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Prisoner Education Guide

Prison Legal News: August, 2013

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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 prisoner Conrad Black [PLN, Sept. 2012, p.1].

Jeff Deskovic was 16 years old when he was accused of raping and murdering a classmate, Angela Correa, in Peekskill, New York in November 1989. He was interrogated, polygraphed and threatened by the police for over 7 hours without his parents or an attorney present, and eventually "confessed" to the crime. [See: PLN, April 2011, p.18]. DNA testing revealed that the semen found in the victim's body was not his, yet he was prosecuted anyway based on his coerced confession, convicted of second-degree murder and first-degree rape, and sentenced to 15 years to life in 1991.

Jeff sought post-conviction relief but his appeals were denied; his attorney filed his habeas corpus petition four days late due to misinformation from the court clerk, which led to an appeal to the Second Circuit. Then-circuit court judge Sonia Sotomayor was on the panel ...

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), had increased 17% over the past five years from 10,659 to 12,460, while the BOP's overall population had increased 6% in the same time period.

BOP prisoners held in segregated housing are generally confined to their cells for 23 hours per day, for indeterminate lengths of time.

The GAO criticized the BOP for failing to consistently manage or implement its regulations uniformly from institution to institution and for not having adequate controls in place to address what the GAO termed "document deficiencies." The BOP was unable to show that it provided "minimum conditions of confinement and procedural protections" for segregated prisoners, or that it had implemented adequate computer systems to monitor its compliance with written procedures for segregated housing.

Human rights activists have long advocated the abolition of most forms of segregation based upon studies that show prolonged isolation "may have an adverse effect on the overall ...

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 years California prison officials, and their counterparts around the country, have embarked on a massive program to construct supermax facilities designed to physically isolate prisoners and mentally destroy them – a program that has been highly successful. It is not a coincidence that the rise of control units began in the 1970s as the federal courts imposed limits on the physical brutality and torture that U.S. prison officials could impose on prisoners.

As reported in this month's PLN and prior issues, prisoners have sought to protest this ongoing torture by the only means at their disposal, which is to refuse food. Never before have so many prisoners engaged in a hunger strike. Whether American prisoners have the wherewithal to starve themselves to death like Bobby Sands and the other 9 martyrs of the Provisional Irish Republican Army and the Irish National Liberation Army did in 1981 remains to be ...

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 resident, pleaded guilty to two counts of mail fraud in 2004 and was sentenced to probation and ordered to pay restitution.

Under federal immigration statutes the offense of mail fraud is considered an "aggravated felony," which meant Chaidez was subject to mandatory deportation. Her criminal defense attorney did not inform her of that fact when she pleaded guilty; she filed a petition for writ of coram nobis alleging ineffective assistance of counsel, and the Supreme Court issued its decision in Padilla while her appeal was pending.

The Supreme Court had previously held, in Teague v. Lane, 489 U.S. 288 (1989), that when the Court announces a "new rule" the rule is not retroactively applied to final convictions in habeas or similar proceedings. Thus, the government argued "that Chaidez could not benefit from Padilla because it announced a 'new rule' and, under Teague, such rules do not apply in collateral ...

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 appellate court entered its ruling in a case involving Michigan state prisoner Kenneth Ray Adkins, who argued that he was entitled to an adverse inference instruction because video and photographic evidence related to his 42 U.S.C. § 1983 excessive use of force claim against prison guard Basil Wolever had been lost by officials at the Ionia Maximum Correctional Facility.

Adkins claimed in his suit that Wolever had assaulted him "by yanking his hands through a slot in the cell door before removing his handcuffs." As a sanction for the missing video and photographic evidence, he asked the district court to instruct the jury that they could presume the evidence would have been favorable to him.

Applying Michigan law as required by Sixth Circuit precedent at the time, the court denied Adkins' request. The case went to trial and the jury returned a verdict in favor of Wolever. Adkins appealed ...

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 day locked alone in a windowless concrete cell. Aside from letters, he is denied all contact with the outside world. "Up until last year, nobody knew what I looked like back home."

Seventeen years.

On the outside, we package our time in smaller parcels. Our calendars split our days into half-hour segments. If I am two minutes late for my conference call, the people already on the line will need to make awkward small talk for approximately 1.5 minutes. On Facebook, you can find out that it was 33 minutes ago that your friend posted a picture of their powder-faced dog eating a donut, "about an hour" since another announced the advent of a "Complicated Relationship." And if it's been less than a minute since Truthout's last tweet about Pelican Bay, Twitter can break the time down for you in seconds.

