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Prisoner Education Guide

Prison Legal News: March, 2013

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Volume 24, Number 3

In this issue:

  1. Abuse in Los Angeles Jails Leads to Investigations, Lawsuits and Eventual Reforms (p 1)
  2. Colorado Seeks New Use for Empty Prison (p 12)
  3. From the Editor (p 14)
  4. Nevada Prison Industries Exploiting Businesses and Workers (p 14)
  5. The Color of Corporate Corrections: Overrepresentation of People of Color in the Private Prison Industry (p 16)
  6. British Call Center Fires Employees to Hire Prison Slave Labor (p 17)
  7. Why Are Prisoners Committing Suicide in Pennsylvania? (p 18)
  8. Federal Court Grants Six-Month Extension to Reduce CDCR Prison Population (p 24)
  9. Alaska Supreme Court Revives Prisoner’s “Shy Bladder” Suit (p 25)
  10. Historic $45 Million Settlement in Washington State Prison Phone Class-action Suit (p 26)
  11. China Pledges to Stop Harvesting Organs from Executed Prisoners (p 27)
  12. Prison Reforms Under Maine’s New DOC Commissioner (p 28)
  13. Former California Prison Guard Convicted of Lying about Injury Sustained at Sex Club (p 29)
  14. $2.6 Million Jury Award for Prisoner Beaten in Los Angeles County Detox Cell (p 30)
  15. Colorado: CCA Doctor Disciplined for Role in Prisoner’s Death (p 30)
  16. $4.1 Million Settlement for Cook County Jail Prisoners Shacked During Labor (p 31)
  17. California Prison Psychiatrists Reap Rewards from State Bidding War (p 32)
  18. Tennessee DOC Accused of Covering Up Violent Incidents (p 34)
  19. Prison Doctor’s Failure to Follow Prescribed Hernia Treatment States Claim (p 35)
  20. Second Circuit Reverses Summary Judgment for Non-Treatment of Prisoner’s HCV (p 36)
  21. 7th Circuit Reaffirms Voluntariness of BOP’s Inmate Financial Responsibility Program (p 36)
  22. DC Court Disbars Former Federal Prosecutor for Misconduct (p 38)
  23. Eighth Circuit: § 1997e(e) Bars Compensatory Damages for First Amendment Religious Claims; Qualified Immunity Upheld (p 38)
  24. Indigent Prisoner’s Damages Claim in Legal Mail Case Survives Summary Judgment (p 39)
  25. U.S. Citizens Mistakenly Snared, Deported by DHS and ICE (p 40)
  26. South Carolina Sex Offender’s Lifetime Satellite Monitoring Held Unconstitutional (p 41)
  27. Have the Media Stopped Covering Courts? (p 42)
  28. “Shocks the Conscience” Test Applied to Conditions at Civil Commitment Center (p 42)
  29. Unique Brazilian Prison Alternative Celebrates 40-Year Anniversary (p 44)
  30. Eleventh Circuit: No Right to Spanish-language RDAP Program (p 45)
  31. $2 Million Settlement in Mailman’s Death at New York City Jail (p 46)
  32. Former New York Prisoner Exonerated, Receives $2 Million Settlement (p 46)
  33. Fifth Circuit Reverses $659,300 Katrina-Related Jury Award (p 48)
  34. Equitable Tolling of AEDPA Includes Non-English Speaking Petitioners (p 48)
  35. Oregon ACLU Sues Jail over Mail Policy; County Quickly Capitulates (p 50)
  36. Illinois Woman Awarded $70,000 for Strip Search Based on Canine Alert (p 50)
  37. California Governor Approved Parole for 377 Life-Sentenced Murderers in 2012 (p 52)
  38. Eighth Circuit: Procedurally Defaulted Grievances Decided on Merits are Considered Exhausted (p 52)
  39. Eleventh Circuit: Corizon Policy Led to Prisoner’s Paralysis; $1.2 Million Verdict Upheld (p 54)
  40. Los Angeles County Settles Civil Detainee Wrongful Death Claim for $750,000 (p 55)
  41. Eighth Circuit Upholds Child Porn Supervised Release Condition (p 56)
  42. California Prison Town Files for Bankruptcy (p 56)
  43. Wisconsin Supreme Court Clarifies Sex Offender Registration for Homeless Prison Releasees (p 57)
  44. News in Brief (p 58)

Abuse in Los Angeles Jails Leads to Investigations, Lawsuits and Eventual Reforms

by Mike Brodheim and Alex Friedmann

WITH SEVEN FACILITIES THAT HOUSE from 15,000 to 18,000 prisoners, Los Angeles County’s jail system is the nation’s largest – and, arguably, among the most dangerous in terms of staff-on-prisoner violence.

The jail system, operated by the Los Angeles County Sheriff’s Department (LASD), is facing an investigation by the FBI into allegations of corruption and abuse, as well as multiple lawsuits. Sheriff Leroy David “Lee” Baca, 70, has committed to numerous reforms following a report and recommendations by the Citizens’ Commission on Jail Violence, but people familiar with long-standing problems in the county’s jails remain skeptical.

A Continuing Culture of Violence

THE LASD JAIL SYSTEM HAS BEEN UNDER federal court oversight since the 1970s when, following a 17-day trial, an injunction was issued that ordered the county to improve jail conditions – including overcrowding, inadequate exercise, and lack of clean clothing and telephone access. The American Civil Liberties Union (ACLU) had initially sued Los Angeles County in 1975, alleging that overcrowded conditions, systematic abuse of prisoners by sheriff’s deputies and inadequate medical care violated the Eighth Amendment’s ban on cruel and unusual punishment. See: Rutherford v. Baca, U.S.D.C. (C ...

Colorado Seeks New Use for Empty Prison

WHEN COLORADO GOVERNOR JOHN Hickenlooper announced the closure of the Fort Lyon Correctional Facility in Las Animas, Brent County officials became despondent. The prison was an economic mainstay of the tiny county.

