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Volume 24, Number 4
In this issue:
- U.S. Immigration Policy: Dysfunctional, Profitable and Resistant to Reform (p 1)
- Anti-Immigrant Arizona Sheriff Outed by His Mexican Ex-Boyfriend (p 11)
- From the Editor (p 12)
- Report: Total State Prison Costs at Least $5.4 Billion Over Budget Nationwide (p 12)
- From the Editor (p 14)
- Los Angeles Jail Undersheriff Steps Down (p 15)
- A ‘Nobody’s’ Legacy: How a Semi-literate Ex-con Changed the Legal System (p 16)
- California: Thousands of Sex Offenders Remove GPS Monitors (p 18)
- Iowa Pays Almost $500,000 to Fired Parole, Prison Supervisors (p 18)
- Fortresses of Solitude (p 20)
- New York: Provision Requiring Independent Jail Oversight Board Ignored for 23 Years (p 22)
- CDCR Tried to Conceal Report on Prisoner Suicides (p 22)
- Calls for Better Pregnancy Care in Georgia Jails after Death of Prisoner’s Baby (p 24)
- Life on the Inside and Death on the Outside: Complexities in Health Disparities Inside and Outside U.S. Prisons (p 24)
- Seventh Circuit Reverses Dismissal of Case Challenging Conditions in Illinois Jail where Mentally Ill Prisoner Died (p 26)
- Colorado Pays for Unneeded Private Prison Beds to Subsidize Local Jobs (p 26)
- Illinois: Scathing Study on Solitary Buried by Politics (p 28)
- Louisiana Public Service Commission Postpones Prison Phone Reforms (p 29)
- No Free Speech Protection for Prisoners Who Copy Excerpts from Books (p 30)
- ADX Prisoner Not Allowed to Communicate with Family Members or Receive Publications under SAMs (p 32)
- Lawsuit Filed Against Solitary Confinement of 800 “Seriously Mentally Ill” Prisoners in Pennsylvania (p 34)
- Oregon: Grand Jury Cites Problems at Multnomah County Jails (p 34)
- Former Pennsylvania DOC Director Hired to Run CDCR (p 36)
- CA Prison Guards’ Union Loses Appeal, Must Pay $4.96 Million Judgment (p 36)
- Federal Court Enters Interim Fee Award Against BOP in FOIA Suit (p 38)
- Second Circuit: Continuing Violations Exhausted with Single Grievance (p 38)
- Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption, by Shon Hopwood and Dennis Burke (Crown, August 2012). 320 pages, $25.00 hardcover (p 40)
- Ninth Circuit Vacates Federal Prison Sentence Imposed by Non-trial Judge (p 42)
- FBI’s National Crime Data Found to be Flawed, Manipulated (p 42)
- Colorado Seeks New Use for Empty Prison (p 43)
- Forcible Cutting of Illinois Prisoner’s Dreadlocks Found Unconstitutional (p 44)
- Pennsylvania Officials Link Halfway House Payments to Recidivism Rates (p 44)
- Defendants Must Challenge Joint and Several Liability for Attorney Fees on Initial Appeal or Issue is Waived (p 46)
- Delaware Court Decides Financial Dispute Involving Prison Healthcare Company (p 46)
- Court Upholds California Prison Guard’s Termination for Telling Prisoner to Hang Herself (p 47)
- South Carolina Sheriff Indicted; Fourth Sheriff to Face Criminal Charges in Three Years (p 48)
- Utah: Prisoners’ Education Should be Cheaper, More Efficient, Report Says (p 49)
- Florida Innocence Commission Makes Recommendations to Prevent Wrongful Convictions (p 50)
- California: Condition of Parole Restricting Parolee from Residing Near Victim’s Next of Kin Held Invalid (p 51)
- Native Americans Overrepresented in Prison; Problems with Tribal Police Cited (p 52)
- Utah Potentially Liable for Juvenile’s Death; Incarceration Exception to State’s Immunity Inapplicable (p 53)
- Time for Sentencing Reform (p 54)
- Seventh Circuit: Cost Bond Improper Tool to Address Prisoner’s Frivolous Filings (p 54)
- More Oregon Prison Employees Accused of Sexual Abuse (p 56)
- California Prison Industry Authority Loses $24 Million in Last Two Years but Reduces Recidivism (p 56)
- News in Brief (p 58)
The results of the last presidential election, in which over 70% of Hispanics cast their ballots for Obama, have led many panic-stricken Republican politicians to seek ways to avoid electoral irrelevancy at the hands of an increasing number of Hispanic voters.
Consequently, immigration reform is getting serious play in Washington at a time when federal spending on immigration enforcement and border security – estimated at almost $18 billion in fiscal year 2012 according to a recent report by the Migration Policy Institute – totals more than the budgets of all other federal law enforcement agencies combined, including the FBI, DEA and ATF.
Lawmakers Examine Immigration Reform
On January 28, 2013, the so-called “Gang of Eight,” comprised of eight U.S. Senators – four from each party – released a Comprehensive Immigration Reform (CIR) proposal. Among other provisions, the CIR ...
The nation's economy remains fragile, U.S. troops continue to fight a losing war in Afghanistan, North Korea has recently threatened a nuclear attack, and in March 2013 Congress and President Obama failed to reach a compromise to prevent the “sequester,” which mandates deep spending cuts on the federal level. Yet issues related to immigration – including immigration reform – still manage to dominate national headlines.
However, his status as a contender for a seat in Congress came to a screeching halt in February 2012, shortly after the Phoenix New Times published an exposé that alleged Babeu had threatened his Mexican ex-boyfriend with deportation for releasing details about their relationship – as well as photos of Babeu that were originally posted on a gay “hookup” website.
“I have decided to end our congressional campaign and seek re-election as Pinal County sheriff,” Babeu said in a personal message to his friends and supporters on May 11, 2012.
He postured that in Washington, D.C. he would be “just one of 435 voices” in the House of Representatives, while as sheriff of Pinal County – a mostly rural area about an hour southeast of Phoenix – he could have a greater impact.
Babeu made no mention of the news reports about his alleged threat to deport his former lover ...
