Systemic Changes Follow Murder of Colorado Prison Director
by John Dannenberg
Just over a year after Colorado Department of Corrections Director Tom Clements was killed by former prisoner Evan Ebel, who had been released directly from long-term solitary confinement, there have been significant and far-reaching changes in Colorado’s prison system.
Following a police chase, Ebel, 28, was killed in a shootout with Texas law enforcement officers on March 21, 2013. Autopsy results later obtained by The Denver Post confirmed that he died from a gunshot wound to the forehead. Prior to the chase, Ebel had been stopped in his 1991 black Cadillac DeVille for a traffic offense and shot Texas deputy James Boyd multiple times, hitting him in the shoulder and chest and grazing his head.
Ebel spent nearly all of his eight years in prison in solitary confinement, known in Colorado as administrative segregation (ad-seg). His father, well-known attorney Jack Ebel, who was close to Colorado Governor John Hickenlooper, had previously said his son suffered from behavioral problems as a child, and that solitary damaged him even more.
“What I have seen over six years is, [Evan] has a high level of paranoia and [is] extremely anxious,” Jack ...
Two Corrections Chiefs Serve Time in Segregation
by Christopher Zoukis
Rick Raemisch, Colorado’s new corrections director, wanted to better understand the experience of solitary confinement – so he spent a night in segregation at a state prison.
Raemisch had been on the job for seven months when he decided to stay overnight in an ad seg cell at the Colorado State Penitentiary. “I thought he was crazy,” said Warden Travis Trani, who added, “I also admired him for wanting to have the experience.” Trani received only nine hours notice that his boss was arriving for an extended visit.
On January 23, 2014, just after 7:00 p.m., Raemisch, handcuffed and shackled and wearing a prison uniform, entered cell 22. He was classified as “RFP,” or “Removed From Population.” After being uncuffed through the food slot he was left alone in the 7-by-13-foot cell.
In an editorial published in The New York Times on February 20, Raemisch said the experience was challenging.
“First thing you notice is that it’s anything but quiet. You’re immersed in a drone of garbled noise: other inmates, blaring TVs, distant conversations, shouted arguments. I couldn’t make sense of any of it ...
From the Editor
by Paul Wright
Since we began publishing PLN in 1990 we have documented the horrific effects of solitary confinement and its overall goal and purpose of psychologically destroying prisoners subjected to long-term isolation. It’s not a coincidence that the rise of solitary confinement in the U.S. began in the 1970s just as American courts were ending the use of corporal punishment as a form of discipline by prison officials. For example, as recently as the early 1970s prisoners were still being flogged with leather straps in Tennessee and Arkansas.
The rise of solitary confinement also coincided with the successful use of long-term isolation and sensory deprivation by the U.S. as a torture and interrogation technique against freedom fighters and anti-imperialists in Vietnam, South America and elsewhere. What began as a counter-insurgency tactic overseas is now routinely used against an estimated 80,000 U.S. prisoners on a daily basis – the vast majority of whom harbor no animus toward the government that imprisons them but are simply a little too poor, a little too mentally ill, not law abiding enough or not subservient enough to stay out of prison or, once incarcerated, to avoid being ...
Bonnie Kerness: Pioneer in the Struggle Against Solitary Confinement
by Lance Tapley
In 1986, Ojore Lutalo, a black revolutionary in Trenton State Prison – now the New Jersey State Prison – wrote to Bonnie Kerness’ American Friends Service Committee (AFSC) office in Newark. His letter described the extreme isolation and other brutalities in the prison’s Management Control Unit (MCU), which he called a “prison within a prison.”
“I could not believe what he was telling me” about the MCU, Kerness says. She reacted by becoming “this lunatic white lady” calling New Jersey corrections officials about Lutalo.
She immediately went to work trying to stop MCU guards from harassing prisoners by waking them at 1 a.m. to make them strip in front of snarling dogs leaping for their genitals – to arbitrarily have them switch cells. She got this practice stopped.
Lutalo’s letter also began to open her eyes to the torture of solitary confinement, which in the mid-1980s was just starting to spread across the country as a mass penological practice. Coordinator of the AFSC’s national Prison Watch Project, Kerness had worked on prison issues since the mid-1970s. Now she became an anti-solitary confinement activist. She has been ...
Preliminary Injunction Entered in PLN Censorship Suit Against Ventura County, California
On May 29, 2014, in a significant victory for the First Amendment rights of prisoners and those who correspond with them, the U.S. District Court for the Central District of California granted a preliminary injunction barring Ventura County’s jail system from enforcing a “postcard only” policy that prohibits prisoners from receiving mail in envelopes.
“We are very pleased the judge is upholding the constitution,” said Prison Legal News editor Paul Wright.
The preliminary injunction was the latest in a series of successful legal actions filed by PLN challenging unduly restrictive mail policies implemented in jails nationwide, which courts have repeatedly found are not justified by a rational penological purpose. [See: PLN, Jan. 2014, p.42; Nov. 2013, p.24; Sept. 2013, p.40].
