold,” said Undersheriff David Kirby ...

Texas Court of Criminal Appeals Sets Aside Convictions Based on Actual Innocence

by Matt Clarke

In a 7-0 opinion with two judges not participating, the Texas Court of Criminal Appeals held on February 15, 2012 that a former prisoner who claimed exculpatory evidence was withheld in his case, and who raised a free-standing claim of actual innocence based on the recantation of the prosecution’s primary eyewitness and deficient forensics evidence, had proven that he was actually innocent.

Richard Ray Miles, Jr. was convicted of murder and attempted murder in 1995, and sentenced to forty years in prison. During the trial an eyewitness identified him as the person who shot and killed one victim and wounded another, and a forensic expert testified that he had gunshot residue on his hands when arrested about 25 minutes after the shooting at a Dallas gas station. The fact that Miles’ clothing did not match that of the shooter, and that he was left-handed while the shooter was right-handed, did not deter the prosecution. Miles filed an appeal alleging tainted identification by the eyewitness. His initial state habeas action was based on the withholding of a police report which identified other people as the potential shooter. Both were denied.

Centurion Ministries, a non-profit organization that works ...

The Collapse of American Criminal Justice, by William J. Stuntz (Belknap Press of Harvard University Press, 2011). 432 pages, $35.00

Book review by Derek Gilna

The late William J. Stuntz, a Harvard law professor who conducted extensive research into the “rule of law” in American society, authored a tome that attempts to explore how the U.S. justice system has arrived at its current state. His posthumously published book, The Collapse of American Criminal Justice, probes how the concept of justice has virtually disappeared from the courtroom, and suggests some solutions.

Stuntz’s examination starts with the premise that the criminal justice system in America has “unraveled.” The facts he cites speak for themselves: approximately one in a hundred Americans are incarcerated in county, state or federal facilities, and this does not include tens of thousands of undocumented aliens who are imprisoned while awaiting deportation and removal proceedings. The rate of incarceration in the U.S. is higher than that in Russia under Stalin. How did this happen?

The plight of African-American males is considered. “For black males, a term in the nearest penitentiary has become an ordinary life experience, a horrifying truth that wasn’t true a mere generation ago ... discrimination against both black suspects and black crime victims grew steadily worse ... black drug offenders are punished in great ...

Illinois: Current Insurer Must Pay Wrongful Conviction Award after Exoneration

The Seventh Circuit Court of Appeals has affirmed a federal district court’s determination “that, under Illinois law, the issuer of the policy in force on the date a convict is exonerated must defend and indemnify an insured whose law-enforcement personnel violate the constitution (or state law) in the process of securing a criminal conviction.”

The ruling came in an appeal by two insurance companies that sought to avoid liability for a verdict of approximately $9 million against Paul Hendley of the Waukegan, Illinois police department. That substantial award, to S. Alejandro Dominguez, was based on claims related to malicious prosecution and concealment of exculpatory evidence in his 1990 wrongful conviction in a home invasion and sexual assault case. [See: PLN, Jan. 2010, p.34; July 2007, p.28].

Dominguez was released on parole in 1993. He was exonerated by DNA evidence in 2002, and pardoned by the governor three years later. When Dominguez filed suit, the current and former insurance carriers for Waukegan refused to defend or indemnify the city, each claiming the other was responsible for doing so. Waukegan was left to “its own devices” to defend against the lawsuit, but when the $9 million verdict was rendered ...

Pay-to-Stay Jail Programs Growing

Due in part to stressed government budgets, “pay-to-stay” fees imposed on prisoners in county jails are becoming more prevalent. Two counties, one in Ohio and the other in California, are now collecting incarceration costs from detainees.

After Keller Blackburn became prosecutor for Athens County, Ohio, the county achieved its largest monthly total collected under its pay-to-stay jail program. In January 2012 it collected $23,927 from prisoners, which exceeded the $20,739 collected for the entire previous year. The money is paid into the county’s general fund.

Blackburn “has made it a priority to hold defendants accountable for their actions and to reduce the burden on the public treasury by ordering defendants to pay for their own incarceration,” his office said in a press release. He later clarified that the “pay-to-stay” requirement applies only to “convicted felons” and not “defendants,” as the amount each prisoner must pay is determined during plea negotiations in their criminal cases.