In the SHUs, the markers are ...

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 her husband.

Tanner posted bond pending sentencing, but returned to jail when she failed a drug test on July 10, 2009. She was later sentenced to an indeterminate sentence of one to five years in prison.

Tanner moved to have her sentence reduced because her father was terminally ill. The circuit court granted the motion, suspended the remainder of her sentence and placed her on home confinement at her parents' residence.

After six months, Tanner requested release from home confinement. The court granted the motion on December 9, 2010, releasing Tanner from home confinement and placing her on court-supervised parole for two years. One of the parole conditions prohibited her from associating with convicted felons, including her husband.

Tanner appealed the circuit court's order.

West Virginia's Supreme Court rejected Tanner's argument that the trial court lacked authority to impose court-supervised parole. Based on its interpretation of the ...

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 the state should comply based on reports by experts who had previously examined available strategies.

Ominously, in its 51-page scathing opinion, the court merely "deferred" its previous threat to hold state officials – including Governor Jerry Brown – in contempt; the court did not put down the contempt hammer it was holding over their heads.

For the past three decades California has embarked on a continuous imprisonment binge. "Tough on crime" advocates of all stripes fanned the flames of prison construction, longer sentences (including the state's infamous "three strikes" law), fewer sentence reduction credits, low parole rates, gubernatorial veto power over lifer paroles and the widespread use of technical parole violations, all designed to keep every available prison bed filled.

Future growth projections for the California Department of Corrections and Rehabilitation (CDCR) looked like charts from a red hot Silicon Valley startup company – increasing exponentially. Something had to give, and it ...

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 the "Norfolk Four," who were charged with the 1997 rape and murder of another sailor's wife, Michelle Moore-Bosko. All had confessed under coercive questioning by a police detective, though their "confessions" were inconsistent and did not match evidence at the crime scene. The detective, Robert Glenn Ford, was subsequently convicted of extortion and making false statements to the FBI in an unrelated case and sentenced to 12 years in federal prison.

In 1999, Wilson was acquitted of murder but convicted of rape and sentenced to eight-and-a-half years in a Virginia state prison. The other three Norfolk Four defendants received life sentences. After serving seven years, Wilson was released and relocated to Texas.

New evidence, including the DNA of another man, Omar Ballard, who confessed to the rape and murder of Moore-Bosko, called the convictions of the Norfolk Four into question. See: Tice v. Johnson, 647 F.3d 87 (4th ...

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 for all prisoners (Ala. Code § 22-11A-17, 38 (2008)), but is silent as to the segregation of HIV+ prisoners. Regardless, for the past 25 years, ADOC policy has dictated that prisoners with HIV be housed separately from other prisoners, both inter- and intra-facility, regardless of their security classification.

Prisoners are classified as close custody, medium, minimum-in, minimum-out and minimum-community. Those five security levels are based on a multi-factor analysis that includes the prisoner's criminal history, past convictions, past violence, length of sentence and any pending charges.

Despite this classification system, all HIV+ prisoners are housed in four prisons. Male prisoners with HIV are housed at either the Limestone Correctional Facility (LCF) or Decatur Work Release/Community Work Center. Female HIV+ prisoners are held at the Julia Tutwiler Prison for Women or the Montgomery Women's Facility.

The centerpiece of the ADOC's segregation policy is that HIV+ prisoners housed at ...

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 of the other settlements were in the $5,000 to $50,000 range, according to a June 1, 2013 news report.

Some of the cases stemmed from sexual abuse claims. According to British Columbia prison spokesman Marnie Mayhew, such claims resulted from the "actions of one former corrections employee for sexual abuse that occurred over a period of time from 1980 to 1996."

Attorney Tonia Grace said the fact that prisoners have been obtaining settlements and lawyers are more willing to take such cases is a good sign, noting that "both the federal and provincial government – if they think they are going to lose – they try to settle." She noted that "assaults are the most common situations that inmates come to me for advice on."

According to Mayhew, "Any incidents of violence are not tolerated, and we take them very seriously. When incidents of violence do occur, Corrections charges the ...

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.