After considering the parties’ arguments, the federal district court found that Ventura County’s “restrictive mail policies violate [PLN’s] First Amendment right to communicate with inmates,” and that the jail system’s “practice of rejecting mail without providing notice and an opportunity to appeal” violates the Fourteenth Amendment.
The court ordered the defendants to “suspend enforcement of the postcard-only policy for incoming mail within 21 ...
Oregon Parole Board: “Don’t Have to Explain Nothing to Nobody”
For at least the fifth time, a state court has ordered the Oregon Board of Parole and Post-Prison Supervision (Board) to provide more than boilerplate reasons for its decisions. There is little reason to believe, however, that the Board has any intention of complying.
Oregon law requires the Board to “state in writing the detailed bases of its decisions.” The Board is exempt, however, from a statutory requirement to make findings of fact and conclusions of law.
The Oregon Court of Appeals reversed a Board decision in 1997, holding that despite the statutory exemption, the Board was required to “make findings of fact and provide an explanation as to why its findings lead to the conclusions that it reaches.” See: Martin v. Board of Parole, 147 Ore. App. 37, 934 P.2d 626 (Or. Ct. App. 1997). The Oregon Supreme Court affirmed, holding that the Board must provide “some kind of an explanation connecting the facts of the case (which would include the facts found, if any) and the result reached.” See: Martin v. Board of Parole, 327 Ore. 147, 957 P.2d 1210 (Or. 1998). This ...
Prisoners Unlikely to Benefit from New, Highly Effective Hepatitis C Treatment
by Greg Dober
Hepatitis C (HCV) is a blood-borne virus that is typically spread through intravenous drug use (i.e., sharing needles), tattooing with non-sterile needles, and sharing razors, toothbrushes, nail clippers or other hygiene items that may be exposed to blood. It is often a chronic disease and, if left untreated, can lead to severe liver damage.
Recent good news in the battle against HCV, in the form of two new drugs that are highly effective in eliminating the virus, is tempered by the fact that the companies that produce the drugs have priced them at $60,000 to $80,000 per 12-week course of treatment. This high cost prices the medications beyond the reach of most prison and jail systems – which is especially troubling considering that a substantial number of prisoners are infected with HCV.
The new drugs, approved by the FDA in late 2013, are simeprevir, branded as Olysio and manufactured by Janssen Therapeutics (a Johnson & Johnson company), and sofosbuvir, branded as Sovaldi and manufactured by Gilead Sciences. Based on clinical trials, Sovaldi has an 84-96% cure rate while Olysio has an 80-85% cure ...
Eighth Circuit: No Qualified Immunity for Detainee’s Overdose Death
by Mark Wilson
The Eighth Circuit Court of Appeals held on September 20, 2013 that an Arkansas jail guard was not entitled to qualified immunity for his deliberate indifference to a detainee’s serious medical condition which resulted in the detainee’s death.
On December 18, 2008, Saline County deputy sheriff Stephen Furr arrested Johnny Dale Thompson, Jr. During the arrest, Deputy Furr discovered an empty Xanax bottle that indicated it had been filled with 60 pills two days earlier. Thompson, who was slurring his words, admitted to taking medication and slept in the patrol car, but was easily awakened at the jail.
Jail guard Ulenzen C. King conducted Thompson’s booking process. King noted that Thompson appeared intoxicated; he asked to sit down but nearly fell out of the chair. He was unable to sign his name and “couldn’t even answer questions that Officer King was asking him.” King wrote “Too Intox to Sign” on the booking sheet.
Sometime after Thompson was placed in a cell at 7:42 p.m., another detainee alerted King that Thompson needed help, but King did nothing.
At 9:09 p.m., King and another jailer ...
Ninth Circuit: Damages Required for Compelled Religious-Based Treatment
by Mark Wilson
The Ninth Circuit Court of Appeals has held that damages are required, as a matter of law, when a parolee is incarcerated for objecting to compelled participation in a religious-based drug treatment program.
Citing “uncommonly well-settled case law,” the Court of Appeals found in 2007 that the First Amendment is violated when the state coerces an individual to attend a religious-based substance abuse program. See: Inouyev.Kemna, 504 F.3d 705 (9th Cir. 2007).
The California Department of Corrections and Rehabilitation (CDCR) contracts with Westcare, a private entity, to provide drug and alcohol treatment for parolees in Northern California. Westcare, in turn, contracts with Empire Recovery Center, a non-profit facility. “Empire uses a 12-step recovery program, developed by Alcoholics Anonymous and Narcotics Anonymous, that includes references to ‘God’ and to ‘higher power.’”
Barry A. Hazle, Jr., an atheist, was incarcerated due to California drug convictions. His parole conditions required him to complete a 90-day residential drug treatment program.
Prior to his February 26, 2007 release from prison, Hazle had asked prison and Westcare officials to place him in a non-religious treatment program. Westcare officials directed Hazle to ...
Louisiana Public Service Commission Considers Prison Phone Issues
The Advocate reported in March 2014 that tensions were high between Louisiana Public Service Commission (PSC) Chairman Eric Skrmetta and PSC Commissioner Foster Campbell during a hearing on issues related to prison and jail phone rates.
