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Prison Legal News: February, 2014

Issue PDF
Volume 25, Number 2

In this issue:

  1. Violence, Security Lapses and Media Attention Lead to Reforms at Georgia Prison (p 1)
  2. From the Editor (p 8)
  3. Prison Phone Justice Campaign: Recent Developments (p 10)
  4. Bankruptcy Injunction Covers Pre-petition Incarceration Costs, but Not Those that Accrue Afterwards (p 11)
  5. What Are the Odds of Complete Reversal After Conviction in the Second Circuit? (p 12)
  6. The Effects of Private Prison Confinement in Minnesota on Offender Recidivism (p 14)
  7. Confronting Prison Slave Labor Camps and Other Myths (p 16)
  8. Ninth Circuit: 9-Year Detention Pending Civil Commitment Proceeding Warrants Habeas Relief (p 19)
  9. Possession of Rape Video Warrants Restitution; Victim Awarded Over $1 Million Thus Far; Supreme Court Grants Cert. (p 20)
  10. California: Felons with Prior Juvenile Strikes Excluded from County Jail Placement Under Realignment Act (p 21)
  11. PA Prison Lieutenant Fired After Assisting in Criminal Investigation (p 22)
  12. PLN Settles Censorship Suit Against Texas County Jail for $175,000 (p 22)
  13. New Trial Granted in Jail Strip Search Case Following Jury Verdict; $385,000 Settlement (p 24)
  14. California: State Prisoner Cannot Serve Concurrent Sentence in County Jail (p 25)
  15. Iowa: Bad Faith or Misconduct can Overcome Mental-Process Privilege in Disciplinary Case (p 26)
  16. Prisoner Assaulted in Tennessee Jail Settles Suit for $530,000 (p 27)
  17. Arrested: What to do When Your Loved One’s in Jail, by Wes Denham (p 28)
  18. California: Sexually Violent Predator Entitled to Jury Trial on Petition Seeking Conditional Release (p 28)
  19. Qualified Immunity Denied to Prison Psychiatrist who Prescribed Lethal Drug Combination; $450,000 Settlement (p 30)
  20. Medical Parole for Texas Prisoners on the Decline (p 30)
  21. Court Employee Fired for Helping Wrongfully Convicted Prisoner Prove His Innocence (p 32)
  22. NY Prisoner’s Youthful Age Considered in Modifying Prison Disciplinary Sanction (p 32)
  23. Islamic Organization Petitions to Let Muslim Women Prisoners Wear Hijabs (p 34)
  24. Eighth Circuit: No Qualified Immunity for Excessive Use of Force, Retaliation (p 34)
  25. Ninth Circuit Reverses Dismissal of Wiccan Prisoners’ Establishment Clause Claim (p 36)
  26. West Virginia Sex Offender Does Not Have Right to Attend Specified Church (p 36)
  27. Rules Governing Lethal Injections Not Required under Georgia Law (p 37)
  28. Deliberate Indifference Medical Claim Accrues Upon Discovery of Injury and its Cause (p 38)
  29. Private Corrections Institute Issues First Annual Awards for Activism, Advocacy and Reporting on Private Prisons (p 38)
  30. Criminal Background Checks Criticized for Incorrect Data, Racial Discrimination (p 40)
  31. Former Kansas Prisoner’s Sexual Misconduct Suit Overcomes Qualified Immunity (p 42)
  32. Ninth Circuit Upholds Six-Day Contraband Watch Conditions (p 43)
  33. Reflections on the No More Jails Campaign in Champaign County, Illinois (p 44)
  34. Ninth Circuit Questions Constitutionality of Requiring Jail Prisoners to Wear Pink Underwear (p 46)
  35. Pennsylvania Jail Official Indicted for Groping Co-workers (p 47)
  36. Solitary Confinement’s Invisible Scars (p 48)
  37. Lawsuit, Whistleblower Allege Rape by Guards at New Mexico Prison (p 49)
  38. Ninth Circuit: Immigration Detainees Must be Afforded Opportunity to Challenge Continued Detention after Six Months (p 50)
  39. Restitution Not Owed for Arrest Costs, West Virginia Court Holds (p 50)
  40. Discretionary Immunity Dismissal of Ohio Prisoner’s Negligence Claims Reversed (p 50)
  41. Washington: No Public Funds for Deferred Prosecution Treatment Programs (p 52)
  42. Short-term Deprivation of Toilet Paper Does Not Violate Detainee’s Rights (p 52)
  43. Justice Department Reports: Correctional Populations Declining at Slower Pace (p 54)
  44. Jails Market Electronic Cigarettes to Prisoners (p 54)
  45. Crime Declines while Anti-crime Funding Increases (p 55)
  46. News in Brief (p 56)

