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Prisoner Education Guide

Prison Legal News: December, 2014

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Volume 25, Number 12

In this issue:

  1. Prison Bankers Cash in on Captive Customers (p 1)
  2. Report Spurs Investigation of Bank of America, JPMorgan Prison Deals (p 12)
  3. The Best 500 Nonprofit Organizations for Prisoners and Their Families (2nd Ed.), edited by George Kayer (p 14)
  4. JPay Fined in Pennsylvania, Michigan for Operating without a License (p 14)
  5. From the Editor (p 16)
  6. Massachusetts: Sex Change Ordered for Transgender Prisoner; Court Finds that Two DOC Commissioners Lied (p 18)
  7. California Law Denying Good Time Credits to Gang Members in SHUs Held Constitutional (p 20)
  8. $350,000 Settlement in PLN Censorship Suit Against Ventura County, California (p 20)
  9. Battling the Administration: An Inmate’s Guide to a Successful Lawsuit, by David J. Meister (p 21)
  10. Texas Prison Homicides Rise Sharply in 2012, Decline in 2013 (p 22)
  11. Overtime Pay for New York Prison Guards, Nurses “Out of Control” (p 22)
  12. Los Angeles County Jail Exploits Prisoners, Families with High Phone Costs (p 24)
  13. Ethics Charge Against Former U.S. Marshal Ends in Pre-Trial Diversion (p 24)
  14. Ninth Circuit: Prisoner Validated as Gang Member May Challenge Debriefing Procedures (p 26)
  15. Washington Ad Seg Prisoner Improperly Denied Earned Time (p 26)
  16. New York False Imprisonment Claim Revived; Administratively-Imposed PRS Term Invalid (p 27)
  17. $690,000 Settlement in HRDC Suit Over Death of Prisoner’s Baby at CCA Jail (p 28)
  18. Despite Reforms, Shackling of Pregnant Prisoners Persists (p 30)
  19. Disabled California Juvenile Detainees Entitled to Special Education Services in Jail (p 32)
  20. Former Florida Guard Accused of Workers’ Comp Fraud Dies Before Trial (p 35)
  21. Debtors’ Prisons Prevail in Las Vegas, Thanks to Prosecutors and Casino Markers Law (p 36)
  22. Ninth Circuit Affirms Preliminary Injunction in Challenge to California’s CASE Act (p 37)
  23. Education is Better than Punishment: Something We Can All Support! (p 38)
  24. Reenergized D.C. Corrections Information Council Targets Jail and Prison Conditions (p 40)
  25. Agreement to Limit Solitary Confinement in New York State Prisons Applauded (p 42)
  26. When Attorneys Fumble, Defendants Face Consequences (p 44)
  27. Audit Finds Significant Increase in Fraudulent Tax Returns Filed by Prisoners (p 46)
  28. Texas Prison Population Drops as Guard Shortage Persists (p 48)
  29. BOP Criticized for Denying Most Compassionate Release Requests (p 50)
  30. Washington Undersheriff Sentenced to Six Months for Stealing Bail Money (p 52)
  31. Deportations Still High Despite Decline from Record Levels (p 52)
  32. D.C. Jail Guard Suicidal after Feces Thrown in Face, Sues DOC (p 53)
  33. Oklahoma Supreme Court Remands Consolidated Sex Offender Registration Case (p 54)
  34. Florida Court of Appeals: Prison Guards Can Raise “Stand Your Ground” Defense (p 54)
  35. News in Brief (p 56)

Prison Bankers Cash in on Captive Customers

Prison Bankers Cash in on Captive Customers

by Daniel Wagner

Pat Taylor doesn’t believe in going into debt. She keeps her bills in a freezer bag under her bed, next to old photo albums, and believes in paying them on time religiously. For Taylor, living within your means is part of being a good Christian.

Lately, Taylor, 64, has felt torn between that commitment and her desire to be a loving, supportive mother for her son Eddie.

Eddie, 38, is serving a 20-year prison sentence at Bland Correctional Center for armed robbery. He’s doing his time at a medium-security Virginia state prison located 137 miles northwest of Johnson City, across the dips and valleys of the Blue Ridge Mountains here in the heart of Appalachia. The cost of supporting and visiting Eddie keeps going up, so Pat makes trade-offs.

“I would send him money even if it broke me, because I do go without paying some bills sometimes to go see him,” Pat says.

Between gas to make the trip and overpriced sandwiches from the prison vending machine, visiting Bland costs about $50, a strain on her housekeeper’s wages. So she alternates, visiting Eddie one week and sending him ...

Report Spurs Investigation of Bank of America, JPMorgan Prison Deals

Report Spurs Investigation of Bank of America, JPMorgan Prison Deals

Government auditors are investigating exclusive contracts held by Bank of America Corp. and JPMorgan Chase & Co. to provide financial services inside federal prisons.

by Daniel Wagner

The U.S. Department of the Treasury’s inspector general, Eric Thorson, will audit Treasury’s “awarding and administration” of the contracts with Bank of America and JPMorgan “in response to recent media reports concerning the selection of and high fees charged by these two financial agents,” the watchdog’s general counsel, Rich Delmar, told The Center for Public Integrity.