Paul Bebeu, Sheriff of Pinal County, Arizona and a former police officer, was a rising Republican star within the state in 2012 – crusading in support of the anti-immigrant legislation SB1070, co-chairing Arizona’s campaign for Mitt Romney’s presidential bid and espousing the so-called family values that appealed to his conservative base.
When PLN started publishing in 1990 we were a 10-page photocopied newsletter with an initial mailing list of 75 prospective subscribers, a monthly budget of $50 and an all-volunteer staff. Today, the Human Rights Defense Center (HRDC), which publishes PLN, has nine full-time employees – including two attorneys – with offices in two states. PLN has grown to 64 pages and we now have around 7,000 monthly subscribers. If the Internet existed in ...
Welcome to PLN's anniversary issue. This issue marks 23 years and 277 issues since Prison Legal News first began publishing in May 1990. When PLN started, I didn’t think we would last this long or grow as much as we have; I also didn’t think the prison population would double over the next two decades, or that the overall living conditions for prisoners would deteriorate so significantly. A month before we published the first issue of PLN, Washington state became the first state to enact sex offender registration and civil commitment laws, and the Supreme Court had just held that prisoners could be involuntarily drugged without a court order. The nation’s first “three strikes” law, another Washington state innovation, was enacted three years later.
A report from the Vera Institute of Justice illuminates this problem by revealing that states pay, on average, 14% more for prison-related expenses than reflected by corrections budgets. In 40 states surveyed by Vera researchers, total prison costs for fiscal year 2010 were $38.8 billion – $5.4 billion higher than the states’ collective prison budgets.
“States’ corrections spending – including prisons, as well as probation and parole – has nearly quadrupled in the past two decades,” according to the Vera report. Those figures make incarceration the fastest-growing budget item on the state level after Medicaid.
Financial resources that could be used for K-12 education, health care, affordable housing and other community services instead find their way into prison coffers to pay for guards’ pension plans, fringe benefits and retiree health plans, as well as other corrections costs.
“As states continue to deal with serious budget ...
For decades, tough-on-crime rhetoric has convinced taxpayers to finance ballooning prison budgets with no questions asked. But the price tag of mass incarceration has so grossly surpassed state corrections budgets that legislators across the country have become adept at paying prison-related costs from other sources, thereby making their prison budgets seem smaller than they actually are.
The additional pages are important as they allow us to include even more news and legal content.
I would like to remind readers who have direct or indirect Internet access that PLN’s website, www.prisonlegalnews.org, is the most comprehensive site when it comes to detention facility litigation and news. Every issue of PLN is online and we have over 26,000 articles in our website database, including the largest collection of detention facility verdicts and settlements available anywhere. Our brief bank contains around 6,000 legal pleadings, from complaints and briefs to motions and more. With over 23 years of data, we have a substantial amount of information on prisons, jails and criminal justice-related topics.
The Campaign for Prison Phone Justice continues to move forward. As this issue goes to press more than 700 prisoners have contacted the FCC to request caps on interstate prison phone rates. Prisoners’ family members have submitted many comments, too. The letters are eloquent in pointing out the inherent injustice and unfairness of the ...
As we publish our second issue with PLN’s new design, the feedback we have received so far has been overwhelmingly positive, including with respect to our expanded size.
In fact, in its final report released in September 2012, the Citizens’ Commission on Jail Violence stated that Tanaka, who has a tattoo representing a deputy “gang” called the Vikings, had “engaged in conduct that undermined supervision of aggressive deputies and promoted an environment of lax and untimely discipline of deputy misconduct.”
“The troubling role of Undersheriff Tanaka cannot be ignored,” the report added. “Not only did he fail to identify and correct problems in the jails, he exacerbated them. The Commission learned about his ill-advised statements and decisions from a wide array of witnesses and sources. Over the course of several years, the Undersheriff encouraged deputies to push the legal boundaries of law enforcement activities and created an environment that discouraged accountability for misconduct. His repeated statements that deputies should work in an undefined ‘grey’ area contributed to a perception by some deputies that they could use excessive ...
PLN's March 2013 cover story detailed a long-standing pattern of abuse and corruption in the nation’s largest jail system, operated by the Los Angeles County Sheriff’s Department (LASD). Some of that misconduct was attributed to LASD Undersheriff Paul K. Tanaka, the right-hand man of Sheriff Leroy “Lee” Baca.
If you've heard of Clarence Earl Gideon at all, it’s probably because of a movie you had to watch in school. He deserves better, though, because 50 years ago he fundamentally changed the American legal system and your rights if you are accused of a state crime.
In Gideon v. Wainwright, a unanimous Supreme Court declared on March 18, 1963, that the states were required to provide legal counsel for defendants in felony cases who could not afford an attorney. In doing so, it accepted the reasoning of a poorly educated Florida gambler and ex-con who wrote out his habeas corpus petition to the court by hand.
Federal courts had been required to provide counsel for indigent defendants in felony cases since 1938. But over the next 25 years, the Supreme Court let several opportunities pass by to impose the same rule on state courts, which had discretion to develop their own ways to ensure a fair trial in cases that didn’t involve the death penalty.
“If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write ...
by M. Alex Johnson and Vidya Rao, NBC News
Under Jessica’s Law, sex offenders in California are subject to GPS monitoring for life. The monitor reports their position continuously to parole authorities; it also sounds an alarm at the parole office if a parolee strays too close to schools, parks or other prohibited areas.
Life is miserable for parolees on GPS monitoring. The device, worn on the ankle, is plainly visible if one is not wearing long pants. Even worse, its battery life is limited and requires recharging twice per day – which takes over an hour and requires an available electrical outlet. Failure to recharge the monitor means no signal is sent to the parole office, and a warrant for a parole violation can immediately issue.
Monitoring of paroled sex offenders is popular with members of the public, who have been brainwashed to believe that such offenders are ticking sexual time bombs just waiting to pounce on another female or child victim. In fact, only a very small ...
Taking advantage of the lack of available bed space to house parole violators in California jails following the state’s “realignment” initiative, thousands of paroled sex offenders fitted with GPS ankle bracelets have disabled or removed them – with few consequences.
Between August 2011 and early 2012, when Iowa’s Public Employment Relations Board (PERB) ruled in their favor, 18 former prison and parole supervisors who claimed they were improperly laid off have collected nearly $500,000 in back pay.