Violence, Security Lapses and Media Attention Lead to Reforms at Georgia Prison

A series of investigative news reports by Chattanooga Times Free Press reporter Joy Lukachick, published from February to December 2013, revealed numerous problems in Georgia’s prison system – particularly at Hays State Prison (HSP), located around 40 miles south of Chattanooga, Tennessee – and resulted in lawsuits, security improvements and the ...

From the Editor

In 2011, the Human Rights Defense Center – the parent organization of Prison Legal News – co-founded the national Campaign for Prison Phone Justice to eliminate the high costs of prison phone calls. We had success before the Federal Communications Commission, which voted in August 2013 to cap the cost of interstate ...

Prison Phone Justice Campaign: Recent Developments

PLN’s December 2013 cover story provided an updated look at the prison phone industry and examined a recent order by the Federal Communications Commission (FCC) that imposed rate caps on interstate (long distance) prison and jail phone calls. There have since been several new developments on the prison phone ...

Bankruptcy Injunction Covers Pre-petition Incarceration Costs, but Not Those that Accrue Afterwards

The Bankruptcy Appellate Panel for the Eighth Circuit held on February 5, 2013 that a Missouri bankruptcy court was correct in concluding prison officials did not violate a discharge injunction by collecting money from a prisoner’s account for incarceration costs that accrued after the injunction was filed.

Missouri prisoner ...

What Are the Odds of Complete Reversal After Conviction in the Second Circuit?

by Richard Levitt and Peter Schmidt

A potential client asks an attorney the odds of completely overturning his federal trial conviction on appeal. If the attorney is experienced in the ways of appellate advocacy and his predilection for candor trumps his predilection for solvency, he might tell his potential client ...

The Effects of Private Prison Confinement in Minnesota on Offender Recidivism

The Minnesota Department of Corrections (DOC) recently completed an evaluation of the effects of private prison confinement on offender recidivism. The evaluation assessed the impact of confinement at the Prairie Correctional Facility (PCF) in Appleton, Minnesota on recidivism among 3,532 offenders released between 2007 and 2009. The average follow-up ...

Confronting Prison Slave Labor Camps and Other Myths

There are moments when our longings for social justice cloud our vision, times when the way we want the world to be blocks our understanding of the way things really are. A good example of this is the notion of the United States’ prison system as totally driven by profit-hungry ...

Ninth Circuit: 9-Year Detention Pending Civil Commitment Proceeding Warrants Habeas Relief

In March 2013, the Ninth Circuit Court of Appeals reversed a district court’s dismissal of a pro se habeas petitioner’s claim that his 9-year detention while waiting for the State of California to initiate civil commitment proceedings was unconstitutional.

Just before convicted rapist Bobby Joe Knight’s scheduled ...

Possession of Rape Video Warrants Restitution; Victim Awarded Over $1 Million Thus Far; Supreme Court Grants Cert.

When she was a little girl, Amy’s uncle videotaped himself raping her, then shared the video with other pedophiles. Now in her 20s, Amy (a pseudonym) is seeking restitution from everyone who has ever possessed and viewed the pornographic images of her. The extent to which she is entitled ...

California: Felons with Prior Juvenile Strikes Excluded from County Jail Placement Under Realignment Act

The California Court of Appeal held on March 20, 2013 that a prisoner whose prior record includes a juvenile adjudication for a serious or violent felony may not receive a county jail commitment, even if that was the intent when the legislature, in response to a federal court order mandating ...

PA Prison Lieutenant Fired After Assisting in Criminal Investigation

A former Pennsylvania prison lieutenant might now have a better understanding as to why many prisoners refuse to assist in criminal investigations.