Previously, in December 2012, the PSC voted to lower the cost of phone calls made by Louisiana prisoners by cutting the rates of some calls by 25% and prohibiting surcharges. The ban on surcharges went into effect on February 28, 2013, while the rate reduction – which only applies to calls made to family members, clergy, attorneys and certain other parties – was postponed until 2014. [See: PLN, April 2013, p.29; Jan. 2013, p.14; Feb. 2012, p.36].
Two prison phone service providers, City Tele-Coin and Securus Technologies (which also has the phone contract for Louisiana’s state prison system), were subsequently cited by the PSC for contempt for charging additional fees in spite of the prohibition on surcharges.
Commissioner Campbell had championed the prison phone reforms, including the 25% rate reduction. City Tele-Coin and Securus have since petitioned the PSC to rescind the rate cut and ban on surcharges.
Additionally, City Tele-Coin hosted a ...
Visitors Fingerprinted at Alabama Prisons
Alabama’s prison system is the first – and currently only – in the nation to require visitors to be fingerprinted. In late 2012, the Alabama Department of Corrections (ADOC) implemented the new policy due to what officials claimed was a need for greater efficiency. A new computer system had the capacity to scan fingerprints, something the old system was not able to do. The fingerprinting procedure was “part of the upgrade” and the brainchild of the ADOC’s IT department, according to prison system spokesman Brian Corbett.
The old system required guards to review each visitor’s driver’s license to verify their identity before allowing them into a state prison.
“That was a time-consuming task,” Corbett told the Montgomery Advertiser. “Now, the verification process is much faster, so visitors are moved through the process much faster.”
“We still require visitors to have a government-issued photo ID, and that requirement will remain in place,” he added. “But there are times when someone else resembles the photo on an ID. Scanning the fingerprint of visitors verifies they are who they say they are.”
The program prompted an immediate response from the American Civil Liberties Union ...
Two Murders in Seven Months at CCA-run Prison in Tennessee
On May 23, 2014, the Medical Examiner’s Office in Nashville completed an autopsy report on Tennessee state prisoner Jeffery Sills, 43, who was murdered at the South Central Correctional Facility in Clifton, Wayne County on March 28. The facility is operated by Corrections Corporation of America (CCA), the nation’s largest for-profit prison company.
Sills’ death was classified as a homicide caused by “blunt and sharp force injuries.” He was allegedly beaten and stabbed to death by his cellmate, Travis Bess, who was later transferred to the Riverbend Maximum Security Institution.
Jeffery Sills was at least the second prisoner murdered at the CCA-run prison since September 1, 2013, when Gerald Ewing, 28, was killed during a series of fights at the facility. Comparably, according to the Tennessee Department of Correction there were no homicides at state-run prisons in calendar year 2013 and to date this year.
Jeffery Sills’ death was particularly brutal, according to the autopsy report. He suffered lacerations, abrasions and contusions to his head and neck, fractured cheek and nasal bones, cutting and stab/puncture wounds, and hemorrhages in the “posterior cervical spinal muscles” and “skeletal muscle of ...
Jury’s Tasteless Gag Gifts to Judge and Bailiff Fail to Demonstrate Unfair Trial
The Eleventh Circuit Court of Appeals has affirmed the denial of a death row prisoner’s habeas corpus petition that contended he was denied a fair trial by an impartial judge and jury because the jurors gave inappropriate gag gifts to the judge and one of the bailiffs.
The habeas proceeding involved Georgia death row prisoner Marcus A. Wellons, who was convicted of the murder and rape of a fourteen-year-old girl in 1989. During his trial, Wellons did not dispute that he had killed and raped the victim; rather, he claimed he was either not guilty by reason of insanity or guilty but mentally ill. After finding him guilty, the jury recommended a sentence of death for the murder and life for the rape.
Defense counsel learned during post-trial interviews that some jurors gave gag gifts to the judge and a bailiff either near the end of or immediately following the penalty phase of the trial. The judge received chocolate candy in the shape of a penis while the bailiff received chocolate in the shape of female breasts. Wellons’ counsel also learned that when the sequestered jurors dined ...
Prison Industries in India Compete in Open Market
The government of the Indian state of Tamil Nadu is expanding a program that allows prison industries to compete in the open marketplace under the ironic brand name “Freedom.” Prison industry programs already exist at nine central prisons, three women’s prisons and nine district jails scattered across Tamil Nadu, located in the southern tip of the Asian nation. The facilities hold a combined total of about 11,000 prisoners.
Prison authorities are adding open-air bazaars to market fresh produce grown by prisoners to shoppers from neighboring communities. The bazaars are in addition to current prison industries that include the production of soap, leather, textiles, books and baked goods. Traditionally, those products have been sold only to other government agencies and are considered substandard.
“So far, we were manufacturing goods for the police and other departments. Such government clients are not very demanding in terms of pricing, delivery schedule and quality, although we ourselves try to maintain this,” said S.K. Dogra, Additional Director-General of Police in Tamil Nadu. “But once you operate in the open market, you have to adopt the best commercial practices. So, naturally the entire process of ...