The Center first reported in October 2014 that the banks have exclusive access to the more than 214,000 federal prisoners under contracts awarded by the U.S. Treasury Department about 15 years ago. The deals, called financial agency agreements, lack the competitive bidding or transparency requirements for most federal contracts.

Bank of America has been paid at least $76.3 million by Treasury to manage prisoners’ accounts, money transfers, email service and other technology inside the 121 facilities managed by the federal Bureau of Prisons. The contract has been amended 22 times since it was awarded without competitive bidding in 2000.

The accounts hold the money prisoners earn from prison jobs ...

The Best 500 Nonprofit Organizations for Prisoners and Their Families (2nd Ed.), edited by George Kayer

The Best 500 Nonprofit Organizations for Prisoners and Their Families (2nd Ed.), edited by George Kayer

(CreateSpace Independent Publishing, July 2014). 130 pages, $18.99

Book review by Gary Hunter

Help! For prisoners and their families, “help” is a word that’s all too familiar. And while many share problems that are similar, each situation is unique. Sometimes the problem is legal, other times it’s domestic and sometimes the problem is just identifying the problem itself. The Best 500 Nonprofit Organizations for Prisoners and Their Families is a book that helps to handle issues related to or resulting from incarceration.

Putting people in prison often creates more problems than it solves. While legal issues are the most obvious concern faced by prisoners and their families, they are only a small part of a much larger picture. The Best 500 Nonprofit Organizations provides information about a wide range of resources available to assist both prisoners and their family members.

Most people are familiar with the American Civil Liberties Union and how the ACLU helps to protect citizens’ constitutional rights, including those of prisoners. But few know about organizations dedicated to lesbian, gay and transgender issues; domestic violence issues; finding pen pals ...

JPay Fined in Pennsylvania, Michigan for Operating without a License

JPay Fined in Pennsylvania, Michigan for Operating without a License

As indicated in this issue’s cover story, JPay, a company incorporated in Delaware and based in Miami, Florida, and the industry leader in prison money transfer services, has been fined $408,500 for operating without a license in at least seven states – including Pennsylvania and Michigan.

JPay allows consumers to transfer money by using credit and debit cards through its website and by phone, through cash transfers with cash agent locations that contract with JPay, and by mailing money orders to the company. JPay charges consumers a fee for most money transfers.

The company’s contract with the Pennsylvania Department of Corrections specifies it is the sole provider of electronic fund services for state prisoners.

In August 2011, the Pennsylvania Department of Banking (PDB) concluded an investigation that found JPay had not been licensed as a money transmitter as required by the state’s Money Transmitter Act, 7 P.S. §§ 6101-6018. Yet the company had been transferring money from Pennsylvania citizens to prisoners since December 2004.

The PDB found that JPay did not meet any of the Act’s exemptions; during the investigation, the company was cooperative and provided information and ...

From the Editor

From the Editor

by Paul Wright

Welcome to the last issue of Prison Legal News for 2014. By now, all PLN subscribers should have received our annual fundraiser letter, which includes our last annual report. If you have not yet made a donation, please do so. Unlike many other non-profit organizations, we do not constantly bombard our supporters with pleas for money throughout the year, which in itself costs money. We only do a fundraiser mailing once per year.

As 2014 comes to a close, our Prison Phone Justice Campaign is moving into high gear as we ask the Federal Communications Commission to cap the cost of intrastate (in-state) prison and jail phone calls. We urgently need your financial support to keep the pressure on the telecom companies and prisons and jails alike. We have devoted extensive resources and staff time over the past 4 years to this issue, and more is needed. We also need you to contact the FCC and tell them the time has come to cap the cost of intrastate prison and jail calls; see the ad on p. 2.

Even if you cannot afford a donation, please encourage others to donate to the Human Rights ...

Massachusetts: Sex Change Ordered for Transgender Prisoner; Court Finds that Two DOC Commissioners Lied

Massachusetts: Sex Change Ordered for Transgender Prisoner; Court Finds that Two DOC Commissioners Lied

The en banc First Circuit Court ofAppeals is considering whether to order the Massachusetts Department of Correction (MDOC) to comply with a federal district court’s order requiring that a transgender prisoner suffering from Gender Identity Disorder (GID) be provided with sex reassignment surgery at the state’s expense.

Massachusetts officials appealed to the full First Circuit after a three-judge panel of the court voted 2-to-1 in January 2014 to uphold a landmark ruling by U.S. District Court Judge Mark L. Wolf in the case of Michelle Kosilek, who is serving life without parole.

Wolf held that Kosilek, 65, was denied the surgery not for legitimate medical reasons, but rather due to pressure on the MDOC not to use state funding for sex reassignment surgery for prisoners – even though GID is considered by medical professionals to be a legitimate, serious mental health condition.

In a 129-page, September 4, 2012 order, Judge Wolf found that former MDOC Commissioner Michael Maloney had repeatedly lied and engaged “in a pattern of pretense, pretext and prevarication” that was designed to conceal the real reasons for denying Kosilek surgery; those reasons ...

California Law Denying Good Time Credits to Gang Members in SHUs Held Constitutional

California Law Denying Good Time Credits to Gang Members in SHUs Held Constitutional

by David Reutter

The Ninth Circuit Court of Appeals held on April 25, 2014 that a California law which denies good conduct credits to prisoners who are validated gang members held in a Security Housing Unit (SHU) does not violate the Ex Post Facto Clause.