On July 10, 2013, the FCC held its first-ever workshop on prison phone rates at the agency's headquarters in Washington, DC. In front of a room packed with prison phone justice supporters, and with more than 170 watching the proceeding online, the case was firmly made: The current prison phone industry model of paying "commission" kickbacks to government agencies to secure monopoly contracts results in unacceptably high phone rates that negatively impact prisoners, their families and our communities. Thus, there is a compelling need for reform of the prison telephone industry, including a cap on the cost of prison phone calls.

The FCC workshop was led by Acting FCC Chairwoman Mignon Clyburn and included remarks by dignitaries such as U.S. Rep. Bobby Rush from Illinois and District of Columbia Congresswoman Eleanor Holmes Norton. The day-long event included three panel presentations by advocates for prison phone reform, officials with ...

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 in 2009 after the TDCJ prohibited prisoners from receiving certain books mailed by PLN. The banned books included Prison Masculinities, The Perpetual Prison Machine, Lockdown America, Soledad Brother and Women Behind Bars. [See: PLN, May 2010, p.8; Jan. 2010, p.38].

The TDCJ maintains a database of books which already have been mailed to Texas state prisoners; the database indicates whether the book was allowed or denied and, if denied, whether the denial was appealed. If a book is being denied for the first time or has previously been denied and the denial was not appealed, both the sender and intended recipient are notified and given an opportunity to appeal. If the denial was previously appealed, the sender is not notified and the recipient cannot appeal. The TDCJ's book database includes over 92,000 titles, of which more than 11,850 are banned.

When a book that is ...

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 a public servant. The trial court arraigned him in the chapel at the maximum-security French Robertson Unit, which serves as a branch courthouse for Jones County. Lilly filed a pretrial motion to transfer the trial proceedings to the courthouse in the county seat of Anson. His motion was denied.

Lilly pleaded guilty in exchange for a six-year sentence, then appealed the courthouse venue issue. The Court of Appeals upheld his conviction after finding he had failed to prove that anyone who wanted to attend the trial had been turned away from the prison. See: Lilly v. State, 337 S.W.3d 373 (Tex. App. 2011). Lilly filed a petition for discretionary review, which was granted.

The Court of Criminal Appeals found that a plea bargain hearing is a trial "within the meaning of the Sixth Amendment." It noted that the U.S. Supreme Court had held trials must be open ...

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 of $590,600 against one of the nurses and the defendants agreed to pay $1.69 million in attorney fees and costs.

The appeal concerned a Minnesota federal district court's denial of summary judgment on qualified immunity grounds to five nurses employed at the Ramsey County Correctional Facility (RCCF), in a lawsuit filed by Marchello McCaster. McCaster had entered RCCF on April 17, 2008 to serve a 56-day sentence on an assault charge.

Upon his arrival at RCCF, Nurse Nancy Mattson conducted an intake exam that noted McCaster had lost a significant amount of weight and had an elevated pulse rate, which in combination can be a sign of active TB. Mattson then administered a Mantoux test, which involves injecting a derivative of TB under the skin of the forearm; she did not have any further interaction with McCaster.

Two days later, McCaster saw Nurse Audrey Darling for a ...

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 mothballed equipment.

The arsenal of equipment that was bought to patrol the sprawling 400-acre Rikers complex included a fire truck, boats, Jet Skis, bicycles and scuba gear. The expansive collection of security equipment was part of the management policies of former Corrections Commissioner Bernard Kerik – who in 2010 received a four-year sentence for tax fraud and making false statements. [See: PLN, July 2010, p.48].

"He was all about image and a show of force, and that can have value, but if they call your bluff and you have nothing to fight with, you could be in trouble," a former jail supervisor stated.

In the 1990s, Kerik authorized the purchase of two surplus U.S. Army armored vehicles. One was fitted with a turret capable of shooting chemical grenades to disperse rioting prisoners, though it never worked as planned.

"They put it on a flatbed truck and paraded it in ...

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 by the Maryland DNA Collection Act (Act), Md. Pub. Saf. Ann. 2-504 et. seq., King's DNA was collected by rubbing a cotton swab (called a buccal swab) along the inside of his mouth.

Analysis of King's DNA matched a previously unknown DNA sample taken from the scene of an unsolved 2003 rape. King was subsequently convicted of that crime.

On appeal, Maryland's highest court, the Court of Appeals, overturned King's conviction, struck down part of the Act and held that King's "expectation of privacy is greater than the State's purported interest in using King's DNA to identify him." See: King v. State, 425 Md. 550, 42 A.3d 549 (Md. 2012). The state appealed.