Decline in Arrests of Los Angeles County Probation Officers
The Los Angeles County Probation Office has cited tougher self-policing and stricter hiring standards for a dramatic decrease in the number of employees arrested for driving under the influence and various other crimes, but the union representing probation officers complained the changes have led to understaffing.
Probation Office Chief Jerry Powers said the number of probation employees arrested for crimes both on and off the job fell from a high of 74 in 2011 to just 32 in 2013. Nearly half the arrests last year – 15 – were for DUI offenses. Most of the remaining charges were theft and assault.
“We’ve come light years from where we were to where we are today,” Powers said at a news conference.
But the president of AFSCME Local 685, the union representing the county’s probation officers, disputed Powers’ claim that the drop in the number of arrests was the result of hiring standards and self-policing.
“It’s like crime statistics, they go up and down all the time,” union president Ralph Miller said. “Taking credit for those numbers going down is like taking credit for the sun rising and setting.”
Kentucky Prisoner’s Due Process Rights Violated in Disciplinary Hearing
by Robert Warlick
On August 29, 2013, the Kentucky Supreme Court affirmed an appellate decision that found an Adjustment Committee (AC) in a prison disciplinary proceeding had violated a prisoner’s due process rights by not meeting the “some evidence” standard as applied to confidential informants (CIs).
Ontario Thomas, imprisoned at the Northpoint Training Center in Kentucky, was found guilty by the AC in June 2009 of assaulting another prisoner, based solely on statements from at least two CIs.
On December 16, 2009, Thomas filed a petition in the Lyon Circuit Court alleging that the AC’s reliance on the CI information violated his due process rights. However, before the court ruled on his petition, two AC reviews were conducted which determined that the CI statements were reliable, reaffirming the guilty finding. The AC stated it had “review[ed] the confidential information and believe it to be true and reliable according to policy.” The Circuit Court subsequently dismissed Thomas’ petition, finding that his rights had not been violated.
The Court of Appeals reversed due to the AC’s failure to meet the “some evidence” standard during Thomas’ disciplinary hearing. The appellate court relied ...
Brady Violations Result in Habeas Relief for Pennsylvania Death Row Prisoner
by David Reutter
To correct a “grave miscarriage of justice,” Pennsylvania U.S. District Court Judge Anita Brody granted a writ of habeas corpus to a state prisoner and vacated his conviction and death sentence for a murder that “in all probability he did not commit.” The court found violations under Brady v. Maryland, 373 U.S. 83 (1963) due to the state’s withholding of evidence.
James A. Dennis was convicted in Philadelphia for the October 22, 1991 killing of high school student Chedell Williams. Williams, 17, and a friend, Zahra Howard, were approached by two men who demanded they give up their earrings. The girls fled; Howard hid behind a fruit stand while Williams ran into the street.
The men chased Williams. One of them held a gun to her neck and shot her; they then jumped into a car and sped away. Williams was pronounced dead shortly after her arrival at a hospital.
Dennis’ conviction was “based on scant evidence at best,” the district court wrote in an August 21, 2013 ruling. “It was based solely on shaky eyewitness identifications from three witnesses, the ...
New York Jail Guard Sentenced for Sexually Abusing Seven Prisoners
A former guard at the Monroe County Correctional Facility in Rochester, New York received six months in jail plus 10 years’ probation and was required to register as a sex offender after he pleaded guilty in April 2013 to sexually abusing seven female prisoners.
Former Sgt. Robert Wilson, 41, was sentenced after entering the plea to a 21-count indictment that accused him of engaging in criminal sexual contact with the prisoners for two years, from 2010 to July 2012. The charges included rape, sexual abuse and official misconduct. [See: PLN, Nov. 2013, p.56].
Four of the seven victims filed suit in federal court in October 2013 against Wilson and Monroe County Sheriff Patrick O’Flynn for unspecified compensatory and punitive damages, joining a previous lawsuit that was filed in July. The five suits, which also name Monroe County as a defendant, contend that O’Flynn and the county knew as early as 2010 that Wilson had an “inappropriate relationship” with a female prisoner but did nothing to stop his misconduct.
“These are five women that are at the lowest point in their life,” said attorney Robert King, who is representing ...
BOP Grievance System Contributes to “Compliance or Defiance” by Prisoners
by Derek Gilna
A 2013 study found that the grievance system utilized by the federal Bureau of Prisons (BOP) appears to have become an important tool to defuse prisoner complaints, supporting the belief that the failure of BOP officials to adequately respond to grievances contributes to higher levels of violence in federal prisons.
The research study determined that another benefit of the BOP’s grievance system is deflecting or reducing potential litigation. Indeed, many federal court decisions have been decided in the BOP’s favor based upon prisoners’ failure to exhaust administrative remedies as required by the Prison Litigation Reform Act.