California prisoner Manuel Francisco Nevarez received a 12-year prison sentence for robbery in 2000. Eight years later he was convicted of smuggling marijuana into prison, resulting in an additional three-year sentence. To compound his problems, on December 12, 2008, prison officials validated him as an associate of the Mexican Mafia prison gang, which resulted in an indeterminate term in the SHU at Pelican Bay State Prison.

On January 25, 2010, California Penal Code Section 2933.6 was amended to make validated gang affiliates ineligible to earn sentence reduction credits while “in the Security Housing Unit, Psychiatric Services Unit, Behavioral Management Unit, or the Administrative Segregation Unit for that misconduct.”

Prior to the amendment, Nevarez earned one day of good conduct credit for every two days served. While he did not lose the credits earned prior to the statutory amendment, he could ...

$350,000 Settlement in PLN Censorship Suit Against Ventura County, California

$350,000 Settlement in PLN Censorship Suit Against Ventura County, California

by Derek Gilna

In a victory for the First Amendment rights of prisoners and those who correspond with them, Prison Legal News recently obtained a substantial settlement in a lawsuit filed against the Ventura County Sheriff’s Office in California ...

Battling the Administration: An Inmate’s Guide to a Successful Lawsuit, by David J. Meister

Battling the Administration: An Inmate’s Guide to a Successful Lawsuit, by David J. Meister

(Wynword Press, April 2014). 566 pages, $34.95 paperback

Book review by Gary Hunter

When asked what the first step would be in challenging a disciplinary charge, prisoners will give a variety of answers. Some say it is to find legal precedents. Others say obtaining witness statements is most important. But one person, David J. Meister, not only knows the correct answer, he wrote a book on the subject.

Prisoners suffer violations of their constitutional rights in numerous ways, and many times the injustice also includes receiving a disciplinary charge. In his book, Battling the Administration: An Inmate’s Guide to a Successful Lawsuit, Meister covers an extensive variety of ways in which prisoners are harmed and explains, in easy-to-understand terms, exactly how an injured party can obtain relief.

While it may seem like an oversimplification, the book begins by explaining that any successful legal battle begins with preparation. Divided into five parts, Part One, appropriately titled “Getting Ready,” explains why something as simple as acquiring a notebook, a calendar and charts are essential to mounting a successful legal challenge. For clarity, Mr. Meister provides sample ...

Texas Prison Homicides Rise Sharply in 2012, Decline in 2013

Texas Prison Homicides Rise Sharply in 2012, Decline in 2013

Texas officials said they were at a loss to explain an unexpected surge in prison homicides during 2012, when the number of murders rose to the highest level in more than a decade. But others pointed to understaffing, inexperienced guards and inadequate supervision of a large prison population composed of more violent offenders serving longer sentences.

In calendar year 2012, a dozen prisoners were killed throughout Texas’ sprawling prison system compared to three in 2011, five in 2010 and just one in 2009.

“There appears to be no patterns to this,” said Rick Thaler, director of the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), who has since retired. “It’s very random.”

“It definitely jumped out at us,” TDCJ Inspector General Bruce Toney told the Associated Press. “It definitely has not been an average year.”

Toney noted the murders were not related and had occurred throughout the state’s 111-unit prison system. No one knows the reason for the increase, he said. Most of the homicides did not involve weapons other than “hands and feet kicking” and more than half resulted from fights between ...

Overtime Pay for New York Prison Guards, Nurses “Out of Control”

Overtime Pay for New York Prison Guards, Nurses “Out of Control”

Some blame prison understaffing on a weak talent pool or an inability to hire sufficient staff in the rural areas where prisons are often located. Others theorize the problem is more systemic, arguing that corrections departments and private prison companies purposefully employ fewer personnel to reduce costs associated with payroll and benefits.

Whatever the reason, New Yorkers have found themselves paying as much as double some prison employees’ salaries in overtime expenses to accommodate staff shortages. According to a report from WNYT Channel 13, the top ten “overtime earners” in the New York Department of Corrections and Community Supervision (DOCCS) were paid $789,000 in 2011. And that’s in spite of DOCCS’ relative success in recent efforts to curb overtime spending.

For fiscal year 2012-2013 – the most recent year for which data is available – DOCCS logged 2.44 million hours of overtime costing around $107 million at an average overtime rate of $42.66 per hour for correctional officers and $53.04 per hour for sergeants. The total number and cost of overtime hours represented a decrease from the previous fiscal year.

“It’s still very, very high ...

Los Angeles County Jail Exploits Prisoners, Families with High Phone Costs

Los Angeles County Jail Exploits Prisoners, Families with High Phone Costs

by Derek Gilna

Officials with Los Angeles County’s jail system have been criticized by County Supervisor Zev Yaroslavsky for exploiting prisoners and their families by charging excessive phone rates. “Everyone’s making a lot of money at the expense of inmates’ families,” Yaroslavsky said.

Prisoners’ rights advocates, including Prison Legal News, have cast a spotlight on exorbitant prison and jail phone costs for years, but reform has come much too slowly. [See: PLN, Dec. 2013, p.1; April 2011, p.1]. Meanwhile, county sheriff’s offices around the country have long enjoyed a steady revenue stream from inflated jail phone rates, including L.A. County.