The issue concerns “bumping rights,” which means that since ascending the correctional hierarchy and becoming managers, the terminated employees argued their seniority should have made them immune to pink slips, and lower-ranking union workers should have been fired in their stead. The PERB agreed and ordered state officials to remedy the situation.
To date, the largest single payout – $205,000 in back wages and benefits – has gone to James Twedt, 60, a senior parole judge and 25-year state employee who was laid off in March 2010.
“I was employed with certain expectations and rights, and my rights were violated,” said Twedt, who was reinstated to his job overseeing parole revocation hearings. “I would say that it turned out the way it should have.”
Twedt and the other terminated employees had been members of the American Federation of State, County and Municipal ...
Non-union membership in the Hawkeye State apparently has its privileges, at least for parole and prison officials in management positions.
Most have never committed a violent act in prison. They are locked down because they’ve been classified as “high risk,” or because of nonviolent misbehavior – anything from mouthing off or testing positive for marijuana to exhibiting the symptoms of untreated mental illness. A recent lawsuit filed on behalf of prisoners in ADX, the federal supermax in Florence, Colorado, described how humans ...
Supermax prisons and solitary confinement units are our domestic black sites – hidden places where human beings endure unspeakable punishments, without benefit of due process in any court of law. On the say-so of corrections officials, American prisoners can be placed in conditions of extreme isolation and sensory deprivation for months, years or even decades. At least 80,000 men, women and children live in such conditions on any given day in the United States. And they are not merely separated from others for safety reasons. They are effectively buried alive. Most live in concrete cells the size of an average parking space, often windowless, cut off from all communication by solid steel doors. If they are lucky, they will be allowed out for an hour a day to shower or to exercise alone in cages resembling dog runs.
Since 1990, the Nassau County Jail has failed to answer to an independent civilian oversight board as required by a provision in the county’s charter. In fact, the board has never been fully formed or functional.
Considering the jail’s disproportionately high rate of suicides over the years, as well as allegations of prisoner abuse and poor conditions, some local lawmakers said it was time for County Executive Edward Mangano to appoint the seven-member Correctional Center Board of Visitors, which would hear and investigate complaints concerning the jail and recommend reforms.
According to Nassau County’s charter, the Board of Visitors is to consist of county residents who have some “working knowledge of the correctional system.” It is required to have an office at the jail and access to the jail’s records and books. Board members are to be appointed by the county executive and serve without pay.
“It is a legitimate concern and it’s ...
For more than two decades, the Nassau County Jail in East Meadow, New York has lacked accountability in the form of an oversight board. But that lapse may be coming to an end after prisoner advocates filed a lawsuit seeking court intervention.
The 15-page August 2011 report by Lindsay M. Hayes, Project Director of the National Center on Institutions and Alternatives, which had been commissioned by the state, concluded that the CDCR’s suicide-watch practices actually increased the risk of prisoner suicides.
Hayes’ report described suicidal prisoners being stripped of their clothes and possessions, dressed in a “safety smock” and held in small cells where in some cases they had to sleep on the floor. He found that such conditions induced prisoners to falsely claim they were no longer suicidal just so they could get out of the observation cells. Some took their own lives shortly thereafter.
State officials asked Hayes to create a redacted version of his report that omitted the damaging findings, for the limited purpose of providing it to a court monitor and the attorneys representing the prisoner class members in the lawsuit, Coleman v ...
A report that linked oppressive conditions in California prisons to preventable prisoner suicides was suppressed by the California Department of Corrections and Rehabilitation (CDCR), while the state tried to convince a federal judge that court oversight was no longer needed in an ongoing class-action lawsuit over deficiencies in mental health care at CDCR facilities.
Georgia’s Department of Corrections (GDOC) incarcerates all pregnant state prisoners at the Helms Transitional Center in Atlanta. There, according to GDOC officials, they receive 24-hour care from nurses, see an OB/GYN on a weekly basis and have access to on-site ultrasound equipment.
But in county facilities, which house most pregnant women who are awaiting trial, prenatal care varies from jail to jail and is often lacking.
A lawsuit filed in state court in June 2012 by DeShawn Nicole Balka, 25, who was 5½ months pregnant and jailed in Clayton County for a probation violation for misdemeanor marijuana possession, claims that jail officials could have prevented what happened to her and her unborn baby had she received adequate care for her high-risk pregnancy.
For days, Balka suffered from dehydration and cramping that she said was ignored by jail officials. Then, in the pre-dawn hours of April 28, 2012, she sat for hours on a toilet in her cell, complaining of nausea and ...
A lawsuit filed against Clayton County, Georgia and the county’s sheriff, Kem Kimbrough, has prompted human rights organizations and Georgia lawmakers to examine guidelines for the treatment of pregnant women held in jails across the state.
As a scholar of criminology and demography (the study of how and why populations change), I seek to contribute to the discourse on inequality through researching different issues in the demography of incarceration. One astonishing thing that I discovered some time ago was the difference in mortality levels of black men inside versus outside of prison.
At every age during a person’s working years, black men outside of prison die at a higher rate than black men in prison. Further, at every age during working years, black men not in prison die at a higher rate than white men outside of prison. However, in the period of 1996-98, black men inside prison had comparable death rates to white men outside of prison.
The most common explanation for this trend is that black men are safer when incarcerated. While part of the story, particularly in people’s younger working years, this is not the story. That is, it does not completely explain the disparity in life expectancy.
Rather, some of it likely has to do with access to adequate nutrition and health care. Another piece has to do with the unequal lives that black ...
by Evelyn J. Patterson, Ph.D.
where Mentally Ill Prisoner Died
On March 20, 2012, the Seventh Circuit Court of Appeals reversed a district court’s grant of summary judgment to the defendants in a case claiming inhumane conditions of confinement at a county jail; the appellate court also reversed the dismissal on collateral estoppel grounds of a related suit raising state law claims.
The case involved two lawsuits filed by the estate of Nicholas D. Rice, 21, who died in the Elkhart County, Illinois jail on December 18, 2004, nearly fifteen months after he was booked into the facility pending trial on a charge of attempted bank robbery. Rice suffered from schizophrenia, and 11 days before his death was found incompetent to stand trial and ordered admitted to a psychiatric hospital.
