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Prisoner Education Guide

Prison Legal News: January, 2015

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Volume 26, Number 1

In this issue:

  1. When Halfway Houses Pose Full-Time Problems (p 1)
  2. Controversy, Criticism Plague Brooklyn Halfway House (p 18)
  3. From the Editor (p 20)
  4. “Ban the Box” Campaigns Seek to End Discrimination Against Formerly Incarcerated College Applicants (p 22)
  5. Admission of Jail Disciplinary Records at Criminal Trial May Violate Confrontation Clause (p 26)
  6. Oklahoma Supreme Court Remands Consolidated Sex Offender Registration Case (p 26)
  7. Federal Court Orders Colorado to Provide Outdoor Recreation to Supermax Prisoner (p 28)
  8. Texas Prison Population Drops as Guard Shortage Persists (p 30)
  9. State Appellate Costs Improper on Washington PRP Dismissal (p 31)
  10. Prison Legal News Prevails in Tennessee Public Records Suit in Spite of Sheriff’s Antics (p 32)
  11. Florida Death Row Prisoner Entitled to Prison and Medical Records (p 34)
  12. Virginia Prison’s Policy Requiring Physical Indicia of Faith for Religious Sincerity Held Unconstitutional; Suit Settles for $3,795 (p 34)
  13. CCA Board Member Steps Down from Open Government Organization (p 36)
  14. Tenth Circuit: No Qualified Immunity for Juvenile Restraint Chair Punishment (p 36)
  15. Tennessee Man Sues for Placement in Women’s Facility for Three Years (p 38)
  16. Consent Decree and Remedial Plan End Lawsuit Challenging Conditions in Illinois Juvenile Facilities (p 38)
  17. Colorado Prisoner Sues Security Guard Who Sexually Abused Her Moments after Giving Birth (p 40)
  18. RLUIPA Explained in Tenth Circuit Decision re Denial of Sweat Lodge Access (p 40)
  19. America’s Prisons: A Road to Nowhere (p 42)
  20. Prisoner’s Request for Medical Care after Signing Refusal Form Precludes Summary Judgment (p 44)
  21. Investigation Finds that Money Stolen from Oregon Prison Wasn’t Really Stolen (p 44)
  22. $145,000 Settlement for U.S. Citizen Held on Immigration Detainer due to Racial Profiling (p 45)
  23. Fifth Circuit: Sleep Deprivation May Violate Eighth Amendment (p 46)
  24. West Virginia Public Defender Disbarred for Child Prostitution “Hoax” (p 46)
  25. Florida Court of Appeals: Prison Guards Can Raise “Stand Your Ground” Defense (p 47)
  26. Introduction of Nolo Plea to Challenge Prisoner’s Credibility was Error (p 48)
  27. Ohio DOC Director Wants Return to Stricter Law after 2012 Spike in Positive Drug Tests (p 48)
  28. California Parole Term Not Shortened by Improper Parole Denial (p 49)
  29. The Globalization of Supermax Prisons, edited by Jeffrey Ian Ross (Rutgers University Press, 2013). 240 pages, $28.95 paperback (p 50)
  30. Jail Closes “God Pod,” Agrees to Accommodate Muslim Prisoners (p 50)
  31. Pennsylvania’s Megan’s Law Struck Down, Some Prisoners Released (p 52)
  32. Malpractice Suit Proceeds against Michigan Defense Attorney in Wrongful Conviction Case (p 52)
  33. Georgia: Mandamus Available to Compel Law Library Access (p 53)
  34. Fifth Circuit Holds Prison Officials Need Not be Named in Grievances (p 54)
  35. Florida Supreme Court: Review of Parole Commission Revocation Order Limited (p 54)
  36. News in Brief (p 56)

When Halfway Houses Pose Full-Time Problems

When Halfway Houses Pose Full-Time Problems

by Derek Gilna

A recent interest among government officials in reducing prison populations as a way to cut costs, stemming from the 2008 Great Recession that resulted in significant budget deficits, has placed renewed emphasis on the importance of halfway houses. As more prisoners are released there is a corresponding need for more post-release housing – including reentry facilities.

