A Home of Their Own
by Lisa Riordan Seville and Graham Kates
Recovery is work that Terrance Streeter knows.
At 56, he is clean. No more drinking, no more drugs. After graduating from an alcohol recovery program two years ago, he went looking for a home. In New York City, his $855 monthly disability check doesn’t go far.
Despite the distance he traveled from addiction, Streeter in late 2012 found himself homeless and suicidal.
He checked himself into the psychiatric ward of a city hospital, where a social worker eventually found him somewhere she said was safe and drug-free: a residence run by a substance abuse treatment program called Narco Freedom.
When he walked through the door of that home, a rundown former hotel on Beach 116 Street, in the Rockaway neighborhood of Queens, Streeter was shocked.
Cockroaches skittered across the floor. The plumbing was bad, the bathroom moldy.
“Are you kidding me?” he remembers saying to himself. “This is recovery?”
Streeter had entered the largely unregulated system of group homes that has emerged in cities throughout the country, often catering to poor people struggling with substance abuse, homelessness, or returning from prison.
In New York ...
From the Editor
by Paul Wright
This month’s issue of Prison Legal News marks 24 years and 284 issues, which makes PLN the longest continuously-published prisoners’ rights publication in U.S. history. We have grown significantly from a ten-page, hand-typed newsletter to our current 64-page magazine format. While some things have changed over the years others have remained constant, such as continuing to bring our readers high quality news and legal information they can use to help themselves and advocate for the rights of prisoners.
Another constant, which continues to distract us from our publishing work, is the ongoing government censorship of PLN and the books we distribute. The first three issues of PLN were banned in all Washington State prisons when we first began publishing in 1990. Today we have been banned in the state of Florida since 2009 – which is the subject of pending litigation – and have filed suit against the Nevada DOC for censoring PLN’s books.
In addition to prison systems, many jails around the country ban all books and magazines and even letter correspondence from PLN to prisoners. We currently have three staff attorneys and two paralegals whose primary mission is ...
Seventh Circuit Reverses Dismissal of Prisoner’s 99-Page Complaint
by Mark Wilson
The Seventh Circuit Court of Appeals has reversed a district court’s finding that a prisoner’s “99-page complaint defies understanding, rendering it unintelligible and subject to dismissal on that basis.”
In 2011, federal prisoner Jurijus Kadamovas, who is Lithuanian and claims to be English-illiterate, filed a Bivens action alleging that prison officials violated his religious rights and subjected him to cruel and unusual punishment.
Before the defendants filed an appearance in the case, an Indiana federal district court dismissed Kadamovas’ complaint with leave to amend. The case was later dismissed with prejudice after he failed to file an amended complaint.
In an opinion authored by Judge Posner, the Seventh Circuit explained that “length and unintelligibility, as grounds for dismissal of a complaint, need to be distinguished.”
The Court of Appeals noted that “Length may make a complaint unintelligible, by scattering and concealing in a morass of irrelevancies the few allegations that matter.” However, “a complaint may be long not because the draftsman is incompetent or is seeking to obfuscate (‘serving up a muddle’ to the judge, as such complaints are sometimes described).” Rather, it ...
California Improves Compensation Process for Wrongfully Convicted Prisoners
On October 13, 2013, California Governor Jerry Brown signed into law Senate Bill 618, legislation that streamlines the process for providing financial compensation to people who are wrongfully convicted, exonerated and released from prison. The bill had been introduced by state Senator Mark Leno.
SB 618 updates California Penal Code 4900, enacted in 2000, which provides for $100 for each day of incarceration resulting from a wrongful conviction. The law also required exonerated prisoners to undergo a second, smaller trial by a compensation board to establish their innocence.
SB 618 mandates two important changes. First, when a judge grants a writ of habeas corpus, those findings are binding on the compensation board; second, prisoners who are exonerated and freed no longer have to go through another hearing to prove their innocence before obtaining compensation.
The purpose of modifying the existing law is to provide more expedient relief to wrongfully convicted prisoners like Timothy Atkins.
Convicted at age 17 and incarcerated for 23 years for a murder he did not commit, Atkins was released in February 2007 after the state’s witness admitted being coerced by police to name him as the perpetrator ...
North Dakota Courtroom Shackling Requires Independent Assessment by Judge
by Mark Wilson
The North Dakota Supreme Court has held that a lower court abused its discretion by failing to independently assess the need for shackling a defendant during a civil commitment discharge hearing.
On January 11, 2006, Robert R. Hoff was civilly committed as a sexually dangerous person. He requested discharge in September 2011 and appeared at a March 2012 discharge hearing while in “handcuffs tethered to his waist and an ankle chain.”
Hoff’s attorney requested that the shackles be removed, but the court refused. “The sheriff makes the determination whether or not [defendants] can be secured while they’re here,” the court explained.
“Not my call, Your Honor,” a deputy stated. “The sheriff said no. They have to stay on.”
At the conclusion of the hearing the court denied Hoff a discharge, finding that he “continues to be a sexually dangerous individual.”
The state Supreme Court reversed, holding that “when Hoff’s counsel requested that Hoff’s restraints be removed, at a minimum, the court was required to engage in the analysis set out in” Interest of R.W.S., 2007 ND 37, 728 N ...
Florida Prison System Ordered to Provide Kosher Meals
A U.S. District Court has ordered the Florida Department of Corrections (FDOC) to begin serving kosher meals to hundreds of Jewish prisoners, following legal challenges after the FDOC discontinued its kosher meal program in 2007. Additionally, an Islamic advocacy group has warned that it is prepared to file suit if the FDOC fails to provide halal food to Muslim prisoners.