The conditions at the jail and the treatment (or lack thereof) that Rice received are extensively detailed in the lengthy appellate opinion in this case. In sum, the record indicated that although Rice was seen by mental health staff while incarcerated, he “frequently refused to take his prescribed medications, cooperate with medical personnel at the jail, eat his meals, or bathe himself.” Medical ...
Seventh Circuit Reverses Dismissal of Case Challenging Conditions in Illinois Jail
Even amid a declining prison population, Colorado is paying million of dollars to private prison contractors for unneeded cells in order to protect the economic base of small, rural communities that have become dependent on the jobs that for-profit prisons provide.
With Colorado’s prison population in decline since 2009, five prisons, both public and private, already have closed in the state, including the Fort Lyon Correctional Facility. [See related article on page 43 of this issue]. It is estimated that in the near future, two to ten more closures could follow. After a study is concluded in June 2013, recommendations will be made as to which facilities will be shuttered.
Colorado currently has 20 state-owned prisons with 1,000 empty beds – a number that is rising by around 100 more vacancies each month. Another four prisons are privately-owned, including three Corrections Corporation of America (CCA) facilities and one GEO Group prison that house minimum-to-medium-security prisoners from Colorado and other jurisdictions.
Private prisons originally were used by the state as an “overflow” measure. In 2012, Colorado contracted with CCA to house 3,300 prisoners, at a cost of about $20,000 each, for the fiscal year ...
by John E. Dannenberg
Reeling from the criticism of its last effort at prison reform, Illinois buried its study of the ineffectiveness of long-term solitary confinement.
As Gov. Pat Quinn struggled to hold onto the seat he acquired from the ousted Rod Blagojevich, his office drew fire for measures such as “Meritorious Good Time” (MGT), which revoked a requirement calling for prisoners to spend at least 60 days in prison.
Reform advocates had long contended that the old policy made “61-day wonders” out of low-level offenders, but the Associated Press reported that the so-called “MGT Push” put dangerous criminals back on the streets.
As Quinn stepped back and inched through the 2010 election, his then-corrections chief Michael Randle bore the brunt of the blame for the program and resigned months later, ostensibly to revisit his old job as Ohio’s prison chief.
Although the AP story created political shockwaves, a program director at Northwestern University School of Law later decried the report as shoddy and sensational journalism.
“Contrary to media reports, MGT-Push has not been responsible for an illegal or premature release of a dangerous criminal or for the commission of additional violent crime,” Malcolm Young said. “MGT-Push did ...
by Adam Klasfeld, Courthouse News
At its December hearing, the LPSC decided that telecom companies must lower the rates of most prison and jail phone calls by 25%, starting whenever their current contracts ended or in 2014. The rate reduction did not apply to all calls, but only to calls made by prisoners to family members, clergy, legal aid organizations and certain government agencies.
The part of the LPSC’s order ending unauthorized prison phone surcharges went into effect on February 28, 2013. At that time the telecom companies that contract with Louisiana prisons and jails were supposed to have stopped charging the extra fees, such as fees to set up phone accounts and issue refunds on unused account balances. The LPSC, however, learned that four companies ...
After heated hearings and postponement, on December 12, 2012, the Louisiana Public Service Commission (LPSC) voted to lower the cost of phone calls made from Louisiana prisons and jails by cutting the rates of most calls by 25% and prohibiting costly surcharges. [See: PLN, Jan. 2013, p.14; Feb. 2012, p.36]. The LPSC’s order was a victory for 40,000 Louisiana prisoners and their loved ones. Unfortunately, however, some of the policy changes have been postponed.
In dismissing Wisconsin state prisoner Toni Toston’s free speech claims brought under 42 U.S.C. § 1983, Circuit Judge Richard A. Posner wrote that Toston could face disciplinary sanctions for possessing a handwritten copy of the “Ten-Point Program” included in books about the Black Panther Party, notwithstanding that the passage appeared in two books he had checked out from the prison library and a book he was allowed to order from an outside vendor.
Toston filed suit alleging free speech and due process violations when he was sent to segregation for 90 days for “possessing gang literature” after a guard found his handwritten copy of the Ten-Point Program in his locker. The offending passage, from To Die for the People: The Writings of Huey P. Newton (1972), states:
1. We want freedom. We want power to determine the destiny of our Black Community. 2. We want ...
Prisoners who copy "arguably inflammatory” or “incendiary” passages from the books they check out from a prison library or are allowed to purchase are not entitled to rely on the First Amendment to protect them from disciplinary punishment, the U.S. Court of Appeals for the Seventh Circuit held on August 2, 2012.
The federal Bureau of Prisons’ use of SAMs originated in a regulation promulgated in 1996 – 28 C.F.R. § 501.3 – that was amended in the wake of the 9/11 terrorist attacks and finalized in 2007. See: 72 FR 16271, 16275 (April 4, 2007). The regulation, titled “Prevention of Acts of Violence and Terrorism,” provides that “upon direction of the Attorney General, the Director, Bureau of Prisons, may authorize the Warden to implement special administrative measures that are reasonably necessary to protect persons against the risk of death or serious bodily injury.”
Imposed pursuant to a request by a “federal law enforcement agency or the head of a member agency of the United States intelligence community,” SAMs can be used to house prisoners in restricted confinement and to curtail or eliminate their ability to communicate with others – including the public, the media, other prisoners and family members. Seemingly mundane activities such as “carrying of religious materials, recreation, and exercise time” have ...
In another series of court rulings upholding the use of Special Administrative Measures (SAMs), a prisoner at the federal ADX supermax facility in Florence, Colorado was prohibited from receiving certain publications and communicating with his nieces and nephews.
According to the lawsuit, prisoners in the RHUs are “locked in extremely small cells for at least 23 hours a day on weekdays and 24 hours a day on weekends and holidays.
Typically, the lights are on in the cell all the time. The prisoners are denied adequate mental health care and prohibited from working, participating in educational or rehabilitative programs, or attending religious services.”
Prisoners in the RHU are generally held alone, notes the complaint, though even in cases when prisoners are assigned a cellmate, this may be “as deleterious to their mental health as solitary confinement” if the cellmate is “psychotic or violent.”
