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Prisoner Education Guide

Prison Legal News: January, 2014

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Volume 25, Number 1

In this issue:

  1. American Apartheid: Why Scandinavian Prisons Are Superior (p 1)
  2. Sweden’s Shrinking Prison Population (p 9)
  3. From the Editor (p 10)
  4. Mangaung and Beyond: Private Prison Exemplifies South Africa’s Criminal Justice Woes (p 12)
  5. Hidden Agenda Fuels Challenge to Pivotal Death Penalty Case (p 14)
  6. Seventh Circuit: Lifetime Supervision in Pornography Case Set Aside (p 16)
  7. Pennsylvania Woman Jailed for Failure to Pay Parking Tickets (p 16)
  8. Controversy, Litigation and Performance Problems Plague Private Probation Services (p 18)
  9. Task Force Linked to Harsh Sentencing Laws and Private Prison Firms Disbands Following Public Scrutiny, Boycott (p 22)
  10. East Mississippi Prison Nightmare (p 24)
  11. Massachusetts Supreme Court: 90 Days in Segregation on Awaiting Action Status without Hearing Violates Due Process (p 26)
  12. Washington Defendant Improperly Denied Transcript at State Expense (p 27)
  13. Programs Proliferate for Incarcerated Veterans (p 28)
  14. Arizona TV Reporter Blames Prisoners for Citizens’ Lack of Healthcare (p 30)
  15. Study: Risk of Murder, Overdose and Suicide Higher for Recently Released Jail Prisoners in New York City (p 31)
  16. California Parole Board Agrees to Implement Policy to Fix Terms at Lifers’ Initial Hearings (p 32)
  17. How Actions by Oklahoma Governor’s Staff Led to Weakened State Justice Reforms (p 34)
  18. Failure to Protect New Jersey Jail Detainee Leads to Drastic Bail Reduction (p 37)
  19. Top Texas Judge Breaks the Law but Gets Special Treatment (p 38)
  20. New York Prisoner Awarded Almost $16 Million Due to Poor Medical Treatment (p 38)
  21. Director of Victims’ Rights Group Sent to Prison for Embezzlement (p 40)
  22. Study Finds Prisoners Inappropriately Using Topical Antibiotics (p 40)
  23. Connecticut Guards File Grievances over Efforts to Stem Super Bowl Absenteeism (p 42)
  24. PLN Challenges Postcard-only Policy at Florida Jail (p 42)
  25. Shareholder Resolutions Seek to Lower Phone Rates at Private Prisons (p 44)
  26. Unwanted Reprieve from Execution Upheld by Oregon Supreme Court (p 44)
  27. Massachusetts Supreme Court: Failure to Register Guilty Plea Vacated (p 45)
  28. No Immunity for Detainee’s Death Due to Alcohol Withdrawal; $1.23 Million Settlement on Remand (p 46)
  29. Tenth Circuit: FRAP 4(b) Clock Commences Upon Entry in Public Docket (p 46)
  30. FCC Rate Caps on Prison Phone Calls to Impact Nevada DOC’s Budget (p 47)
  31. SC Supreme Court Reverses Furtick; No Liberty Interest in Opportunity to Earn Sentence-Reduction Credits (p 48)
  32. Religious Diet Qualified Immunity Test Outlined by Seventh Circuit (p 48)
  33. Multiple Convictions, Single Proceeding Triggers Alaska Lifetime Sex Offender Registration (p 49)
  34. Oregon: Life Sentence for Murder Unconstitutional During Eight-Month Period in 1999 (p 50)
  35. Seventh Circuit Affirms Dismissal of Prisoner's Law Library Access Claim (p 50)
  36. Ninth Circuit: Budgetary Constraints May Excuse Deliberate Indifference to Prisoner’s Serious Medical Needs; En Banc Review Granted (p 52)
  37. Tenth Circuit Orders Foreseeability Jury Determination for Detention by New Mexico DOC Employees (p 52)
  38. Ninth Circuit: No Summary Judgment on Claim of Excessive Use of Pepper Spray (p 54)
  39. Oregon: Jury Trials Required When Prosecutors Treat Misdemeanors as Violations (p 54)
  40. Res Judicata Doesn't Bar Ohio Post-release Control Challenge (p 55)
  41. Hawaii: Incarceration is Good Cause for Failure to Appear; Bail Forfeiture Set Aside (p 55)
  42. News in Brief (p 56)

American Apartheid: Why Scandinavian Prisons Are Superior

“Open” prisons, in which detainees are allowed to live like regular citizens, should be a model for the U.S.

by Doran Larson

It’s a postcard-perfect day on Suomenlinna Island, in Helsinki’s South Harbor. Warm for the first week of June, day trippers mix with Russian, Dutch and Chinese tourists sporting sun shades and carrying cones of pink ice cream.

“Is this the prison?” asks a 40-something American woman wearing cargo pants and a floral sleeveless blouse.

Linda, my guide and translator, pauses beside me between the posts of an open picket fence. After six years of teaching as a volunteer inside American prisons, I’ve come from the private college where I work to investigate the Scandinavian reputation for humane prisons. It’s the end of my twelfth prison tour, and I consider the semantics of the question: If you can’t tell whether you’re in a prison, can it be a prison? I’ve never considered this in so many words. Yet I find that I know the answer, having felt it inside a prison cell in Denmark: There is no punishment so effective as punishment that nowhere announces the intention to punish. Linda is ...

Sweden’s Shrinking Prison Population

Sweden’s prison population has seen such a sharp drop in recent years that the nation’s prison service announced in November 2013 that it had closed four correctional facilities and a remand center.

Prisons in Aby, Haja, Batshagen and Kristianstad were closed in 2013; two will likely be sold and the others transferred to other government agencies for temporary use. “We have seen an out-of-the-ordinary decline in the number of inmates,” said Nils Oberg, head of Sweden’s prison and probation services. “Now we have the opportunity to close down a part of our infrastructure that we don’t need at this point in time.”

Sweden’s prison population has been dropping by around one percent per year since 2004, but declined six percent between 2011 and 2012. Oberg stated that he expects to see another six percent drop during 2013 and in 2014.

He said no one knows for sure why Sweden’s prison population has dropped so sharply. “We certainly hope that the efforts we invest in rehabilitation and preventing relapse of crime has had an impact, but we don’t think this could explain the entire drop of six percent.”

One contributing factor may be related ...

From the Editor

Welcome to the first issue of PLN for 2014. If you have not donated to our annual fundraiser, please do so now; it is not too late and we need your support to continue our advocacy work on issues like the Campaign for Prison Phone Justice, for which we do not get foundation funding.