The legal fight for kosher meals began in September 2010 when Florida state prisoner Bruce Rich, an Orthodox Jew, filed a complaint in federal court under the Religious Land Use and Institutionalized Persons Act (RLUIPA), claiming the FDOC’s refusal to provide a kosher diet violated his right to practice his religion.
At the time, Florida prisons offered three main diets: 1) the master menu, 2) an alternate entree with a non-meat substitute and 3) vegan meals. None were kosher. The FDOC also provides therapeutic diets prescribed by a doctor and had previously eliminated all pork and pork products from prison meals.
The U.S. Department of Justice (DOJ) joined the fray in August 2012, filing a lawsuit against the FDOC that alleged the state was in violation of RLUIPA by ...
Ninth Circuit: County May be Liable for Wrongful Conviction Even if District Attorney Enjoys Absolute Immunity
On May 8, 2013, the Ninth Circuit Court of Appeals held that the County of Los Angeles could be held liable for its failure to establish policies regarding the use of jailhouse informants, when that failure led to the wrongful conviction of Thomas Lee Goldstein, a man with no prior criminal history, who served over two decades in prison for a murder he didn’t commit.
In so holding, the Ninth Circuit reversed the district court’s grant of the county’s motion for judgment on the pleadings. The district court’s ruling, in turn, followed a decision by the U.S. Supreme Court four years earlier, which had held that the Los Angeles County District Attorney enjoyed absolute immunity from suit based on Goldstein’s claims.
Goldstein, a Marine Corps veteran and engineering student, was convicted of a 1979 murder based largely on the perjured testimony of an unreliable jailhouse informant, the aptly named Edward Fink. Although Fink had a history of testifying in other cases in exchange for reduced sentences, no one informed Goldstein’s counsel of Fink’s history or that Fink had lied on the stand ...
California: Sexually Violent Predators May be Conditionally Released from Custody Even if Homeless
by Michael Brodheim
The California Court of Appeal, Third District, has held that a person committed as a sexually violent predator (SVP) may be conditionally released into the community even if he or she has no fixed residence.
In October 2010, the Placer County Superior Court determined that Tibor Karsai, who had been committed as an SVP in 1998, would pose no danger to others under outpatient supervision and treatment in the community, and that he therefore should be conditionally released. A year and a half later, despite the fact that an acceptable residence for Karsai had not been found, the court ordered his release.
Arguing that no provision of law permits an SVP to be released as a transient without a fixed residence, the District Attorney sought a writ of mandate to prevent Karsai’s release. The Court of Appeal rejected that argument, however, concluding that “nothing in the law forbids conditional release of an SVP as a transient.” To hold otherwise, the appellate court wrote, would raise serious constitutional concerns.
Once a trial court determines that an SVP would not pose a danger ...
Banking and Financial Management Course (1st Ed.), by Prisoner Assistant
(CreateSpace Independent Publishing, July 2013). 119 pages, $30.00
Book review by Gary Hunter
Life outside prison crosses the minds of most prisoners daily, but how many times do those thoughts include the direction of their financial future? Prisoner Assistant has put together a helpful text book, the Banking and Financial Management Course, specifically designed to help prisoners understand and plan for their future finances.
Banking and Financial Management offers a detailed description of how financial institutions operate and how they can be successfully used. The reader will learn the subtle differences between a debit card, credit card and ATM card, for example. The book also describes a number of fee-based financial services offered by Prisoner Assistant.
Chapter one addresses banking basics with a concise explanation of what financial institutions offer and how they work. Debit card and credit card functions are clearly explained. Prisoner Assistant even provides a list of questions that will help you find the financial institution best suited to your personal needs.
Chapter two examines savings accounts, and illustrations take the reader through an easy to understand, step-by-step process. Technological advances now offer ...
Seventh Circuit Clarifies Standard for Recruiting Counsel in Pro Se Cases
by David Reutter
The Seventh Circuit Court of Appeals has held that an Illinois federal district court, like many federal courts in Northern Illinois, used an improper standard when refusing to exercise its discretion to recruit counsel for a pro se prisoner in a civil rights action. The appellate court further found the prisoner was prejudiced by the refusal to recruit counsel.
While at the Stateville Correctional Center in 2008, prisoner Eduardo Navejar was ordered out of the cafeteria line by Lt. Akinola Iyiola for violating prison rules that prohibit prisoners being transported from stopping to speak to other prisoners. Navejar disobeyed the order, became belligerent and punched Iyiola in the face.
Iyiola and other guards wrestled Navejar to the ground and handcuffed him. From that point on, the facts were disputed. Navejar testified that Iyiola kicked him in the forehead near his eye and an unidentified guard stomped his head against the ground. Navejar was then pepper-sprayed by Sgt. Michael Grant.
After Navejar was dragged along the floor and carried down some stairs, Iyiola again pepper-sprayed him. Guards then left Navejar in a segregation cell for ...
Second Circuit: Federal Prisoner States Conditions of Confinement Claim
by David Reutter
The Court of Appeals for the Second Circuit held that a federal prisoner sufficiently stated a claim alleging the conditions of his confinement violated the Eighth Amendment.
The case involved an appeal from a New York federal district court’s order granting a motion to dismiss filed by defendant prison officials. The district court held that FCI Ray Brook prisoner Ellis Walker had failed to present facts to support his claim that conditions at the facility constituted cruel and unusual punishment.
Walker alleged that for 28 months he was held in a cell with five other men. The cell had “inadequate space and ventilation, stifling heat in the summer and freezing cold in the winter,” unsanitary conditions that included urine and feces splattered on the floor, insufficient cleaning supplies and a mattress too narrow for him to lie down on flat. Walker also claimed the cell was noisy and crowded, which made sleep difficult, and that he was at constant risk of violence and serious harm from his cellmates.