“There’s no question the jobs leaving the community are some of the highest-paying jobs we have,” said County Commissioner Bill Long, who is also a member of the Brent County Economic Development Foundation (BCEDF). “We already have a child-poverty rate of 37%.”

That’s why the BCEDF, which is funded both by public and private sources, decided to pay $12,000 a month to lobbying firms to find another sustainable use for the facility.
They have contacted other states with overcrowded prison systems, such as California, as well as the Bureau of Indian Affairs and U.S. Department of Veterans Affairs – the original owner of the facility, which was given to the state in 2001.

Colorado is facing a $1 billion budget shortfall; it spent about $6 million on the prison each year, not including staff salaries. The decision to close the facility was a reaction to the financial crisis. Nonetheless, Hickenlooper has “made a commitment” to help Brent County find a new use for the prison ...

From the Editor

OBSERVANT READERS WILL NOTICE A number of changes in this issue of Prison Legal News. First, we have changed our layout design. It has been well over a decade since we last made significant changes to PLN’s layout, and it was time for a new look. Lansing Scott at Catalytic Communications in Seattle is the graphic designer who designs and formats each issue of PLN for printing. Our goal with the changes is to make each issue an easy and pleasant reading experience, and we welcome feedback on our new look.

The second big change is that we have increased the number of pages in each issue of PLN from 56 to 64. When PLN started publishing in 1990, it consisted of 10 hand-typed pages that were photocopied and stapled. Over the years we have steadily grown in size. Since 2007 we can thank Susan Schwartzkopf, PLN’s advertising director, for our ability to increase the size of the magazine, as her success in finding additional advertisers has enabled us to expand our page count and publish even more news content. PLN has always maintained a commitment to keeping our advertising-to-news content at a 25-to-75% ratio, unlike most publications ...

Nevada Prison Industries Exploiting Businesses and Workers

THE USE OF PRISON LABOR HAS BEEN increasing throughout the nation for the past fifteen-plus years. More and more factories are being built behind prison fences, with thousands of prisoner-made products sold to consumers annually – including apparel, processed foods, electronics, cabling, automotive and aircraft wiring, flooring, motorcycles, furniture, modular office systems ... the list goes on.

Recently, a situation involving the use of prison labor in Nevada has drawn the attention of business owners and state officials alike after several steel companies discovered that one of their competitors had been using prison labor to cut costs and secure contracts.

The labor was provided by prisoners working in Silver State Industries – Nevada’s prison industry program – at the High Desert State Prison in Indian Springs. The prisoners were paid minimum wage while employees on the outside receive between $17 and $20 per hour for the same type of jobs.

With all the glitz and glimmer of Las Vegas, Nevada is still vulnerable to the current economic downturn and has an unemployment rate exceeding 10%. The discovery that prisoners were competing against local unemployed steel workers caused consternation among the local workforce. It also caught the attention of the state’s news media ...

The Color of Corporate Corrections: Overrepresentation of People of Color in the Private Prison Industry

by Christopher Petrella and Josh Begley

While data generated by the federal Bureau of Prisons (BOP) and state departments of corrections (DOCs) have long demonstrated persistent racial disparities in rates of incarceration, no comparative study until now has considered the racial composition of select state-contracted, privately-operated prisons around the nation. We selected California, Texas and Arizona for our examination because they warehouse some of the largest numbers of prisoners in private, for-profit prisons. Taken together, these three states account for over 30 percent of all prisoners held in privatized correctional facilities in the United States.

Our research indicates that although people of color are already overrepresented in public prisons relative to their share of state and national populations, they are further overrepresented by approximately 12 percent in state-contracted correctional facilities operated by for-profit private prison firms. Not only is the overrepresentation of people of color in private prisons a matter of public concern, it also begs some previously unconsidered questions.

Our conclusions are based on the latest U.S. Census demographic figures available through the Prison Policy Initiative’s “Correctional Facility Locator 2010,” cross-referenced with prisoner population directories available on state DOC websites and statistical information procured through public records ...

British Call Center Fires Employees to Hire Prison Slave Labor

A British company in Wales reportedly fired 17 of its call center employees to make room for prisoners that it pays just £3 a day—or less than $5.00.

Beginning in December 2011, at least 23 prisoners were bussed in from the minimum-security HMP Prescoed in Monmouthshire to work at Becoming Green, a roofing and environmental refitting company, where they were paid the equivalent of roughly $.60 per hour.

“The whole idea of what the company is doing is bringing in free labor for the business and relieving their employed staff of their responsibilities, because obviously it is more cost-effective for the business to have criminals working for them than paying a salary to each person,” a former Becoming Green manager said after resigning. “There’s no reason why these people should have been fired. I don’t think it’s right, just to save a few quid. These people have bills to pay.”

Kenneth Clarke, secretary of Britain’s Ministry of Justice, announced in early 2012 that he intended to significantly expand job opportunities for prisoners, mainly in manufacturing. When unions expressed concerns about the expansion, Clarke assured them that prisoners wouldn’t put anyone out of work ...

Why Are Prisoners Committing Suicide in Pennsylvania?

By the time John McClellan, Jr. was found dead inside Pennsylvania’s State Correctional Institution (SCI) at Cresson in May 2011, he had long been categorized as “special needs” for his history of addiction and mental instability. Yet prisoners and staff say McClellan, 42, was not living in one of the facility’s treatment units but in the Restricted Housing Unit, or RHU—otherwise known as solitary confinement.

Two months earlier, McClellan had written a letter to his father, a Philadelphia police officer, saying that five correctional officers had assaulted him, then filed false charges against him. John McClellan, Sr. had already contacted an attorney; threats and abuse from guards were allegedly so frequent his son kept a makeshift calendar on legal-sized note-book paper to keep track. A former SCI Cresson prisoner, Tim Everard, who says he spent time in a neighboring RHU cell, recalls seeing guards kicking the younger McClellan’s cell door, calling him names and goading him to kill himself. When Everard told the manager of the ward that McClellan seemed suicidal, Everard says she brushed him off, saying of the impulse to commit suicide, “If he’s going to act on it, he’s going to act on it.”