In January 2011, Lt. Vincent Schaffer, 45, then a unit manager in F Block at SCI-Pittsburgh, was approached by an internal affairs officer to gather dirt on a ...

PLN Settles Censorship Suit Against Texas County Jail for $175,000

In December 2013, Prison Legal News settled a federal lawsuit against Upshur County, Texas that alleged unconstitutional censorship when PLN’s publications were rejected by jail officials. The suit, filed in October 2012, named the county, Sheriff Anthony Betterton and Sheriff’s Lt. Jill McCauley as defendants.

According to the ...

New Trial Granted in Jail Strip Search Case Following Jury Verdict; $385,000 Settlement

On March 7, 2011, an Iowa federal district court granted a motion for a new trial after a jury awarded $259,155 to a woman who was improperly strip searched when she was arrested and booked into jail. Before another trial was held, a 2012 U.S. Supreme Court ruling ...

California: State Prisoner Cannot Serve Concurrent Sentence in County Jail

On February 15, 2013, the California Court of Appeal held that when a sentence that otherwise would have been served in a county jail is ordered to run concurrent to a sentence already being served in state prison, the entire sentence must be served in prison.

In May 2011, Olivia ...

Iowa: Bad Faith or Misconduct can Overcome Mental-Process Privilege in Disciplinary Case

The Iowa Supreme Court has held that administrative law judges (ALJs) in the Department of Corrections (DOC) are entitled to assert the mental-process privilege in an Office of Ombudsman investigation, but that privilege may be overcome upon a strong showing of bad faith or misconduct. In the case before the ...

Prisoner Assaulted in Tennessee Jail Settles Suit for $530,000

Curtis Dressman, a former pre-trial detainee, has settled his § 1983 lawsuit against jail officials in Nashville, Tennessee after a judge denied the jail’s motions for summary judgment. The district court found that Dressman had “a clearly established constitutional right to be [free] from deliberate indifference of inmate-on-inmate violence.”

The ...

Arrested: What to do When Your Loved One’s in Jail, by Wes Denham

(Chicago Review Press, 2010). 263 pages (paperback), $16.95.

Book review by John E. Dannenberg

Arrested: What to do When Your Loved One’s in Jail is a detailed “how-to” manual for educating the uninformed about the harsh realities of what jail entails, with the ultimate goal being to guide ...

California: Sexually Violent Predator Entitled to Jury Trial on Petition Seeking Conditional Release

The California Court of Appeal has reversed the denial of a petition for conditional release filed by a sexually violent predator (SVP) who had received a psychological evaluation indicating that conditional release would be in his best interest and consistent with public safety.

As an SVP committed for indeterminate treatment ...

Qualified Immunity Denied to Prison Psychiatrist who Prescribed Lethal Drug Combination; $450,000 Settlement

The Sixth Circuit Court of Appeals has affirmed the denial of qualified immunity to a psychiatrist in a lawsuit brought by a prisoner’s estate. The appellate court found the evidence could establish that the psychiatrist had “consciously exposed” the prisoner “to a substantial risk of death through his medical ...

Medical Parole for Texas Prisoners on the Decline

by Matt Clarke

The number of prisoners granted medical parole in Texas decreased in fiscal year 2012 compared with those paroled due to medical reasons in the previous two years. The Texas Board of Pardons and Paroles approved just 72 prisoners for medical parole in FY 2012, down from 100 ...

Court Employee Fired for Helping Wrongfully Convicted Prisoner Prove His Innocence

In 1984, Robert E. Nelson was convicted and sentenced by Jackson County, Missouri Circuit Court Judge David M. Byrn to 50 years in prison for forcible rape, 5 years for forcible sodomy and 15 years for first-degree robbery, plus two unrelated robbery convictions. Nelson’s sentence for the latter two ...

NY Prisoner’s Youthful Age Considered in Modifying Prison Disciplinary Sanction

The Appellate Division of New York’s Supreme Court, Fourth Judicial Division, after taking into account a prisoner’s youthfulness, modified the penalty imposed in a prison disciplinary hearing.

Prisoner Paul Cookhorne was charged with violating various prison rules that included assaulting and injuring a guard. Cookhorne, who was 17 ...