According to a September 8, 2014 news report, under its current contract with phone service provider Global Tel*Link, the L.A. County Sheriff’s Department receives 67.5% of the revenue generated from jail phone calls in “commission” kickbacks, with guaranteed minimum annual payments of $15 million. Global Tel, an Alabama-based company, provides the county’s jail system with about 5,000 pay phones.

One prisoner’s mother, Kim Iannone, said that after her son was arrested she received an automated call from the company requiring her ...

Ethics Charge Against Former U.S. Marshal Ends in Pre-Trial Diversion

Ethics Charge Against Former U.S. Marshal Ends in Pre-Trial Diversion

by Derek Gilna

A criminal ethics charge filed against a former U.S. Marshals Service agent in Arizona who had applied for a job with a private prison company he previously monitored has been dropped, and prosecutors let him enter a pre-trial diversion program. At the same time, former agent Thomas B. Bullen is proceeding with a lawsuit against the Marshals Service.

The Arizona U.S. Attorney’s Office refused to comment on Bullen’s case or the requirements of the pre-trial diversion program, which he agreed to enter in October 2013.

Bullen was indicted in 2012 for allegedly violating a federal ethics law that prohibits federal employees from taking jobs with companies they are responsible for overseeing. In Bullen’s case that included Corrections Corporation of America (CCA), which operates a detention facility in Florence, Arizona.

Bullen was a chief administration officer for the Marshals Service until 2011, when he was demoted and put in charge of overseeing the agency’s contract with CCA and monitoring the company’s compliance.

A federal indictment said Bullen had described his duties in an unrelated proceeding, stating: “I go throughout the facility and compare the contract ...

Ninth Circuit: Prisoner Validated as Gang Member May Challenge Debriefing Procedures

Ninth Circuit: Prisoner Validated as Gang Member May Challenge Debriefing Procedures

by Mark Wilson

On January 15, 2014, the Ninth Circuit Court of Appeals reversed the dismissal of a prisoner’s claim related to “debriefing” with respect to his alleged gang affiliation.

In 2007, California prisoner Ricky Gonzales was validated as a Northern Structure gang associate and indefinitely placed in segregation in a Secured Housing Unit (SHU).

He filed a state habeas corpus petition challenging the evidentiary basis for his gang validation. The Superior Court denied his petition, concluding that the validation was supported by “some evidence.” The California Court of Appeal and state Supreme Court upheld that decision.

On March 29, 2010, Gonzales filed suit in federal court under 42 U.S.C. § 1983, challenging the validation process. He also alleged that the prison system’s debriefing procedures, “by which validated gang members renounce their gang membership, divulge gang-related information, and earn their release back into the prison’s general population,” violated the Eighth Amendment because they placed him at risk of harm from other prisoners.

On initial screening, the district court dismissed the validation claims as being barred by claim preclusion due to the state habeas corpus ruling ...

Washington Ad Seg Prisoner Improperly Denied Earned Time

Washington Ad Seg Prisoner Improperly Denied Earned Time

by Mark Wilson

On December 30, 2013, the Washington State Court of Appeals held that prison officials had improperly denied earned time credit to a prisoner held in administrative segregation (ad seg).

Washington law authorizes sentence reductions for “earned time,” which is awarded for prison programming and other positive behavior. Department of Corrections (DOC) Policy 350.100 provides, however, that prisoners confined in ad seg for “20 days or more in one calendar month” are ineligible for earned time unless the confinement is not for “negative behavior.”

William F. Jensen, a former King County sheriff’s deputy, was convicted of solicitation to commit first-degree murder. As a former law enforcement officer he was placed in the BAR unit at the Washington State Penitentiary, which houses “vulnerable” offenders.

In January 2011, Jensen was accused of soliciting sex from another BAR unit prisoner; he was transferred to ad seg while the allegation was investigated.

An investigator ultimately decided the charge was unfounded. “Because the investigation concluded that Jensen committed no wrongdoing, he was not placed in administrative segregation for ‘negative behavior,’” the appellate court wrote. The DOC conceded he had been held ...

New York False Imprisonment Claim Revived; Administratively-Imposed PRS Term Invalid

New York False Imprisonment Claim Revived; Administratively-Imposed PRS Term Invalid

by Mark Wilson

On December 26, 2013, a New York appellate court reversed a lower court’s dismissal of a prisoner’s false imprisonment claim.

In 2000, Francis Moulton was sentenced to 42 months in prison on a robbery conviction. The trial court did not impose a mandatory term of post-release supervision (PRS), but the Department of Correctional Services (DOCS) administratively added a five-year PRS term when Moulton was released in 2003.

In 2006, the Second Circuit Court of Appeals held that the administrative imposition of a PRS term violates due process and is a nullity. See: Earley v. Murray, 451 F.3d 71 (2d Cir. 2006) [PLN, April 2010, p.46].

Nevertheless, DOCS did not rescind Moulton’s administratively-imposed PRS term and he was arrested and reincarcerated several times for violating the conditions of his PRS.

The New York Court of Appeals held on April 29, 2008 “that only a sentencing court has the authority to impose the PRS component of a defendant’s sentence and that DOCS acted in excess of its jurisdiction when it administratively imposed a period of PRS.” See: Matter of Garner v. New York State Dept. of ...