Former political prisoner Nelson Mandela, who spent 27 years behind bars for seeking to overthrow the racist apartheid regime in South Africa, died on December 5, 2013 and has been eulogized extensively. Ironically, many of those now singing his praises were less than helpful when he was incarcerated on Robben Island. President Obama attended Mandela’s funeral, yet for decades the U.S. supported the South African apartheid government. And, of course, the CIA was instrumental in helping the South African secret police – the Bureau of State Security (BOSS) – capture Mandela in the first place. Amnesty International mourned his death, yet Amnesty never recognized Mandela as a prisoner of conscience during his 27 years of captivity because he supported armed struggle against apartheid.

In ending apartheid in 1993, the South African ruling class gave up a little but kept a lot. Although apartheid was dismantled, the ...

Mangaung and Beyond: Private Prison Exemplifies South Africa’s Criminal Justice Woes

In recent months a battle has erupted at Mangaung prison in South Africa. Mangaung, located near the city of Bloemfontein, is one of the country’s two privately-operated correctional facilities. Managed by British-based G4S, which bills itself as the “world’s largest security” company, Mangaung reflects a troubled criminal justice system littered with overcrowded, poorly resourced prisons. A September 2013 strike by guards from the Police and Prison Civil Rights Union (POPCRU) sparked the latest round of drama; the guards were protesting the dismissal of several shop stewards as well as poor working conditions. G4S responded by firing 300 prison staff.

In early October 2013, with the facility still reeling from the mass terminations, a female guard was held hostage for twelve hours. The next day another guard was stabbed. Speaking for G4S, company spokesman Andy Baker alleged that prisoners were being paid to destabilize Mangaung. “We assume it is linked to ongoing staffing strife,” he told the media, implying the union was behind the attacks.

At that point, Minister of Correctional Services Sbu Ndebele stepped in and placed Mangaung under the direct supervision of the state, essentially terminating G4S’s 25-year contract with the South African government signed in 2000. Ndebele ...

Hidden Agenda Fuels Challenge to Pivotal Death Penalty Case

Anthony Porter, the exonerated death row prisoner whose jubilant release from prison in February 1999 was the catalyst for abolishing the death penalty in Illinois, is back in the news after living in relative obscurity for years. A lot has happened since reporters covered Porter’s first steps to freedom, but brace yourself for who’s behind his sudden return to the front page. Hint: it has less to do with the evidence than it does a reality TV show producer and a lawyer with ties to City Hall.

Our story traces to September 1998, when Porter came within 50 hours of execution before getting a stay. Months later, he was freed when the case against him crumbled. Witnesses recanted and an eyewitness swore she saw her estranged husband, Alstory Simon, commit the double murder that had landed Porter on death row. Simon soon confessed on videotape to a private investigator working with a team I led at Northwestern University.

Besides the overwhelming proof of Simon’s guilt – the videotaped confession, his guilty plea to a judge, a tearful courtroom apology for the slayings, damning admissions to a Milwaukee TV reporter – it was Simon’s failure to appeal that forever ...

Seventh Circuit: Lifetime Supervision in Pornography Case Set Aside

The Seventh Circuit Court of Appeals has overturned a “supervision for life” provision imposed by the U.S. District Court for the Western District of Wisconsin when defendant Nicolai D. Quinn was sentenced to 97 months imprisonment for possession of child pornography.

Both the Sentencing Guidelines and statute under which Quinn was convicted provided for the possibility of lifetime supervision. However, while his sentence was within the guidelines range and thus presumptively reasonable under Rita v. United States, 551 U.S. 338 (2007), the Court of Appeals noted that the district court still had an obligation to “consider a defendant’s serious arguments for a sentence below the Sentencing Commission’s recommendation.”

Quinn had argued for a 10-year term of supervised release and submitted a forensic psychologist’s evaluation as well as testimony from two psychologists, all of whom concluded “that he has a lower-than-normal risk of recidivism.” Although the sentencing judge briefly discussed the forensic psychologist’s findings, he did not discuss the testimony of the two psychologists, nor the length of supervision or its term.

The government confessed error and the Seventh Circuit agreed, noting that “a district judge must explain important decisions,” including “arguments about recidivism” and ...

Pennsylvania Woman Jailed for Failure to Pay Parking Tickets

The increased use of jail for debtors resulted in a Pennsylvania woman being imprisoned for not paying parking ticket fines.

“It was a short and sweet hearing,” stated Lancaster County Constable Karl Salisbury. “The judge said, ‘you owe $2,300 collateral. You’re being committed to Lancaster County Prison.’”

Salisbury then took bookstore owner Melody Williams, 36, to jail with no time to get her affairs in order. Williams’ June 2012 incarceration resulted from her failure to completely pay $2,300 in fines for 11 tickets, most of which were for parking without a permit near her store, Winding Way Books.

While trying to keep her business afloat, Williams fell behind on paying the fines. In 2011 she paid a total of $1,088. For the first five months of 2012 she paid an average of $135 per month, and just an hour before Salisbury came to arrest her she had paid $80 on the arrears.

“Parking tickets shouldn’t be something they come and take you away for,” said Lancaster criminal defense attorney Richard MacDonald.

District Judge Bruce Roth, whose staff set up the payment plan for Williams, had no sympathy for her. “She just pushed it too far ...

Controversy, Litigation and Performance Problems Plague Private Probation Services

by David M. Reutter and Alex Friedmann

Defendants who are placed on probation and ordered to pay a growing array of fines and fees levied by local governments facing budget deficits, combined with additional fees charged by private companies hired to provide probation services, are increasingly being squeezed into burdensome debt and, all too frequently, jail.

“With so many towns economically strapped, there is growing pressure on the courts to bring in money rather than mete out justice,” said Lisa W. Borden, a partner with the Birmingham, Alabama law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz. “The companies they hire are aggressive. Those arrested are not told about the right to counsel or asked whether they are indigent or offered an alternative to fines and jail. There are real constitutional issues at stake.”

Controversy: Probation for Profit

The experiences of two Alabama residents exemplify the real costs faced by those subjected to criminal justice policies designed to balance budgets and generate profit. Gina Kay Ray, 31, received a $179 speeding ticket in 2009; her license was revoked for failure to appear in court, which she said occurred because the ticket had the wrong date.

Thus, the next time she was pulled over she was driving without a license. Her court fees totaled over $1,500 and her case was turned over to Judicial Correction Services, Inc. (JCS), a private probation company. Unable to pay, she landed in jail – and to add insult to injury, she was charged for each day she spent behind bars. Ray, who is unemployed, has been jailed three times totaling 40 days. She still owes $3,170 in fees and fines, mostly to ...