Islamic Organization Petitions to Let Muslim Women Prisoners Wear Hijabs

In May 2013, the Council on American-Islamic Relations (CAIR) petitioned the U.S. Department of Justice (DOJ) to establish a uniform policy for all local, state and federal correctional facilities to allow Muslim women to wear hijab head coverings while incarcerated and when photos are taken, such as during the ...

Eighth Circuit: No Qualified Immunity for Excessive Use of Force, Retaliation

The Eighth Circuit Court of Appeals has affirmed a district court’s denial of qualified immunity on a prisoner’s retaliation and excessive force claims.

On July 26, 2008, Missouri prisoner Victor Santiago faced administrative segregation for failing to report to his work assignment at the Potosi Correctional Center. When ...

Ninth Circuit Reverses Dismissal of Wiccan Prisoners’ Establishment Clause Claim

On February 19, 2013, the Ninth Circuit reversed a district court’s dismissal of a lawsuit brought under 42 U.S.C. § 1983 by two California prisoners who alleged that prison officials had violated their constitutional rights by failing to apply neutral criteria in determining whether paid chaplaincy positions were ...

West Virginia Sex Offender Does Not Have Right to Attend Specified Church

The West Virginia Supreme Court held on February 22, 2013 that a convicted sex offender does not have an automatic right to attend religious services of his choice. The Court’s ruling was not based on the right to exercise religious freedoms under the state or federal constitutions, however; it ...

Rules Governing Lethal Injections Not Required under Georgia Law

The Georgia Supreme Court has held that the state’s Board of Corrections (BOC) is not statutorily required to promulgate rules governing lethal injections. The Court further held that neither the Georgia Department of Corrections (DOC) nor the Commissioner of Corrections has statutory authority to promulgate any legally binding rules ...

Deliberate Indifference Medical Claim Accrues Upon Discovery of Injury and its Cause

The Seventh Circuit Court of Appeals has articulated a rule for determining when a prisoner’s claim of deliberate indifference to a serious medical need accrues. In so doing, the Court reversed an Indiana federal district court’s dismissal of a prisoner’s lawsuit predicated upon expiration of the statute ...

Private Corrections Institute Issues First Annual Awards for Activism, Advocacy and Reporting on Private Prisons

On January 7, 2014, the Private Corrections Institute (PCI), a Florida-based non-profit citizen watchdog organization, issued its first annual awards for individual activism, organizational advocacy and excellence in news reporting related to the private prison industry. PCI opposes the privatization of correctional services, including the operation of prisons and jails ...

Criminal Background Checks Criticized for Incorrect Data, Racial Discrimination

A July 2013 study by the National Employment Law Project (NELP) found that widespread errors in FBI arrest data – which is increasingly relied upon by employers conducting criminal background checks – has reached alarming proportions. According to NELP staff attorney Madeline Neighly, the FBI records used for background checks “might be ...

Former Kansas Prisoner’s Sexual Misconduct Suit Overcomes Qualified Immunity

The Tenth Circuit has affirmed the denial of qualified immunity to a warden in a civil rights action that alleged he created and allowed a policy or culture of sexual misconduct and failed to take reasonable measures to abate that culture of sexual misconduct at a Kansas women’s prison ...

Ninth Circuit Upholds Six-Day Contraband Watch Conditions

A divided panel of the Ninth Circuit Court of Appeals has held that California prison officials are entitled to qualified immunity on a prisoner’s claim that the conditions of a six-day contraband watch – which included 24-hour lighting, the absence of a mattress and extensive bodily restraints – violated the Eighth ...

Reflections on the No More Jails Campaign in Champaign County, Illinois

When we began our campaign to stop jail construction in Champaign County, Illinois in early 2012, I thought we were doomed. The grand plan to spend $20 million on this project seemed like a done deal. The Sheriff was driving the initiative; the leading lights in the County Board seemed ...

Ninth Circuit Questions Constitutionality of Requiring Jail Prisoners to Wear Pink Underwear

by Matt Clarke

On March 7, 2012, the Ninth Circuit Court of Appeals issued a decision in which it questioned the constitutionality of a Maricopa County, Arizona jail policy that requires male pretrial detainees who have not been convicted of a crime to wear pink underwear. The appellate court did ...