Loosely defined as a “halfway” point for prisoners between incarceration and freedom, halfway houses have experienced a number of problems that indicate the industry is in need of systemic improvements. If states continue the trend of reducing their prison populations and more federal prisoners are released due to sentencing reforms [see, e.g., PLN, Aug. 2014, p.26], then halfway houses – also known as Community Corrections Centers (CCCs) and Residential Reentry Centers (RRCs) – will have to increase their capacity as well as the quantity and quality of the transitional services they provide.

An Industry Plagued with Problems

Although some halfway houses are adequately managed and staffed with competent professionals, others are operated more for profit than an interest in helping offenders successfully return to society. Too many incidents involving poorly-supervised halfway house residents ...

Controversy, Criticism Plague Brooklyn Halfway House

Controversy, Criticism Plague Brooklyn Halfway House

by Derek Gilna

Community First Services, Inc., established by Jack A. Brown III in 2005 to provide transitional services for prisoners returning to New York City, has come under scrutiny following news reports that cast doubt not only on the organization’s halfway house but also the oversight provided by the federal Bureau of Prisons (BOP).

Congress had the right idea when it passed the Second Chance Act, a broad legislative initiative to make it easier for prisoners to receive the reentry assistance and job training and placement they need to help reduce high recidivism rates. [See: PLN, Feb. 2009, p.8]. However, as detailed in this month’s cover story, that lofty goal has foundered on the reality that there are too few halfway houses capable of providing necessary reentry services and too few trained personnel to provide the counseling, treatment and job placement needed.

As the number of federal prisoners has steadily climbed over the past several decades, so has the number of prisoners released into the community after completion of their sentences. Unfortunately, the capacity of BOP licensed and approved halfway houses has not kept pace – many are overcrowded and in some ...

From the Editor

From the Editor

by Paul Wright

Welcome to the first issue of Prison Legal News for the New Year! By now you should have received our fundraiser packet with our last annual report. First, I would like to thank everyone who has donated to help support our work with the Federal Communications Commission to ensure they cap the cost of intrastate prison and jail phone calls. If you have not yet donated it is not too late; we can use all donations, large or small, to push our Prison Phone Justice Campaign forward to victory.

One prison phone company, Securus, is bragging that it has paid $1.4 billion in kickbacks to prison and jail officials. All of that money has been gouged from prisoners and their families, in addition to the company’s profits. We need your financial support to be able to provide the detailed and accurate data the FCC relies upon when making decisions to regulate the prison phone industry.

PLN’s parent non-profit, the Human Rights Defense Center, is the only organization advocating for prisoners and their families at the FCC that has actual hard data, including information related to contracts, phone rates, kickback commission amounts and ...

“Ban the Box” Campaigns Seek to End Discrimination Against Formerly Incarcerated College Applicants

“Ban the Box” Campaigns Seek to End Discrimination Against Formerly Incarcerated College Applicants

by Victoria Law

"Selene” had been out of prison for one month when she applied to Dutchess Community College and Ulster Community College, both part of the State University of New York system. SUNY requires applicants to check a box if they had ever been convicted of a felony. Selene checked the box.

Both schools asked Selene to come in and take placement tests. Selene had to ask her parole officer for permission to leave Kingston and travel to Poughkeepsie, where the college is located. If she’d had a car, the trip would have taken her 30 to 45 minutes. But Selene did not. Instead, she got up at 5 a.m. to take the one and only bus from Kingston to Poughkeepsie, which left at 6 a.m. From the bus depot, she then took a cab to the college. “I had no money; I had no income,” she told Truthout. “So it was a massive undertaking to do this, but this is my future.”

At the college, she filled out financial aid forms and took her placement tests. She then attempted to hand ...

Admission of Jail Disciplinary Records at Criminal Trial May Violate Confrontation Clause

Admission of Jail Disciplinary Records at Criminal Trial May Violate Confrontation Clause

by David M. Reutter

The Texas Court of Appeals, First District, held in December 2013 that the admission of jail disciplinary records at a penalty phase hearing in a criminal trial violated the Confrontation Clause of the Sixth Amendment. A new hearing was ordered as a remedy.

Cornell Smith, Jr., who was 16 years old when charged with capital murder, was convicted as an adult and sentenced to 40 years.

He raised six issues on appeal. In one of those issues, Smith challenged the admission into evidence of disciplinary records from the Harris County Jail, the Harris County Probation Department and the Texas Youth Commission during the punishment phase of his trial. The Court of Appeals found that issue had been preserved for appeal.