On December ...

Federal Court Grants Six-Month Extension to Reduce CDCR Prison Population

The three-judge federal court over a long-standing prison healthcare class-action suit against California took a slight turn on January 29, 2013, when the court gave the state a six-month extension to achieve the prison population reduction it had ordered previously.

The court had required the California Department of Corrections and Rehabilitation (CDCR) to reduce its population to 137.5% of design capacity by June 27, 2013, so that overcrowding would no longer render prison medical and mental health care unconstitutionally deficient. In raw numbers, this means a population cap of 110,000 prisoners (down from 172,000 at the peak of overcrowding just two years ago). The population of California’s prison system is currently about 120,000 – so the remaining battle is over further cuts of 10,000.

The saga of unconstitutional healthcare in California state prisons has been ongoing for over two decades in the federal courts. The Coleman case on mental health treatment, and the Plata case on medical care, have been merged under a three-judge panel convened pursuant to the Prison Litigation Reform Act. PLN has reported regularly on developments in this litigation – including the district court’s initial finding that California prison healthcare was so ...

Alaska Supreme Court Revives Prisoner’s “Shy Bladder” Suit

On August 31, 2012, the Alaska Supreme Court reversed a lower court’s dismissal of a prisoner’s paruresis (i.e., “shy bladder”) and visiting rule claims.

Alaska state prisoner Loren J. Larson, Jr. suffers from paruresis, a condition that makes it physically impossible for him to urinate while another person is watching. While incarcerated, he was required to provide a urine sample for random drug testing every three to four months.

Larson claimed that to provide a sample while a guard is watching, “he ‘must drink water until the volume of urine makes the bladder so intensely painful, urination becomes an involuntary function,’” which “amounts to ‘physical torture.’” He sued in state court, alleging that the Department of Corrections’ refusal to accommodate his medical condition, by offering an alternative urinalysis testing procedure, violated state and federal prohibitions against cruel and unusual punishment.

In a separate action Larson challenged a revised visitor application form for minors, arguing it violated his right to rehabilitation under Article I, section 12 of the Alaska Constitution. He sought declaratory and injunctive relief in both cases.

The state moved, pursuant to Alaska Civil Rule 12(b)(6), to dismiss both complaints for failure to state ...

Historic $45 Million Settlement in Washington State Prison Phone Class-action Suit

by Matt Clarke

In January 2013, A $45 million settlement was reached in a long-standing lawsuit that challenged the failure of prison phone service companies to provide rate information to people who accepted calls from prisoners in Washington State.

Previously, on February 23, 2012, a King County superior court had ...

China Pledges to Stop Harvesting Organs from Executed Prisoners

On March 23, 2012, government officials in China said they plan to stop harvesting organs from the thousands of prisoners who are executed each year. However, many doubt the practice will entirely cease because the need for organs is too great.

“It’s not clear to me the government is going to have the political will to fulfill this promise,” said Nicholas Bequelin with Human Rights Watch.

According to the government-run news agency Xinhua, China will end its reliance on death row prisoners – who account for almost two-thirds of the country’s transplant organs – within the next three to five years. [See: PLN, Sept. 2009, p.35; Jan. 2008, p.16].

Health ministry figures show that 1.5 million Chinese citizens need organ transplants, although only 10,000 are performed annually. Prevailing religious and cultural beliefs in China dictate that people be buried whole after their death, thus organ donations are few.
Due to the dire need for organs, according to human rights groups, death row prisoners are pressured to donate their organs. Concerns have also been raised that condemned prisoners or their families have not given informed consent for organ donations.

But China’s vice minister of health, Huang ...

Prison Reforms Under Maine’s New DOC Commissioner

Several weeks after firing Maine State Prison warden Patricia Barnhart on January 10, 2013, and two years after taking over the Department of Corrections (DOC), Commissioner Joseph Ponte appears determined to continue – and ramp up – his forceful program of reform.

In an interview at the DOC’s Augusta headquarters, the calm, 66-year-old corrections veteran spoke about his accomplishments, intentions and frustrations. In spite of the latter, running the department “is the most fun I’ve had,” he said. Maine has a “small enough” corrections system so “you can see the result” of your work.


New Philosophy and Leadership

Within the limits of a tight budget and some recalcitrant correctional officers, Ponte is trying to replace warehousing and punishing prisoners with what they need to turn their lives around. When he took over the DOC he saw how well that approach worked at Maine’s two youth centers, where the recidivism rate had declined significantly. He decided to apply the approach to adult offenders.

Ponte’s philosophy is seen in his choices for his recently reconstituted team. Rodney Bouffard, longtime head of the Long Creek Youth Development Center in South Portland, has been named acting warden of the state prison ...

Former California Prison Guard Convicted of Lying about Injury Sustained at Sex Club

In March 2012, an ex-prison guard and his wife were convicted of attempted perjury for trying to swindle California’s workers’ compensation system by claiming that injuries the guard sustained at a San Francisco sex club were job-related.

On April 27, 2008, John Alfonzo Smiley, 47, then employed by the California Department of Corrections and Rehabilitation (CDCR), was shot in the back outside a swinger’s club in San Francisco. Smiley and his wife, Cynthia Ann Biasi-Smiley, 38, were at the club, called Twist, to engage in sex with another couple.

According to Smiley, the other couple included a parolee who recognized him as a bus driver in the CDCR’s transportation unit. That parolee, Smiley claimed, shot him and left him paralyzed. The parolee who allegedly shot him was never arrested.

Smiley filed for workers’ compensation, claiming the shooting was related to his job duties as a CDCR employee, which would make him eligible for benefits worth $2.44 million. His wife supported his version of events related to the shooting.

However, the prosecutor in the workers’ comp fraud case, Sacramento County Supervising Deputy District Attorney Kelly Mulcahy, said Smiley was shot due to a dispute regarding his behavior ...