On June 3, 2013, in a 5-4 decision that reversed the Maryland Court of Appeals, the Supreme Court held that "When officers make an arrest supported by probable cause ...

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 of the SPJ's annual First Amendment Award.

The Human Rights Defense Center (HRDC), the parent organization of Prison Legal News, is dedicated to protecting the human rights of people held in U.S. detention facilities.

PLN has been repeatedly censored by prisons and jails nationwide, resulting in PLN and HRDC filing numerous lawsuits to protect their rights under the First Amendment. Currently, ten state Departments of Correction are under court orders and/or consent decrees in PLN suits, as well as a number of county jails. [See, e.g., PLN, May 2010, p.8].

"The organization's advocacy and legal action has resulted in court victories for publishers and hundreds of thousands of prisoners all over the U.S.," the SPJ noted.

HRDC was nominated for the SPJ's First Amendment Award by Ian Urbina, Washington correspondent for the New York Times. Prior recipients of the award have included ...

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. Montgomery had been appointed to the Board in January; previously, he had served as a state representative for 14 years.

According to Project Vote Smart, several of the principles that Montgomery supported when he served as a legislator included "end parole for repeat violent felons," "strengthen penalties and sentences for drug-related crimes" and "strengthen penalties and sentences for sex offenders."

Although such positions appear to be inapposite and even biased for the chairman of the Board of Parole, Montgomery still appears to be more qualified than another recent Board appointee.

Effective July 16, 2013, Governor Haslam appointed former Bradley County Sheriff Timothy A. Gobble to fill the position of Board member Charles Taylor, who resigned earlier this year.

"Tim has demonstrated his commitment and responsibility throughout an extensive career in public service, and we are fortunate to have him on the Board of Parole," Haslam said. "For our parole board ...

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, all victims of heinous crimes that sparked high-profile campaigns aimed at creating "get tough on crime" legislation. Today you can go online to your state's Megan's Law website, where all convicted sex offenders are required to register, and probably find clusters of red dots on the map of your neighborhood, each dot representing an individual convicted of a sex crime. In California, approximately one of every 375 adults is a registered sex offender.

While some states have considered adopting public registries for other crimes – domestic violence, drug dealing, murder – so far sex offenders comprise the only class of criminals who are deemed to warrant this spe-cial treatment, despite scant evidence that it is effective at reducing sexual assault. [Ed. note: There are in fact some registries for other types of offenders, including people convicted of certain violent and drug-related crimes. See: PLN, April 2012, p.30 ...

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 9,000-solar panel array that produces 1.2 megawatts of electricity, as well as a 1 megawatt molten carbonate fuel cell, five small wind turbines and a second 1,100-solar panel system.

The Santa Rita Jail and Alameda County partnered with Chevron Energy Solutions to cut utility costs and receive a U.S. Department of Energy grant that enabled the jail to upgrade its power system with the microgrid, which will let the facility remove itself from the state's electrical grid in case of a blackout.

According to Alameda County Sheriff Greg Ahern, the new system will cut the jail's utility bills by charging its 4 megawatt battery storage units at night, when electricity from the grid costs less, and then use some of that stored energy in the afternoon when power prices peak. "It lowers our cost, it gives us a redundancy system in place, and it sends ...

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 match of DNA markers between the crime scene evidence and a suspect can exclude the person from a list of suspects. However, genetic evidence is also used by prosecutors to prove guilt. It is this use of genetic evidence that produces a risk of wrongful conviction of innocent persons.

The great potential of genetic evidence to lead to injustice has to do with statistics. In the case of proving innocence, no statistical assumptions are required. If there is a lack of a match of DNA markers between the suspect and the crime scene evidence, there is no need for statistical analysis. However, when genetic evidence is used to prove guilt, there is a need for a statistical analysis with an accompanying need for statistical assumptions. If the statistical assumptions are incorrect, the results of the statistical analysis are also incorrect and unreliable, and can lead to wrongful convictions.

In order ...

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 of parole.

Martin A. Roman, a Pennsylvania state prisoner, was convicted of murder and sentenced to 15-30 years. He was paroled after serving 15 years, but eight years later was convicted of indecent assault and corruption of a minor and sentenced to 16-32 months in prison. His parole from his murder conviction was also revoked with loss of street time.