The study, “Procedural justice and prison: Examining complaints among federal inmates (2000-2007),” was conducted by David M. Bierie with the U.S. Marshals Service and the Department of Criminology and Criminal Justice at the University of Maryland. Although it concentrated on what it termed the “procedural justice paradigm,” the study also revealed what Bierie called an unexpected finding: “violence grew as the number of support staff per inmate (e.g., teachers, counselors) declined within a given prison. However, the opposite effect was found with respect to increases in custody ...
England, Increasing Number of States Allow Same-Sex Prisoner Marriages or Civil Unions
Prisoners in England, including those in the highest security classification, are being allowed to enter into same-sex civil partnerships due to a policy change that mirrors changes to same-sex marriage laws in an increasing number of states in the U.S.
Prison Service Order 4445 outlines the requirements for prisoners in England and Wales seeking to enter into same-sex civil unions. The Order requires that both prisoners be of the same gender, over 16 years old, not related, not currently married and have at least three months remaining on their sentences. The Order also covers transsexual prisoners.
Prisoners are responsible for making all arrangements for the civil partnership ceremony and must pay all associated costs. They are allowed to invite guests, but only a reasonable number as determined by the prison governor. Before authorizing the civil partnership, prison authorities are required to make a risk assessment determination.
The Order applies to the Prison Service’s population of around 86,000 prisoners.
In the United States, the Department of Justice announced in a February 2014 memo that it will grant full recognition to same-sex marriages to “the greatest extent possible ...
Oregon Victim’s Right to Restitution Survives Prosecutor’s Statutory Violation
by Mark Wilson
The Oregon Court of Appeals held that a prosecutor’s failure to comply with state restitution laws did not deprive a trial court of authority to impose restitution after sentencing.
Oregon law requires the prosecutor to “investigate and present to the court, prior to the time of sentencing, evidence of the nature and amount” of a victim’s damages resulting from a crime.
Cindie Wagoner was charged with identity theft. On October 15, 2009, the victim provided proof of her economic losses to Flores, a victim advocate assigned to her case by the Washington County District Attorney’s Office. However, Flores did not forward that information to the prosecutor.
Wagoner pleaded guilty and was sentenced in December 2009. The prosecutor noted that the time had passed for the victim to request restitution, and the trial court did not award any restitution. The January 5, 2010 judgment in Wagoner’s case indicated that the restitution amount was zero.
Flores was terminated the following month. When other employees cleaned out Flores’ desk they found the victim’s October 15, 2009 proof-of-loss documents.
In March 2010, the victim filed a motion asserting that she had a ...
Habeas Petitioner Cannot Avoid Payment of Appellate Filing Fees
by Michael Brodheim
The Seventh Circuit Court of Appeals has held that a prisoner seeking collateral relief cannot avoid paying appellate filing fees.
Following a murder conviction, Indiana prisoner Kelly S. Thomas was sentenced to 65 years in prison. After his appeal and collateral attack were rejected in the state courts, he filed a federal petition for writ of habeas corpus under 28 U.S.C. § 2254. When that was denied he filed a notice of appeal. The district court judge declined to issue a certificate of appealability, instead certifying that the appeal was not taken in good faith.
Based on that certification, Thomas was required to pay appellate fees of $455 before the Seventh Circuit would consider entertaining his appeal, unless he could persuade the appellate court to allow him to proceed in forma pauperis. Even then he would still owe the fees – if he won, they would be shifted to the state as part of the appeal costs; if he lost, the fees would be “payable like any other debt.”
Thomas filed a motion requesting that the Court of Appeals disregard the district court’s certification of ...
Seventh Circuit Reverses Summary Judgment in Dental Care Suit
by David M. Reutter
On July 19, 2013, the Seventh Circuit Court of Appeals reversed a grant of summary judgment to three defendants, holding there was sufficient evidence for a jury to find they acted with deliberate indifference to a prisoner’s serious dental needs.
Richard M. Smego, a civil detainee at Illinois’ Rushville Treatment and Detention Center, filed suit in federal court alleging that a dentist, two doctors and a dental hygienist had violated his constitutional rights.
When Smego arrived at Rushville, Dr. Jacqueline Mitchell, a dentist who contracts with Wexford Health Sources, examined him in December 2005 and found he had twelve teeth with cavities. She promised to begin filling them in early 2006.
Yet it was not until June 24, 2007 – eighteen months later – that Dr. Mitchell saw Smego again. She provided no care during that visit, and it was not until the next month that she installed a temporary filling in one tooth but did nothing for his most painful tooth. In August 2007, she extracted the painful tooth and prescribed Motrin, a painkiller to which Smego was allergic.
Smego complained to his therapist about his ...
Prison Officials Liable for Private Employer ADA Violations
by Mark Wilson
The Ninth Circuit Court of Appeals held last September that prison officials are liable for violations of the Americans with Disabilities Act (ADA) committed by private employer contractors.
Arizona law requires state prisoners to work 40 hours per week. Most are employed in the Arizona Department of Corrections’ Work Incentive Pay Program (WIPP), earning from 10 to 50 cents per hour. Prisoners who work for Arizona Correctional Industries (ACI), which provides prison labor for private company contractors, earn significantly more.