$690,000 Settlement in HRDC Suit Over Death of Prisoner’s Baby at CCA Jail

$690,000 Settlement in HRDC Suit Over Death of Prisoner’s Baby at CCA Jail

by Derek Gilna

In August 2014, Corrections Corporation of America (CCA), the nation’s largest for-profit prison firm, settled a federal lawsuit filed by PLN’s parent organization, the Human Rights Defense Center (HRDC), on behalf of a ...

Despite Reforms, Shackling of Pregnant Prisoners Persists

Despite Reforms, Shackling of Pregnant Prisoners Persists

In 2011, Valerie Nabors was serving a sentence at Nevada’s Florence McClure Women’s Correctional Center in Las Vegas for stealing more than $250 in casino chips. She was pregnant and went into labor while incarcerated. Nabors was handcuffed and taken to an ambulance where guards shackled her ankles together, even though Nevada had previously outlawed the use of restraints on pregnant prisoners during labor and delivery.

Guards refused to remove the shackles when an ambulance supervisor protested, and again at the hospital when a nurse questioned their use. Finally, the guards complied after a delivery room nurse insisted the restraints be removed, and Nabors underwent an emergency cesarean section. Within 10 minutes of the surgery, however, guards again shackled Nabors’ ankles and chained her to the bed.

During the ordeal, Nabors suffered a separation of her pubic bones and several pulled muscles in her groin, which her physician determined were a direct result of the restraints. “We were shocked,” said Staci Pratt of the ACLU of Nevada. “And it takes a lot to shock an ACLU attorney.”

After suing the Nevada Department of Corrections, the state paid Nabors a $130,000 ...

Disabled California Juvenile Detainees Entitled to Special Education Services in Jail

Disabled California Juvenile Detainees Entitled to Special Education Services in Jail

by Mark Wilson

The California Supreme Court held on December 12, 2013 that state law requires disabled juvenile offenders to continue receiving special education services while incarcerated.

Under California Education Code § 56041, juveniles between 18 and 22 years old who suffer from learning disabilities, speech or language impairments are entitled to receive special education and related services.

Michael Garcia became eligible for special education services in the second grade, when he was identified as having learning deficiencies and speech and language impairments. Sometime after his sixteenth birthday, Garcia was arrested on felony charges and detained in juvenile hall. While there he received special education services through the Los Angeles County Office of Education.

When he turned eighteen, Garcia was transferred to the Los Angeles County Jail (LACJ) in June 2008, to await trial. Although he was still eligible for special education services, none were offered at the jail because no education agency took responsibility for providing those services.

The Disability Rights Legal Center (DRLC) and co-counsel Milbank, Tweed, Hadley & McCloy, LLP filed suit in federal court, challenging the jail’s failure to provide special education services to Garcia ...

Former Florida Guard Accused of Workers’ Comp Fraud Dies Before Trial

Former Florida Guard Accused of Workers’ Comp Fraud Dies Before Trial

Less than eight weeks before a former Florida prison guard was scheduled to go to trial on charges of fraudulently collecting nearly $3 million in workers’ compensation, he died in a Tampa hospital. Doctors listed his cause of death as lung failure.

David Brownell, 48, left behind a wife who was furious with the state for what she contended was a deliberate effort to besmirch her husband’s name and discredit the medical condition that eventually killed him.

Brownell was arrested in November 2012 on a felony insurance fraud charge. He had filed a workers’ compensation claim in 1995 alleging that his exposure to rats and rat feces at the Glades Correctional Institution (GCI) caused him respiratory problems and a dependency on oxygen. Florida’s Division of Risk Management paid him more than $2.7 million over the next 17 years, including around $563,000 in lost income.

Brownell made statements under oath about his disabilities. However, the Florida Department of Financial Services’ Division of Insurance Fraud produced video footage taken over several years that indicated Brownell’s condition appeared to be less severe than he had claimed. In the videos he ...

Debtors’ Prisons Prevail in Las Vegas, Thanks to Prosecutors and Casino Markers Law

Debtors’ Prisons Prevail in Las Vegas, Thanks to Prosecutors and Casino Markers Law

by Derek Gilna

Anyone who has ever been threatened with jail or actually locked up for passing a bad check or failing to pay a debt knows that so-called “debtors’ prisons” are alive and well in the United States. [See: PLN, Nov. 2013, p.20]. But few states can match Nevada for pursuing criminal charges against people who owe money, especially to the state’s powerful casino industry.

In Nevada, failure to pay “gambling markers” – loans that casinos make to patrons to encourage gambling – is considered the same as writing a bad check under NRS 205.130(1)(e). Further, state law presumes that the debtor is guilty until proven innocent.

But a California businessman is challenging those presumptions.

The Nevada Supreme Court is currently considering the appeal of Harel Zahavi, 53, who was convicted in 2011 on four felony counts of passing bad checks and sentenced to 12 to 34 months in prison on each count. His prison term was suspended and he was placed on probation and ordered to pay fines.

Zahavi, who once ran a thriving ice cream business in southern California, had ...