The Pennsylvania Board of Probation and Parole required Roman to participate in an SOTP program. Roman refused to participate on the grounds that the SOTP required him to admit his guilt, and such an admission would have jeopardized his then-pending appeal of the sex charges. Roman was denied parole multiple times with the Board citing, among other reasons, his refusal to participate in SOTP.

Roman filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court, alleging that the Board ...

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 inguinal hernia that was diagnosed by Dr. Seth Osafo, employed by Wexford Health Sources, a for-profit company that provides medical care to Illinois state prisoners. An inguinal hernia is when the intestines or bladder protrudes through a weak spot in the surrounding muscles of the abdominal wall near the groin.

Over the next five months, Cotts requested surgery for his painful hernia 16 times, claiming that the "pain was interfering with his ability to walk, sleep, and use the restroom."

Medical staff "treated his hernia by 'reducing' it, that is, by manually shoving it back into Cotts's abdomen." This extremely painful procedure provided only temporary relief, because "when he returned to a seated position, the hernia would pop right back out."

Dr. Osafo told Cotts that "no matter how much he complained of the pain," he would not receive surgery because the hernia was reducible. Cotts was released on ...

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 to cash in on the prison industrial complex boom. With the tide turning in the need for bed space, the Two Rivers Authority "tried everything they knew and everything possible to fill [the jail], and nothing has worked," said Hardin Mayor Joseph V. Koebbe.

Those efforts included trying to import prisoners from Vermont and Alaska, and offering to house sex offenders. The desperation to lease the jail beds almost resulted in officials turning the facility over to a convicted con artist who wanted to use it for a military training camp in an elaborate scam. [See: PLN, Dec. 2009, p.1]. Things got so bad that Hardin officials unsuccessfully tried to house terrorism suspects from the U.S. military prison in Guantanamo Bay, Cuba. [See: PLN, Oct. 2009, p.28].

To build the jail, Two Rivers issued $27 million in bonds through Capital Markets Group, Inc., a Texas company. The ...

"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 18 U.S.C. § 1791(a)(2). Due to his possession of the shank, which the district court determined was a "crime of violence," Mobley was found to be a career offender under Section 4B1.1 of the Sentencing Guidelines.

Mobley, incarcerated for heroin-related offenses and being a felon in possession of a firearm, was caught with a homemade shank while in the infirmary at FCI Butner. Mobley's Presentence Investigation Report found that based upon his criminal history and offense level, he should be considered a "career offender" because he was at least 18 years old, his current offense was a felony "that is either a crime of violence or a controlled substance offense," and he had at least two prior felony convictions involving a crime of violence or a drug-related offense.

As a career offender, his sentence for possession of the shank was substantially increased. He appealed and ...

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 Anthony Wheeler filed a civil rights complaint in September 2011, alleging that officials at the Pinckneyville Correctional Center, including staff employed by Wexford Health Sources, had ignored his severe, ongoing pain stemming from his hemorrhoids. "Documents submitted with the complaint show he is not fantasizing," the Seventh Circuit wrote.

Wheeler had moved the district court for a preliminary injunction, seeking surgery for his serious medical condition – a recommendation that had been endorsed by two physicians. He also asked the court to appoint counsel for him.

The district court did not act on either motion, nor conduct a preliminary screening pursuant to 28 U.S.C. § 1915A. Wheeler filed a second and third motion for a preliminary injunction which the district court denied in a terse order, concluding that "federal courts must exercise equitable restraint when asked to take over the administration of a prison, something that is best left to ...

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 Elsa Guadalupe-Gonzalez, 24, both Guatemalan nationals, three days apart at the Corrections Corporation of America-operated facility, focused attention on for-profit companies housing immigration detainees.

According to Alessandra Soler, executive director of the ACLU of Arizona, "Suicides are a red flag. They usually signify a much larger problem. Sometimes it's because of ineffective mental health treatment, but often times it's caused by poor staffing issues."

Prison Legal News has reported extensively on human rights abuses in private immigration detention facilities, as well as the fact that private prison firms lobby on immigration-related issues and have been implicated in Arizona's enactment of a harsh anti-immigrant law, SB 1070. [See, e.g., PLN, July 2013, p.1; Nov. 2010, p.1]. Around half of the approximately 34,000 immigration detainees held in ICE custody at any given time are housed in privately-operated prisons.