Task Force Linked to Harsh Sentencing Laws and Private Prison Firms Disbands Following Public Scrutiny, Boycott

A national campaign to shut down a quasi-governmental task force backed by powerful corporate interests, which has promoted harsher sentences, prison privatization and controversial “stand your ground” gun rights legislation, was successful thanks to public pressure and a boycott started by the Occupy Wall Street movement.

The American Legislative Exchange Council (ALEC), purportedly a “non-partisan” non-profit organization, brings together mostly Republican state lawmakers and corporations to develop business- and conservative-friendly model bills that are then distributed among state legislatures nationwide. Lawmakers and corporate officials mingle at “public-private partnership” conferences that are closed to the public, and the model legislation is produced by nine ALEC task forces. About 20% of the model bills are eventually passed into law; the organization has been described as a “bill mill.”

ALEC begrudgingly announced in April 2012 that it was caving in to efforts by the Center for Media and Democracy and the Occupy movement, and would disband its Public Safety & Elections Task Force – which had promoted harsher sentencing laws, anti-immigrant legislation and the self-serving interests of the private prison industry since the late 1980s. [See, e.g.: PLN, Jan. 2002, p.1].

The task force, previously known as the Criminal Justice Task Force, also promoted stand your ground laws – which gained national attention after the February 26, 2012 shooting death of 17-year-old Trayvon Martin in Florida – as well as voter suppression efforts across the U.S. and the Private Correctional Facilities Act, which authorized state governments to contract with private prison companies.

In the 1990s, ALEC drafted model legislation for mandatory minimum sentences, truth in sentencing and three-strikes laws, all of which drove up incarceration rates. Corrections Corporation of America (CCA) executives John Rees and Brad Wiggins served on ALEC’s Criminal Justice Task Force in the 1990s and early 2000s when such legislation was being developed. [See: PLN, Jan. 2012, p.20].

Also, in the late 1990s, CCA helped Wisconsin Governor Scott Walker (then a state representative) push legislation that would allow private prisons to operate in Wisconsin and house prisoners from other states.

While those bills failed to pass, Walker and ALEC were successful in pushing through truth in sentencing legislation in 1997, which required prisoners to serve their full sentences without the possibility of parole or supervised release.

More recently, CCA was reportedly involved in Arizona’s controversial anti-immigration law, SB1070, introduced in 2009 by since-recalled state senator and ALEC member Russell Pearce, which was expected to increase the number of immigrants held in detention – such as in CCA’s three ICE detention facilities in Arizona. [See: PLN, Nov. 2010, p.1].

Although both CCA and GEO Group – the nation’s two largest prison companies – have participated in ALEC previously, they are no longer members; CCA reportedly left the organization in 2011. CCA and GEO have denied that they lobby for harsher sentencing laws or increased reliance on incarceration; however, their participation in ALEC, if not to influence such legislation, hasn’t been adequately explained. [See: PLN, Nov ...

East Mississippi Prison Nightmare

On May 30, 2013, the American Civil Liberties Union, Southern Poverty Law Center and law office of civil rights attorney Elizabeth Alexander filed an 83-page complaint in the U.S. District Court for the Southern District of Mississippi, seeking class-action relief for mentally ill prisoners confined in “barbaric and horrifying conditions” and “a perpetual state of crisis” at the privately-operated East Mississippi Correctional Facility (EMCF).

According to the complaint, prisoners at EMCF live in dangerous conditions and are constantly at “grave risk of death and loss of limbs” due to a lack of adequate food, sanitation and basic medical care and medication.

The suit alleges that many prisoners are housed in cells with no lighting and broken toilets, forcing them to defecate on food trays or in plastic bags that they toss through slots in the cell doors. So filthy is EMCF that rats often climb over prisoners’ beds, and some prisoners catch them and put them on leashes as pets.

According to the lawsuit, one prisoner went blind from glaucoma and another had a finger amputated after receiving no treatment for gangrene. Another prisoner had a testicle removed after it swelled to the size of a softball from cancer ...

Massachusetts Supreme Court: 90 Days in Segregation on Awaiting Action Status without Hearing Violates Due Process

The Supreme Judicial Court of Massachusetts has ruled that prisoners held in segregated confinement on “awaiting action” status are entitled to due process protections, and such prisoners may not be kept in segregation longer than 90 days without a hearing.

The Court’s November 27, 2012 decision resolved a civil rights action brought by Souza-Baranowski Correctional Center (SBCC) prisoner Edmund LaChance. LaChance was in a protective custody unit at SBCC when he received a disciplinary report on December 21, 2005 for throwing a cup of pudding on another prisoner.

He was assigned to SBCC’s special management unit (SMU) for seven days as a sanction. After learning of the punishment, LaChance “threatened to commit violence” against the other prisoner, which resulted in another seven-day SMU term. However, he remained in the SMU on awaiting action status for more than ten months after his 14-day disciplinary sanction ended; during that period he received “only informal status reviews.” He was returned to the protective custody unit in November 2006.

After five months in the SMU, LaChance filed suit. He claimed the segregation conditions were more restrictive than in the protective custody unit and were substantially similar to those in the Departmental Segregation ...

Washington Defendant Improperly Denied Transcript at State Expense

The Washington State Supreme Court held in a November 8, 2012 en banc ruling that an indigent defendant was improperly denied a jury voir dire transcript.

When appealing his convictions for first-degree murder, second-degree murder and two counts of unlawful possession of a firearm, Merle William Harvey requested a jury voir dire transcript at public expense. He needed the transcript to prove his claim that the public was improperly excluded from the courtroom during jury selection. The trial court refused and the Court of Appeals affirmed.

Relying on a relative’s sworn declaration that she had been turned away from the courtroom during voir dire, Harvey briefed the issue in the absence of the transcript. The appellate court rejected his argument, however, finding that it “was not supported by the record provided.” Harvey sought discretionary review, which was granted.

The Washington Supreme Court reversed, stating, “Harvey contends that the trial court erred by closing the courtroom during jury selection. Without a transcript of voir dire, the reviewing court cannot properly consider this claim.” As such, the trial court had “erroneously refused to order that portion of the record transcribed at public expense.”

The Court noted that “It is well established ...

Programs Proliferate for Incarcerated Veterans

An increasing number of criminal justice programs are being made available to military veterans who have been charged with or convicted of crimes, including specialized prison and jail housing units and court diversion programs.

According to a report by the U.S. Department of Justice (DOJ) based on 2004 data, approximately 9.4% of state and federal prisoners are veterans. That is roughly equivalent to the percentage of veterans in the general population, which was 10.4% based on census data from the same time period as the DOJ report.