Ninth Circuit Affirms Preliminary Injunction in Challenge to California’s CASE Act

Ninth Circuit Affirms Preliminary Injunction in Challenge to California’s CASE Act

On November 7, 2012, a federal judge granted a temporary restraining order (TRO) enjoining the implementation of parts of the Californians Against Sexual Exploitation Act (“CASE Act”), passed by voters as Proposition 35, which requires registered sex offenders (RSOs) to provide identifying information about their online accounts to the government.

In seeking the TRO on behalf of all RSOs, the ACLU of Northern California and Electronic Frontier Foundation argued that the CASE Act’s provisions requiring RSOs to provide the police with a list of their Internet providers and screen names violated their rights to free speech and association under the First Amendment, as well as their due process and equal protection rights.

U.S. District Court Judge Thelton Henderson concluded there were “serious questions” about whether the challenged sections of the CASE Act violated RSOs’ First Amendment and other constitutional rights. He also found that, insofar as the state indicated it would be unable to enforce the new law until March 2013, there would be minimal harm in issuing a TRO.

Noting that RSOs would suffer the potential loss of their ability to speak anonymously on the Internet, that ...

Education is Better than Punishment: Something We Can All Support!

Education is Better than Punishment: Something We Can All Support!

by Vivian D. Nixon

I learned in the harshest way possible that in the United States of America, every felony conviction, no matter what the judge officially assigns in months or years, quite literally results in a life sentence. As a strong proponent of decarceration, I am encouraged by efforts toward sentencing reform which will get some people out of prison sooner. But I am painfully aware that release from prison will present new challenges for those individuals whose futures have been made permanently fragile by their status as convicted criminals.

The lifetime consequences of a criminal conviction are evident in the diminished social status and in the devastation of poor communities and communities of color that have been hyper-policed, hyper-prosecuted and hyper-punished for decades. Individuals from these communities are punished not only by virtue of the time they actually spend in prison, on probation or in an alternative program, but because of the additional punishments that are inflicted for a lifetime. The consequences of a felony conviction include periods of voter disenfranchisement that vary state by state, travel restrictions, restricted access to public housing, restrictions on federal educational benefits ...

Reenergized D.C. Corrections Information Council Targets Jail and Prison Conditions

Reenergized D.C. Corrections Information Council Targets Jail and Prison Conditions

by Derek Gilna

The number of suicides at the District of Columbia Jail was cited as the top concern of an independent agency whose mission is to monitor conditions for thousands of incarcerated D.C. offenders housed in the District’s jail system and in federal Bureau of Prisons (BOP) facilities across the nation.

While the District of Columbia operates its own jails, including the Central Detention Facility and Correctional Treatment Facility, the latter managed by Corrections Corporation of America, D.C. offenders sentenced to prison terms are transferred to BOP facilities.

To address its primary concern, the annual report of the D.C. Corrections Information Council (CIC) for fiscal year 2013 recommended that the District’s Department of Corrections (DOC) develop “new training and protocol” to deal with jail suicides.

The report noted “there have been four suicides at the D.C. Jail since November 2012 and 165 suicide attempts in the past two years,” prompting a “study by a nationally-recognized expert in the subject” and the formation of a special task force to investigate the issue. Task force members testified as to their findings at a City Council ...

Agreement to Limit Solitary Confinement in New York State Prisons Applauded

Agreement to Limit Solitary Confinement in New York State Prisons Applauded

Civil rights groups and New York State officials are hailing as “historic” an agreement to enact sweeping reforms in the way the state’s prison system uses solitary confinement as a means of punishing prisoners.

Under the unprecedented February 2014 agreement between the New York Civil Liberties Union (NYCLU) and New York State Department of Corrections and Community Supervision (DOCCS), the state agreed to immediately begin to remove pregnant and mentally disabled prisoners from segregation.

The agreement, which suspends a class-action lawsuit, also makes New York’s prison system the largest in the nation to ban the use of solitary confinement to punish offenders under the age of 18.

“These changes, while just a first step, are significant,” noted NYCLU executive director Donna Lieberman. “They’re historic. We’re the largest system in the country to preclude solitary confinement for juvenile prisoners. That’s huge.”

Echoing Lieberman’s remarks, DOCCS Acting Commissioner Anthony J. Annucci said the changes would “make the disciplinary practices in New York’s prisons more humane.”

“New York State has done the right thing by committing to comprehensive reform of the way it uses extreme isolation, a harmful and ...

When Attorneys Fumble, Defendants Face Consequences

When Attorneys Fumble, Defendants Face Consequences

by David M. Reutter

The right of defendants facing criminal charges to be represented by counsel is the bedrock of our criminal justice system, expressly enshrined in the Sixth Amendment.

An underlying doctrine to that right holds that counsel becomes an agent of the client, binding the client to the actions and inactions of their attorney. In cases where counsel acts negligently, the client is often unable to pursue or is denied relief – though one federal circuit court judge has stated that such an outcome in capital cases is “unjust and inequitable.”

After the U.S. Supreme Court held in 1963 in Gideon v. Wainwright that every criminal defendant has the right to representation by counsel, states created public defender offices or other means of indigent defense. The right to counsel has extended, thus far, to representation at trial and on direct appeal. Recently, the Supreme Court held that cause to overcome the Antiterrorism and Effective Death Penalty Act (AEDPA) may be established when a claim of ineffective assistance of trial counsel must be raised on collateral review and counsel was not provided for that purpose. See: Martinez v. Ryan, 132 S ...