Placing people in such conditions can create a “Dickensian nightmare,” in which prisoners “are trapped in an endless cycle of isolation and ...
On March 11, 2013, the Disability Rights Network of Pennsylvania (DRNP) filed a lawsuit against John E. Wetzel, Secretary of the Pennsylvania Department of Corrections, charging that the confinement of prisoners in Restricted Housing Units (RHUs) amounts to “cruel and unusual punishment” of those diagnosed as “seriously mentally ill.” The suit seeks an end to long-term segregation of such individuals and seeks an order that DOC prisoners “receive constitutionally adequate mental health care.”
In its most recent report, the Grand Jury noted there was a 121% increase in the number of emergency prisoner releases from the county’s jails for the one-year period that ended in August 2012. The report recommended opening additional jail dorms to increase bed space. Three dorms at the Inverness Jail had been closed due to budget cuts over the past few years; the county’s jail system presently has 1,310 available beds.
The emergency releases occur when the jails are at 95% capacity, according to the Sheriff’s office, in order to make room for other detainees charged with more serious crimes. Over 900 prisoners were released early from Multnomah County jails in 2012 – eight times the number of emergency releases in 2010 and 2011 combined.
The Grand Jury report also cited the need to address staff vacancies; due to expected retirements among corrections employees, the Sheriff’s office needs to hire up to 85 new staff members before June 30, 2013, the Grand Jury ...
A Corrections Grand Jury report released on December 18, 2012 made recommendations to remedy problems in Multnomah County’s jail system, adding to suggestions the Grand Jury had previously made in 2011.
Beard’s decade-long stint as Pennsylvania’s Corrections Secretary saw a dramatic increase in that state’s prison population, from 38,000 in 2001 to more than 51,300 by 2010. His actions mirrored the same type of expansionist tough-on-crime approach that eventually brought California’s prison system to its knees under a federal court order due to unconstitutional overcrowding. [See: PLN, July 2011, p.1].
When faced with overcrowding in Pennsylvania, Beard chose not to advocate for prison reforms; rather, he shipped thousands of prisoners to privately-operated facilities in Michigan and Virginia while asking the state legislature for hundreds of millions of dollars to build three new prisons.
In 2000, Beard opened Long Term Segregation Units in the Pennsylvania DOC – the most restrictive form of isolation – closely modeled on the ...
Jeffrey A. Beard, an almost 40-year old veteran of the Pennsylvania Department of Corrections, and most recently that state’s Corrections Secretary, was hired by California Governor Jerry Brown in December 2012 to become the new head of the California Department of Corrections and Rehabilitation (CDCR). Beard, 65, replaces Matthew Cate, who resigned as Secretary of the CDCR to become executive director of the California State Association of Counties.
A federal lawsuit filed against the California Correctional Peace Officers Association (CCPOA), the union that represents state prison guards, resulted in a $12.5 million damages award in October 2010. The award was reduced by the district court to $4.96 million and the CCPOA appealed, placing $3 million in ...
In May 2009, Stephen Raher, then a law student and former co-coordinator of the Colorado Criminal Justice Reform Coalition, filed a lawsuit against the BOP that alleged the agency had improperly withheld documents requested under the Freedom of Information Act (FOIA). Raher had requested various records concerning the BOP’s contracts with private prison companies, including the contracts themselves, contractor proposals and internal BOP emails.
Under the BOP contracts, private prison companies are paid a designated amount per day for each prisoner they house (“per diem” pricing). The BOP initially argued that it could not release the contractors’ proposals because they contained confidential commercial information and security details. BOP officials also claimed they could not release the number of beds they had contracted for, or the per diem prices.
The BOP argued that a wide variety of information concerning private prison operations was confidential commercial information, protected by FOIA’s Exemption 4 (5 U.S.C. § 552(b ...
The Federal Bureau of Prisons (BOP) began 2013 with an adverse ruling from the U.S. District Court for the District of Oregon, after the BOP had spent several years refusing to disclose allegedly confidential information that was, in fact, already public.
Muslim prisoner Neil Johnson was confined at the Federal Correctional Institution in Otisville, New York (FCI Otisville). In 2005, an FCI Otisville policy limited congregational prayers to once a day. However, Johnson’s Islamic religious beliefs required group prayer five times daily.
In February 2005, Johnson exhausted an administrative grievance concerning the limitation on congregational prayer. Although prison officials denied the grievance, they coincidentally stopped enforcing the policy.
After a new warden took over at FCI Otisville in April 2007, the congregational prayer policy was reimplemented and consistently enforced, limiting Muslim prisoners to group prayer once a day, five days a week, in the facility’s chapel.
On April 12, 2007, Johnson and several other Muslim prisoners were performing congregational prayer in their housing unit when a guard stopped them. Johnson was threatened with disciplinary action if he continued to engage in group prayer in violation of institutional policy.
Johnson filed suit in federal court on July 24, 2007, alleging that the limitation on congregational ...
The Second Circuit Court of Appeals held on May 16, 2012 that a New York district court had incorrectly concluded that a prisoner failed to exhaust his administrative remedies before bringing a religious freedom suit.
In the Spring of 2003, the phone on Seth Waxman’s desk rang. “Will you accept a call from federal prison?” the caller asked. Waxman sighed. It might have been his fifth prisoner call that day. As the former Solicitor General of the United States and a prominent member of the Supreme Court bar, he was on the must-contact list for those looking for representation before the Court. In almost all of these cases, Waxman wanted to help, but he was just one person. And – whether fair or not – petitions by prisoners stood little chance of capturing the Court’s attention.
But this call, it would turn out, was different. This call was from a prisoner named John Fellers. And not only did Fellers have a case for Waxman, but the Court had already granted this prisoner’s petition. The one he had filed pro se. The one for which he had filled out an in forma pauperis (“IFP”) request. The one for which he now had no lawyer, because his “lawyer” at the cert. stage had been a fellow prisoner, a guy whose prison job was working in the law library, a guy who ...
Book review by Lisa McElroy
Federal prisoner William Harris’ 188-month sentence for assaulting a prison guard was reversed by the Ninth Circuit Court of Appeals on May 25, 2012, based on a violation of Federal Rule of Criminal Procedure 25(b) “with prejudice.”