One of those companies is Eurofresh, “America’s largest greenhouse operation,” which boasts that it can produce 200 million pounds of hydroponic tomatoes annually.
In July 2008, Arizona prisoner William W. Castle was hired by Eurofresh as a tomato picker, earning more than $2.25 an hour. He was required to push a 600-pound tomato cart and stand or walk during his entire seven-hour shift.
Castle soon began suffering ankle swelling and pain when he stood longer than two hours. Decades earlier, Castle had received a 20% service-connected disability rating for an ankle injury sustained in an Army parachute accident.
After a Eurofresh supervisor told Castle he would be ...
Judge May Resolve Exhaustion Issue; No Policy on Grievance Non-decisions Means Remedies Unavailable
by David Reutter
The Third Circuit Court of Appeals held on August 26, 2013 that a judge may resolve factual disputes relevant to the exhaustion of administrative remedies without the participation of a jury. It also held the district court had erred in finding a failure to exhaust where a prisoner did not receive a response to his grievances and appeals were not required in such circumstances.
Robert L. Small, a pretrial detainee at New Jersey’s Camden County Correctional Facility (CCCF) and a paraplegic, filed a civil rights complaint alleging excessive force, denial of medical treatment, and confiscation of his wheelchair and its replacement with one without leg rests. The suit concerned events during two stints that Small served at CCCF between June and September 2004 and again between May 2005 and January 2008.
The lawsuit, originally filed in 2006, was amended by pro bono counsel in January 2008. The defendants moved for summary judgment in late 2009, claiming Small had failed to exhaust administrative remedies under CCCF’s grievance policy. The district court dismissed all but one of Small’s claims following an evidentiary hearing, and he appealed ...
New York Prisoner Awarded Sanctions for Spoliation of Evidence; Case Settles for $500,000
by Mark Wilson
On September 4, 2013, a New York federal district court held that a jail official was precluded from testifying in a prisoner’s lawsuit about what she supposedly witnessed on surveillance video footage that had been erased. The court also granted the prisoner’s request for an adverse inference jury instruction and attorney’s fees.
In May 2011, guards did not intervene as New York City jail detainee Dwaine Taylor was savagely beaten by several gang members, including Batise Boyce, in a courthouse holding cell. He wasn’t removed from the cell for approximately three hours.
When Taylor was finally taken to an emergency room, he was diagnosed with “jaw fractures on both ... sides of his face,” an impacted tooth and another loose tooth. During surgery the next day, doctors closed the “jaw fractures with a metal plate and screws,” removed one of his teeth and wired his jaw shut. Taylor was hospitalized for three days and then returned to the infirmary at the Rikers Island jail, where he remained for another month.
Within 15 days, officials prepared “an investigation ‘package’ recommending that Boyce be ...
Seventh Circuit Admits Prisoner is Right but Denies Relief, Suggests Clemency
The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), mandates sentence enhancements for certain federal defendants who commit crimes with firearms; those who have three or more prior “violent felonies” or “serious” drug offenses face a minimum 15-year prison term.
In some cases, however, prior state convictions should not quality as “predicate” offenses for the purpose of triggering an ACCA sentence enhancement.
In April 2014, the Seventh Circuit Court of Appeals issued a ruling in a case involving federal prisoner Cody F. Ellerman, who had challenged his ACCA enhanced sentence for being a felon in possession of a firearm.
The appellate court noted that “Ellerman’s frustration with his inability to obtain relief is understandable given that he is correct, on the merits, that he never should have been sentenced as an armed career criminal.” The Court of Appeals found that “His prior drug convictions were all for selling marijuana in Kansas, ... and as level 3 felonies, did not subject him to a statutory maximum of at least ten years.... Accordingly, those convictions did not qualify as ‘serious drug offenses’ under 18 U.S.C ...
North Carolina Repeals Racial Justice Law
In June 2013, North Carolina Governor Pat McCrory signed legislation repealing the state’s Racial Justice Act of 2009 (the Act), a controversial law that supporters said was an effort to address racism in death penalty cases. Opponents, however, argued it merely clogged the legal system and denied justice to victims of the state’s 154 prisoners sentenced to death.
“Nearly every person on death row, regardless of race, has appealed their death sentence under the Racial Justice Act,” Governor McCrory said in a statement that accompanied his repeal of the law. “The state’s district attorneys are nearly unanimous in their bipartisan conclusion that the Racial Justice Act created a judicial loophole to avoid the death penalty and not a path to justice.”
The Act was passed following the exoneration of three North Carolina prisoners who had been wrongfully convicted and sentenced to death. All were black. [See, e.g.: PLN, Aug. 2010, p.32].
The Racial Justice Act allowed condemned prisoners to challenge a death sentence “sought or obtained on the basis of race” if they could prove that race was a factor in their prosecution, jury selection or sentencing, and to petition ...
Shrinking state budgets across the country are leading to prison closures that in turn have a negative impact on communities that depend on the facilities as a source of jobs and revenue. [See: PLN, June 2013, p.1; April 2009, p.1]. Small towns in Kentucky, Georgia and New York are among those facing recent adjustments to this new economic reality, but some local residents and lawmakers have fought back with campaigns to keep the prisons open.