Prisoners who are incarcerated under the jurisdiction of Athens County are housed at the Southeastern Ohio Regional Jail, which provides 76 beds for the county under a contract worth $1.4 million annually, or $18,615 per day, which works out to about ...

Nevada DOC Audit: Doctors Work 5 Hours, Get Paid for 10

The Nevada Department of Corrections (DOC), which houses 12,750 prisoners, employs 23 full-time physicians who are paid a salary that presumes they work four 10-hour shifts per week. Accordingly, they receive their full wages regardless of the hours they actually put in. The DOC’s eight part-time doctors work two 10-hour shifts per week.

However, a December 2012 audit report revealed that the DOC’s full-time physicians worked an average of only 5.31 hours per shift, while those employed part-time put in just 5 hours per shift. The report estimated that the compensated but unworked hours translated into a $1.9 million cost to taxpayers in fiscal year 2012.

The audit, by the Nevada Department of Administration, covered the DOC’s 12 physicians, 6 dentists and 5 psychiatrists employed full-time. While the audit report tracked the on-duty hours worked by about half the doctors, it did not address whether they conducted any work during their off hours such as completing paperwork.

The audit noted that “establishing a defined work schedule and tracking doctors’ attendance will help ensure that doctors’ actual hours worked are consistent with hours claimed,” and concluded that “Based on our sample, 45 percent of the ...

Idaho Supreme Court Affirms Firing of PHS Medical Director

The Idaho Supreme Court has upheld a lower court’s dismissal of a prison doctor’s challenge to his job termination, stemming from his abusive treatment of a prisoner.

Dr. John F. Noak was the medical director for Prison Health Services (PHS), which provided medical care for the Idaho Department ...

Oregon Prosecutor’s Son Escapes Mandatory Prison Time for Sexual Assault

Commit sexual abuse in Oregon and you face a mandatory prison sentence of 75 months – unless your father happens to be a prosecutor, apparently.

In December 2011, Jacob Frasier, 17, the son of Coos County District Attorney Paul R. Frasier, and four other co-defendants were arrested on allegations that they had sex with a 13-year-old girl. Jacob claimed that the girl told him she was fifteen and said the sex was consensual.

Under Oregon law, Frasier’s conduct constituted the offense of Sexual Abuse in the First Degree under Measure 11, which carries a mandatory minimum sentence of 75 months in prison with no sentence reduction eligibility.

Interestingly, however, Frasier escaped the fate of other Oregon offenders who have been sentenced to mandatory prison time for the same type of misconduct. He was instead charged in juvenile court with third-degree rape and two counts of second-degree sexual abuse.

The case was resolved quickly, with Frasier pleading guilty to second-degree sexual abuse in February 2012. Retired Douglas County Circuit Court Judge Charles Luukinen handled the case due to a conflict of interest for Coos County judges, who work with Jacob’s father on a daily basis.

The court accepted Frasier’s ...

Life After Murder: Five Men in Search of Redemption, by Nancy Mullane (Public Affairs Books, 2012). 384 pages, $26.99 (hard-cover)

Book review by John E. Dannenberg

With a gripping meld of investigative journalism and personal involvement, author Nancy Mullane digs into the true meaning of “life with the possibility of parole” for California murderers. Tracking the cases of five lifers who have done much more time than their minimum sentences, and whose families unswervingly supported them for decades in hope of their eventual release, Mullane learns what it takes to get paroled from a life sentence in California. Visiting the men weekly at San Quentin State Prison, she earns the respect of prison staff and the trust of the lifers, and is allowed to conduct meetings in cell blocks, the chapel and the prison yard.

None of the five life-sentenced prisoners is certain that the Board of Parole Hearings will ever find him “suitable” and fix a parole release date, much less that the governor will not reverse the Board’s decision. Delving into the difficult story of each man’s crime; getting to know their family members on the streets; interviewing their attorneys; querying staff – from guards to seasoned prison administrators – Mullane takes the pulse of every facet of the parole process.

More than just reporting on the status ...