The Second Circuit held that those allegations plausibly stated a claim for cruel and unusual punishment. First ...
Witness Protection Program Termination Unreviewable; 188 Days in SHU Triggers Due Process Protections
by Mark Wilson
The Second Circuit Court of Appeals has held that claims related to termination from a federal witness protection program are not judicially reviewable. The Court reinstated an administrative segregation claim, however, holding that 188 days in segregation triggered due process protections.
A federal prisoner incarcerated at FCI Otisville in New York, identified only as “J.S.,” voluntarily participated in the U.S. Department of Justice’s (DOJ) Witness Security Program, also known as the witness protection program, from December 2007 to March 2010 pursuant to a “prisoner-witness agreement” and a memorandum of understanding with the DOJ.
Upon entering the program, J.S. agreed that contacting or attempting to contact unauthorized individuals could result in his termination from the program.
In October 2009, DOJ officials informed J.S. that he had violated the agreement by contacting unauthorized individuals, and a program termination notice was issued.
J.S. administratively appealed the termination, arguing that the DOJ’s failure to provide him with notice of whom he allegedly contacted deprived him of due process. He also claimed the alleged violation was impossible because prison staff approved ...
Former Colorado DOC Official Pleads Guilty to Felony Menacing Charges
Ex-Colorado prison official Mark Edward McKinna, 63, pleaded guilty in May 2013 to six counts of felony menacing with a deadly weapon.
McKinna, once a regional director for the Colorado Department of Corrections who served as warden at the Fremont, Limon and Territorial correctional facilities, admitted discharging a firearm at six people – five of them children – near a neighbor’s home in Cañon City.
The incident occurred when Charlene Cornwell’s then-14-year-old daughter and another girl were outside riding the family’s go-kart. According to a probable cause affidavit, McKinna exited his house and began cursing at them due to the noise.
He reportedly continued using profanity at Cornwell, the two girls and three other children even after they turned off the go-kart. McKinna then pulled a gun from his pocket and fired a shot in their direction.
Cañon City police responded to the August 2012 incident and one officer testified that he smelled alcohol on McKinna, who had slurred speech, watery eyes and was off-balance.
McKinna accepted a plea bargain and was sentenced to 10 days in jail and three years’ probation on July 17, 2013. While on probation ...
Warden Granted Qualified Immunity for Two-year Visitation Suspension
by David Reutter
A prison official who suspended a prisoner’s visitation privileges was entitled to qualified immunity because, under the facts of the case, the prisoner did not have a clearly established right to visitation, the Fourth Circuit Court of Appeals held.
South Carolina state prisoner Jerome A. Williams received a visitor at the Evans Correctional Institution on March 31, 2007. During the visit, a guard observed the visitor “pass suspected marijuana to Williams,” who reportedly placed it in his pants before walking to the restroom.
Several guards intercepted Williams. He was taken to an area to be strip searched while his visitor was escorted out of the prison. No contraband was found, but a guard said he saw Williams put something in his mouth and swallow. As a result, Williams was placed in a “dry cell” for 72 hours. His excrement was searched for the suspected marijuana, without success. He was not charged with a disciplinary offense.
Despite the lack of contraband, Williams was held in a disciplinary “special housing unit” for a little over two months. Additionally, the warden suspended Williams’ visitation privileges for two years based ...
Massachusetts: Order Relieving Sex Offender of Registration Not Vacated Upon Probation Violation
by David Reutter
The Massachusetts Supreme Judicial Court has held that once a judge relieves a sex offender of the requirement to register, a different judge lacks the authority to order the offender to register following a probation violation.
Douglas Ventura pleaded guilty to one count of possession of child pornography. After being sentenced to probation, pursuant to state law he moved to be relieved of the statutory requirement to register as a sex offender. The sentencing judge found that Ventura had demonstrated he did not pose a risk of re-offense or a danger to the public, and relieved him of the registration requirement.
About two-and-a-half years later, in September 2010, Ventura was charged with accosting and annoying a person of the opposite sex. At his probation revocation hearing, it was established that Ventura had watched two of his daughters’ friends through a hole in the shower wall of his home’s guest bathroom, which they used when they stayed at his house during overnight visits.
Ventura’s probation was revoked and he was sentenced to one year in prison and three years of probation on the new ...
Pay Tel Receives Waiver of Prison Phone Rate Caps
On January 8, 2014, Pay Tel Communications, a North Carolina company that provides phone services at correctional facilities in 13 states, filed a petition requesting a waiver of the rate caps on interstate (long distance) prison phone calls imposed by the Federal Communications Commission. The rate caps went into effect on February 11, 2014. [See: PLN, Feb. 2014, p.10].
As a result of longstanding efforts by prisoners, their family members and advocacy organizations (including the Campaign for Prison Phone Justice) against exorbitant prison and jail phone rates, the FCC ordered the rate caps and other reforms after examining the issue for almost a decade in a proceeding known as the Wright petition. The rate caps include a maximum of $.25 per minute for collect interstate calls and $.21 per minute for debit or prepaid interstate calls. [See: PLN, Dec. 2013, p.1].
The FCC’s Wireline Competition Bureau found that Pay Tel had “met its burden of proof to establish a good cause to grant a limited, temporary waiver of the Commission’s interim [prison phone] rate cap rule.” Accordingly, on February 11, 2014, Pay Tel received a nine-month “narrow ...
Oregon Judge Scolded for Courtroom Rant
by Mark Wilson
The Oregon Supreme Court has publicly censured a trial court judge for a profanity-laced tirade during a sentencing hearing.