Veterans courts – similar to drug courts and mental health courts – have been established in around 32 states, primarily in Pennsylvania, Texas, California, Illinois, Michigan and Wisconsin. The first veterans court was founded in Buffalo, New York in 2008, and provides veterans with treatment, support, training, housing and mentors.

A Toledo Blade editorial endorsing a court diversion program for veterans in Ohio stated the program recognizes “the service of veterans to their country, acknowledges that some carry serious psychological and physical problems, including post-traumatic stress syndrome and alcoholism, and connects them to a range of services they might not have known about.”

Offenders with low-level felonies or misdemeanors, including drug possession ...

Arizona TV Reporter Blames Prisoners for Citizens’ Lack of Healthcare

When Lynette Barrett was searching for someone to blame for her husband’s battle with liver disease and his long wait for a transplant, a TV reporter was quick to point his finger at America’s favorite scapegoat: prisoners.

Morgan Loew, a reporter for KPHO in Phoenix, Arizona, concluded during a May 2012 broadcast that Barrett’s husband, Murray, had been waiting nine years for a new liver because the Arizona Department of Corrections (ADC) provides “life-saving” medical care to prisoners and, more specifically, to those on death row.

Loew’s investigative report revealed that on November 20, 2011, the ADC gave convicted murderer Robert Moorman – who was awaiting execution for killing his adoptive mother in 1984 – a quintuple heart bypass at “taxpayers’ expense,” only to execute him three months later.

Meanwhile, Murray Barrett has had three hospital stays, each costing more than $50,000, and he and his wife have had to pay $100,000 upfront for his treatment because they were dropped from the state’s Medicaid system – as have thousands of other Arizonans.

For viewers who didn’t see the correlation between Moorman’s bypass surgery and Barrett’s need for a liver transplant, Loew edified them ...

Study: Risk of Murder, Overdose and Suicide Higher for Recently Released Jail Prisoners in New York City

A study by researchers with the New York City Department of Health and Mental Hygiene (DHMH) supports reforms long urged by prisoner advocates: more mental health and substance abuse treatment, and less incarceration.

After studying over 155,200 people released from New York City jails between 2001 and 2005, the researchers found that former prisoners were twice as likely as other people to die from homicide or a drug overdose. The risks were especially high within the first two weeks after release, with death rates five to eight times greater than non-former prisoners during the same two-week period.

According to the study, which was published in the American Journal of Epidemiology, whites and people who were homeless before going to jail also had an elevated risk of suicide.

The findings, DHMH researchers said, were in line with similar studies in the United Kingdom and Australia, and illustrate the need for more mental health counseling and substance abuse treatment – not only in jails but also for the formerly incarcerated.

“You may not have a job, you may not have an apartment” after being released from jail, said Dr. Josiah D. Rich, the director of Brown University’s Center for Prisoner Health ...

California Parole Board Agrees to Implement Policy to Fix Terms at Lifers’ Initial Hearings

by John E. Dannenberg

On December 16, 2013, the California Board of Parole Hearings (Board) and life-sentenced state prisoner Roy Butler entered into a settlement agreement wherein the Board agreed to fix base and adjusted base terms (guidelines for the minimum amount of time that should be served) for all lifers at their initial parole suitability hearings.

Butler, 46, filed a petition for writ of habeas corpus challenging his denial of parole by the Board; he had served 26 years and been denied parole five times. Butler raised two issues in a May 28, 2013 supplemental petition: 1) there was no evidence to support his denial of parole, and 2) the Board should have fixed his base term under the long-standing provisions of the old Indeterminate Sentence Law (ISL) rather than not fixing his term until he is found suitable for parole release.

On appeal, the First District Court of Appeal, Division 2 (1st DCA) took an aggressive stance when reviewing the ISL’s continuing viability in requiring the setting of minimum terms for all lifers at the outset of their incarceration, thereby reopening the “proportionality” issue (like time for like crimes) raised in that Court by this writer in ...

How Actions by Oklahoma Governor’s Staff Led to Weakened State Justice Reforms

by Clifton Adcock, Oklahoma Watch*

Behind-the-scenes moves by Oklahoma Governor Mary Fallin’s senior staff members helped lead to a severe weakening of a program designed to cut the state’s high incarceration rates and save taxpayers more than $200 million over a decade, according to interviews and records obtained by Oklahoma Watch.

The efforts by the governor’s staff, assisted by legislative leaders, to take control of the state’s Justice Reinvestment Initiative (JRI) took place during periods when staff members met with representatives of private prison companies, which stood to gain or lose depending on how the initiative was implemented, according to emails and logs of visitors to Fallin’s office.

During that time, private prison company representatives also made donations to Governor Fallin’s 2014 campaign as well as to legislators, Oklahoma Ethics Commission records indicate.

Steve Mullins, Fallin’s general counsel, said private prison groups and lobbyists played no role in the approach that he and other staff members took in regard to the initiative.

“I know for a fact I’ve never recommended a private prison as a JRI solution, so I know that it wouldn’t have influenced anything because it didn’t influence ...

Failure to Protect New Jersey Jail Detainee Leads to Drastic Bail Reduction

A New Jersey man held in jail on charges of aggravated assault had his bail reduced from $500,000 to $15,000 after a beating by other prisoners left him confined to a wheelchair.

Joshua A. Maldonado, 20, was assaulted in the Cumberland County Jail in November 2012. After the attack it took about an hour and a half to transport him to the jail’s infirmary, then over two hours before he was airlifted to a hospital. Maldonado’s injuries were so severe that he remained in a coma for six days.

Caroline Turner, Maldonado’s attorney, subsequently moved to have his bail reduced. She argued that jail officials had been negligent in not preventing the attack on her client and that, because he was now wheelchair-bound and unable to protect himself, he could be killed if he remained at the jail.

“More than brutally assaulted,” said Turner, Maldonado “was nearly murdered and the jail did little to protect him.” She stated she was “truly shocked” by the length of time it took jail officials to get her client to a hospital for treatment.

Turner suggested that it would be prudent to reassign Maldonado to another cell so long ...

Top Texas Judge Breaks the Law but Gets Special Treatment

Sharon Keller is the presiding judge of the Texas Court of Criminal Appeals – the state’s highest court for criminal cases. In April 2010, Keller was fined $100,000 after it was discovered that she had failed to report a total of $3.8 million in personal earnings and property – not once but twice. On August 19, 2013, following a three-year delay, the fine was reduced to $25,000. [See: PLN, Nov. 2013, p.9].

According to a complaint filed with the Texas Ethics Commission, in 2006 Keller neglected to report from 100 to 499 shares of stock, her interest in eight properties worth $2.4 million, $3,760 in expenses covered under the honorarium exception and $61,500 in personal income.

In 2007, Keller again failed to report the stock, the eight properties (then worth $2.8 million), two honorarium payments valued at $6,010 and nine sources of personal income worth $121,500.