Former California Prison Guard Resentenced Following Assault Conviction

The Ninth Circuit Court of Appeals has vacated a 51-month sentence imposed on a former California prison guard convicted of assaulting two prisoners, on the ground that during sentencing the district court had relied on unreliable allegations made by a jailhouse informant in violation of the guard’s due process rights.

Robert McGowan, 42, was indicted on two counts of violating 18 U.S.C. § 242 for assaulting two prisoners at the California Institution for Men at Chino, thereby depriving them of their constitutional right to be free of cruel and unusual punishment. After being convicted at a jury trial, McGowan moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29(c), which was granted. [See: PLN, June 2008, p.38].

The government appealed and the Ninth Circuit reversed, reinstating McGowan’s conviction and holding that the evidence was sufficient to allow a jury to conclude that he had “used force against two inmates for the sole purpose of causing them harm.” The case was remanded for resentencing before a different judge.

On resentencing, to counter the probation office’s characterization of McGowan as a “productive and law-abiding member of his community” who deserved probation and home ...

Texas Supreme Court Rules Compensation Required in Schlup-type Innocence Cases

by Matt Clarke

On May 18, 2012, the Supreme Court of Texas held that a former prisoner whose murder conviction was reversed due to ineffective assistance of counsel after he proved that he was likely actually innocent was entitled to compensation.

Billy Frederick Allen was convicted of a double homicide in 1984 and sentenced to 99 years. At his trial, a police officer, who was present with one of the fatally-wounded victims and two emergency medical technicians (EMTs), testified that the victim had identified the shooter as “Billy Allen.” Allen, who knew the victim, did not discover until many years after his conviction that the EMTs had heard a middle name, and one of them recalled it was “Wayne,” not Frederick. There was in fact a “Billy Wayne Allen” living in the area at the time of the murders; he was known as a violent drug dealer and had ties to the victim.

Based on this newly-discovered evidence, Allen filed multiple pro se petitions for a writ of habeas corpus without success, even when the trial court determined that his conviction should be reversed because it no longer had confidence in the verdict. Finally, Allen filed a habeas petition with ...

FBI Loses Prisoner’s Property but Sovereign Immunity Foils Recovery

On May 29, 2012, the Ninth Circuit Court of Appeals barred Galo Alejandro Ordonez from compensation after the FBI and the federal government acknowledged that property that had been previously seized from him and ordered returned was “presumed to be lost or destroyed.” The appellate court held the government had not waived its sovereign immunity, and therefore was immune from suit even for an admitted wrong.

Ordonez was arrested in January 1993 on a federal drug charge, and at that time “several items ... of personal property were seized and inventoried...,” according to the ruling. He was convicted and sentenced to 480 months in prison, then on June 11, 2007 he filed a pro se motion for the return of his property pursuant to Federal Rule of Criminal Procedure 41(g). According to the appellate court, “there was no clear inventory of his belongings, and the government was unable to locate several items listed in the original inventory items.”

Although Rule 41(g) gave Ordonez a cause of action, “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction,” the Court of Appeals wrote, citing United ...

Supreme Court: No Bivens Actions for Federal Prisoners in Private Prison

by Matt Clarke

In an 8-1 decision, the U.S. Supreme Court has held that federal prisoners housed in privately-managed prisons may not file Bivens-style federal lawsuits against private prison employees alleging lack of medical care in violation of the Eighth Amendment.

Richard Lee Pollard was a federal prisoner incarcerated in a California facility operated by Wackenhut Corrections (now GEO Group) when he slipped on a cart left in the doorway to the butcher shop in the prison’s food service department, fell and was injured. He was X-rayed at the prison. Because prison medical staff believed he had fractured both elbows, he was taken to an outside clinic for orthopedic evaluation. He later had surgery.

Pollard filed an action in federal court under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging that guards had caused him severe pain by requiring him to put on a jumpsuit for transportation outside the prison when he could not extend his arm, and by placing him in arm restraints that caused him great pain. He also alleged that prison medical personnel failed to provide a splint, physical therapy and medical studies recommended by the outside clinic and provided insufficient ...

Pregnant Woman Suffers Needless Death in Oklahoma Jail

Jamie Lynn Russell (a.k.a. Jamie Fisher), 33, who was pregnant and experiencing severe abdominal pain, sought medical care at a hospital in Pauls Valley, Oklahoma on January 3, 2013. She was difficult and “not cooperating,” according to nurses, who summoned a nearby police officer to assist.

