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Prison Legal News: August, 2013

Issue PDF
Volume 24, Number 8

In this issue:

  1. An Innocent Man Speaks: PLN Interviews Jeff Deskovic (p 1)
  2. Report: BOP Fails to Monitor Effects, Conditions of Segregated Housing (p 15)
  3. From the Editor (p 16)
  4. Supreme Court Holds Padilla Not Retroactive (p 16)
  5. Sixth Circuit Addresses Spoliation Sanction Standard (p 17)
  6. Please Stop "Reforming" Pelican Bay (p 18)
  7. West Virginia Court-Supervised Parole and Condition Barring Association with Spouse Upheld (p 19)
  8. Federal Court Orders California to Release 9,600 More Prisoners (p 20)
  9. Fourth Circuit: Sex Offender Registration Not "Custody" for Section 2254 Jurisdiction (p 22)
  10. Federal Court Rules Against Alabama DOC in Class-action HIV Discrimination Suit (p 24)
  11. Canadian Prisoners Receive $3.5 Million in Settlements (p 25)
  12. HRDC Invited to Speak at Unprecedented FCC Workshop on Prison Phone Rates (p 26)
  13. Fifth Circuit Upholds Dismissal of PLN's Censorship Suit Against TDCJ (p 28)
  14. Trial Held in Texas Prison Courtroom Not Open to the Public (p 29)
  15. Qualified Immunity Denied to Nurses who Ignored Prisoner's Symptoms of Active TB; $2.28 Million in Damages, Fees and Costs on Remand (p 30)
  16. Millions in Security Equipment Wasted at Rikers Island (p 30)
  17. Supreme Court Upholds DNA Collection as Part of Jail Booking Procedures (p 32)
  18. HRDC Receives First Amendment Award (p 34)
  19. New Tennessee Parole Board Members have Apparent Bias Against Granting Parole (p 34)
  20. No Justice: Sex Offenses, No Matter How Minor or Understandable, Can Ruin You for Life (p 36)
  21. California Jail Installs New Microgrid to Cut Energy Costs (p 39)
  22. Genetic and DNA Evidence: The Emperor Has No Clothes (p 40)
  23. Third Circuit: Requiring Admission of Guilt to Participate in Mandatory-for-Parole SOTP Not a Fifth Amendment Violation (p 41)
  24. Seventh Circuit Remands Illinois Prisoner's Hernia Case for New Trial (p 42)
  25. Montana Town Gives up on Failed Jail Venture (p 42)
  26. "Mere Possession" of a Prison Shank Constitutes a "Crime of Violence" (p 44)
  27. Seventh Circuit Remands Case Concerning Treatment of Prisoner's Hemorrhoids (p 44)
  28. Suicides at CCA-run ICE Detention Center Spark Investigation (p 46)
  29. Longest-Serving Texas Prisoner Makes Parole; Other Long-term Prisoners Not so "Lucky" (p 46)
  30. DC Circuit: Qualified Immunity for Retroactive U.S. Parole Commission Regulations (p 48)
  31. Seventh Circuit: Health Hazard without Physical Injury Can State a Claim (p 48)
  32. Mexican Prison Guards Implicated in Deadly Riot (p 49)
  33. Blowup at KPFT Radio's "Prison Show" in Texas (p 50)
  34. Louisiana Supreme Court Reverses Sentence for Escape, but Sentence Affirmed on Remand (p 50)
  35. Seventh Circuit Asks Illinois Supreme Court to Interpret "Frivolous" Litigation Statute (p 52)
  36. New York Federal Court Finds Victim's Hearsay Accusation Insufficient in Prison Disciplinary Case; Suit Settles for $67,000 (p 54)
  37. Jail Detainee Dies after Altercation with Deputies at Arizona Jail (p 54)
  38. Utah DOC Ends "English Only" Visitation Requirement (p 55)
  39. News in Brief (p 56)

An Innocent Man Speaks: PLN Interviews Jeff Deskovic

On April 9, 2013, Prison Legal News editor Paul Wright sat down with Jeffrey Deskovic as part of PLN's ongoing series of interviews concerning our nation's criminal justice system. Previously, PLN interviewed famous actor Danny Trejo [PLN, Aug. 2011, p.1] and millionaire media mogul and former federal ...

Report: BOP Fails to Monitor Effects, Conditions of Segregated Housing

In May, 2013, the U.S. Government Accountability Office (GAO) issued a report critical of the federal Bureau of Prisons' (BOP) use of segregated housing. The report found that the percentage of prisoners held in segregated housing, including Special Housing Units (SHUs), Special Management Units (SMUs) and Administrative Maximum (ADX ...