In October 2011, Richard Lee Taylor, 60, was convicted of 21 sex offenses involving two 12-year-old boys. Evidence of his crimes included video recordings that showed Taylor sexually abusing the victims. The recordings were so disturbing that jurors thanked Jackson County Circuit Court Judge Tim P. Barnack when he stopped some of the videos from being shown during the trial. Several jurors wept and three asked if they could receive counseling.
Since Taylor had a prior California sex abuse conviction, prosecutors requested that he receive a life sentence.
Judge Barnack gave Taylor the opportunity to speak during his January 21, 2012 sentencing hearing, but Taylor said he had “nothing to say.”
That apparently was the last straw for the judge. “I don’t think you have a soul,” Barnack stated. He called Taylor a “piece of shit” and said community members wondered why he wasn’t “hanging from a tree.” The judge repeatedly asked Taylor if he wanted to salvage his soul, and said he personally hoped that Taylor ...
Research Finds that Conjugal Visits Correlate with Fewer Sexual Assaults
A study conducted by researchers at Florida International University (FIU) found that state prison systems that permit conjugal visits report fewer rapes and sexual assaults than those where such visits are prohibited – a finding that the researchers said tends to dispute the theory that sex offenses are crimes of power rather than a means of sexual gratification.
“Our findings propel the idea that sexual violence can be attenuated given appropriate policy initiatives,” stated the authors of the 2012 study, Stewart D’Alessio, Jamie Flexon and Lisa Stolzenberg. In spite of the report’s findings, two states recently announced that they are discontinuing their conjugal visitation programs.
The FIU study was conducted over a three-year period, from 2004-2006, in the five states that provided conjugal visits at that time: California, Mississippi, New Mexico, New York and Washington. [See: PLN, May 2013, p.1].
“Inmate-on-inmate sexual offending is much less pronounced in states that allow conjugal visitation,” the study concluded.
While sexual violence occurred in state prison systems that prohibit conjugal visits at an average rate of 226 incidents per 100,000 prisoners, it occurred almost four times less frequently ...
Cancellation of BOP Elderly Offender Pilot Program Moots Appeal
by Michael Brodheim
On July 11, 2013, in an amended ruling, the Ninth Circuit dismissed as moot the appeal of a federal prisoner who had been denied entry into a pilot program that allowed the Bureau of Prisons (BOP) to release certain elderly offenders from BOP facilities and place them on home detention, because the program had been discontinued.
The Second Chance Act of 2007 created a pilot program which allowed the BOP, in its discretion, to place certain nonviolent elderly offenders on home detention after they had served the greater of 10 years or 75% of their term of incarceration. [See: PLN, Feb. 2009, p.8].
BOP prisoner Perry A. McCullough applied to the elderly offender pilot program in 2009. McCullough, who had been sentenced in 1990 to 380 months in federal prison for drug trafficking, calculated that he would be eligible for the program in March 2010 if the BOP took into account his good time credits.
The BOP declined to consider McCullough’s good time credits, however, and found he would not be eligible for the pilot program until March 2013, once he had served 75% of ...
California Prison Regulation Governing Gang Validation Upheld by Ninth Circuit
by Michael Brodheim
Last year the Ninth Circuit upheld the constitutionality of a California prison regulation that guides state prison officials in determining whether or not a prisoner should be classified as gang-affiliated.
In California, a prisoner affiliated with a gang – whether as a “member” or “associate” – is deemed to pose a threat to institutional safety and security sufficient to warrant placement in administrative segregation. Pursuant to Cal. Code Regs., title 15 § 3378(c)(4), an “associate” is defined to be a person “who is involved periodically or regularly with members or associates of a gang.” Prison officials must show such involvement through three independent sources of documentation indicating association with validated gang members or associates.
In April 1997, California state prisoner Carlos Castro was validated as an associate of the Mexican Mafia, a recognized prison gang. He was then transferred to the Security Housing Unit at Pelican Bay State Prison.
Castro filed suit in federal court in 1998, challenging his validation on due process grounds. The district court granted summary judgment to the defendants, which was reversed by the Ninth Circuit in a ...
Wisconsin DOC Equips Guards with Pepper Spray, Tasers
A report compiled by the Wisconsin Department of Corrections (DOC) found there were 351 assaults, attempted assaults and assault-related injuries involving prison staff from mid-2012 to mid-2013.
In response, Corrections Secretary Ed Wall announced in December 2013 that he was equipping guards with 3-ounce canisters of pepper spray to help prevent and stop violent incidents.
Wall noted that the threat of pepper spray alone can defuse dangerous situations and deter assaults. He said he is also considering furnishing civilian prison employees, such as nurses and teachers, with pepper spray.
Guards at the Milwaukee Secure Detention Facility and the Green Bay Correctional Institution were given pepper spray in a 2013 pilot program. The program, considered to be a success, is expanding statewide.
“The pepper spray is now being rolled out to officers at all minimum- and medium-security institutions,” said Wall and DOC Deputy Secretary Deidre Morgan.
State prisons previously had been equipped with Tasers, but they were kept locked up until needed. Now, supervisors in contact with prisoners are allowed to carry Tasers.
“It should have been done a long time ago. You stop stuff before anything happens,” stated Sgt ...
Oregon PPS Sanctions May Not Exceed 180 Days; Prior Contrary Ruling Overturned
by Mark Wilson
The Oregon Court of Appeals has held that the Parole Board lacks authority to impose incarceration sanctions in excess of 180 days for post-prison supervision (PPS) violations for life-sentenced offenders convicted of murder.
Richard Hostetter was convicted of murder in 1992 and released on PPS in 2006. He then committed a technical violation by using alcohol and failing to report to his parole officer.
On February 11, 2008, the Oregon Board of Parole and Post-Prison Supervision (Board) revoked Hostetter’s PPS and imposed a sanction of 84 months incarceration, establishing a projected release date of January 17, 2015.