Unfortunately, the rapid expansion of the immigration ...

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 recaptured a few days later. In 1984 he made parole, but was re-incarcerated in 1986 on a new robbery charge. Of Texas' approximately 166,000 state prisoners, he has served the most amount of time – close to 60 years in total.

Stewart was one of the longest-serving prisoners in the country. New York has kept James Moore, 78, in prison since he was convicted of murder in 1963. California prisoner Booker Hillery, 82, was first convicted of rape in 1955, then returned to prison in 1962 after being convicted of murder while on parole. Norman Parker, Florida's longest-serving prisoner, has been behind bars since 1967.

Stewart still recalls how he robbed brothels in Southwest Texas in his youth. He was also shot, and murdered a man in what he claims was self-defense. But he doesn't romanticize about the consequences of his criminal past.

"Imagine that, sixty years down ...

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 maximum term of 45 years in prison, with parole eligibility "after serving one-third of the maximum period, minus any good-time credits." In 1993 the District of Columbia had its own parole board which applied 1987 parole regulations. In 1997, however, Congress placed the DC parole system under the jurisdiction of the U.S. Parole Commission (USPC). Three years later, the USPC adopted its own rules governing parole suitability which were applied retroactively to offenders like Taylor.

The USPC held Taylor's first parole hearing in 2001 and applied its 2000 regulations to deny him parole. In 2005, Taylor was again denied parole based on the USPC's 2000 regulations.

Taylor filed a federal habeas corpus petition under 28 U.S.C. § 2241, relying upon Garner v. Jones, 529 U.S. 244 (2000) [PLN, June 2000, p.5] to assert that the USPC's retroactive application of its 2000 regulations at ...

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 of Corrections as defendants, alleging that his cell was infested with mice and cockroaches, and rain infiltrated his cell through a broken window pane, in violation of the Eighth Amendment.

The district court dismissed the action, finding the defendants were immune from suit under the Eleventh Amendment. The court further held "that the plaintiff's complaint failed to allege any harm." Thomas appealed.

The Seventh Circuit upheld the district court's determination that the Eleventh Amendment barred the com-plaint. "The plaintiff could have avoided ... the ... bar by naming individuals as defendants rather than just a state and an agency of the state," the appellate court explained, "but he failed to do that."

Although the suit was barred due to Eleventh Amendment immunity, the Court of Appeals wrote "to correct the [district court] judge's apparent assumption that creation of a mere hazard to health, as opposed to an actual impairment ...

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 near Monterrey, and involved as many as 1,500 prisoners from two cell blocks. Prisoners set their mattresses on fire during the disturbance.

State public security spokesman Jorge Domene Zambrano said that while prison officials were counting the dead they discovered that some prisoners were missing.

He noted that the two-hour riot involved the Gulf and Los Zetas cartels, which were once the same organization before splitting in 2010. The rivalry has since turned Monterrey into the epicenter of drug cartel violence in Nuevo Leon.

Members of both cartels were incarcerated at the maximum-security Apodaca prison, though they were usually segregated. Investigators suspected that the guards on duty at the time of the riot might have been involved. All of the guards, along with the prison director, the director of security and a supervisor, were held for questioning.

According to Nuevo Leon Governor Rodrigo Medina, 16 guards confessed to helping ...

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 weekly program. Matthews had appeared on the show – which discusses prison-related issues and provides a forum for messages from prisoners' families – for three weeks prior to the station's decision to exclude him.

Matthews was a well-known local conservative talk show host on AM stations KPRC and KSEV prior to pleading guilty to a charge of indecency with a child for exposing himself to an eleven-year-old girl in 2004. He received probation, which was revoked in 2007 after he reportedly used alcohol, viewed obscene material and was removed from sex offender counseling. He then served three years in prison.

Although "surprised and flattered" when Babb asked him to co-host the Prison Show in mid-2012, Matthews warned that his political beliefs might cause problems at the progressive radio station.

"I cautioned him that I came with a lot of heat, and I am sorry that this has developed to where he ...

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 Savoy was convicted of simple escape in January 2007, in connection with an incident in which he and another prisoner, Jacob Shaw, had been transported to a hospital in a van and Shaw tried to run away. Shaw claimed that he and Savoy had planned to escape together, but Savoy backed out at the last minute and "fed [him] to the wolves."