Audit Finds Significant Increase in Fraudulent Tax Returns Filed by Prisoners

Audit Finds Significant Increase in Fraudulent Tax Returns Filed by Prisoners

Prisoners are filing phony federal income tax returns in record numbers and the Internal Revenue Service (IRS) continues to pay refunds despite repeated warnings from the Treasury Inspector General for Tax Administration.

Inspector General J. Russell George told a U.S. House oversight subcommittee on February 26, 2014 that according to the IRS, the number of fraudulent tax returns filed with a Social Security Number assigned to a prisoner had skyrocketed from around 18,000 in 2004 to more than 186,000 in 2011.

“The refunds claimed on these tax returns increased from $68 million to $3.7 billion,” George testified.

“Refund fraud associated with the use of Social Security Numbers of and by prisoners to file false tax returns remains a significant problem for tax administration,” he stressed.

The increase in fraudulent tax returns occurred despite repeated warnings to the IRS to be alert to the problem of phony returns filed by prisoners, and despite several changes to federal law to make it easier for authorities to detect them.

The 2011 figures were more than double the previous year, when prisoners filed 91,000 fraudulent income ...

Texas Prison Population Drops as Guard Shortage Persists

Texas Prison Population Drops as Guard Shortage Persists

by Matt Clarke

In spite of a three-year downward trend, Texas continues to lead the nation with the largest state prison population. At the same time, the state has pursued a variety of incentives to address a chronic shortage of prison guards.

The population of the 109-facility Texas Department of Criminal Justice (TDCJ) fell from about 156,500 prisoners in mid-2011 to just over 154,000 in mid-2012, then to around 150,400 by November 2014 – including both TDCJ prisons and state jails. [See: PLN, Nov. 2013, p.26].

Regardless, Texas still leads the nation in terms of state prison populations because it did not reduce its population as quickly as the former leading state, California. California’s prison population declined from over 160,000 to around 134,000 by diverting non-violent prisoners to county jails to comply with a federal court order to reduce the state’s badly overcrowded prison system. [See: PLN, July 2011, p.1].

“It’s real. It’s happening, not only in Texas, but around the country,” said Austin-based criminal justice consultant Tony Fabelo, who, as head of the Texas Criminal Justice Policy Council, advised state officials during the ...

BOP Criticized for Denying Most Compassionate Release Requests

BOP Criticized for Denying Most Compassionate Release Requests

The federal Bureau of Prisons (BOP) is operating under revised guidelines intended to expand the circumstances under which federal prisoners can seek a reduction in their sentences through the agency’s Compassionate Release Program, following two scathing reports that took the BOP to task for mismanaging the program and routinely denying early release requests.

In fact, a review by the U.S. Department of Justice’s Office of the Inspector General (OIG) determined that over the six-year period from 2006 through 2011, the BOP’s failure to act on such requests led to the deaths of 13% of the federal prisoners who sought compassionate release due to a terminal illness, who died in prison before their requests were decided.

Further, by refusing to petition courts on behalf of prisoners who should be considered for compassionate release, the BOP is usurping the decision-making power of judges, argued a November 2012 report co-authored by Human Rights Watch (HRW) and Families Against Mandatory Minimums (FAMM).

The revised guidelines, included in a BOP Program Statement issued on August 12, 2013, “broadens the circumstances in which the BOP will consider [compassionate release] requests,” according to a statement posted on ...

Washington Undersheriff Sentenced to Six Months for Stealing Bail Money

Washington Undersheriff Sentenced to Six Months for Stealing Bail Money

Claims of substance abuse problems and poor physical health don’t often help criminal defendants trying to mitigate their prison sentences. Carole J. Lepiane, the former undersheriff for Walla Walla County, Washington, is apparently an exception.

Lepiane, 59, who used a walker to scoot her way into a U.S. District Court on January 10, 2013, was subsequently sentenced to just six months in federal prison for embezzling more than $67,000 in cash bail posted for prisoners at the county jail. As part of a plea deal she also agreed to pay $81,271.63 in restitution – to cover both the money she stole and a county audit conducted in her criminal investigation – and must serve a year on supervised release, including four months in a residential re-entry program.

In her pre-sentence remarks to federal judge Frederick Van Sickle, Lepiane apologized to everyone except the county taxpayers and jail prisoners from whom she stole.

“I’m very sorry for any actions I took that were detrimental to my co-workers, my family or my boss, Sheriff Mike Humphreys,” Lepiane said. “He did not deserve the stress, and I hope ...

Deportations Still High Despite Decline from Record Levels

Deportations Still High Despite Decline from Record Levels

by Derek Gilna

s political efforts to reform the nation’s immigration laws continue to falter despite garnering headlines and generating contentious public debate, the latest statistics from Immigration and Customs Enforcement (ICE) reveal that undocumented immigrants continue to be deported in large numbers.

Even though deportations fell last year from a record level in 2012, critics argue that a significant number of immigrants were “removed” for no crime other than being in the U.S. illegally – which historically has been a civil offense.

ICE officials, meanwhile, hailed the deportations as being consistent with the agency’s mandate, stating “that 98 percent of removals met one or more of the agency’s civil immigration enforcement priorities.”