Under former OAR 253-11-004(3) (9/1/89), the Board was authorized to impose incarceration sanctions of “up to ninety (90) days for a technical violation and up to one hundred and eighty (180) days for conduct constituting a crime.” The rule also imposed a 180-day cap on total incarceration sanctions during an entire PPS term, “except as provided in OAR 253-05-004(2)” for offenders like Hostetter serving a life sentence for murder.
“Thus, OAR 253-11-004(3) both limits re-incarceration of an offender for ...
Connecticut Town Raises Stink Over Sewage Discharged by State Prison
The town of Cheshire, Connecticut has decided that if it has to take more crap from the Connecticut Department of Correction (CDOC), then it wants help to pay for it.
Discussions are underway between town and state officials to resolve a lawsuit filed by Cheshire in July 2012 that seeks to renegotiate the terms of an agreement with the CDOC, to require the state to help upgrade the town’s wastewater treatment plant due to the amount of sewage discharged from a nearby prison complex.
Officials have admitted, though, that the negotiations are not producing any positive results.
“We met with members of the Department of Corrections and Attorney General’s office to see if we could negotiate a settlement, but right now it’s in court just sitting there,” Cheshire town manager Michael Milone said in April 2013.
“In the meantime, we are hoping to appeal to some of the state agencies to resolve this – we are hoping to sit down and negotiate a resolution,” he added.
The current agreement allows for 350,000 gallons of effluent each day from the complex, which houses around 2,000 prisoners ...
California: Trial Court Cannot Abdicate its Responsibility to Examine Peace Officer Personnel Records
by Michael Brodheim
On May 6, 2013, the California Court of Appeal held that a trial court conducting an in camera review of peace officer personnel records must examine the records itself, and cannot abdicate that responsibility in favor of an assessment by the custodian of the records with respect to whether they contain discoverable information.
In November 2007, Costa Mesa police officers, along with state parole agents, traveled to Carlsbad in unmarked vehicles to arrest Ronald Jay Sisson, also known as Brian Lee Olson – a parolee and suspected gang member. In the incident that ensued, the officers fired 27 rounds into Sisson’s vehicle after he rammed police cars and struck an officer when attempting to drive away. The gunfire killed Esther Elizabeth Evans, a passenger in Sisson’s front seat, who was shot in the head.
Sisson was subsequently charged with one count of provocative act murder in connection with Evans’ death plus three counts of assaulting a peace officer with a deadly weapon. He disputed the officers’ version of events and filed two discovery motions under Pitchess v. Superior Court, 11 Cal.3d ...
Prison Education Programs Threatened
by Matt Clarke
Corrections officials across the country fear that two recent developments will drastically limit educational opportunities for prisoners – a scenario that research indicates could lead to higher recidivism rates.
First, Congress failed to renew federal funding in 2011, 2012 and 2013 for a grant program that helps finance higher education courses for prisoners. The grants, known as Specter funds – named after correctional education advocate and late-U.S. Senator Arlen Specter – provided money to state prison systems that helped underwrite a portion of the cost of post-secondary programs for prisoners.
The second development concerns significant changes in the GED program that allows people to earn the equivalent of a high school diploma. Starting on January 1, 2014, the test was realigned to match Common Core State Standards, and the old pencil-and-paper exams were eliminated in favor of a computer-based test. Most prisons and jails that offer GED classes will be affected by the change.
Prison Education Research
The elimination of Specter funds compounds the woes of prison education programs that are already suffering from cuts imposed by states facing budget shortfalls. A study conducted by the non-profit RAND ...
States Adopt Sentencing Changes Following Supreme Court Ruling on Juvenile Lifers
A wave of legal maneuvering is sweeping across the nation due to a deeply divided U.S. Supreme Court decision regarding juveniles serving mandatory sentences of life without parole, and a number of states have taken action as a result of the ruling.
The high court held in June 2012 that mandatory life-without-parole sentences for juveniles convicted of murder violate the Eighth Amendment’s ban on cruel and unusual punishment. The 5-4 decision in Miller v. Alabama, 132 S.Ct. 2455 (2012) overturned life sentences imposed on two defendants who were 14 years old at the time they were convicted of murder.
The Supreme Court found that juvenile defendants can not be treated the same as adults for sentencing purposes because they are cognitively different, citing their “immaturity, impetuosity, and failure to appreciate risks and consequences.” The ruling was expected to affect around 2,000 prisoners nationwide.
Just weeks after the Miller decision, Iowa Governor Terry Branstad announced that he would commute life-without-parole sentences for 38 Iowa juvenile lifers, only to make them ineligible for parole until they have served at least 60 years in prison.
Reports on Elderly Prisoners Spur Call for Reforms
An increasing number of advocacy groups are calling for reforms in the wake of three reports that found the nation’s aging prison population is reaching record levels at growing expense to taxpayers, mostly due to the high cost of medical care for geriatric prisoners.
The studies noted that the vast majority of elderly prisoners pose a low risk of reoffending but were caught in the peak years of “get tough on crime” sentencing during the 1980s and ‘90s. As a result, more prisoners are growing older in prison. [See: PLN, Dec. 2010, p.1].
An October 2013 report by The Pew Charitable Trusts identified the aging prison population as the primary factor behind a median 52% jump in prisoner healthcare spending in 42 states between 2001 and 2008.
“Health care is consuming a growing share of state budgets, and corrections departments are not immune to this trend,” said Maria Schiff, who heads the State Health Care Spending Project, an initiative of The Pew Charitable Trusts and the John D. and Catherine T. MacArthur Foundation.
The Pew report analyzed data on prison healthcare spending collected from 44 states by the U ...