Judge Keller insisted that the omissions were simply unintentional oversights. However, she acknowledged that her actions “constituted violations of her reporting obligations” required by state law.

Keller’s attorney, Joseph Nixon, said that “Judge Keller is very pleased that she was able to reach an ...

New York Prisoner Awarded Almost $16 Million Due to Poor Medical Treatment

In March 2012, a New York state prisoner was awarded $15.7 million after being left a quadriplegic due to inadequate medical care. The judgment was entered by a New York Court of Claims which found that a prison physician had failed to evaluate or order further tests when prisoner Sergio Black’s symptoms dramatically worsened in a short period of time.

“The Court does not find this was merely an error of medical judgment,” wrote Judge Diane L. Fitzpatrick, “but rather deviation from the standard of care.”

Finding the state “100 percent” responsible for Black’s injuries, the judge awarded damages totaling $15,707,898, including $3.5 million for pain and suffering.

Black’s medical problems developed after he was injured during a basketball game in June 2006 at the Five Points Correctional Facility. At that time, Black told medical personnel he had collided with another player and “couldn’t move for 30-60 seconds.” Having complained of a “back strain” a few weeks earlier, Black wasn’t seen until July 6, 2006. X-rays taken later that month revealed only common “spurring.”

In November 2006, Black fell during another basketball game and was carried to the prison infirmary, where ...

Director of Victims’ Rights Group Sent to Prison for Embezzlement

A Pennsylvania federal district court has sentenced a woman to two years in prison for stealing money from a victims’ rights organization she headed.

Between June 2006 and June 2008, Mary Beth Semerod, now 59, stole $205,883.52 from the Rape & Victim Assistance Center in Schuylkill County while she served as the Center’s executive director. Semerod was dismissed from her position in October 2008 and the Center closed in 2009. She reportedly used the embezzled funds to pay department store bills.

A federal grand jury indicted Semerod in October 2010 on a charge of theft from a program that receives federal funding; she pleaded guilty in November 2011 and was sentenced on June 6, 2012.

“There are no good reasons, ever, that can justify” her behavior, Semerod told the court. “I affected the lives of people whom I loved. I am sorry that these actions ... caused these kinds of pain.”

While her attorney sought a non-prison sentence, the prosecutor argued that incarceration was warranted because the crime played a significant role in the closure of the Center.

“This was an embezzlement scheme that happened over the course of a couple years. It was not a single occurrence. It was committed with planning and it was not of limited duration. It was very serious,” said Assistant U.S. Attorney John C. Gurganus, Jr. “There has to be punishment for it. There has to be deterrence. We submit that a sentence of probation would not reflect the seriousness of the offense.”

U.S. District Court Judge Edwin M. Kosik agreed. “What ...

Study Finds Prisoners Inappropriately Using Topical Antibiotics

by David M. Reutter

Research into the use of topical antibiotics in correctional facilities found that prisoners frequently use antibiotics for reasons inconsistent with their recommended purpose.

A two-year study of 822 New York state prisoners was presented at the 39th Annual Educational Conference and International Meeting of the Association for Professionals in Infection Control and Epidemiology (APIC). Of the 421 male and 401 female prisoners in maximum-security facilities who participated in the study, 59% of the men and 40% of the women reported they had used topical antibiotics – ointments such as Bacitracin and Neosporin – within the previous six months.

Those prisoners who had used antibiotics reported using them inappropriately in the following ways: as a lotion for dry skin, 29% of men and 28% of women; as a lip balm, 18% of men and 15% of women; as hair grease, 8% of men and 3% of women; and for shaving, 6% of men.

Misuse of antibiotics can lead to the development of antimicrobial resistance, resulting in multidrug resistant organisms such as methicillin-resistant Staphylococcus aureus (MRSA). Multidrug resistant organisms cause a significant number of serious infections that are more difficult to treat because there are fewer – and in some cases ...

Connecticut Guards File Grievances over Efforts to Stem Super Bowl Absenteeism

Connecticut prison guards filed almost 100 grievances over temporary changes in work rules intended to reduce the number of guards calling in sick on Super Bowl XLVI, which pitted the New York Giants against the New England Patriots.

According to then-Department of Correction Commissioner Leo Arnone, requiring guards to produce a doctor’s note for a one-day absence successfully reduced the number of Super Bowl absentees to around 100, which is normal for any given day.

In past years, heavy Super Bowl absenteeism had caused the DOC to take extraordinary measures – including paying overtime to cover for absent guards and placing over a third of the state prison system’s 16 facilities on full or partial lockdown due to staffing shortages. Either option cost the state extra money.

The guards who filed grievances argued that the new rule related to doctor’s orders violated their contract. DOC spokesman Brian Garnett said the department worked with the guards’ union and the changes were so successful that only two prisons were placed on lockdown in 2012.

“This was done with the cooperation of the unions, and we tried to work very cooperatively,” said Garnett. “This wasn’t all a ‘stick’ approach. There ...

PLN Challenges Postcard-only Policy at Florida Jail

On December 17, 2013, Prison Legal News filed suit in federal court against St. Lucie County, Florida Sheriff Ken J. Mascara; the lawsuit alleges unconstitutional censorship based on a policy at the county jail that prohibits prisoners from receiving letters, books and magazines. Aside from legal mail, the policy dictates that nothing but postcards will be delivered to prisoners, without notifying the senders about their right to challenge such censorship.

PLN filed suit after dozens of issues of its monthly publication, as well as subscription brochures and books, including a paperback book entitled Protecting Your Health and Safety, were rejected by St. Lucie County jail officials, who failed to provide PLN an opportunity to appeal the rejections.

According to PLN’s complaint, pursuant to the jail’s mail policy adopted in 2010, “Magazines, paperback or hardcover books (i.e. novels) cannot be received through the mail.” Some of the publications, brochures and books sent to prisoners by PLN and rejected by jail staff were returned marked “Postcards Only” and “Return to Sender.”

“Most people held in jail are awaiting trial and thus are presumed innocent,” observed PLN editor Paul Wright, who also serves as executive director of the Human Rights ...

Shareholder Resolutions Seek to Lower Phone Rates at Private Prisons

On November 26, 2013, shareholder resolutions were filed with Corrections Corporation of America (CCA) and The GEO Group, Inc. – the nation’s two largest for-profit prison companies; the resolutions seek to reduce the high cost of phone calls made by prisoners at CCA and GEO facilities nationwide.

Prison phone rates are typically much higher than non-prison rates, and a 15-minute call can cost up to $17.30. Such exorbitant costs make it difficult for prisoners to maintain regular contact with their families and children; an estimated 2.7 million children in the United States have an incarcerated parent.