Medical staff decided to discharge Jamie because she was noncompliant due to her pain, and while the officer was helping her gather her things, he said he found two pill bottles in her possession that contained alprazolam and oxycodone. Since the medication was not prescribed to her, Jamie was arrested on a felony drug charge and transported to the Garvin County jail.

Jamie’s family suspected she may have taken the pills from a family member in an attempt to relieve her excruciating pain. Her family was outraged that the police would pursue a drug possession charge ahead of Jamie’s obviously serious medical condition, and that the hospital would release her so she could be incarcerated.

Unfortunately things only got worse. After taking Jamie to the jail at 8:30 p.m., she was placed in a holding area. Around two hours later, jail deputies noticed she was unresponsive and called ...

Seventh Circuit Approves Illinois Prison’s Rejection of PDR and Drug Guide

On March 9, 2012, the Seventh Circuit Court of Appeals affirmed the dismissal of a prisoner’s civil rights action that alleged violation of his constitutional rights due to the censorship of two books by prison officials.

James Munson, an Illinois state prisoner serving a life sentence, suffers from a chronic medical condition and a variety of other ailments that require he take several prescription medications. He once became ill because medical personnel had accidentally given him another prisoner’s medicine for twelve days. To educate himself about his medications and other ways to treat himself, such as his diet, Munson ordered several books from a prison-approved store.

Prison officials screened his books and rejected the Physicians’ Desk Reference and the Complete Guide to Prescription and Nonprescription Drugs 2009. The rejection form stated the basis for the censorship was that the books were on a list of disapproved publications, as they posed a threat to security because they deal with “drugs.”

After exhausting his administrative remedies, Munson filed suit. The Illinois federal district court screened his complaint under 28 U.S.C. § 1915A(a) and dismissed it with prejudice for failing to state a cause of action. The dismissal counted ...

Alabama Law Meant to Ensure Transparency in Judicial Elections Not Enforced for 16 Years

An Alabama law that became effective in 1996, designed to remove any appearance of impropriety in the funding of judicial election campaigns, has languished while all three branches of state government have failed to implement the statute, codified at Alabama Code §§ 12-24-1 and 12-24-2.

According to the Birmingham News, “The law is not complicated. Judges who accept significant campaign contributions from someone who has a case in their court would have to step down from hearing the case. The limits are $2,000 for circuit judges and $4,000 for appellate judges. If the law were enforced, it would be one of the most strict judicial campaign finance laws in the country and likely would have a dramatic effect on how judges in Alabama raise money for their campaigns.”

The statute also requires judges to file with the Secretary of State a list of their campaign contributors and the amounts of their donations. A report issued by the Brennan Center for Justice indicated that from 2000 to 2009, candidates for the Alabama Supreme Court spent almost double the amount spent by judicial candidates in the second-highest state.

Despite that anomaly, Alabama’s Attorney General has said he cannot act until ...

Idaho DOC Settles 30-year-old Class-action Lawsuit

Idaho officials first tried to suppress what they called an “inflammatory” and “libelous” report filed by a court-appointed expert in a longstanding suit involving the state’s prison system. They then finally agreed to settle the 30-year-old litigation based upon the report’s findings.

In 1981, a flood of federal ...

New York Jail Profits from TV Ads

How does a small business like Chico’s Bail Bonds increase its odds of reaching its target demographic? By advertising to people who have just been arrested and jailed, of course.

While being booked and photographed within hours of their arrest, prisoners at the Erie County Holding Center in Buffalo, New York are now exposed to TV commercials from defense attorneys and bail bondsmen thanks to Metrodata Services, a company that sells the ads for about $40 a week.

“What do people want when they’re in the Holding Center? They want to get out. And they don’t want to get convicted. So they want bail. And an attorney,” Metrodata director Anthony N. Diina told the Buffalo News. “This is the ultimate captive audience.”

Erie County will get about a third of the profits from such “captive ads,” which will also be aired on a TV in the lobby where families wait to visit detainees. Diina estimates the county’s share will be $8,000 to $15,000 a year, which is slated for the general fund.