Harris, 35, a member of the Salt River-Maricopa Indian Tribe, had a long history of depression, mental problems and substance abuse, and suffered from schizophrenic behavior that was aggravated by a 2001 automobile accident. While incarcerated on an assault charge, and intoxicated after “drinking homemade wine,” he participated in a brawl with federal prison guards Brian Fitzgerald and Noel Pasillas, throwing chairs and stabbing Pasillas with a homemade knife.
After a plea bargain negotiated by defense counsel and the U.S. Attorney’s office was rejected by an Arizona federal district court, Harris went to trial and was found guilty.
Sentencing was scheduled for February 1, 2011, but the trial judge was not present. In her stead was visiting judge Linda Reade, Chief Judge of the Northern District of Iowa, who imposed a 188-month sentence.
On appeal, Harris first argued the trial judge should not have rebuffed his plea agreement. The appellate court rejected that argument, stating, “[A] district ...
by Derek Gilna
An August 2012 investigative analysis by the Milwaukee Journal-Sentinel found that the overwhelming majority of data published in the FBI’s “Crime in the United States” report each year is non-verified, self-reported information from police agencies that are sometimes politically motivated to under- or over-report crimes and arrests in their jurisdictions.
Although the FBI began auditing local police departments in 1997 to ensure that crime statistics are accurately reported, the Journal-Sentinel discovered that less than 1% of about 17,000 law enforcement agencies nationwide that report data to the FBI have been audited in each of the last five years. Only about one-third of police departments in the 30 largest cities in the U.S. have been audited during that same time period, and data from six of those departments – including Seattle and Philadelphia – have never been reviewed since the FBI’s auditing program began.
“[Crime data] is a tool that politicians and police leaders use, yet the system is so incentivized to cast a favorable light and there [are] very little checks ...
As it turns out, the FBI's annual reports on crime in the United States are only slightly more credible than campaign promises and Big Foot sightings.
“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 ...
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.
Illinois prison policy allows prisoners “to have any length of hair” they desire so long as it “do[es] not create a security risk.” Harold Schuler, a guard at the Big Muddy Correctional Center (BMCC), ordered prisoner Omar Grayson’s dreadlocks to be cut off on the grounds that they posed a security risk, though he did not explain why.
Grayson, a member of the African Hebrew Israelites of Jerusalem, complained to the chaplain, who informed him that only prisoners who are Rastafarians are allowed to wear dreadlocks. Grievances on the issue were denied based upon the chaplain’s opinion. Grayson filed a federal lawsuit in 2009, but the district court granted Schuler’s motion for summary judgment and the case was dismissed.
On appeal, the Seventh Circuit began its opinion by noting that since Grayson had been released from prison, only his personal-capacity damages claim under 42 U.S.C. § 1983 remained at issue. Turning to the ...
The Seventh Circuit Court of Appeals has held that an Illinois prison guard violated the First Amendment rights of a prisoner by ordering his dreadlocks to be forcibly shorn. The appellate court further held the guard was not entitled to qualified immunity.
State officials think they have found a solution to that problem. According to a February 2013 announcement by the Pennsylvania Department of Corrections, the state’s contracts with privately-operated halfway houses will be renegotiated to directly link pay with performance. If the recidivism rate of prisoners released from halfway houses declines, those facilities will receive higher payments.
Previous recidivism statistics indicate that about 40% of Pennsylvania prisoners return to prison within three years after their release. Now, however, when the state measures recidivism, it counts arrests as well as re-incarcerations, bringing the total recidivism rate to almost 60% according to a report released on February 28, 2013.
“We call it the Department of Corrections, and apparently, it’s not correcting anything,” noted Allegheny County Common Pleas Judge Jeffrey A. Manning.
Community corrections centers, also known as halfway houses, receive a great deal of money to help prepare prisoners to reenter society. Unfortunately, according to a recent study in Pennsylvania, the state’s 38 halfway houses with 4,313 beds have not been particularly successful in that mission, as prisoners assigned to the facilities are more likely to return to prison than those released on parole directly to the street.
Anthony Albert Jimenez sued ten Los Angeles County deputy sheriffs under 42 U.S.C. § 1983 for violating his constitutional rights while he was held as a pretrial detainee at a Los Angeles County jail in 1998. The allegations involved four separate incidents of excessive force that took place over three days.
The jury returned a verdict in favor of Jimenez as to four of the defendants. The district court awarded damages against those defendants as follows: John Franklin, $1; Gilbert Duron, $5,000 in compensatory damages and $10,000 in punitive damages; Ryan Bergner, $50,000 in compensatory damages and $50,000 in punitive damages; and Gabriel Frank Gonzalez, $100,000 in compensatory damages and $150,000 in punitive damages, totaling $365,001.
The district court then awarded $505,671.40 in attorney’s fees and $24,595.94 in costs. Jimenez was ordered to pay $5,000 ...
On May 22, 2012, the Ninth Circuit Court of Appeals held that defendants found liable for civil rights violations had failed to challenge in their initial appeal an order that they were jointly and severally liable for attorney’s fees, and thus had “waived their ability to challenge that order subsequently.”
Certain shareholders of Just Care, Inc., a privately-held Delaware corporation, filed the complaint to determine the fair value of the company in an appraisal action following its acquisition by GEO Care, Inc. (formerly a subsidiary of private prison firm GEO Group). According to the complaint, GEO Care “provides government out-sourced services specializing in the management of correctional, detention, and mental health and residential treatment facilities” in the United States and abroad.
One of the disputes in the case was the value of projected cash flows from payments anticipated from the states of South Carolina and Georgia, both of which had business relationships with Just Care. At the time of the merger, Just Care operated a single facility – the 374-bed Columbia Regional Care Center in Columbia, South Carolina, which provides medical services to prisoners and detainees from South Carolina, Georgia, the U.S. Marshals Service, and Immigration and Customs Enforcement (ICE).
Georgia had not finalized plans with the company to build a facility in that state; Just Care had hoped ...
A complaint brought in the Court of Chancery of Delaware to appraise the value of a prison healthcare company inadvertently shed light on the big business of providing contracted correctional services.