Pennsylvania Jail Official Indicted for Groping Co-workers

Ronald Edward Lensbouer, 44, the Chief Corrections Officer at a jail in Somerset County, Pennsylvania, faces charges of indecently assaulting two female guards at the facility.

According to court records, Lensbouer was charged on June 5, 2013 in two separate cases with four misdemeanor counts each of indecent assault and ...

Solitary Confinement’s Invisible Scars

I spent more than five years of my sentence in “the box,” for trivial violations. It’s time we saw this casual abuse for what it is: torture.

by Five Oman Mualimm-ak

As kids, many of us imagine having superpowers. An avid comic book reader, I often imagined being invisible ...

Lawsuit, Whistleblower Allege Rape by Guards at New Mexico Prison

A lawsuit filed in May 2012, alleging sexual abuse at the Central New Mexico Correctional Facility (CNMCF) in Los Lunas, compelled a retired prison guard to come forward and blow the whistle on several other officers, including one already accused of raping a prisoner.

The retired guard, whose identity was ...

Ninth Circuit: Immigration Detainees Must be Afforded Opportunity to Challenge Continued Detention after Six Months

On April 16, 2013, the Ninth Circuit Court of Appeals affirmed a district court’s grant of preliminary injunctive relief to immigration detainees in Southern California, affording them an opportunity to challenge their continued detention before an Immigration Judge after six months.

On any given day, Immigration and Customs Enforcement ...

Restitution Not Owed for Arrest Costs, West Virginia Court Holds

Petitioner Michael John McGill appealed his December 2010 state conviction for escape from home confinement while on bail and the sentencing judge’s order that he pay $8,261.56 in “restitution to the State for costs associated with apprehending him following his unauthorized departure from home confinement.”

According to ...

Discretionary Immunity Dismissal of Ohio Prisoner’s Negligence Claims Reversed

On March 12, 2013, the Ohio Court of Appeals overturned an earlier discretionary immunity decision and reversed a lower court’s dismissal of a prisoner’s negligence claims on the basis of discretionary immunity.

Ohio Department of Rehabilitation and Correction (ODRC) prisoner Ron Foster suffers from various health problems, including ...

Washington: No Public Funds for Deferred Prosecution Treatment Programs

The en banc Washington state Supreme Court has held that the legislature did not intend to commit public funds to cover the full cost of treatment for indigent defendants participating in deferred prosecutions.

A Washington defendant charged with a misdemeanor offense may petition for deferred prosecution if the crime was ...

Short-term Deprivation of Toilet Paper Does Not Violate Detainee’s Rights

The Eighth Circuit Court of Appeals has held that denial of toilet paper to a pretrial detainee for a short period of time does not violate the Fourteenth Amendment. The ruling reversed a district court’s order which had concluded the defendants were not entitled to qualified immunity.

James M ...

Justice Department Reports: Correctional Populations Declining at Slower Pace

The Bureau of Justice Statistics has published two new reports, “Correctional Populations in the United States, 2012” and “Probation and Parole in the United States, 2012.” Both indicate that although correctional populations continue to drop, the rate of decrease has slowed.

Approximately 6.9 million people were under correctional supervision ...

Jails Market Electronic Cigarettes to Prisoners

Jail administrators have found a new revenue stream: exploiting prisoners’ addiction to nicotine by selling them electronic cigarettes, or e-cigarettes, for a substantial profit.

Even as municipalities like Chicago, New York and Los Angeles enact restrictions on the sale of e-cigarettes, county jails across the country are peddling the nicotine ...

Crime Declines while Anti-crime Funding Increases

Crime is down in the United States, but spending measures included in the $1.1 trillion federal budget passed by Congress in January 2014 will ensure that many law enforcement agencies receive more funding.

Insiders give much of the credit for the fiscal year (FY) 2014 funding increases to Senate ...

News in Brief

Alaska: Prisoners in the segregation unit at Spring Creek Correctional Center were not happy with an inspection order that required them to make their beds and clean their cells. On August 5, 2013, around 14 prisoners showed their displeasure by yelling, breaking porcelain sinks and toilets, and flooding cells. Only ...