From the Editor

As I write this month's editorial, prisoners in California are staging the largest hunger strike and food boycott in U.S. history to protest the California prison system's policy and practice of indefinite solitary confinement for thousands of prisoners spanning years and even decades.

For the past 40 ...

Supreme Court Holds Padilla Not Retroactive

In Padilla v. Kentucky, 130 S.Ct. 1473 (2010) [PLN, Aug. 2010, p.11], the U.S. Supreme Court held that attorneys have an obligation to advise their non-citizen clients that they face the collateral consequence of deportation if they plead guilty to a felony.

Roselva Chaidez, a non-citizen permanent ...

Sixth Circuit Addresses Spoliation Sanction Standard

In holding that the determination of a spoliation sanction should be left to the discretion of the district court, considering the facts of each case individually, the Sixth Circuit Court of Appeals held it would not upset a district court's decision unless it constituted an abuse of discretion.

The ...

Please Stop "Reforming" Pelican Bay

Please Stop "Reforming" Pelican Bay

by Maya Schenwar

"I took my first photograph last November. That's one picture in 17 years," Pelican Bay prisoner Jimmy Flores writes to me. He lives in the California prison's Secure Housing Units (SHUs) – solitary confinement – where he passes 22.5 hours per ...

West Virginia Court-Supervised Parole and Condition Barring Association with Spouse Upheld

West Virginia's Supreme Court has upheld a circuit court's authority to impose court-supervised parole, and affirmed a parole condition that barred a parolee's association with convicted felons – including her spouse.

On June 9, 2009, Karen Tanner pleaded guilty to state drug charges related to manufacturing methamphetamine with ...

Federal Court Orders California to Release 9,600 More Prisoners

by John E. Dannenberg

On June 20, 2013, a plainly frustrated three-judge federal court not only told California officials that they shall comply with the court's prior order to reduce the state's prison population to 137.5% of design capacity by December 31, 2013, but also suggested how ...

Fourth Circuit: Sex Offender Registration Not "Custody" for Section 2254 Jurisdiction

Fourth Circuit: Sex Offender Registration Not "Custody" for Section 2254 Jurisdiction

On August 15, 2012, the Fourth Circuit held that sex offender registration requirements do not amount to being "in custody" for purposes of invoking federal habeas corpus jurisdiction.

Eric C. Wilson was one of four young Navy sailors, dubbed ...

Federal Court Rules Against Alabama DOC in Class-action HIV Discrimination Suit

On December 21, 2012, an Alabama federal district court entered judgment in a class-action lawsuit against the Alabama Department of Corrections (ADOC), finding that the ADOC engaged in discrimination by segregating HIV+ prisoners in violation of the Americans with Disabilities Act (ADA) and Rehabilitation Act.

Alabama law requires HIV testing ...

Canadian Prisoners Receive $3.5 Million in Settlements

Thirty-four prisoners in the Canadian province of British Columbia have obtained a total of $3.5 million in settlements from the government between January 2008 and March 2012. The largest settlement, for a prisoner's traumatic brain injury resulting from an assault by another prisoner, was $2.64 million. Most ...

HRDC Invited to Speak at Unprecedented FCC Workshop on Prison Phone Rates

It has been over 10 years since Martha Wright, a grandmother who filed a lawsuit challenging the high cost of prison phone calls, began trying to reform the prison telecom industry. Now, with more support than ever, advocates are asking the Federal Communications Commission (FCC) to make the "Wright" decision ...

Fifth Circuit Upholds Dismissal of PLN's Censorship Suit Against TDCJ

by Matt Clarke

In a rare litigation loss for Prison Legal News, the Fifth Circuit Court of Appeals upheld the dismissal of a lawsuit challenging the Texas Department of Criminal Justice's (TDCJ) censorship of books distributed by PLN.

PLN filed a 42 U.S.C. § 1983 civil rights action ...

Trial Held in Texas Prison Courtroom Not Open to the Public

The Texas Court of Criminal Appeals has ruled that a plea hearing in a criminal case held in a prison chapel was not open to the public, and thus violated the defendant's Sixth Amendment rights.

Conrad Lilly, a Texas state prisoner, was charged with two counts of assault on ...