The Court cited precedent holding that jail “incident reports” and “disciplinary reports” are inadmissible if they contain testimonial statements that amount to “ex parte affidavits of government employees,” without allowing the defendant to cross-examine the employees who made the statements. It also cited another case that allowed the admission of “sterile recitations of appellant’s offenses and the punishments he received for those offenses ...

Oklahoma Supreme Court Remands Consolidated Sex Offender Registration Case

Oklahoma Supreme Court Remands Consolidated Sex Offender Registration Case

by Shepherd Litsey

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

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

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

Federal Court Orders Colorado to Provide Outdoor Recreation to Supermax Prisoner

Federal Court Orders Colorado to Provide Outdoor Recreation to Supermax Prisoner

by Matt Clarke

A federal court in Colorado has heldthat a mentally ill prisoner who spent over 12 years in administrative segregation must be afforded an opportunity for outdoor recreation. The court also ordered the Colorado Department of Corrections (CDOC) to have a physician re-evaluate the prisoner’s medication and treatment needs.

Colorado state prisoner Troy Anderson has been diagnosed with mental illness. His behavior in prison led to his placement in segregation for over 12 years, with the last 10 at the “supermax” Colorado State Penitentiary (CSP) in Cañon City, where prisoners in segregation were not allowed any outdoor recreation. [See: PLN, July 2014, p.4].

With the assistance of attorneys, Anderson filed a civil rights suit in federal court alleging that the denial of outdoor recreation and denial of adequate treatment for his mental illness violated the Eighth Amendment because they constituted cruel and unusual punishment. He also complained that the method by which prisoners could earn their way out of segregation was administered in a manner that violated due process and was unfair to mentally ill prisoners.

In an August 24, 2012 order, the district court found ...

Texas Prison Population Drops as Guard Shortage Persists

Texas Prison Population Drops as Guard Shortage Persists

by Matt Clarke

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

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

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

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

State Appellate Costs Improper on Washington PRP Dismissal

State Appellate Costs Improper on Washington PRP Dismissal

by Mark Wilson

On November 14, 2013, the en banc Washington Supreme Court held that the court’s clerk had erred in awarding the state a $200 statutory attorney fee against a prisoner whose personal restraint petition (PRP) was dismissed.

Washington prisoner Derek E. Gronquist lost early release credits as a sanction for assaulting a guard. He filed a PRP with the state Supreme Court, challenging the disciplinary action.

After the court’s commissioner dismissed the petition, the clerk “awarded the State costs consisting of statutory attorney fees in the amount of $200.” Gronquist moved to modify both rulings.

The Washington Supreme Court denied the motion to modify the commissioner’s ruling, but modified the clerk’s fee ruling. Pursuant to RCW 10.73.160(2), “appellate costs awardable to the State ‘are limited to expenses specifically incurred by the state in prosecuting or defending an appeal or collateral attack from a criminal conviction or sentence.’”

The Court found that Gronquist’s “challenge to the department’s administrative disciplinary action is not an appeal from or a collateral attack on a criminal conviction or sentence.” Therefore, the $200 attorney fee award fell “outside the plain ...

Prison Legal News Prevails in Tennessee Public Records Suit in Spite of Sheriff’s Antics

As part of its news reporting, Prison Legal News routinely submits public records requests and Freedom of Information Act requests to government agencies. Most of the time they comply with the law and produce the requested records. Not so in Marshall County, Tennessee.

On February 3, 2014, PLN managing editor Alex Friedmann submitted a public records request to then-Marshall County Sheriff Norman Dalton, seeking information concerning the county jail. Specifically, he requested records related to the jail’s phone service contract and mail, grievance and medical policies.

The Sheriff’s Office responded a week later, demanding that Friedmann appear in person to submit his records request. That was contrary to Tennessee’s public records statute, and Friedmann responded that he wanted the records produced via postal mail or email. The sheriff, however, insisted that he “make these request [sic] in person.”

Friedmann then referred the Sheriff’s Office to the “frequently asked questions” page on the website of the state’s Office of Open Records Counsel, which clearly said a request for public records “does not have to be made in person.”

Sheriff Dalton still refused to produce the records, despite a renewed request using a form provided by the Sheriff’s Office.

On ...