In September 2013, the Federal Communications Commission issued an order capping the cost of interstate (long distance) prison phone calls. FCC Commissioner Mignon Clyburn observed that “Studies have shown that having meaningful contact beyond prison walls can make a real difference in maintaining community ties, promoting rehabilitation, and reducing recidivism. Making these calls more affordable can facilitate all of these objectives and more.” However, the FCC’s order has not yet gone into effect and does not apply to in-state prison phone rates. [See: PLN, Dec. 2013, p.1].

Therefore, Alex Friedmann, associate director of the Human Rights Defense Center (HRDC), PLN ...

Unwanted Reprieve from Execution Upheld by Oregon Supreme Court

As previously reported in PLN, Oregon death row prisoner Gary Haugen filed a legal challenge to Governor John Kitzhaber’s November 2011 decision to impose a moratorium on the state’s death penalty, which had the effect of granting Haugen a temporary reprieve from execution. [See: PLN, June 2013, p.30; Dec. 2012, p.47].

The Oregon Supreme Court held on June 20, 2013 that the reprieve was “valid and effective” irrespective of whether Haugen wanted to accept it. In a 40-page opinion written by Chief Justice Thomas A. Balmer, the Court ruled that a circuit court had erred in finding in favor of Haugen’s unprecedented challenge.

When Governor Kitzhaber halted all executions in the state, he said Oregon’s capital punishment process had “devolved into an unworkable system that fails to meet the basic standards of justice.” Haugen, on death row for the 2007 murder of a fellow prisoner – his second murder conviction – disputed the governor’s authority to grant him a temporary reprieve because he did not want to accept it.

Haugen contended that he should be able to choose whether to pursue further appeals or allow his death sentence to be carried out; he further argued ...

Massachusetts Supreme Court: Failure to Register Guilty Plea Vacated

The Supreme Judicial Court of Massachusetts held on November 19, 2012 that a sex offender did not violate the state’s registration statute and should have been permitted to withdraw his guilty plea after being charged with failure to register.

Massachusetts’ sex offender registry law requires level 2 and level 3 sex offenders to initially register in person at their local police department. “In each subsequent year,” the offender is required to again register “during the month of birth.”

Nicholas B. Loring was classified as a level 2 sex offender. He registered as required on June 20, 2008. When he did not register again during his birth month of September 2008, however, he was charged with failure to register.

Loring pleaded guilty and was sentenced to one year imprisonment and lifetime community parole supervision. He subsequently moved to withdraw his guilty plea but the trial court denied his motion.

The Massachusetts Supreme Court reversed, concluding that “in its ordinary usage, an obligation occurring in a ‘subsequent year’ means the year following the reference year.” Since Loring had initially registered in 2008, he was not required to register again until September 2009 – the subsequent year after he first registered.

“Although the ...

No Immunity for Detainee’s Death Due to Alcohol Withdrawal; $1.23 Million Settlement on Remand

The Sixth Circuit Court of Appeals held on November 20, 2012 that a Michigan county and two jail guards were not entitled to qualified immunity for a female detainee’s death due to severe alcohol withdrawal.

Brenda Sue Smith, 37, was booked into the Lenawee County jail on a parole violation at about 5 p.m. on April 27, 2007. Sergeant Mary Neill, who searched Smith, later telephoned jail medical director Dr. Jeffrey Stickney. “She says she drinks every day, she’s an alcoholic,” Neill reported. “She’s shaking really bad.”

Stickney prescribed Librium for alcohol withdrawal, and Smith took the first dose at 9:35 p.m. Later that evening, Sergeant Paul Dye reported that Smith was suffering from “DTs” (delirium tremens).

“I better get some medical attention here because I’m going through withdrawals,” Smith told her mother. “I’m already shaking like a leaf.”

Two days after being booked into the jail, at 3:30 a.m., Sgt. Dye reported that Smith was exhibiting “paranoid behavior and irrational actions,” including singing, pounding on the walls and speaking to relatives who were not present. Other staff witnessed similar behavior.

Jail guard Wendy Vanderpool later testified that Smith was ...

Tenth Circuit: FRAP 4(b) Clock Commences Upon Entry in Public Docket

The Tenth Circuit Court of Appeals held that a judgment must be entered on a district court’s publicly accessible criminal docket to commence the 14-day time limit in which a defendant may file a notice of appeal.

Francisco Mendoza pleaded guilty to federal charges of conspiring to distribute methamphetamine in exchange for the government’s agreement to recommend a sentence at the low end of the sentencing guidelines range.

At sentencing, the district court calculated Mendoza’s guidelines range as 135 to 168 months. His defense counsel then reminded the court of the government’s promise to recommend a sentence at the low end of that range. However, the prosecutor did not honor his promise. Rather, he “emphasized that Mendoza was a ‘highest level’ drug dealer, possessed firearms, and had been distributing drugs for twenty years.”

Regardless, the district court sentenced Mendoza to 135 months in prison at the lowest end of the range. The court then filed a sealed judgment on September 3, 2009. “This filing was not noted or reflected in any way on the docket sheet available to the public. The only evidence in the record that judgment was entered is a supplemental appendix filed by ...

FCC Rate Caps on Prison Phone Calls to Impact Nevada DOC’s Budget

The rate caps recently imposed on interstate (long distance) prison phone calls by the Federal Communications Commission (FCC) signal much-needed financial relief for prisoners and their families; however, they will also leave an estimated $650,000 gap in the 2014 budget for the Nevada Department of Corrections.

Due to the FCC’s rate caps, which have not yet gone into effect, the Nevada Board of Prison Commissioners was informed on December 17, 2013 that the state’s prison system will no longer be able to charge per-call connection fees for interstate phone calls.

The Associated Press incorrectly reported that the Nevada DOC’s interstate phone rates include a $1.00 connection fee; actually, the connection fee for long distance calls from Nevada prisons is $2.50, plus $.49 per minute. The Nevada DOC’s intrastate (in-state) phone rates include a $1.00 connection fee plus $.13 per minute – but intrastate calls are not covered by the FCC’s order. [See: PLN, Dec. 2013, p.1].

When the rate caps go into effect – which is scheduled for February 13, 2014, although pending litigation may extend that date – prison systems will be allowed to charge a maximum of $.21 per minute for ...

SC Supreme Court Reverses Furtick; No Liberty Interest in Opportunity to Earn Sentence-Reduction Credits

The South Carolina Supreme Court held in late 2012 that the Administrative Law Court (ALC) may not summarily dismiss a prisoner’s appeal of a disciplinary conviction “solely on the basis that it involves the loss of the opportunity to earn sentence-related credits. Instead, the ALC must also consider whether the appeal implicates a state-created liberty or property interest.”