Idaho Supreme Court Vacates Summary Judgment for Pepper Spray Manufacturer
by Mark Wilson
On August 27, 2013, Idaho’s Supreme Court held that a lower state court improperly granted summary judgment to a pepper spray manufacturer on a prison guard’s product liability and inadequate warning label claims.
While on light duty for bronchitis, Idaho prison guard Billie Jo Major participated in a March 3, 2008 training exercise that required her to enter a cell that had been sprayed with bursts of oleoresin capsicum (OC) from an MK-9 Fogger manufactured by Security Equipment Corporation (SEC). “The MK-9 Fogger produces a widely dispersed aerosol designed to irritate and inflame the respiratory tract.”
Major alleged her respiratory problems worsened due to her exposure to the OC spray; she developed a chronic cough and claimed that “her health issues prevented her from working, caring for herself, or engaging in other activities.”
Major sued SEC in Ada County district court, claiming that the MK-9 Fogger was unreasonably dangerous and had inadequate warning labels and instructions.
The district court granted summary judgment to SEC, finding that “Major failed to show a genuine issue of fact regarding chronic injury that resulted from exposure to ...
No “Reasonable Efforts” to Reunite Oregon Sex Offender with His Son
by Mark Wilson
The Oregon Court of Appeals held on July 3, 2013 that a juvenile court improperly assessed whether the Department of Human Services (DHS) had made reasonable efforts to reunite an incarcerated sex offender with his minor son.
At the time, DHS maintained custody of a child identified as R.W., who was born in 2007. His father, M.K., sentenced to prison for sex offenses involving a 15-year-old girl, was not scheduled for release until November 2013. M.K. participated in a parenting course and other programs while incarcerated.
Pursuant to ORS § 419B.476, at a juvenile court permanency hearing the court must “determine whether [DHS] has made reasonable efforts ... and whether the parent has made sufficient progress to make it possible for the ward to safely return home.”
At an October 2012 permanency hearing, a DHS caseworker testified that the department wanted M.K. to visit with R.W., but required the father to complete a psychosexual evaluation to determine whether he could safely visit his son, in prison or following release, before approving visitation.
The caseworker noted that M.K ...
Pennsylvania Warrantless, Suspicionless Search Probation Condition Held Invalid
by Mark Wilson
The Pennsylvania Supreme Court held that a condition of probation authorizing warrantless, suspicionless searches of a probationer’s home was invalid, and remanded the case for resentencing.
On September 1, 2007, Philadelphia police witnessed David A. Wilson point a handgun at a driver in a parked car. He was arrested on gun and drug charges and tried in the Philadelphia Gun Court – a specialized court within the Court of Common Pleas.
Wilson was convicted and sentenced to 30-60 months in prison and a 36-month term of probation. “The trial court emphasized that there was no stricter probation than Gun Court probation.” As a condition of probation, the court authorized warrantless, suspicionless searches of Wilson’s residence for prohibited weapons.
The trial court rejected Wilson’s objection to the search condition but a panel of the Superior Court later vacated the condition. On en banc review, however, the Superior Court reversed itself and affirmed “the search condition as it applied to the probationary sentence, but vacated the condition as it applied to ‘the state parole aspect of the sentence.’” See: Commonwealth v. Wilson, 11 A.3d 519 (Pa ...
Lawsuit Against Missouri Jail Proceeds as Two Guards Plead Guilty
Attorneys representing current and former prisoners at the city workhouse in St. Louis, Missouri are moving forward with a federal lawsuit that alleges cruel and unusual punishment at the jail, including guards forcing prisoners to take part in “gladiator-style” fights.
On November 14, 2013, a motion to certify the case as a class-action was filed in the U.S. District Court for the Eastern District of Missouri.
The motion followed guilty pleas entered in August 2013 by two workhouse guards who had been accused of forcing prisoners to fight each other. The guards, Elvis M. Howard, 34, and Dexter Brinson, 46, pleaded guilty to charges of assault and obstruction of government operations. In addition, Howard pled guilty to burglary.
The American Civil Liberties Union (ACLU) and other groups have complained for years about abuses in St. Louis’ jail system, according to Daniel Brown, one of the attorneys representing the prisoners in the federal lawsuit.
As far back as 2009, the ACLU of Missouri had released a report critical of conditions at the workhouse, citing assaults and cover-ups, and in August 2012 the organization called for an independent committee to ...
D.A. Drops Charges Against Oklahoma Parole Board Members
by Christopher Zoukis
Five members of the Oklahoma Pardon and Parole Board (Board) will not face trial for criminal violations of the state’s Open Meeting Act, after signing a statement acknowledging that they had conducted business without listing and publishing it on the agenda of the Board’s meetings over a 14-month period.
As previously reported in PLN, the five members of the Board had been charged in March 2013 with violating state law by voting on prisoners’ early release requests without proper public notice at meetings between May 2011 and July 2012. The Board members included Marc Dreyer, Currie Ballard, Richard L. Dugger, Lynnell Harkins and David Moore. [See: PLN, May 2013, p.30].
The Open Meeting Act requires notification of the time and place of meetings of public agencies and of the business that will be considered at the meetings; violations of the law can result in a $500 fine and up to a year in jail.
When the charges were first announced, Oklahoma City District Attorney David Prater issued a news release alleging that the Board had conducted business in a manner “designed to hide potentially unpopular ...
Kansas: Prison Healthcare Officials Engaged in Continued Deliberate Indifference
by Robert Warlick
The Kansas Court of Appeals held that employees of Correct Care Solutions at the Lansing Correctional Facility (LCF) committed continuing Eighth Amendment violations by withholding a prisoner’s medical restrictions.