At sentencing, the trial court considered Savoy's 13 prior felony convictions and an aggravating factor that he "had (in the court's opinion), lied in his testimony at trial in which he denied any complicity in the escape." The court then sentenced him to the maximum term of five years' imprisonment at hard labor to be served consecutive to his existing sentence.

Following an appeal to the Third Circuit, Savoy's conviction and sentence were reversed on grounds that the trial court had improperly precluded the defense ...

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 Appeals subsequently dismissed the case as moot after state officials restored the petitioner's good-conduct credits.

The Illinois Department of Corrections (IDOC) is authorized to revoke up to 180 days of a prisoner's good-conduct credits if, during the course of litigation against the state, the IDOC, the Prisoner Review Board or officers or employees thereof, "the court makes a specific finding that a pleading, motion, or other paper filed by the prisoner is frivolous," pursuant to 730 ILCS 5/3-6-3(d).

In February 2001, Dixon Correctional Center prisoner Paul Eichwedel filed a federal lawsuit against twenty-three IDOC officials. On initial screening, the district court allowed Eichwedel to proceed in forma pauperis.

Several months later the defendants moved to dismiss for failure to state a claim and Eichwedel moved for sanctions on the mistaken belief that the court had determined upon initial screening he had stated a claim. Eichwedel then ...

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 Correctional Facility on January 16, 2008 when another prisoner, Travis Lang, was slashed across the face by an assailant who attacked him from behind. Sixty-eight other prisoners were on the yard at the time.

Lang initially said he didn't know who had attacked him. Later, Molano was charged with the slashing in a prison disciplinary proceeding after Lang allegedly identified him from a photo spread of all the prisoners on the yard.

Lang refused to testify in a Tier III disciplinary proceeding held by Hearing Officer Jose Pico. Guard J. Wright testified that immediately after the attack, Lang told him he did not know who assaulted him. Another prisoner testified that he was talking to Molano when the attack occurred. Sgt. Levac testified that he had witnessed Lang identify Molano from the photo spread.

Molano was found guilty and sentenced to 36 months in the Special Housing Unit (SHU ...

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 estate business and did not have a serious criminal record.

Atencio was arrested and booked into the jail on an assault charge on December 16, 2011. According to the Maricopa County Sheriff's Office (MCSO), he became combative while at the downtown Fourth Avenue jail and was placed naked in a "safe cell." Fifteen minutes later he was found unresponsive.

Atencio was transported to a hospital where, on December 21, he was taken off life support after his family was told he had no brain activity. There were no signs that he had consumed drugs or alcohol, but his body was bruised and had marks from a stun gun resulting from his altercation with jail deputies.

Phoenix attorney Michael Manning, who has won five wrongful death lawsuits against the MCSO, was retained to represent Atencio's family in a wrongful death suit filed on October 23, 2012. He stated Atencio ...

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 foreign languages during visits, according to Chesa Boudin, a federal public defender in San Francisco and co-author of a Yale University study on prison visitation. [See: PLN, May 2013, p.1].

According to the Utah Department of Corrections (DOC), approximately one-fifth of the state's prison population is Hispanic. John Mejia, legal director of the American Civil Liberties Union of Utah, said that for many years his office had received a steady stream of complaints about the English-only visitation policy. Utah has many Spanish-speaking prisoners as well as others whose families speak Pacific Islander and Native American languages, he noted.

The policy change was initiated by the Utah DOC's new director, Rollin E. Cook, who took over in April 2013 and agreed to make the change after meeting with ACLU officials. The English-only rule had been in place for decades as a "safety measure" so guards could monitor prisoner-visitor ...

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 filed in their names. Tax refunds issued by the IRS were cashed by Walton. They face one count each of conspiracy plus several counts of aggravated identity theft, wire fraud and theft of government funds.

California: A follower of Charles Manson, accused of attempting to smuggle a cell phone to the notorious cult leader, was arrested on March 26, 2013. Craig Hammond, 63, was caught with a wristwatch cell phone while being searched prior to a planned visit with Manson. Hammond, who goes by Gray Wolf, had moved close to Corcoran State Prison to be near Manson and visits him regularly. Manson has twice been caught with contraband cell phones, once in 2009 and again in 2011.

California: On March 14, 2013 a brief riot broke out in the B Facility Yard at Kern Valley State Prison, sending 10 prisoners to hospitals with stab wounds. Three were listed in critical ...

 

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