Florida Death Row Prisoner Entitled to Prison and Medical Records

Florida Death Row Prisoner Entitled to Prison and Medical Records

by David M. Reutter

On December 19, 2013, the Florida Supreme Court held that a death-sentenced prisoner was entitled to receive his prison and medical records once the governor signs a death warrant; however, he was not entitled to clemency-related records.

After Governor Rick Scott signed a death warrant for condemned prisoner Askari Abdullah Muhammad on October 21, 2013, Muhammad filed a successive motion for post-conviction relief and motion for disclosure of public records. The trial court denied the motions and the Florida Supreme Court granted review.

The motion for public records sought any files, reports, notes and other documents that pertained to Muhammad from the Florida Department of Corrections (FDOC), Florida Department of Law Enforcement, State Attorneys for the Eighth and Eleventh Judicial Circuit Courts, and a medical examiner who had autopsied an executed prisoner.

The Supreme Court found the requests were “overly broad and Muhammad did not clearly demonstrate how the records were relevant to a colorable claim.” It did, however, hold that he was entitled to his own prison and medical records.

As Florida law allows a prisoner to petition the governor to determine if he ...

Virginia Prison’s Policy Requiring Physical Indicia of Faith for Religious Sincerity Held Unconstitutional; Suit Settles for $3,795

Virginia Prison’s Policy Requiring Physical Indicia of Faith for Religious Sincerity Held Unconstitutional; Suit Settles for $3,795

by David M. Reutter

The Fourth Circuit Court of Appeals has vacated a summary judgment order in favor of prison officials entered in a lawsuit challenging a prison policy that conditioned a ...

CCA Board Member Steps Down from Open Government Organization

CCA Board Member Steps Down from Open Government Organization

Corrections Corporation of America (CCA), the nation’s largest for-profit prison firm, is also one of the least transparent government contractors despite performing an inherently governmental function – incarceration.

For example, CCA has vigorously opposed efforts to require the company to comply with state public records laws. In Tennessee, where CCA is headquartered, the company fought a public records suit filed by Prison Legal News managing editor Alex Friedmann for five years before conceding defeat after two appellate court rulings. [See: PLN, June 2013, p.14]. CCA also refused to comply with PLN public records requests in Texas and Vermont, resulting in litigation in those states. [See: PLN, April 2014, p.35; July 2013, p.42].

Additionally, the company has lobbied against the Private Prison Information Act – federal legislation that would extend the Freedom of Information Act to privately-operated facilities that house federal prisoners. [See: PLN, Feb. 2013, p.14].

Therefore, given the company’s lack of transparency and public accountability, it was both ironic and incomprehensible when CCA board member Charles L. Overby joined the board of directors of the Tennessee Coalition for Open Government (TCOG) in March 2014. TCOG, a ...

Tenth Circuit: No Qualified Immunity for Juvenile Restraint Chair Punishment

Tenth Circuit: No Qualified Immunity for Juvenile Restraint Chair Punishment

by Mark Wilson

On November 8, 2013, the Tenth Circuit Court of Appeals upheld the denial of qualified immunity in a case that involved the shackling of a juvenile detainee in a restraint chair as punishment and denial of mental health care.

In 1997, Brandon Blackmon was confined in a Sedgwick, Kansas juvenile detention center awaiting trial on charges of rape, which were later dismissed.

Deeply distraught and suicidal, the eleven-year-old, 4’11”, 96-pound boy repeatedly banged his head against the walls. Guards responded by shackling Blackmon in a Pro-Straint Model RC-1200LX restraint chair, keeping him there long “after any threat of self-harm had dissipated.”

Staff members were openly instructed “to use the chair as ‘punishment.’” Blackmon “was stripped out of his clothes and forced to wear a paper gown while restrained in the chair,” resulting in severe mental health problems.

Further, a guard at the facility, Keith Gutierrez, “approved a decision by one of his subordinates – a fully grown man – to sit on” Blackmon’s chest, without any apparent legitimate penological purpose.

Mental Health Unit Supervisor Joan Fitzjarrald and Mental Health Team Counselor Kirk Taylor failed ...

Tennessee Man Sues for Placement in Women’s Facility for Three Years

Tennessee Man Sues for Placement in Women’s Facility for Three Years

"How can you not tell a vagina from a penis?” asked Carla Brenner, aka Lamonda Fuller, a female impersonator who filed suit against the City of Nashville, Tennessee and the private company that held him in a women’s facility for three years.