$2.6 Million Jury Award for Prisoner Beaten in Los Angeles County Detox Cell

by Matt Clarke

On June 13, 2012, a federal jury awarded over $2.6 million to a man who was brutally assaulted by another prisoner while being held in a detoxification cell in a West Hollywood, California jail.

Jonathon Michael Castro was arrested late one evening for public drunkenness by ...

Colorado: CCA Doctor Disciplined for Role in Prisoner’s Death

In December 2012, the Colorado Medical Board concluded its inquiry into a complaint filed against Dr. David Mark Sakai Oba, who provided medical services at the CCA-operated Bent County Correctional Facility (BCCF), and issued an admonishment.

Terrell D. Griswold, 26, was incarcerated at BCCF in September 2009 when he filed a sick call request due to persistent pain in his side and blood in his urine. He stated he had a weak urine stream and wanted to have his prostate checked, and filed another sick call request two months later.

He was seen on December 3, 2009 by Dr. Oba, who, according to a subsequent lawsuit filed by Griswold’s mother, was “an employee and/or agent of CCA.” Dr. Oba diagnosed a urinary obstruction and ordered antibiotics, though Griswold never received them as the prison clinic said they were not available.

He received no other medical treatment for his urinary obstruction, and while the prescription for antibiotics was renewed by Dr. Oba in May 2010, they reportedly were never given to Griswold.

According to the suit, Oba “was aware his orders for medications were routinely not carried out, but he did nothing to correct the situation. It was Dr ...

$4.1 Million Settlement for Cook County Jail Prisoners Shacked During Labor

Cook County Illinois has agreed to pay a $4.1 million settlement in a class-action lawsuit that challenged the shackling of pregnant prisoners at the Cook County Jail during labor, delivery or after giving birth, from December 4, 2006 through February 14, 2011.

The May 2012 settlement provides cash payments ...

California Prison Psychiatrists Reap Rewards from State Bidding War

Following a competitive bidding war between California state mental hospitals and state prisons, both seeking psychiatrists to treat their mentally ill patients, the prison system has emerged as the winner – largely due to a federal court order to improve prisoner mental health care. However, the term “winner” is misleading because it is both patients at understaffed state mental hospitals and California taxpayers who turned out to be the losers.

The federal district court in the long-running Coleman case [Coleman v. Schwarzenegger, U.S.D.C. (E.D. Cal.), Case No. CIV S-90-0520 LKK JFM P] found that a major cause of understaffing at California prison mental health facilities – understaffing that was tied to excessive and preventable prisoner deaths – was the inadequate wages offered under then-existent state pay schedules, which made it hard to attract qualified psychiatrists.

There was not a long line at the unemployment office in California for out-of-work psychiatrists, however, so the California Department of Corrections and Rehabilitation (CDCR) had to try to entice such gainfully employed professionals away from their comfortable city offices where clients were able to walk in, to stark prison environments where their patients were violent criminals. In December 2006 the district court ordered ...

Tennessee DOC Accused of Covering Up Violent Incidents

As previously reported in Prison Legal News, the Tennessee Department of Correction (TDOC) has been experiencing higher levels of prisoner-on-prisoner and prisoner-on-staff violence since Commissioner Derrick Schofield was appointed in January 2011.

The increased violence coincides with a number of policy changes implemented by Schofield that are widely perceived as being punitive and militaristic – including requiring prisoners to walk in a single-file line under staff escort, a specified distance apart, in silence, with their hands out of their pockets (even in very cold weather); daily cell inspections during which prisoners must stand by their cells without talking, reading or doing anything else until all cells in a unit have been inspected; stricter property rules; and standing or sitting counts held at 5:00 to 6:00am. [See: PLN, Oct. 2012, p.34; April 2012, p.20].

According to data obtained by PLN through public records requests, from January 2011 through June 2012, the overall number of violent incidents in TDOC facilities has increased approximately 20 percent from the year before Schofield was appointed TDOC Commissioner. He was previously employed in Georgia’s prison system.

Following a September 18, 2012 press release by the Human Rights Defense Center – PLN’s parent ...

Prison Doctor’s Failure to Follow Prescribed Hernia Treatment States Claim

On May 25, 2012, the Ninth Circuit Court of Appeals reversed the dismissal of a prisoner’s civil rights complaint, finding he had alleged facts that showed a prison doctor had diagnosed a hernia but failed to implement the prescribed treatment. While those actions demonstrated deliberate indifference to the prisoner’s serious medical needs, claims against another prison physician were properly dismissed because they merely indicated a negligent misdiagnosis.

California prisoner Steven H. Wilhelm filed a 42 U.S.C. § 1983 complaint against Dr. Aron Rotman and Dr. Calvin Schuster. A magistrate judge dismissed the lawsuit at the screening stage, finding that it failed to state a claim. Wilhelm appealed.

On appeal, he argued the case had been improperly resolved by the magistrate judge. The Ninth Circuit, however, determined that Wilhelm had voluntarily consented to the exercise of jurisdiction of the magistrate. First, he unambiguously consented to that jurisdiction on a form provided by the district court. The Court of Appeals also found he impliedly consented to the authority of the magistrate judge, which Wilhelm contested on appeal, by filing an amended petition as ordered by the magistrate.

Having resolved the jurisdictional question, the appellate court addressed the issue of ...

Second Circuit Reverses Summary Judgment for Non-Treatment of Prisoner’s HCV

On March 9, 2012, the Second Circuit Court of Appeals reversed the dismissal of a New York prisoner’s claims related to denial of hepatitis C (HCV) treatment. The Second Circuit also determined that the district court had misinterpreted a settlement agreement’s cost recovery provisions.

The New York State Department of Correctional Services (NYDOCS) was aware that state prisoner Robert Hilton suffered from HCV when he entered the prison system in April 2003. However, he was denied medical treatment because his sentence was too short. Hilton was released almost a year later, untreated, but was quickly convicted of a new offense and returned to NYDOCS custody in August 2004.