Qualified Immunity Denied to Nurses who Ignored Prisoner's Symptoms of Active TB; $2.28 Million in Damages, Fees and Costs on Remand

The Eighth Circuit Court of Appeals held on July 12, 2012 that a former prisoner had presented sufficient evidence against three nurses to overcome qualified immunity in a lawsuit that claimed he was denied necessary medical treatment for an active tuberculosis (TB) infection. Following remand, a jury entered a verdict ...

Millions in Security Equipment Wasted at Rikers Island

When officials at New York City's Rikers Island jail complex closed the facility's harbor and bike patrol units, and gutted staff in emergency services and firefighting units, they were trying to deal with budget cuts. Yet insiders said the move resulted in millions of wasted dollars due to ...

Supreme Court Upholds DNA Collection as Part of Jail Booking Procedures

The U.S. Supreme Court has paved the way for DNA collection and analysis to become as routine a part of the jail booking process as fingerprinting and mug shots.

In 2009, Maryland police arrested Alonzo King for menacing people with a shotgun. As part of the booking procedure authorized ...

HRDC Receives First Amendment Award

On July 25, 2013, the Society of Professional Journalists (SPJ), a national organization dedicated to encouraging the free practice of journalism, upholding high standards of ethics in that field and protecting First Amendment guarantees of freedom of speech and the press, announced the Human Rights Defense Center was the recipient ...

New Tennessee Parole Board Members have Apparent Bias Against Granting Parole

Tennessee Board of Parole Chairman Charles Traughber, who had served almost four decades on the Board and had a reputation for ruling it with an iron hand, retired in June 2013. To fill Traughber's vacant position, Governor Bill Haslam selected Board member Richard Montgomery, 66, to serve as chairman ...

No Justice: Sex Offenses, No Matter How Minor or Understandable, Can Ruin You for Life

Why do we treat the most predatory and dangerous criminals the same as those who are not?

by Charlotte Silver

The collection of laws and restrictions that regulate people categorized as "sex offenders" has been punctuated by names such as Megan, Jessica and Adam. These are the names of children ...

California Jail Installs New Microgrid to Cut Energy Costs

California Jail Installs New Microgrid to Cut Energy Costs

by Derek Gilna

The Santa Rita Jail in Alameda County, California has installed an $11.7 million "microgrid" system to help power the 4,000-bed facility, which is the fifth-largest jail in the nation. Previously, the jail had installed a 9 ...

Genetic and DNA Evidence: The Emperor Has No Clothes

by Ernest P. Chiodo, M.D., J.D., M.P.H., M.S., M.B.A., C.I.H.

Genetic evidence in the form of DNA profiles has proven to be a powerful tool in the advance of justice by proving the innocence of accused persons. The lack of a ...

Third Circuit: Requiring Admission of Guilt to Participate in Mandatory-for-Parole SOTP Not a Fifth Amendment Violation

by Matt Clarke

The Third Circuit Court of Appeals has held that requiring an admission of guilt to participate in an in-prison sex offender treatment program (SOTP) did not violate the Fifth Amendment's prohibition against compulsory self-incrimination, even if refusal to participate in the SOTP was grounds for denial ...

Seventh Circuit Remands Illinois Prisoner's Hernia Case for New Trial

The Seventh Circuit Court of Appeals held on August 10, 2012 that a district court's jury instructions concerning deliberate indifference in a prisoner's lawsuit were misleading and prejudicial, and therefore required a new trial.

In November 2004, Illinois River Correctional Facility prisoner Peter Cotts suffered a painful, two-inch ...

Montana Town Gives up on Failed Jail Venture

Two Rivers Authority in Hardin, Montana has decided to throw in the towel on a 464-bed jail the city built with hopes of renting out its cells. Rather than spur economic development, the facility has been an economic disaster.

The 92,273-square-foot Two Rivers Detention Facility was constructed in 2007 ...

"Mere Possession" of a Prison Shank Constitutes a "Crime of Violence"

"Mere Possession" of a Prison Shank Constitutes a "Crime of Violence"

by Derek Gilna

In 2010, federal prisoner Jermaine Mobley was sentenced to 37 months by the U.S. District Court for the Eastern District of North Carolina for possessing a shank – a prohibited object in prison as defined by ...

Seventh Circuit Remands Case Concerning Treatment of Prisoner's Hemorrhoids

On July 23, 2012, after expediting a prisoner's appeal, the Seventh Circuit Court of Appeals ordered the district court to likewise act promptly following remand. The appellate court said such action was necessary because the plaintiff was experiencing "excruciating pain" due to his golf ball-sized hemorrhoids.