Nor is Erie County alone; as previously reported in PLN, a jail in Florida is generating revenue by running ads on video ...

Federal Prison Industries Contract Leads to Freeworld Job Losses

The loss of a $45 million contract to produce military clothing has caused Tennessee-based Tennier Industries to lay off around 100 workers. The contract was awarded to Federal Prison Industries (FPI), also known as UNICOR, which will use prisoner slave labor to manufacture the clothing that otherwise would have been made by freeworld employees. [See: PLN, May 2012, p.1].

Tennier is located in a depressed area of Tennessee; its main line of business is military clothing manufacturing. The federal prisoners who will perform the work under the FPI contract will be paid from $.23 to $1.15 per hour. “Our government screams, howls and yells how the rest of the world is using prisoners or slave labor to manufacture items, and here we take the items right out of the mouths of people who need it,” stated Tennier CEO Steven W. Eisen.

Some federal lawmakers see a problem with FPI. “If China did this – having their prisoners work at subpar wages in prisons – we would be screaming bloody murder,” said U.S. Representative Bill Huizenga, the lead sponsor of legislation to overhaul FPI. “This is a threat not to just established industries; it’s a threat to emerging industries ...

California: Denial of Kosher Diet to Messianic Jew Violates RLUIPA

The California Court of Appeal, Third District, has held that the denial of a prisoner’s request to participate in the state prison system’s Jewish Kosher Diet Program (JKDP), on the sole ground that he was a Messianic Jew, violated the prisoner’s rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq.

In July 2009, California state prisoner Margarito Jesus Garcia, incarcerated at Mule Creek State Prison, submitted a form requesting inclusion in the JKDP. On the form, Garcia identified himself as a practitioner of Messianic Judaism – a sect of Judaism whose adherents are followers of Jesus – and indicated that his faith required him to keep a kosher diet. His request was denied by Mule Creek’s Jewish Chaplain, who determined that Garcia’s Messianic beliefs were not consonant with the tenets of traditional Judaism.
Garcia then filed a petition for writ of habeas corpus in state court.

The denial of Garcia’s request for kosher meals was consistent with prison regulations (Cal. Code Regs., tit. 15 § 3054.2), which explicitly limit participation in the JKDP to prisoners deemed traditional Jews “by a Jewish Chaplain.” However, the Court of Appeal ...

New Hampshire: $450,000 Settlement in Suit Over Prisoner’s Opiate Detoxification Death

On August 9, 2011, Hillsborough County, New Hampshire settled a lawsuit filed by the parents of a jail prisoner who died due to dehydration while undergoing unsupervised opiate detoxification.

Kevin McEvoy, 24, was arrested in August 2008 on two misdemeanor shoplifting charges for stealing video games; unable to post $3 ...

Ohio Supreme Court Sides with Defendant in Sex Offender Registration Case

On May 8, 2012, the Ohio Supreme Court ruled in favor of Wesley Lloyd, who was convicted of a sex offense in Texas and then moved to Ohio in 2005. He was arrested and convicted in Ohio for failing to register as Tier III sex offender “within three days” of his move to that state and “at least 20 days before moving” to his new Ohio residence.

According to the Supreme Court, “This case highlights the reasons why a court cannot assume that a defendant is under a duty to register merely because law enforcement claims that he is. After all, the courts are still the independent venue for sorting out law enforcement’s allegations, on the basis of actual proof.”

The Supreme Court was critical not only of the Fifth District Court of Appeals, from which the appeal was taken, but also the Ohio legislature. “The legislature did not explain the analysis that courts must undertake in determining whether an out-of-state offense is ‘substantially equivalent’ to a listed Ohio offense,” the Court wrote.

Under R.C. 2950.04(E), defendants convicted of certain sex offenses are required to register with the appropriate county officials both before and after they ...

FCC Finally Moves on Wright Petition After Almost a Decade of Inaction

On December 28, 2012, the Federal Communications Commission (FCC) took a major step in a process that could lead to “just and reasonable” interstate phone rates for calls made from prisons, jails and other detention centers.