Following a lengthy screening process, NYDOCS medical staff recommended that Hilton receive HCV treatment. But Dr. Lester Wright, the NYDOCS’s Chief Medical Officer and Assistant Commissioner, “refused to allow treatment because he determined that Hilton was ineligible under existing DOCS guidelines – guidelines which he himself had promulgated.” Hilton was denied treatment based on his past drug use, and was required to complete a NYDOCS substance abuse pro-gram before he would be considered for HCV treatment.

Hilton attempted to enroll in a substance abuse program but was deemed “ineligible because ...

7th Circuit Reaffirms Voluntariness of BOP’s Inmate Financial Responsibility Program

In a ruling of significance to the approximately 218,000 prisoners in the Bureau of Prisons (BOP), the Seventh Circuit has reaffirmed that a federal prisoner cannot be ordered by his or her sentencing court to participate in the BOP’s Inmate Financial Responsibility Program (IFRP).

Federal prisoner Ondray McKnight was convicted of various offenses arising from the organized distribution of con-trolled substances, and was sentenced by the district court to 300 months in prison, ten years of supervised release and a $1,000 fine, which the court ordered to be paid through the IFRP. McKnight appealed both a jury instruction regarding the conduct and credibility of a government informant who testified against him, as well as the mandatory IFRP participation.

The Court of Appeals noted that it could engage in only a “limited review” of jury instructions, “asking only ‘if the instructions as a whole were sufficient to inform the jury correctly of the applicable law,’” quoting United States v. Curry, 538 F.3d 718, 731 (7th Cir. 2008). In its brief, the government cited Lewis v. United States, 385 U.S. 206 (1966), which held that a federal narcotics agent did not violate the Fourth Amendment when he ...

DC Court Disbars Former Federal Prosecutor for Misconduct

On March 8, 2012, for the first time in over ten years, a former federal prosecutor was disbarred for “egregious” misconduct during the prosecution of several high-profile murder cases in the 1990s.

According to a 2010 investigation by USA Today, at that time there had been “201 documented cases since 1997 in which courts found that federal prosecutors had violated laws or ethics rules ... [but they] faced little risk of being punished.” USA Today reported that “only six federal prosecutors faced any kind of discipline from the state offices that oversee legal ethics, and none was disbarred.”

Former Assistant U.S. Attorney G. Paul Howes was accused of misusing more than $42,000 in witness vouchers in gang and murder cases nearly sixteen years ago.
According to an internal investigation by the U.S. Department of Justice, Howes had wrongly authorized payments to relatives and girlfriends of government witnesses and two retired police detectives, presumably to secure their favorable testimony. The vouchers were intended to be used to reimburse witnesses for costs incurred when testifying in court.

In deciding to disbar Howes, the D.C. Court of Appeals wrote that beyond misusing the vouchers, he had “compounded this initial misconduct ...

Eighth Circuit: § 1997e(e) Bars Compensatory Damages for First Amendment Religious Claims; Qualified Immunity Upheld

Eighth Circuit: § 1997e(e) Bars Compensatory Damages for First Amendment Religious Claims; Qualified Immunity Upheld

On March 19, 2012, the Eighth Circuit Court of Appeals held that 42 U.S.C. § 1997e(e) bars compensatory damages for a South Dakota prisoner’s exercise of religious freedom claims. The appellate court also found that prison officials were entitled to qualified immunity.

“‘Sukkot is a Jewish religious festival of thanksgiving celebrated originally as an autumn harvest festival that is commemorative of the temporary shelters of the Jews during their wandering in the wilderness,’” the appellate court noted. During observance of Sukkot, adherents of the Jewish faith eat their meals or reside outdoors in a small three-sided tent or booth called a succah. The South Dakota State Penitentiary (SDSP) owned a donated succah consisting “of a metal frame and poles that were covered on three sides by a canvas tarp. This succah was a temporary structure and was large enough to accommodate only one person.”

On four occasions from 2003 to 2006, Jewish prisoner Charles E. Sisney asked “to erect the donated succah in the SDSP prison yard and to eat his meals inside that succah. In the alternative, Sisney requested that he ...

Indigent Prisoner’s Damages Claim in Legal Mail Case Survives Summary Judgment

The Court of Appeals for the Sixth Circuit has reversed a grant of summary judgment to defendant prison officials in a civil rights case challenging a policy that requires indigent prisoners to leave their legal mail unsealed for inspection.

The June 6, 2012 ruling came in an appeal by Kentucky prisoner Raymond Miller. His pro se complaint, filed in December 2008, challenged a policy that required prison staff to inspect all outgoing legal mail submitted by indigent prisoners to ensure it was in fact legal mail.

The district court reviewed Miller’s complaint and found that it stated a First Amendment claim. Following discovery the defendants moved for summary judgment, arguing that Miller “had failed to specify an instance where any of his outgoing mail was actually inspected.” The court agreed and held that Miller lacked standing to sue. It also denied his motion to amend his complaint to include a claim for injunctive relief.

On appeal, Miller, with the assistance of counsel, argued that the mail inspection policy violated his First Amendment right to confidential legal mail, which entitled him to damages. The Sixth Circuit considered Miller’s complaint and second proposed amended complaint – which were both verified (e ...

U.S. Citizens Mistakenly Snared, Deported by DHS and ICE

An increasing number of American citizens have been questioned, detained and even deported by the U.S. Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE), as a result of databases that incorrectly identify them as undocumented immigrants.

According to the New York Times, “Detentions of citizens are part of the widening impact on Americans, as well as on immigrants, of President Obama’s enforcement strategies, which have led to more than 1.1 million deportations since the beginning of his term, the highest numbers in six decades.” In fiscal year (FY) 2012, 409,849 immigrants were deported – a record number.