In June 2008, South Carolina state prisoner Stacy W. Howard was disciplined for providing legal assistance to another prisoner – a violation of “Unauthorized Services/Piddling (845) of SCDC Policy OP-22.14.” The violation precluded Howard from earning good-time credits for the month of the infraction and a reduction in earned-work credit for that month and subsequent months. He did not suffer a loss of previously-earned good-time credits.

Howard appealed his disciplinary conviction to the ALC pursuant to Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (S.C. 2000). However, eight days prior to Howard’s disciplinary violation, the South Carolina Code had been amended to preclude an administrative law judge from hearing prisoner appeals “involving the loss of the opportunity to earn sentence-related credits.”

The ALC summarily dismissed Howard’s appeal, finding that the amendment had deprived ...

Religious Diet Qualified Immunity Test Outlined by Seventh Circuit

The Seventh Circuit Court of Appeals has held that when determining whether a prison official is entitled to qualified immunity for refusing a prisoner’s request for a religious diet, the district court must determine whether the official used the tenets of the religion to deny the request or used those tenets to evaluate whether the prisoner was seeking the diet for personal rather than religious reasons. The case settled following remand in May 2013.

Mondrea Vinning-El, a prisoner at Illinois’ Pinckneyville Correctional Center, asked the prison’s chaplain, Rick Sutton, for a vegan diet to conform to the tenets of his religion – the Moorish Science Temple of America. Sutton denied the request, observing that the tenets of that religion require a non-pork diet which can include dairy products and many kinds of meat and fish. Contending that his religious beliefs required a vegan diet no matter what other practitioners of the religion believe, Vinning-El filed suit in federal court against Sutton and the prison’s warden, John D. Evans, in 2005.

The defendants moved for summary judgment. The district court granted summary judgment on Vinning-El’s Religious Land Use and Institutionalized Persons Act (RLUIPA) claim and denied it as ...

Multiple Convictions, Single Proceeding Triggers Alaska Lifetime Sex Offender Registration

The Alaska Supreme Court has held that the state’s lifetime sex offender registration requirement for multiple sex offenses applies to multiple convictions arising from a single criminal proceeding.

The Alaska Sex Offender Registration Act (ASORA), Alaska Stat. § 12.63.020(a)(1)(B), requires a person “convicted of ... two or more sex offenses” to register for life.

In 1995, James D. Ward was convicted, in a single criminal proceeding, of sex offenses involving two children. Following his release from prison he was informed that he was subject to lifetime sex offender registration.

Likewise, in a single 2007 criminal proceeding, defendant Michael E. Boles was convicted of sexual offenses against two children. He also was required to register for life pursuant to ASORA.

Ward and Boles appealed their lifetime registration, arguing “that the pertinent statute, AS 12.63.020(a)(1)(B), is ambiguous, because it can be read to require convictions in more than one proceeding. They therefore reason that the rule of lenity requires that the ambiguity be resolved in their favor and thus that the statute be read to require them to register for 15 years, not life.”

Ward’s lifetime registration was affirmed by a superior ...

Oregon: Life Sentence for Murder Unconstitutional During Eight-Month Period in 1999

The Oregon Court of Appeals has held that for crimes committed between February 17, 1999 and October 23, 1999 (aka “the McLain window”), the only permissible sentence for a murder conviction was 300 months in prison followed by lifetime post-release supervision.

From 1995 until February 17, 1999, the statutory punishment for murder in Oregon was life imprisonment with a 300-month minimum under ORS 163.115(5). However, the Oregon Board of Parole and Post-Prison Supervision (Board) had no authority to release an offender who had served the minimum sentence, resulting in a “true life” sentence because there was no possibility of parole.

On February 17, 1999, the Oregon Court of Appeals issued an en banc decision in State v. McLain, 158 Or.App 419, 974 P.2d 727 (Or. Ct. App. 1999), finding that the life imprisonment portion of the sentence for murder was unconstitutionally disproportionate because it resulted in greater punishment than the more serious offense of aggravated murder, which allowed for parole eligibility. As a result, McLain held that “the proper sentence for the defendant’s crime of murder was a mandatory determinate sentence of 300 months’ imprisonment (25 years) followed by a lifetime of post-prison supervision.”

On ...

Seventh Circuit Affirms Dismissal of Prisoner's Law Library Access Claim

Illinois state prisoner Brian Burd filed a 42 U.S.C. § 1983 complaint for damages in 2010, alleging that officials at the Sheridan Correctional Center had denied him reasonable access to the facility’s law library; consequently, he was unable to research and timely file a motion to withdraw his guilty plea or appeal his sentence.

Burd “missed the [30-day] deadline to file his motion, but he continued to seek access to Sheridan’s law library. He filled out request slips, but each time he was denied access because the library was closed. When he explained to defendant Gail Sessler, the educational administrator at Sheridan, that he wanted to research a motion to withdraw his guilty plea or an appeal of his sentence, she told him that any such action would be untimely and denied him access to the library.”

In affirming the district court’s dismissal of Burd’s claims, the Seventh Circuit relied upon Heck v. Humphrey, 512 U.S. 477 (1994) [PLN, Sept. 1994, p.12].

According to the appellate court, Heck mandates a “favorable termination requirement,” whereby “a favorable determination on the damages claim [under § 1983] necessarily would imply the invalidity of Mr. Burd’s conviction ...

Ninth Circuit: Budgetary Constraints May Excuse Deliberate Indifference to Prisoner’s Serious Medical Needs; En Banc Review Granted

On January 7, 2013, a divided Ninth Circuit panel held that a prison employee, alleged to be deliberately indifferent to a prisoner’s serious medical needs, can avoid liability for damages by establishing that his inability to provide necessary medical care resulted from a lack of resources over which he had no control.

In a well-reasoned dissent, Circuit Judge Marsha S. Berzon criticized the majority decision on the ground that it could not be reconciled with settled precedent holding that budgetary constraints do not justify constitutionally deficient care or conduct.

While incarcerated at the California State Prison in Lancaster in 2004, Cion A. Peralta sought dental care for cavities, bleeding gums and pain throughout his mouth. Over the course of a year and a half he was seen by a prison dentist, Dr. Sheldon Brooks, three times. Dr. Brooks gave Peralta ibuprofen twice and antibiotics on one occasion; he asked Peralta to identify which tooth hurt the most, X-rayed that tooth and offered to extract it, but never checked for other cavities or infections.

Peralta filed suit pursuant to 42 U.S.C. § 1983, alleging that Dr. Brooks had been deliberately indifferent to his serious dental needs. Brooks presented evidence ...