On November 23, 2006, while working the night shift in the Support Care Unit at the California Institution for Women, Norton responded to the cell of a prisoner who was screaming because she was hearing voices and hallucinating. He refused to turn on her cell light after she told him that she was afraid of the dark, and then flippantly replied “‘go ahead,’ or go ahead and hang yourself, or words to that effect” when she stated she might commit suicide.
After the unidentified prisoner did try to hang herself, Norton embarked on a campaign of intimidation against another guard, Ryan Campos, who worked with him in the Support Care Unit and was a potential witness, by referring to Campos as a “snitch,” a “pussy,” a “rat,” a “punk” and a liar. Campos didn’t state in his initial report that the prisoner had told Norton she might ...
In March 2012, the California Court of Appeal, 4th District, affirmed a lower court’s judgment that reinstated the termination of a former state prison guard, Thomas Norton, who had told a mentally ill female prisoner to hang herself and then pressured another guard to keep him from reporting what had happened.
Chesterfield County Sheriff Sanford (“Sam”) Marion Parker, Jr. was suspended by Governor Nikki Haley on March 20, 2013 after the charges were announced by the Attorney General’s Office. Following his arrest, Sheriff Parker was released on a $150,000 personal recognizance bond.
In a 20-page indictment, Parker was accused of using two state prisoners assigned to his custody to work on his home and personal property; in return, the prisoners were allowed to effectively reside outside the jail, go on shopping trips (some of them out-of-state), have access to guns and sheriff’s vehicles, and have unsupervised visits with women, among other perks.
Further, Parker allegedly gave firearms owned or seized by the county to private citizens, including an M-14 rifle and a sniper rifle. He was accused of using a boat purchased with county funds as a personal shrimping boat, and keeping county vehicles at his home for personal use – including a five-ton military truck, a trailer and a John Deere “Gator” vehicle.
Prosecutors also accused Parker of appointing deputies and “Reserve Officers” who never received ...
A South Carolina Sheriff has been removed from office following his indictment on criminal charges of misconduct and furnishing contraband to prisoners.
Utah lawmakers wanted to know how efficient and effective are high school education programs offered in the state’s prisons and jails, which help offenders earn a diploma or G.E.D., or learn English as a second language.
Auditor General John Schaff reported that Utah’s State Office of Education (USOE), with a $5.4 million budget in 2011, educated 5,268 prisoners at 23 jails and both state prisons. It cost more to teach prisoners ($512 per student) than to educate adult students on the outside ($346 per student). One reason, according to the report, is that some prisoners take hundreds of class “contact” hours without graduating, while others who graduate continue to attend classes but only sit around and do nothing, consuming resources that could be helping other prisoners.
“Programs should not be designed to take longer, simply because an inmate has more time available,” the report said. The Auditor General also noted that “[b]y spending more on inmates, fewer funds are available for the traditional adult education ...
Secondary education for Utah prisoners are wasting tax dollars and, more importantly, wasting educational resources, according to an August 2012 report by the state’s Legislative Auditor General.
Due to having one of the highest rates of wrongful convictions in the nation, the Florida Supreme Court established the 25-member blue-ribbon panel in July 2010 to determine the causes of wrongful convictions and what can be done to prevent them.
Specifically, the Florida Innocence Commission was formed to “provide a mechanism to recommend to the Supreme Court of Florida solutions to eliminate or significantly reduce the causes for wrongful or erroneous convictions.” The Commission held meetings in Tallahassee, Tampa, Jacksonville and Orlando; heard testimony from experts; and reviewed several wrongful conviction cases.
The Commission identified five primary factors that contribute to wrongful convictions: Unreliable jailhouse snitch testimony, eyewitness misidentification, false confessions, invalidated or improper scientific evidence, and professional responsibility and ac-countability of both prosecutors and defense attorneys. Another, more general contributing factor identified by the Commission was the “underfunding of the criminal justice system in Florida.”
According to the Innocence Project, a New York-based nonprofit that works to free the innocent, jailhouse informants were a contributing ...
The Florida Innocence Commission's final report, presented to the Florida Supreme Court on June 25, 2012, included a number of recommendations to address issues related to wrongful convictions in the Sunshine State.
Terrance R. David was convicted in 1989 of second-degree murder for killing two people while driving under the influence. Paroled in 2010, he was subsequently restricted from living within 35 miles of the sister of one of the victims, pursuant to her request.
David wanted to live with and care for his sick mother, who resided within 35 miles of the victim’s sister, and he filed a habeas petition challenging the residency restriction.
After initially ordering a stay of the restriction, the Superior Court ultimately denied habeas corpus relief, finding that the word “victim” in section 3003 was defined expansively by California’s Constitution to include the next of kin of a decedent victim. David appealed.
The Court of Appeal, Second District, held that as a matter of statutory construction, the word “victim ...
The California Court of Appeals has held that Penal Code section 3003(f), which limits a parolee convicted of certain offenses from living within 35 miles of the victim or witness to the crime – if, among other conditions, the victim or witness has requested the physical separation – may not be invoked when the victim’s next of kin (as opposed to the victim) makes the request.
Almost two centuries after indigenous Americans were uprooted from their tribal lands and driven west, the Trail now leads to places like the Rosebud Sioux reservation in Todd County, South Dakota – a vast grassland that covers hundreds of miles, where the tribe sees too many of its members end up in prison.
“I think every family on this reservation has [a relative] in prison,” Rose Bear Robe, 56, a member of the Rosebud Sioux, told CNN in an August 2012 special report. “It’s beginning to be normal now, when people used to be ashamed of it.”
While the U.S. Census Bureau doesn’t provide firm numbers on the Native American population, grouping “American Indian” and “Alaska Native” into one category, 8.9% of South Dakota’s population was reported to be Native American. Yet according to the state’s Department of Corrections, Native Americans represented 29% of South Dakota’s prison population and 38% of its juvenile offenders in 2011.
In Montana, the Native ...
The Trail of Tears lives on. It still winds its way through dilapidated Native American villages on reservations across the United States that are impoverished, starved of resources and pockmarked by dysfunction and discrimination.
Sixteen-year-old Dillon Whitney was charged with several crimes and adjudicated a juvenile delinquent. The trial court ordered the Division of Juvenile Justice Services to transfer Dillon to a community-based placement, during which time he was not allowed to stay with either of his parents.