Illinois state prisoner ...

Suicides at CCA-run ICE Detention Center Spark Investigation

Human rights organizations monitoring complaints regarding conditions of confinement for prisoners held in Immigration and Customs Enforcement (ICE) facilities were likely not surprised when they received news that two detainees had committed suicide at the Eloy Detention Center outside Phoenix, Arizona. The April 2013 deaths of Jorge Garcia-Mejia, 40, and ...

Longest-Serving Texas Prisoner Makes Parole; Other Long-term Prisoners Not so "Lucky"

Longest-Serving Texas Prisoner Makes Parole; Other Long-term Prisoners Not so "Lucky"

Harvey Stewart, 83, first entered the Texas prison system in 1951 to serve a 10-year stint for robbing a junk yard. Paroled six years later, he returned in 1958 following a murder conviction. Stewart escaped in 1965 and was ...

DC Circuit: Qualified Immunity for Retroactive U.S. Parole Commission Regulations

The Court of Appeals for the District of Columbia (DC) Circuit has affirmed a district court's grant of qualified immunity to U.S. Parole Commission officials related to the retroactive application of parole regulations.

In 1993, Melvin Taylor was convicted of criminal charges in DC and sentenced to a ...

Seventh Circuit: Health Hazard without Physical Injury Can State a Claim

On September 27, 2012, the Seventh Circuit Court of Appeals upheld the dismissal of a prisoner's lawsuit, but noted that seemingly de minimis harm from a vermin infestation may state a cognizable claim.

Illinois prisoner Calvin Thomas filed suit in federal court naming the state and the Illinois Department ...

Mexican Prison Guards Implicated in Deadly Riot

Investigators in Monterrey, Mexico believe that prison guards assisted members of a drug cartel in staging a riot – which killed 44 prisoners – as part of an escape plan.

The riot occurred early in the morning on February 19, 2012 at a Nuevo Leon state prison in the city of Apodaca ...

Blowup at KPFT Radio's "Prison Show" in Texas

Blowup at KPFT Radio's "Prison Show" in Texas

David Babb, the host of Houston Pacifica Foundation radio station KPFT's well-known "Prison Show," resigned in protest of the station management's decision to prohibit him from having former radio talk show host Jon Matthews serve as co-host for the ...

Louisiana Supreme Court Reverses Sentence for Escape, but Sentence Affirmed on Remand

The Louisiana Supreme Court reversed an appellate court that found excessive a sentence which was twice as long as the original sentence imposed prior to a successful appeal, but remanded the case for consideration of whether the second sentence violated due process for being vindictive.

Winn Correctional Center prisoner Courtney ...

Seventh Circuit Asks Illinois Supreme Court to Interpret "Frivolous" Litigation Statute

Seventh Circuit Asks Illinois Supreme Court to Interpret "Frivolous" Litigation Statute

In an August 29, 2012 decision, the Seventh Circuit Court of Appeals asked the Illinois Supreme Court to interpret a state law that authorizes the revocation of prisoners' good-conduct credits for engaging in frivolous litigation. However, the Court of ...

New York Federal Court Finds Victim's Hearsay Accusation Insufficient in Prison Disciplinary Case; Suit Settles for $67,000

by Matt Clarke

A New York federal District Court has held that prison officials were liable for convicting a prisoner in a disciplinary proceeding based solely on a victim's uncorroborated hearsay statement.

Carl E. Molano, a New York state prisoner, was on the recreation yard at the Five Points ...

Jail Detainee Dies after Altercation with Deputies at Arizona Jail

A man who was assaulted by deputies after being booked into the Maricopa County Jail in Phoenix, Arizona died after being taken off life support.

Ernest "Marty" Atencio, 44, was a divorced Army veteran with three sons aged 15, 16 and 21. He was working in his family's real ...

Utah DOC Ends "English Only" Visitation Requirement

Utah DOC Ends "English Only" Visitation Requirement

by Christopher Zoukis

As of August 1, 2013, Utah state prisoners are able to talk to their visitors in languages other than English, reversing a longstanding policy.

The change puts an end to the nation's only state prison system rule that forbids ...

News in Brief

Alabama: Alabama Department of Corrections guard Bryant Thompson and former guard Quincy Walton are the subjects of a 29-count indictment unsealed on March 8, 2013, charging them with federal tax crimes. They are accused of a scheme in which Thompson obtained prisoners' Social Security numbers and had false tax returns ...