With growing criticism of law enforcement sweeps of immigrant neighborhoods and job sites that result in complaints about racial profiling, as well as widespread condemnation of immigration detention facilities, the issue of U.S. citizens being caught up in immigration raids has become more pronounced. Across the country, according to the Times, “citizens have been confined in local jails after federal immigration agents, acting on flawed information from Department of Homeland Security databases, instructed the police to hold them for investigation and possible deportation.”

The issue becomes even thornier when alleged fingerprint “matches” of people booked into ...

South Carolina Sex Offender’s Lifetime Satellite Monitoring Held Unconstitutional

The South Caroline Supreme Court held on May 9, 2012 that court-ordered lifetime satellite monitoring violated a sex offender’s due process rights.

Jennifer Rayanne Dykes, 26, was convicted of a sex offense for having an eight-month relationship with a 14-year-old girl. The court imposed a suspended 15-year prison term, contingent upon serving three years in prison and completion of a five-year term of probation. While incarcerated Dykes was found not to be a sexually violent predator, but she violated her probation shortly after she was released.

At her revocation hearing, the state recommended partial revocation of her probation and mandatory lifetime satellite monitoring pursuant to Sec. 23-3-540(C), South Carolina Code (Supp.2010). Dykes was required to pay the monitoring costs and was not allowed to travel out-of-state without approval. Overnight travel was permitted only for emergencies. “For Dykes, this restriction on her right to travel freely in this country would ... extend throughout her life, without any possibility of petitioning the court for relief.”

Dykes argued that mandatory lifetime monitoring was unconstitutional, and “presented expert testimony that she personally poses a low risk of reoffending and that one’s risk of reoffending cannot be determined solely by the offense ...

Have the Media Stopped Covering Courts?

by Joshua Gerstein

Big legal showdowns between the press and courts often draw attention, as news organizations battle for the right to cover hearings and trials, for access to court records and to be allowed to take cameras into the courtroom.

These battles are important, indeed vital, to making sure that the courts are accountable to the public and that justice is being fairly dispensed.

But the meat and potatoes of reporting on what’s happening in the legal system is achieved not by filing motions, but by actually sending reporters into courts to watch what’s happening. There is a lot of vital news happening in our courts today that is simply not being covered.

As a reporter who has covered courts for more than two decades, it’s my distinct impression that nuts-and-bolts reporting on the courts has taken a huge hit in the current economic climate.

Newspapers that used to have a reporter in every courthouse in their communities are now lucky to have a single reporter covering the dozen or so courts in their coverage zone. Some papers used to try to cover every murder trial in their region.

Policies like that seem to have fallen ...

“Shocks the Conscience” Test Applied to Conditions at Civil Commitment Center

The Eighth Circuit Court of Appeals has held that the “shocks the conscience” standard, as opposed to the “professional judgment” standard, is the proper analysis when determining an alleged due process violation based on the treatment and discipline of a civilly committed sex offender.

Following a six-day bench trial in a federal lawsuit that resulted in judgment for the defendants, Dennis W. Strutton, a civilly committed resident at the Missouri Sexual Offender Treatment Center (MSOTC), filed an appeal. Strutton had been housed at the MSOTC since 2002 as the result of a 1997 guilty plea to first-degree child molestation, which included a stipulation that he be defined as a “sexually violent predator.”

Strutton’s lawsuit included substantive due process claims for failure to provide him with consistent access to adequate mental health treatment and for MSOTC’s use of disciplinary measures that served no therapeutic purpose. The Eighth Circuit agreed with the district court that Strutton had standing and his claims were not moot, as he “remains confined at MSOTC and subject to both the MSOTC’s evolving disciplinary measures and the related therapeutic impact of those decisions on his progress.”

Strutton’s first claim concerned staff shortages at MSOTC ...

Unique Brazilian Prison Alternative Celebrates 40-Year Anniversary

Brazil has long been home to the largest prison population in the region. As of December 2011, the population stood at 514,582, with 37% of the incarcerated being pretrial detainees. In addition to its sheer size, the Brazilian penal system is infamous for nightmarish conditions, discriminatory incarceration, harrowing police violence and sky-high recidivism rates. Prisoners held in penitentiaries, jails and police station “lock-ups” are subject to painfully overcrowded conditions that exacerbate the system’s many defects. Legal assistance, health care and educational services are essentially absent, inviting further violence and dehumanization. The state violence against Brazil’s incarcerated cannot be overstated. Brazilian police are among the most brutal in the world, with an entrenched history of torture, extrajudicial killings and “death squad” missions.

Amid this madness, one of today’s most innovative, but under-discussed, alternative prison systems has taken root. The Association for the Protection and Assistance of the Convicted (APAC) is a faith-based penal model partially grounded in restorative justice theory. Founded in 1972 by a group of concerned evangelicals, APAC’s mission is the rehabilitation of the incarcerated and protection of greater Brazilian society – goals totally unaddressed by the traditional public prison system.

The methodology is based ...

Eleventh Circuit: No Right to Spanish-language RDAP Program

In an April 2, 2012 unpublished per curiam ruling, the Eleventh Circuit Court of Appeals upheld the dismissal of a federal prisoner’s lawsuit seeking reinstatement of a Bureau of Prisons (BOP) Spanish-language substance abuse program.

The suit claimed that the BOP had eliminated its Spanish-language Residential Drug Abuse Program (RDAP), and the program was delivered only in English.

Federal prisoner Israel Rodriguez Velazquez, who speaks only Spanish, brought a Bivens action that argued elimination of the RDAP’s Spanish program deprived him of equal protection under the Fifth Amendment and violated his First Amendment right to speak the official language of Puerto Rico, where he lived prior to his arrest.

The district court dismissed the complaint for failure to state a claim, noting that Velazquez “has no constitutional right to vocational, rehabilitative or educational programs,” citing Franklin v. District of Columbia, 960 F.Supp. 394, 431 (D.D.C. 1997); Women Prisoners of the D.C. Department of Corrections v. District of Columbia, 93 F.3d 910, 927 (D.C. Cir. 1996); Inmates of Occoquan v. Barry, 844 F.2d 828, 836 (D.C. Cir. 1988); Garza v. Miller, 688 F.2d 480, 485 (7th Cir. 1982); and Hoptowit ...