“Today, we officially answer the call from tens of thousands of consumers who have written, emailed and, yes, phoned the Commission, pleading for relief on interstate long distance rates from correctional facilities,” said FCC Commissioner Mignon Clyburn, a supporter of the Campaign for Prison Phone Justice.

Nearly ten years after the “Wright Petition” landed at the FCC – named after petitioner Martha Wright, who had accepted phone calls from her incarcerated grandson – the Commission issued a “Further Notice of Proposed Rulemaking” (NPRM), that was published in the Federal Register on January 22, 2013. This opens up a sixty-day period, until March 25, 2013, to submit public comments on the NPRM to make the cost of prison phone calls more affordable to consumers.

Before the FCC Commissioners decide whether and how to lower prison phone rates, they want to hear more about the experiences of prisoners and their families with the prison telephone system, and ideas for changing it.

In the past six months more than ...

TASER Liability Verdict Upheld, but Remittitur Granted

A North Carolina U.S. District Court has held, in ruling on a post-trial motion, that a jury’s liability verdict against TASER International related to the death of a juvenile shocked by one of the company’s TASER devices was reasonable, but granted remittitur of the $10 million jury ...

New York Court Limits Costs to $.25 per Page for Prison Medical Records Requests

A New York appellate court has upheld a lower court’s decision that the cost for medical records requested by prisoners or their representatives under the Freedom of Information Law (FOIL) is no more than $.25 per page.

The Legal Aid Society (LAS) sought disclosure of certain medical records from the New York State Department of Correctional Services (NYSDOCS) under FOIL, which specifies a statutory limit on costs of $.25 per page. The NYSDOCS agreed to disclose the records, but only under Public Health Law § 18, and imposed a copying fee of $.50 per page. The LAS filed a CPLR article 78 proceeding in state court to compel production of the medical records pursuant to FOIL at a cost of no more than $.25 per page.

The Supreme Court of Dutchess County ordered production of the records at a cost not to exceed $.25, and NYSDOCS appealed.

The Supreme Court of New York, Appellate Division, Second Judicial Department upheld the lower court, finding there was no statutory exemption under FOIL for medical records, even if they could also be obtained under section 18 of the Public Health Law.

“FOIL imposes a broad standard of open disclosure upon agencies of the ...

Johnny Cash and His Prison Reform Campaign

On July 26, 1972, three grizzled-looking men dressed uneasily in suits gave evidence at a U.S. Senate subcommittee on prison reform. Two of the men were former prisoners of some of the toughest prisons in the U.S. – the third was the country and western singer, Johnny Cash.

Cash’s famous live albums recorded at Folsom Prison and San Quentin are the stuff of music legend – likely to feature on any critic’s list of defining albums of the 1960s.

But it’s much less well-known that these were only two of many prison concerts Cash played over the course of almost 30 years.

Fitting the gigs in around his relentless touring schedule, the “Man in Black” performed for prisoners all over the U.S., always unpaid, and in the process became a passionate and vocal spokesman for prisoners’ rights.

“He always identified with the underdog,” says Tommy Cash, Johnny’s youngest brother. “He identified with the prisoners because many of them had served their sentences and had been rehabilitated in some cases, but were still kept there the rest of their lives. He felt a great empathy with those people.”

The roots of Cash’s empathy lie as ...

News in Brief

Florida: When Jack Bates Rider III signed up for a training class to become a corrections officer, he likely didn’t expect to be arrested. He should have, though, as he was wanted in connection with the 2007 strangulation death of a woman in Arizona. The U.S. Marshals Service said Rider, 32, was taken into custody on a fugitive warrant after leaving the training class. He was booked into the Escambia County Jail on October 30, 2012.

Ireland: A Northern Ireland Prison Service guard was ambushed and killed on November 1, 2012 in County Armagh. David Black, who was close to retirement after serving more than 30 years in Ireland’s prison system, was shot to death as he drove to the Maghaberry jail, where several prominent republican prisoners are held. According to unconfirmed witness reports, his assailant used an automatic weapon in the drive-by shooting. “Prison officers and police officers alike are aware of the deadly threat from dissident terrorists who won’t face up to the fact that Northern Ireland has moved on and will not go back to its awful past. We must all be totally vigilant about our personal safety,” said Terry Spence, who chairs ...

 

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