The city of Wheelwright, Kentucky was hit hard by the closure of the 600-bed Otter Creek Correctional Center, a prison owned and operated by Corrections Corporation of America (CCA). Officials said over 170 jobs were lost, although CCA pledged to relocate as many employees as possible to other facilities. The company said the June 2012 closing of Otter Creek was necessary after Kentucky did not renew its contract to house state prisoners at the facility.
“A lot of them [the employees] live within the city and a lot of them live in the community, you know,” said Andy Akers, Wheelwright’s mayor. “We’re a tight knit community around here.” Just before the closure of the prison, Akers had predicted a devastating impact ...
Administrators Fired at Privately-Run Texas Jail
The warden and head of security at the Liberty County Jail (LCJ) in Liberty, Texas have been fired in the wake of allegations that the chief of security sexually assaulted a female prisoner at the facility. The 285-bed jail is operated by the New Jersey-based Community Education Centers (CEC), a for-profit company.
Warden Timothy New and Chief of Security Kenneth Reid Nunn were fired in September 2012, just days after the county received a notice of claim from attorney Paul Houston LaValle on behalf of former LCJ prisoner Brandy Nichole O’Brien. O’Brien had been incarcerated at LCJ for failing to make timely child support payments.
According to the notice of claim, O’Brien “was repeatedly subjected to assault and battery, sexual assault, deviant sexual assault, humiliation, degradation and intentional infliction of emotional distress at the hands of Chief of Security Kenneth Reid Nunn and others” while incarcerated at the privately-run lock-up.
“Further, when Chief Nunn was repeatedly caught violating my client’s rights by other members of the jail staff or sheriff’s office, my client was threatened, coerced and coached on the statements she gave to investigators by Warden Tim New and others,” LaValle wrote ...
North Carolina: Hundreds of Federal Prisoners Legally Innocent, Some Still Incarcerated
by Derek Gilna
Following a 2011 federal appellate court ruling, the U.S. Department of Justice (DOJ) initially tried to delay the release of federal prisoners who were wrongly convicted in North Carolina. The government later announced that it would halt such tactics, but has continued to oppose challenges filed by some offenders who are legally innocent.
The DOJ’s actions followed a review of prosecutions in three federal courts in North Carolina. DOJ spokesman Wyn Hornbuckle said “many more” cases could surface when all of the state’s federal court cases are examined.
The prisoners were convicted of possessing firearms in what the Fourth Circuit Court of Appeals held was a misapplication of the sentencing criteria, a circumstance unique to North Carolina due to the state’s system of “structured sentencing.” Adopted by the state legislature in 1993, the system mandates that the maximum prison term for any given crime is based on the offender’s criminal record. As a result, sentences for even minor crimes can extend for years if a defendant has numerous prior offenses.
Federal law provides that anyone convicted of a crime punishable by more than a ...
Do Faith-Based Prisons Work?
by Alexander Volokh
There are a lot of faith-based prison programs out there. As of 2005, 19 states and the federal government had some sort of residential faith-based program, aimed at rehabilitating participating prisoners by teaching them subjects like “ethical decision-making, anger management, victim restitution” and substance abuse in conjunction with religious principles.
One of them – the InnerChange Freedom Initiative program in Iowa – was struck down on Establishment Clause grounds in 2006, but various faith-based prison programs still exist, including InnerChange programs in other states. InnerChange programs, which are explicitly motivated by Christian and Biblical principles, are probably more vulnerable to constitutional challenges; programs that are more interfaith and have less explicitly religious content, like Florida’s Faith- and Character-Based Institutions or the federal Life Connections Program, are probably less so.
Faith-based prisons continue to be promoted as promising avenues for reform, chiefly on the grounds that they improve prison discipline and reduce recidivism. Unfortunately – even if we ignore the constitutional issues – most of the empirical studies of the effectiveness of faith-based prisons have serious methodological problems and, to the extent they find any positive effect of faith-based prisons, can’t be taken at ...
SEC Rejects CCA, GEO Group Shareholder Resolutions to Reduce Prison Phone Rates
On February 18, 2014, the Securities and Exchange Commission (SEC) granted a request filed by for-profit prison company GEO Group to exclude a shareholder resolution that sought to reduce the high cost of phone calls made by prisoners at GEO-operated facilities. Ten days later, the SEC granted a request by Corrections Corporation of America (CCA) to exclude a similar shareholder resolution.
The resolutions, filed by Alex Friedmann, managing editor of PLN and associate director of the Human Rights Defense Center (HRDC), would have required the companies to forgo “commission” kickbacks from prison phone service providers. [See: PLN, Jan. 2014, p.44]. Such kickbacks are typically based on a percentage of revenue generated from inmate telephone services (ITS) – revenue that is mostly paid by prisoners’ families.