Dillon was sent to Quest Youth Services, which placed him “in the community-based proctor home of H. Kaufusi. Dillon lived in the basement of the proctor home with another proctor teen, while Kaufusi lived upstairs with his two children.”
Dillon and the other proctor teenager were allowed to come and go at will and roam freely in the community.
After an approved Thanksgiving family visit with his father in November 2007, Dillon went to the apartment of Victor Hernandez instead of returning to his proctor home.
While at Hernandez’s apartment, Dillon got drunk, fell down a flight of stairs and was placed on a couch. The next morning, Hernandez believed that Dillon was dead and moved him to a stairwell.
Dillon was not ...
The Utah Supreme Court has that the “incarceration exception” to the state’s waiver of sovereign immunity does not apply to a juvenile offender’s placement in an unsecured community-based proctor home.
Right now, the U.S. puts more people in prison and jails than any other nation in the world. The costs associated with incarceration are staggering. California alone spends more than $9 billion per year on prisons.
Despite all of these costs – economic, social and systemic – the rate of people returning to a life of crime even after serving time remains all too high, with almost 65 percent of California’s prisoners re-offending after being released.
While California’s Realignment effort represents a major change in our state’s sentencing practices, it is primarily intended to impact system costs and incarceration rates – not public safety.
So further change is needed.
Sentencing reform is one of the most important ways we can reduce recidivism and keep our communities safe. We can use two innovative strategies – sentencing commissions and alternative sentencing practices – to achieve our goals.
Most criminal law is developed legislatively through the political process, with mandatory minimum sentences and sentence enhancement ...
From the Capitol to the courtrooms, prosecutors can chart a new path on public safety by championing at both local and state levels one of the biggest ways we can transform our justice system in this generation – sentencing reform.
The appellate ruling was issued in a case involving Tamms Correctional Center prisoner Anthony Gay, whom, the Court of Appeals noted, has mental health problems and a long history of self-mutilation. He also has been very litigious, having filed more than 30 civil cases between October 1996 and January 2011.
Gay lost two of his lawsuits at trial, settled two others and lost or withdrew the rest. At least four cases were dismissed as frivolous, leading Gay to “strike out” under the Prison Litigation Reform Act (PLRA). Having lost his right to proceed in forma pauperis unless he is “under imminent danger of serious physical injury,” Gay continued to litigate in two ways. One was to invoke the imminent danger exception in an attempt to avoid the PLRA’s three-strikes rule for frivolous filings.
Gay used another method in this case, in which he sued three Tamms ...
On May 30, 2012, the Seventh Circuit Court of Appeals reversed an Illinois federal district court’s order that imposed a cost bond on an indigent prisoner which the court knew he could not afford, holding that such an order is not one of the tools available for dismissing or discouraging frivolous lawsuits.
In 2005, Oregon became the 49th state to enact a custodial sexual abuse law, following a high-profile 2004 sex scandal at Coffee Creek Correctional Facility (CCCF).
Before the law was enacted, Oregon guards who sexually abused prisoners got off lightly. For example, in the 2004 CCCF case, prisoner Amanda Durbin accused Lt. Jeffrey Barcenas and food services coordinator Christopher Randall of sexually assaulting her. [See: PLN, April 2004, p.42]. Both resigned and pleaded guilty to misdemeanor charges; Barcenas was sentenced to six months in jail, while Randall served just 45 days.
Under Oregon’s current custodial sexual misconduct law, an Oregon Department of Corrections (ODOC) employee or contractor commits a felony by engaging in sexual intercourse with a prisoner. Any other sexual contact is custodial sexual misconduct in the second degree, a misdemeanor. Prisoners are not subject to prosecution and consent is not a ...
As previously reported in PLN, between 2006 and 2009, employees at Oregon’s only women’s prison were charged with sexually abusing more than a dozen female prisoners. [See: PLN, Nov. 2010, p.18; July 2009, p.47]. The abuse continues unabated, with at least five prison staff members accused of sexual misconduct last year.
Much like a corporate board of directors, the PIB sets general policy for CALPIA and monitors the performance of its industries. Among other responsibilities, it ensures that CALPIA enterprises are “self-sufficient and that they do not have a substantial adverse effect upon the private sector.”
The PIB’s previous report to the legislature, released in January 2012, had noted that after years of profitability, CALPIA experienced a loss of $15.3 million in net assets in fiscal year (FY) 2010-11. The loss was reportedly the result of four factors: 1) a $17.4 million (9.6%) drop in operating revenues; 2) an $8.6 million expense for the anticipated settlement of three lawsuits filed by employee unions seeking back pay for state-imposed mandatory furloughs; 3) a $6.3 million obligation to pay for post-employment benefits such as retiree healthcare; and 4) one-time ...
In January 20013, California's Prison Industry Board (PIB) submitted its annual report to the state legislature regarding the activities and financial status of the California Prison Industry Authority (CALPIA), the agency it is charged with overseeing. CALPIA operates industry programs that employ approximately 7,000 prisoners annually in “manufacturing, service, and consumable factories” at 24 facilities statewide.
Mexico: A December 18, 2012 riot and escape attempt at a prison in Gómez Palacio in the state of Durango resulted in 23 deaths, including 9 guards. The violent disturbance occurred when prisoners tried to escape through fences and an underground tunnel, then fought with prison staff when they were discovered. Some of the prisoners reportedly used firearms against the guards, who were unarmed. Mexican prisons, which are filled with drug cartel members, have high levels of violence and have experienced numerous escapes in recent years.
New Hampshire: When the Carroll County Board of Commissioners voted to suspend three county corrections officers on November 2, 2012 for hosting an underage drinking party, Carroll County DOC Captain Michael Fowler was not happy. He filed a complaint against the commissioners, saying they had “jeopardized the safety and security of the Carroll County Department of Corrections by leaving it understaffed without any recommendations ...
Maryland: Jerod Pridget, 29, incarcerated at the Western Correctional Institution, died on November 28, 2012 after being severely beaten by another prisoner and transferred to an outside medical facility. Pridget was serving an 18-month sentence; his family said he was “unrecognizable” due to the injuries to his head and face.