Tenth Circuit Orders Foreseeability Jury Determination for Detention by New Mexico DOC Employees

The Tenth Circuit Court of Appeals reversed a district court’s ruling that state corrections employees could be held liable only for their own initial 2- to 3-minute detention of two suspects, and not for further detention that occurred after the suspects were transferred to police custody.

New Mexico Corrections Department employees Gary Carson and Don Mangin were patrolling a high-crime neighborhood with Rio Rancho police officers as part of a task force when they observed Phillip Martinez, Ricardo Sarmiento and a third man outside an apartment building.

When the officers turned on their emergency lights, the third man fled and one of the police officers chased after him. Carson and Mangin drew their weapons and forced Martinez and Sarmiento to the ground, then cuffed and searched them.

Still cuffed, Martinez and Sarmiento were transferred to the custody of other Rio Rancho police officers several minutes later. They were arrested, booked and detained; Sarmiento was held for five hours and Martinez for twelve hours.

Martinez and Sarmiento filed a 42 U.S.C. § 1983 suit in federal court against Carson, Mangin and several Rio Rancho defendants, alleging unlawful seizure in violation of the Fourth Amendment.

Denying the parties’ cross-motions for ...

Ninth Circuit: No Summary Judgment on Claim of Excessive Use of Pepper Spray

On January 17, 2013, the Ninth Circuit Court of Appeals reversed a grant of summary judgment in favor of California prison officials, concluding that the district court had failed to consider the evidence in the light most favorable to the prisoner plaintiff. Given the facts alleged, the appellate court held a rational jury could find that the use of pepper spray to subdue a prisoner who was in a locked cell behind a metal door constituted excessive use of force in violation of the Eighth Amendment.

While confined to a cell at Salinas Valley State Prison where meals were delivered through a 12” x 6” food port, California state prisoner Edward T. Furnace, a practitioner of the Shetaut Neter religion, was authorized to receive vegetarian meals. One morning, when his request for a vegetarian breakfast was denied (and he was given the option of accepting a regular meal instead), Furnace tried to question the guards delivering the breakfast trays. According to his § 1983 complaint, he put his fingertips on the bottom part of the open food port for balance; without a verbal warning, two guards then pepper-sprayed him for “maybe a minute.”

Furnace “was struck by pepper spray in the ...

Oregon: Jury Trials Required When Prosecutors Treat Misdemeanors as Violations

The Oregon Court of Appeals held on September 26, 2012 that criminal defendants are entitled to jury trials and reasonable doubt determinations when misdemeanors are reduced to violations – a ruling that was subsequently affirmed by the state Supreme Court.

Under ORS 161.566(1), Oregon prosecutors may treat most misdemeanors as Class A violations. If they choose to do so, the charge is tried in court without a jury and the prosecution has the burden of proving guilt by a preponderance of the evidence. ORS 151.076(1) and (2). If the defendant is convicted, the court may impose a fine of up to the maximum amount that could have been imposed for the class of misdemeanor that was reduced to a violation. ORS 161.566(2)(b).

Tawanna D. Fuller was charged with two misdemeanor theft offenses stemming from a July 2010 shoplifting incident. When the state elected to prosecute the charges as violations under ORS 161.566(1), Fuller moved for a jury trial and to have her guilt proven beyond a reasonable doubt. The trial court denied the motion and found her guilty of the charges using a preponderance of the evidence standard. Although the court could ...

Res Judicata Doesn't Bar Ohio Post-release Control Challenge

The Ohio Supreme Court has held that “when a criminal defendant is improperly sentenced to post-release control, res judicata does not bar the defendant from collaterally attacking his conviction for escape due to an earlier post-release-control sentencing error.”

In 1998, Donald Jack Billiter III was convicted of a first-degree felony and sentenced to three years in prison and post-release control of “up to a maximum of three (3) years.” Ohio law actually mandated a post-release control term of five years.

Billiter violated his post-release control and pleaded guilty to escape in 2004. He was initially sentenced to probation, which was later revoked and he was sentenced to six years in prison.

In 2009, the Ohio Supreme Court held in State v. Bloomer, 909 N.E.2d 1254 (Ohio 2009) that an improperly imposed post-release control term cannot be enforced.

In response, Billiter moved to withdraw his guilty plea on the escape charge, on the theory that he had never been legally placed on post-release control. He claimed he was “actually innocent” of escape and was serving a sentence that was a legal nullity.

The Ohio Supreme Court agreed, noting that it had “consistently stated, if a trial court imposes a ...

Hawaii: Incarceration is Good Cause for Failure to Appear; Bail Forfeiture Set Aside

The Hawaii Supreme Court has held that incarceration constitutes good cause for failing to appear at an arraignment. As such, the trial court abused its discretion in refusing to set aside a bail forfeiture.

Atmarama D. Diaz faced criminal charges in Hawaii and California. He was arrested on a drug charge at Honolulu International Airport in July 2004, posted $1,000 bail and was released. Later that day he traveled to California to face his charges in that jurisdiction.

Diaz was taken into custody in California, where he remained at the time of his August 9, 2004 Hawaii arraignment. The trial court forfeited his bail when he did not appear.

Diaz’s attorney moved to set aside the bail forfeiture, arguing that Diaz’s incarceration in California made it impossible for him to appear for the arraignment in Hawaii. The court denied the motion, finding that Diaz’s incarceration was not “good cause” to set aside the forfeiture. The Intermediate Court of Appeals affirmed.

The Hawaii Supreme Court reversed, however, holding that the trial court had abused its discretion in denying Diaz’s motion because, based on the record before the Court, he “did establish good cause for setting aside ...

News in Brief

Alabama: On July 29, 2013 there was a break-in at the Draper Correctional Facility. According to the Department of Corrections, three sections of the prison were burglarized in the early morning hours, and laptop computers and multiple weapons were discovered missing when employees started arriving around 5:00 a.m. The facility’s farm office, radio shop and dog kennels, which are located apart from the prison population, were reportedly breached.

Arizona: Newly-hired Maricopa County jail guard Rachel Harris, 22, was attacked on June 24, 2013 by prisoner Bobby Ruiz as she entered his cell at the Lower Buckeye Jail, and during the assault Ruiz bit off part of one of her ears. Two other prisoners rushed to help Harris, pulling Ruiz off her and restraining him until other guards arrived. Sheriff Joe Arpaio told reporters that the missing piece of Harris’ ear could not be found and that Ruiz had presumably swallowed it.

Arkansas: Steven Mitchell, 39, died in a crash on July 30, 2013 after leading police on a car chase through the state of Missouri. He had escaped from the Jackson County Detention Center in Arkansas two days earlier with another prisoner. A Nissan Sentra driven by ...


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