LCF prisoner Ernest Lee Thomas, Jr., 61, had broken his ankle prior to his incarceration in 1989, resulting in arthritis and a permanent deformity. Consequently, he was granted a number of medical restrictions by prison healthcare staff: He was not to climb stairs, had a lower bunk restriction and was allowed to wear tennis shoes rather than regular prison-issued footwear.
Those restrictions continued until January 27, 2011, when Lamont Lane, an LCF nurse, removed them after Thomas failed to attend a medical appointment. Thomas was subsequently moved to a different housing unit that required him to climb a steep hill to reach his cell.
Thomas filed a petition in Leavenworth District Court that alleged deliberate indifference to his “chronic and continuing medical conditions.” The court held his Eighth Amendment rights had been violated when Nurse Lane removed his restrictions without permission from a physician, and noted the punishment for missing a medical appointment evidenced a “total ...
Report: Increase in Federal Prison Population, Overcrowding
by Derek Gilna
A government study revealed that overcrowding in the federal prison system worsened over the five-year period from 2006 through 2011, affecting facilities of all security levels.
The study, conducted by the U.S. Government Accountability Office (GAO), warned that the growing population of the federal Bureau of Prisons (BOP) threatens to result in increasingly negative effects for prisoners, staff and the prison system’s infrastructure. The 85-page report further indicated that the increase in the number of federal prisoners coincided with actions by various states to not only reduce their prison populations but also lower their crime rates and cut costly corrections budgets.
The GAO report found the increase in the federal prison population occurred despite the addition of thousands of beds due to the opening of five new federal facilities. At the same time, four federal minimum-security camps closed.
According to the study, federal prisons were 39% over capacity as of September 2011. Further, the report predicted that overcrowding would climb to more than 45% above the BOP’s maximum capacity by 2018.
The GAO warned that prisons may experience rising rates of violence among prisoners and growing levels ...
Liberty Interest Necessary to Trigger Arkansas Judicial Review
by Mark Wilson
The Arkansas Supreme Court has upheld the dismissal of a prisoner’s state judicial review action because he failed to assert a constitutional violation.
Arkansas Department of Corrections (ADC) prisoner James Chadwick Renfro said he had entered into an agreement with prison officials that allowed him to make and send greeting cards as a hobby craft. However, the ADC subsequently implemented an administrative directive that changed the rules governing that privilege. Prison officials then relied on the new directive to impose and uphold a disciplinary action against Renfro for what he claimed would have been allowable conduct under the original agreement. He also argued the disciplinary action violated applicable ADC rules.
Renfro brought a state judicial review and declaratory judgment suit challenging the dismissal of his disciplinary grievance, the application of the new administrative directive and prison policies which allegedly violated ADC officials’ contractual obligations.
The circuit court denied relief, concluding that Renfro’s suit “was barred under the Arkansas Administrative Review Act, codified as Arkansas Code Annotated sections 25-15-201 to -217 ... because the Act specifically exempts inmate actions and [Renfro] failed to state facts regarding the alleged violation ...
Seventh Circuit: Prisoner with Back Condition Stated Claim for Fall from Upper Bunk
by Michael Brodheim
The Seventh Circuit Court of Appeals held that a prisoner who suffers from scoliosis stated a claim for deliberate indifference when he alleged that he fell and injured himself trying to climb into an upper bunk bed after specifically complaining that, due to back pain, he wasn’t able to access the upper bunk.
In January 2009, Illinois state prisoner Dorcus Withers filed suit pursuant to 42 U.S.C. § 1983, alleging that various healthcare professionals had been deliberately indifferent to his serious medical needs in violation of the Eighth Amendment’s ban on cruel and unusual punishment. The district court granted summary judgment to the defendants.
On appeal, the Seventh Circuit noted that although Withers suffered from scoliosis (i.e., curvature of the spine) and “frequent flare-ups” of back pain, the evidence was “overwhelming” that he was also a malingerer and had no medical need for a back brace, a medical mattress or orthopedic shoes – some of the items he repeatedly requested.
The Court of Appeals was troubled, however, by an encounter between Withers and prison nurse Debra Miller. According to ...
High-Ranking Illinois Prison Official Fired due to Criminal History
According to court records obtained by the Chicago Sun Times, Xadrian R. McCraven, 44, has a lengthy criminal history that includes a 1987 conviction for disorderly conduct, a 1989 conviction for illegal possession of a handgun and a conviction in 1998 for reckless conduct related to a domestic battery case. Plus around two dozen arrests in his youth for offenses that ranged from arson and aggravated assault to attempted robbery and drug possession.
McCraven applied for a job with the Chicago Police Department, but was rejected due to his criminal history. He unsuccessfully argued in federal court that his record should not have been considered because the arrests had been expunged.
His lawsuit was dismissed, with the court finding there was no proof the police background check was improper or that the department had discriminated against him due to his race. A magistrate wrote in an August 2000 ruling that the police background investigation found McCraven was known “to be a drug dealer, gang member and a supplier of guns to other gangs.”
But that didn’t stop him from subsequently obtaining jobs with the Chicago Housing Authority Police Department ...
California: Surety Entitled to Exoneration of Bail Bond Forfeited as a Result of Defendant’s Deportation
by Michael Brodheim
The California Court of Appeal has held that a bail surety did not forfeit the bond it posted for a defendant who was deported before he could appear in court to answer the underlying criminal charge against him.
In June 2011, Financial Casualty & Surety, Inc. (Financial) posted a $100,000 bond for the release of Luciano Villa, who had been charged with driving under the influence. Villa was deported two days after the bond was posted, which made it impossible for him to appear in court. As a result, his bail was forfeited.