“The big hair, the makeup – I am an entertainer, a drag queen,” Brenner stated. “That basically means a man who enjoys dressing as a woman. It’s not a woman. I have no intention on being a woman – never, ever have.”

Nevertheless, when Brenner was convicted of stealing a purse in Nashville, he was sent to a Corrections Corporation of America (CCA) facility that houses women offenders.

Brenner said he was told not to say anything, to pretend he was a woman and to go to the women’s facility, for reasons that were unclear. He went so far as to check a box that said he was female, officials noted. That’s apparently all it took.

Brenner dismissed attempts to fault him for his predicament. “They had two doctors – someone from the board of health and a Metro administrator come to the jail ...

Consent Decree and Remedial Plan End Lawsuit Challenging Conditions in Illinois Juvenile Facilities

Consent Decree and Remedial Plan End Lawsuit Challenging Conditions in Illinois Juvenile Facilities

by Matt Clarke

On September 12, 2012, the American Civil Liberties Union (ACLU) helped juvenile offenders held in secure facilities operated by the Illinois Department of Juvenile Justice (DJJ) file a class-action federal lawsuit alleging that conditions ...

Colorado Prisoner Sues Security Guard Who Sexually Abused Her Moments after Giving Birth

Colorado Prisoner Sues Security Guard Who Sexually Abused Her Moments after Giving Birth

Colorado prisoner sexually assaulted by a private security guard at a hospital only minutes after she gave birth has filed suit against her attacker, the company he worked for and the Arapahoe County Sheriff’s Office for damages stemming from the 2012 incident.

The prisoner’s attorney, David Lane, said his client chose to use her own name, Angela Weishoff, to file the suit because she wanted the public to know the truth about the horrific act committed against her.

According to the complaint, in September 2012, the then 34-year-old Weishoff began having contractions and was transported from the Arapahoe County Jail to Sky Ridge Medical Center in Lone Tree, Colorado to give birth. As a money-saving measure, the Sheriff’s Office contracted out the task of guarding Weishoff to C&D Security. Armed private security guard Michael Arnold was assigned to watch her in her hospital room.

Just 15 minutes after Weishoff gave birth, Arnold tried to force her to perform oral sex on him, climbed on top of her, untied her gown and fondled her, according to a police report.

While Weishoff was being sexually assaulted, her newborn daughter ...

RLUIPA Explained in Tenth Circuit Decision re Denial of Sweat Lodge Access

RLUIPA Explained in Tenth Circuit Decision re Denial of Sweat Lodge Access

by David M. Reutter

On January 23, 2014, the Tenth Circuit reversed a grant of summary judgment to prison officials in a civil rights action alleging violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), related to denial of access to a sweat lodge – a space used for Native American religious ceremonies.

The suit was filed by Colorado prisoner Andrew J. Yellowbear, Jr. Several facts were undisputed: Yellowbear is an enrolled member of the Northern Arapaho Tribe, he is sincere in his religious faith and access to a sweat lodge is, to him, a form of religious exercise.

Yellowbear explained his religious belief is that a sweat lodge “is used to cleanse and purify our mind, our spirit, and our bodies ... upon leaving it is said that you are born again physically and spiritually.” He requested to use the prison’s existing sweat lodge but was denied access.

Prison officials argued that allowing Yellowbear, who was housed in a special protective unit, to access the sweat lodge in general population would be “unduly burdensome,” as it would create a costly security expense. He was ...

America’s Prisons: A Road to Nowhere

America’s Prisons: A Road to Nowhere

by Ben Notterman

Video of Henry McCollum’s release from a North Carolina prison in September 2014 shows the exonerated death row prisoner making his way through a crowd of excited onlookers and into his family’s car, where he could not figure out how to fasten his seatbelt. In his defense, many states did not begin mandating the use of seatbelts until well into the 1990s, by which time McCollum had already spent a decade in prison. Like most of the 650,000 prisoners released from prison each year, McCollum brings no vocational skills or educational background into a world that must appear to him a strange and distant future, thrust on an unsuspecting present. From this perspective, the severity of punishment is never greater than at the time of release.

Finding employment and independence after leaving prison is extremely difficult; without a decent education, it is virtually impossible. Access to academic and occupational programming in American prisons has declined significantly over the past twenty years, while overall spending on corrections has exploded along with the country’s prison population. Prisoners are twice as likely to lack a high school education as the rest of us ...