In fiscal year 2013, ICE deported 368,644 people – a 10% decline from 2012’s record-setting 409,849 deportations. The agency said that of the people deported in 2013, nearly 64% were caught while, or shortly after, attempting to illegally enter the United States. The rest were apprehended in the interior of the country.

“The FY2013 numbers make clear that we are enforcing our nation’s laws in a smart and effective way, meeting our enforcement priorities by ...

D.C. Jail Guard Suicidal after Feces Thrown in Face, Sues DOC

D.C. Jail Guard Suicidal after Feces Thrown in Face, Sues DOC

A former guard with the District of Columbia Department of Corrections (DOC) sued his ex-employer in November 2012, claiming he developed PTSD and suicidal tendencies after a prisoner threw feces in his face.

Guard Walter Sampson’s altercation with the prisoner actually occurred in August 2006. Since then he took two years off work, underwent psychiatric treatment, returned to work and was subsequently admitted to a D.C. hospital on suicide watch.

Sampson’s lawsuit claims the DOC refused “reasonable accommodation to the known physical and mental limitations” he experienced after the feces-throwing incident, in violation of the Americans with Disabilities Act (ADA).

While taking two years of disability for PTSD, Sampson saw a psychiatrist weekly – and then monthly – until he was cleared to return to work in a position that excluded contact with prisoners. He returned to the DOC in September 2008, escorting contractors to their work sites.

Sampson was reassigned twice over the following three months – first to the midnight shift at DOC headquarters, then transporting prisoners to and from the D.C. jail. Two days after he began the latter assignment, on January 6 ...

Oklahoma Supreme Court Remands Consolidated Sex Offender Registration Case

Oklahoma Supreme Court Remands Consolidated Sex Offender Registration Case

by Shepherd Litsey

On November 19, 2013, the Supreme Court of Oklahoma affirmed in part, reversed in part and remanded for further proceedings a case involving a registered sex offender required to register for life due to an amended state law applied retroactively.

Christopher Luster pleaded guilty to second-degree sexual assault on April 22, 1992 in Texas and was sentenced to ten years deferred adjudication. He later moved to Oklahoma and began registering as a sex offender per Oklahoma’s Sex Offender Registration Act (SORA) on September 25, 2003. Under the law at the time, he had to register for ten years. On November 1, 2007, SORA was amended and Luster was notified that his sex offender level was being increased and he would have to register for life.

Luster filed suit in 2011 to enjoin the Oklahoma Department of Corrections (DOC) from applying the amended SORA provisions, requesting removal from the registry and freedom from the registration requirement. Alternatively, he argued he should only have to register annually for ten years, with his registration term expiring in 2013. His petition led to the consolidation of 66 other cases raising similar claims ...

Florida Court of Appeals: Prison Guards Can Raise “Stand Your Ground” Defense

Florida Court of Appeals: Prison Guards Can Raise “Stand Your Ground” Defense

by Matt Clarke

On March 28, 2014, a Florida Court of Appeals held that a former Department of Corrections guard charged with aggravated battery for assaulting a prisoner was entitled to pursue a “stand your ground” defense pursuant to § 776.032, Florida Statutes.

While employed as a guard at the Lake Correctional Institution, Brad Heilman was involved in a physical altercation with prisoner Duane Royster. Royster suffered serious injuries, including multiple facial fractures, and Heilman was fired several days after the August 27, 2011 incident.

He was subsequently charged with aggravated battery and released on $5,000 bond. He then filed a motion asking the trial court to grant a hearing and dismiss the charge based on the state’s “stand your ground” statute, which provides immunity for people who use force in self-defense. The trial court denied the motion and hearing, citing State v. Caamano, 105 So.3d 18 (Fla. 2d DCA 2012). Heilman filed a petition for writ of prohibition in the Court of Appeals.

The appellate court found that Caamano did not apply. In Caamano, a police officer tried to use a “stand your ground” ...

News in Brief

News in Brief

Alabama: Six people, including an Alabama state prison guard and two prisoners, were arrested on April 10, 2014 for their roles in a large-scale meth operation. Phillip Burgin, 23, was employed at the Kilby Correctional Facility before being stopped in Oklahoma while transporting 30 pounds of the drug. The prisoners, Alberto Trejo and Gumaro Calles, incarcerated at two other Alabama facilities, are believed to have helped orchestrate distribution of the meth using contraband cell phones. Also arrested were Stephanie Auban, 41, William Thomas Crane II, 36, and Miguel Calles-Gutierrez. All face federal charges that carry sentences ranging from 10 years to life.

Arizona: Joseph Andrew Dekenipp, incarcerated at the Pinal County jail, escaped on February 14, 2014 for a Valentine’s Day date with his sweetheart. He suffered serious cuts while climbing two walls and squeezing through razor wire, and was arrested after he arrived at a local bar and grill to meet his girlfriend. Dekenipp now faces an escape charge in addition to his initial charges of suspicion of vehicle theft, trafficking in stolen property, driving on a suspended license and unlawful flight.

Arizona: A racially-charged brawl at the Arizona State Prison Complex-Winslow left several prisoners hospitalized ...


 

Federal Prison Handbook

 



 

Disciplinary Self-Help Litigation Manual

 



 

Federal Prison Handbook

 



 


 

Disciplinary Self-Help Litigation Manual