Specifically, the shareholder resolutions stated that GEO and CCA “shall not accept ITS commissions” at their facilities, and that when the companies contract with prison phone service providers they “shall give the greatest consideration to the overall lowest ITS phone charges among the factors [they consider] when evaluating and entering into ITS contracts.” CCA and GEO both filed no-action requests with ...
Seventh Circuit: No Qualified Immunity for Diabetic Detainee’s Death
by Mark Wilson
On August 20, 2013, the Seventh Circuit affirmed a district court’s denial of qualified immunity in a case concerning an Illinois pretrial detainee’s death due to medical neglect.
Phillip Okoro, 23, was arrested for a misdemeanor property offense ...
Update on PLN Suit Against Nevada DOC
Prison Legal News continues its efforts to defend its First Amendment right to communicate with prisoners in the Nevada Department of Corrections (NDOC). In 1999 the NDOC banned all copies of PLN, claiming the publication constituted “inmate correspondence.” PLN filed suit and was granted a preliminary injunction requiring delivery of PLN subscriptions and mail to Nevada prisoners. The state entered into a consent decree in September 2000, agreeing that prisoners “shall be permitted to subscribe to the publications of their choice,” subject only to specified security concerns.
However, ongoing censorship of PLN’s monthly magazine and books resulted in a June 2013 lawsuit in which PLN seeks to enjoin the unconstitutional censorship of its publications by prison officials. [See: PLN, Nov. 2013, p.18]. In conjunction with the lawsuit, PLN also filed a motion for an order to show cause in the prior suit, seeking to hold the NDOC in contempt for violating provisions of the 2000 consent decree by enacting and enforcing policies that continue to censor PLN’s monthly publication and book orders sent to Nevada prisoners. The federal district court later consolidated the two cases.
On June 17, 2014, the ...
Flimsy Reasons for Prolonged, Frequent Lockdowns State Eighth Amendment Claim
by David Reutter
The Seventh Circuit Court of Appeals has held that an Illinois prisoner’s complaint that frequent lockdowns for substantial periods of time deprived him of exercise and caused him various health problems stated an Eighth Amendment claim. However, the Court found that he failed to state a due process claim concerning the loss of his monthly stipend due to the lockdowns.
The appellate ruling followed a district court’s dismissal, under 28 U.S.C § 1915A, of a civil rights complaint filed by Menard Correctional Center (MCC) prisoner Gregory J. Turley. The dismissal addressed Turley’s Eighth Amendment claims but not his Fourteenth Amendment claim.
The Seventh Circuit determined that Turley had exhausted his administrative remedies and had brought his action in a timely manner, noting that Illinois has a “two-year statute of limitations, which is tolled while the prisoner exhausts the administrative grievance process.” As he was not procedurally barred, the Court of Appeals turned to the merits of the case.
Turley, serving a life sentence, was classified as a “low-aggression offender” and housed in a unit of similarly classified prisoners. Between January 7, 2008 and October ...
Illinois $50 State’s Attorney Fee Applies Only to Habeas Proceedings
by Mark Wilson
The Illinois Supreme Court held in September 2013 that a $50 State’s Attorney fee authorized in habeas corpus cases does not apply to non-habeas collateral proceedings.
After an Illinois trial court dismissed a post-conviction petition filed by state prisoner Omar Johnson, he submitted a petition for relief from judgment under section 2-1401 of the Illinois Code of Civil Procedure.
The state moved to dismiss the petition and requested that Johnson be assessed filing fees and court costs under section 22-105(a) of the Code of Civil Procedure, for filing a frivolous petition.
The trial court granted the state’s motion to dismiss and assessed fees and costs against Johnson, including a $50 State’s Attorney fee pursuant to section 4-2002.1(a) of the Counties Code, which authorizes the fee in habeas corpus cases. Johnson appealed, lost in the appellate court and the Illinois Supreme Court granted review.
The Supreme Court interpreted section 4-2002.1(a) to determine whether the legislature had intended the fee to extend beyond habeas cases to all collateral proceedings.
“Giving the term ‘habeas corpus’ ... its plain and ordinary meaning,” the Court concluded the ...
News in Brief
Arizona: A prisoner serving time for gang- and drug-related offenses, as well as his attorney-wife, mother, sister, ex-wife and another woman have been indicted on more than 250 charges following a two-year investigation into the New Mexican Mafia prison gang. Angel Lopez Garcia is accused of being a gang leader who has, since at least 2007, directed drug sales, extortion, money laundering and gang violence from behind bars with assistance from the women named as co-defendants. His wife, Phoenix criminal defense attorney Carmen Fischer, and the four other women accused in the conspiracy, Rosio Robles Gonzales, Oralia L. Garcia, Tanya Garcia-Ochoa and Rosemary Ann Garcia, were arrested on October 4, 2013. Fischer pleaded guilty on March 31, 2014 and was sentenced to three years in prison.
Arkansas: St. Francis County deputies have filed a number of new charges against Jonathan Paulman, 22, who was in jail for burglary when he set fire to his cell on October 15, 2013. Paulman told jail officials that he had started the fire as a way to get out to attend his young son’s birthday party. He used a contraband cigarette lighter to torch a mattress, towel and laundry bag in ...