Financial sought to have the forfeiture vacated and its bond exonerated. The trial court found the company did not meet the statutory requirements set forth in Penal Code Section 1305(d) for exoneration of a forfeited bail bond, even when the defendant had been deported.
Specifically, the court held that because Financial “had full knowledge” of Villa’s immigration status when it posted a bond on his behalf, it had “unclean hands” and “should [therefore] be held responsible” for the bond forfeiture.
The Court of Appeal reversed ...
DC Circuit: Federal Prisoner not Limited to Seeking Relief via Habeas Corpus
by Michael Brodheim
The District of Columbia Circuit Court of Appeals has held that a federal prisoner may seek relief via means other than habeas corpus, so long as success on the merits of the claim does not “necessarily imply the invalidity of confinement or shorten its duration.”
In 1993, Brian A. Davis was convicted of drug-related offenses involving both powder and crack cocaine. At that time the federal sentencing guidelines treated 1 gram of crack cocaine the same, for sentencing purposes, as 100 grams of powder cocaine, resulting in a 100:1 sentencing disparity. Davis received a life sentence, later reduced to 30 years in federal prison.
In 2007 and again in 2010, both Congress and the U.S. Sentencing Commission took steps to reduce the sentencing disparity related to crack and powder cocaine (the current ratio is 18:1 under the Fair Sentencing Act). Unfortunately for Davis, those efforts only included crimes involving amounts of cocaine less than the amounts involved in his offenses.
In 2011, Davis filed suit under Bivens and the Declaratory Judgment Act, 28 U.S.C. § 2201(a ...
Philadelphia Sued Over Rejection of Ad Criticizing U.S. Incarceration Policies
by Michael Brodheim
On May 20, 2013, a federal district court in Pennsylvania denied the City of Philadelphia’s motion to dismiss in a case brought by the National Association for the Advancement of Colored People (NAACP) and ACLU, challenging the city’s policy related to advertising at the Philadelphia International Airport.
In April 2011, the NAACP had released a report titled “Misplaced Priorities,” which espoused the view that the United States overspends on incarceration at the expense of education and proposed specific reforms to reverse that trend. Seeking to increase public awareness, the NAACP prepared ads to display at airports around the country. The ad that the organization proposed to post at the Philadelphia International Airport read, in relevant part, “Welcome to America, home to 5% of the world’s people & 25% of the world’s prisoners. Let’s build a better America together.”
City officials rejected the ad, claiming that they did not accept “issue” or “advocacy” advertisements, which prompted the NAACP and ACLU of Pennsylvania to file suit on First Amendment and state constitutional grounds. [See: PLN, April 2012, p.50].
The NAACP noted that “other ...
Massachusetts DOC, Hospital Officials Disciplined in Prisoner’s Death
by Derek Gilna
An investigative report ordered by Massachusetts Governor Deval Patrick into what he termed the “disgusting” death of a mentally-ill prisoner at Bridgewater State Hospital found not only numerous policy violations, but also evidence of a cover-up of the facts surrounding the death. As a result, three guards and three high-ranking Department of Correction (DOC) officials were disciplined.
Patrick was prompted to investigate the 2009 death of state prisoner Joshua K. Messier following a Boston Globe article that described delays and misleading information provided by DOC officials in response to media inquiries. The investigation was conducted by Public Safety Secretary Andrea Cabral.
Messier, who was reportedly disruptive, had been placed on his bed in four-point restraints. Two guards then pushed his chest almost to his knees in a move called “suitcasing,” and he died of a heart attack shortly thereafter.
Bridgewater superintendent Karin Bergeron, who was required to investigate and report on prisoners’ deaths, tried to avoid issuing written findings that might embarrass the DOC and Bridgewater. She attempted to arrange a phone conference regarding Messier’s death to avoid filing a written report. She also requested repeated ...
Washington County Jail Remains Closed after Voters Reject Tax Hike
Officials in Yakima County, Washington say a deal struck with the city of Fife, near Tacoma, to house the city’s prisoners will help make up for lost income from an empty county jail that failed to win the support of voters in a 2012 tax referendum.
Yakima County Department of Corrections director Ed Campbell said he hopes the contract to house prisoners from Fife will be the first of many. He noted the contract, announced in April 2013, should generate $700,000 in annual revenue.
“The market is certainly different,” he said. “It’s very competitive, very tough, and there’s very little need for beds compared to what it used to be so we continue to try to work towards getting contracts.”
The city of Fife will send low-risk prisoners to Yakima County’s main jail, according to County Commissioner Mike Leita. “We have certainty from them that these will be the lowest level of, best type of inmates if you will, therefore they afforded a very good rate.”
The scramble for contracts for prisoners from other jurisdictions followed the August 2012 rejection by Yakima County residents of ...
News in Brief
District of Columbia: Before sending former jail guard Jonathan Womble to prison for just over three years on October 9, 2013, U.S. District Court Judge Reggie Walton called Womble’s crime “reprehensible and one of the most serious anyone could commit.” Heroin, marijuana, and a cell phone and charger were some of the contraband that Womble had smuggled into the D.C. jail in exchange for cash bribes. [See: PLN, Sept. 2013, p.56]. Since 2010, 138 cell phones have been found in the D.C. jail – and staff corruption is apparently one way they are getting into the facility.
Dubai: According to a September 30, 2013 news report, prisoner Ayoub A.Y. was stabbed and beaten to death by a gang of multi-national prisoners who cut off his ear and his finger before killing him. On April 24, 2014 a special tribunal acquitted 18 of the prisoners accused of Ayoub’s murder. An unnamed 21-year-old police officer was fired in connection with the incident; he left a gate open as he ran toward the disturbance that allowed other prisoners to rush into the unit.
Florida: Guard Vincent Taylor resigned from his position at the ...