$2 Million Settlement in Mailman’s Death at New York City Jail

The City of New York has agreed to pay $2 million to settle a lawsuit claiming that deliberate indifference resulted in the death of a pretrial detainee.

The settlement came in a federal civil rights action filed by the estate of Oswald Livermore. Livermore, 51, was booked into the Manhattan ...

Former New York Prisoner Exonerated, Receives $2 Million Settlement

A man whose conviction was overturned after spending 10 years in prison has settled his wrongful conviction suit against the State of New York for $2 million.

Michael Clancy, 25, was working as an apprentice elevator mechanic when he was arrested for the March 30, 1997 murder of John Buono ...

Fifth Circuit Reverses $659,300 Katrina-Related Jury Award

by Matt Clarke

In March 2012, the Fifth Circuit Court of Appeals reversed a $659,300 jury award in favor of two men who were arrested for public intoxication in New Orleans two days before Hurricane Katrina struck, and were then incarcerated for a month – sometimes under deplorable living conditions.

Robie J. Waganfeald and Paul W. Kunkel, Jr. were driving from Houston to Toledo when they stopped in New Orleans on August 26, 2005. They visited the French Quarter for about four hours and were arrested for public intoxication. Both men claimed they were not drunk, but that Kunkel fell down when his bad knee gave way as he stepped off a curb and Waganfeald was trying to help him regain his footing. Regardless of their guilt or innocence, what ensued was a nightmare by any standards.

The men were taken to the Orleans Parish Prison (OPP) where they were stripped of their wallets and cellphones, booked and given access to the jail’s landline phones. The problem was that Hurricane Katrina was about two days from making landfall. This pending disaster resulted in so many people using their phones that the circuits overloaded, and the phones in OPP and ...

Equitable Tolling of AEDPA Includes Non-English Speaking Petitioners

The Third Circuit Court of Appeals has held that a language inability, when combined with denial of legal or translation assistance, can be an extraordinary circumstance for equitable tolling purposes in habeas cases.

The issue was before the Third Circuit following a federal district court’s order dismissing as untimely a pro se habeas petition filed by Angel Pabon, a Pennsylvania state prisoner serving two life sentences. Pabon conceded his petition was not filed within the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

However, he argued that equitable tolling should apply based upon his inability to speak, read or write English. That, coupled with the prison’s lack of Spanish-language legal materials and repeated denials of translation assistance, constituted extraordinary circumstances that prevented him from timely filing his habeas petition despite diligent efforts to pursue his federal claims.

The first twelve pages of the Third Circuit’s twenty-one page decision outlined the facts underlying Pabon’s criminal case and his alleged constitutional violation. The Court of Appeals found that he had raised a debatable claim of a Sixth Amendment confrontation clause violation under Bruton v. United States, 391 U.S. 123 ...

Oregon ACLU Sues Jail over Mail Policy; County Quickly Capitulates

The American Civil Liberties Union of Oregon filed a federal lawsuit against a county jail in June 2012, challenging a policy that prevented prisoners from receiving ACLU correspondence. County officials quickly agreed to change the policy and the suit was resolved within four months.

As previously reported in PLN, the Jackson County Jail in Medford, Oregon was one of numerous jails nationwide to implement postcard-only prisoner mail policies in recent years. [See: PLN, Nov. 2010, p.22]. Under such policies, “legal mail” is the only type of letter correspondence that prisoners are allowed to receive.

Following numerous complaints by prisoners, in March 2009 the Oregon ACLU sent a first round of several surveys to detainees at the Jackson County Jail, inquiring about their treatment and living conditions. The purpose of the surveys was to help ACLU lawyers understand conditions at the jail and to ensure that prisoners’ rights were not being violated. The ACLU mailings also informed prisoners about their legal rights and made them aware of free legal services.

The survey mailings were clearly marked “Legal Mail,” but jail officials opened and read them outside the presence of the prisoners they were sent to. Then, in 2010, the jail ...

Illinois Woman Awarded $70,000 for Strip Search Based on Canine Alert

On June 28, 2012, an Illinois federal jury awarded a woman $70,000 for a strip search that occurred after a drug detection canine alerted on her car following a traffic stop for an unrelated warrant for failure to appear in court.

Officers Terry Rogers and Dee Burgin ordered a ...

California Governor Approved Parole for 377 Life-Sentenced Murderers in 2012

by John E. Dannenberg

Last year, California Governor Jerry Brown approved four out of every five parole grant decisions by the Board of Parole Hearings (Board) for prisoners convicted of murder and sentenced to life with parole. Totaling parole grants for 377 lifers, Brown’s record dwarfs the scanty parole approvals of his predecessors, Arnold Schwarzenegger and Gray Davis.

California’s parole process for life-sentenced murderers has been stymied for decades by governors who fear the political repercussions of paroling lifers, based on what happened to former Massachusetts Governor Michael Dukakis. Dukakis had permitted a violent prisoner serving a life sentence, Willie Horton, to have a weekend furlough; while on furlough Horton committed additional violent crimes, including armed robbery, assault and rape.

When Governor Dukakis later ran for President in 1988, his rivals produced a TV ad depicting a revolving door that showed him giving furloughs to violent felons. The infamous ad labeled Dukakis a “soft on crime” liberal who allowed dangerous criminals to commit more crimes. He subsequently lost the presidential election to George H.W. Bush.

Since then, few politicians have ventured to use their discretion to release prisoners serving life sentences for murder. In California, the first ...

Eighth Circuit: Procedurally Defaulted Grievances Decided on Merits are Considered Exhausted

On June 15, 2012, the Court of Appeals for the Eighth Circuit reversed the dismissal of a prisoner’s claims related to inadequate medical care.

Missouri state prisoner Mark E. Hammett, while housed at the Jefferson County Correctional Center, filed a federal lawsuit alleging insufficient medical care, retaliation and harassment claims. The district court granted the defendants’ motion to dismiss due to Hammett’s failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act (PLRA).

On appeal, the Eighth Circuit joined the Second, Third, Sixth, Seventh and Tenth Circuits in holding that when a grievance could be denied for failure to comply with procedural requirements, but prison officials decide the grievance on the merits anyway, the PLRA’s exhaustion requirement is deemed satisfied.

Applying that rule, the appellate court determined that three of Hammett’s seven medical grievances “were fully exhausted because he pursued these grievances through all three steps of the process and his grievance appeals were denied on the merits.” Therefore, “dismissal of [his] § 1983 claims based on these grievances for failure to exhaust was improper.”

Even so, the Court of Appeals rejected Hammett’s argument that because three of ...

Eleventh Circuit: Corizon Policy Led to Prisoner’s Paralysis; $1.2 Million Verdict Upheld

In a September 6, 2012 unpublished ruling, the Eleventh Circuit Court of Appeals affirmed a jury verdict that found Corizon Health, Inc., formerly Prison Health Services (PHS), had a policy or custom of refusing to send prisoners to hospitals. The appellate court also held it was reasonable for the jury ...

Los Angeles County Settles Civil Detainee Wrongful Death Claim for $750,000

On August 1, 2012, the County Counsel for the County of Los Angeles, California recommended settlement of a lawsuit filed by the survivors of a civil detainee who died as a result of an accident while working on a Los Angeles Sheriff’s Department work crew. The settlement amount was ...

Eighth Circuit Upholds Child Porn Supervised Release Condition

On May 7, 2012, the Eighth Circuit Court of Appeals upheld a supervised release condition imposed on a federal prisoner convicted of a non-sex offense that prohibited possession of child pornography or photographic depictions of child nudity.

A Nebraska federal court convicted A.J. Kelly of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and sentenced him to 115 months in prison and a 36-month term of supervised release. The court imposed a special condition barring Kelly’s access to material containing nudity or alluding to sexual activity.

On appeal, the Eighth Circuit remanded for re-sentencing because the special condition was overbroad and not supported by individual findings. See: United States v. Kelly, 625 F.3d 516 (8th Cir. 2010).

Following remand, the district court amended the special condition to prohibit Kelly’s access to “child pornography, or photographic depictions of child nudity or of children engaged in any sexual activity.” The court made individualized findings in support of the special condition and referenced Kelly’s prior conviction for first-degree sexual assault of a child. “The defendant does have a history of sexual assault, sexual abuse, particularly abuse of his ...

California Prison Town Files for Bankruptcy

by John E. Dannenberg

The City of Stockton, California, which hosts two youth correctional facilities and is the site of current construction for a new $700-750 million prison hospital for the California Department of Corrections and Rehabilitation, filed for Chapter 9 bankruptcy protection on June 27, 2012. It is the largest U.S. city to ever file for bankruptcy.

Stockton suffered from financial mismanagement following boom times in the early 2000s, when the median home price soared from $110,000 to $400,000 and real estate tax revenues rose proportionately. From 2003 to 2009, Stockton borrowed to fund a new city hall, an events center and arena, housing projects, parking garages, a fire station, a police communications center and improvements for parks, streets and a marina.

During the current economic downturn, however, real estate prices have plummeted and Stockton’s foreclosure rate became the worst in the nation. The city had a projected $26 million budget shortfall in 2012 plus $700 million in long-term debt, with no relief in sight. Unemployment ran as high as 22% in 2011. With the highest crime rate in California for cities over 100,000 population and the tenth-highest crime rate in the nation, Stockton ...

Wisconsin Supreme Court Clarifies Sex Offender Registration for Homeless Prison Releasees

William Dinkins, Sr. was about to be released from a Wisconsin state prison, having completed a ten-year sentence for a sex offense, when he was informed that at least 10 days before his release he must register the address where he would be residing or he would be guilty of a Class H felony under Wisc. Stat. § 301.45(6).

However, Dinkins had no residence. He had informed prison officials that he would be homeless upon his release. Both Dinkins and prison staff tried without success to locate a relative he could stay with.

Four days prior to his release date, prison officials contacted the District Attorney for Dodge County and asked him to charge Dinkins for failing to provide his post-release residence information. Dinkins was arrested, jailed, tried and convicted, then sentenced to 30 months on probation plus 90 days in jail. He appealed.

The Court of Appeals reversed based upon its interpretation of the term “residing,” which it said would require prolonged residence. The appellate court held that Dinkins, who had no residence, would not be residing anywhere. The state appealed.

On March 13, 2012, the Supreme Court of Wisconsin issued a decision that disagreed with the Court ...

News in Brief

ARIZONA: Five Pima County Jail guards were fired following a September 19, 2012 fight outside the Buffet Bar in Tucson. John Hyatt, 30; Matthew Garcia, 24; Anthony Bonfiglio, 25; Angel Castaneda, 23; and Steven Haglund, 26 were arrested on felony aggravated assault charges following a “brutal unprovoked attack” on four people, according to news reports. Two other jail employees, Mark Bret, 23, and Sgt. Yvonne Davis, 33, also were fired and charged with first-degree hindering prosecution for transporting some of the guards involved in the incident away from the crime scene.

Arizona: In November 2012, eight prisoners at ASPC-Eyman in Florence were hospitalized, apparently after drinking contaminated prison-made wine. Seven received an anti-toxin, provided by the Centers for Disease Control, used to treat botulism. Three months earlier, in August 2012, four prisoners at the same unit in the same facility were hospitalized in a similar incident. Last month, PLN reported a case of botulism at a Utah prison caused by a bad batch of pruno. [See: PLN, Feb. 2013, p.50].

Arizona: A Good Samaritan who volunteered at a Maricopa County jail and helped obtain a prisoner’s release was subsequently victimized by the same prisoner. Jay Connolly, 29, and ...


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