Prisoner’s Request for Medical Care after Signing Refusal Form Precludes Summary Judgment

Prisoner’s Request for Medical Care after Signing Refusal Form Precludes Summary Judgment

by David M. Reutter

The Eleventh Circuit Court of Appeals has reversed a summary judgment order for the defendants in a former prisoner’s civil rights suit that alleged he was denied medical care after prison staff “materially altered” a refusal form he had signed.

Jeffery Kuhne was incarcerated at the Jackson Correctional Institution (JCI) in Malone, Florida on a probation violation. Shortly after his arrival at JCI, he experienced a “dramatic loss of vision.” Upon his June 2008 intake, Kuhne had vision of 20/40 in his right eye and 20/30 in his left eye. By mid-September 2008 his vision had deteriorated to 20/70 in his right eye and 20/50 in the left eye.

He was diagnosed by optometrist Dr. Paul Harman on October 21, 2008 as having proliferative diabetic retinopathy, a progressive condition that can lead to permanent blindness if left untreated. The next day, Kuhne was scheduled for an “urgent” follow-up consultation with a retinal specialist on November 18. However, he never had a follow-up before his release from prison in March 2009, and was left permanently blind in his left eye ...

Investigation Finds that Money Stolen from Oregon Prison Wasn’t Really Stolen

Investigation Finds that Money Stolen from Oregon Prison Wasn’t Really Stolen

by Joe Watson

An Oregon State Police investigation has revealed that money believed stolen from the Oregon State Correctional Institution (OSCI) was actually right where it was supposed to be – deposited in the Inmate Welfare Fund (IWF) and used for a range of expenses, including supplies, bus tickets for released prisoners and cable TV.

“The reportedly missing money was accounted for and deposited,” concluded State Police Lt. Steve Duvall in a May 2014 report. He said the investigation discounted as “unfounded” suspicions that a prison employee had pilfered the funds.

“Numerous deposits of OSCI visitor locker funds into the IWF can be reasonably accounted for back to October 2008,” Duvall wrote.

According to news reports in October 2013, auditors with the Oregon Department of Corrections suspected that someone had stolen quarters deposited in storage lockers used by prison visitors – about $100 to $200 every month – for a total take of around 104,000 quarters over a nine-year period, or an estimated $26,000.

Authorities suspected OSCI employee John E. Sipple, the prison’s former recreation manager who was in charge of clearing funds from the ...

$145,000 Settlement for U.S. Citizen Held on Immigration Detainer due to Racial Profiling

$145,000 Settlement for U.S. Citizen Held on Immigration Detainer due to Racial Profiling

An American citizen who was racially profiled and held in jail on an immigration detainer has reached settlements totaling $145,000 with three government agencies in a civil rights lawsuit.

Ernesto Galarza was arrested in ...

Fifth Circuit: Sleep Deprivation May Violate Eighth Amendment

Fifth Circuit: Sleep Deprivation May Violate Eighth Amendment

by Matt Clarke

In an unpublished ruling, the Fifth Circuit held on April 1, 2014 that a Texas prisoner’s sleep deprivation-based challenge to the security schedule used by the Texas Department of Criminal Justice (TDCJ) may state a valid claim for violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.

Michael Garrett, incarcerated at the TDCJ’s McConnell Unit, filed a federal civil rights action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act (ADA) against prison officials, alleging that the TDCJ’s schedule deprived him of a minimum six hours of sleep per night; the prison’s use of cameras in the toilet and dressing areas of his dorm unit was an invasion of privacy; and the prison failed to conform to ADA standards. A federal magistrate, who was presiding over the case with the permission of the parties, dismissed the action for failure to state a claim upon which relief could be granted, and Garrett appealed.

The Fifth Circuit upheld the dismissal of the privacy and ADA claims. In doing so it noted that under the ADA, prison officials must make reasonable accommodations or modifications for ...

West Virginia Public Defender Disbarred for Child Prostitution “Hoax”

West Virginia Public Defender Disbarred for Child Prostitution “Hoax”

A former West Virginia public defender has agreed to give up his license to practice law in the wake of a scandal involving allegations that he offered to sell children for sex. The state Supreme Court accepted the annulment of Steve Conifer’s law license on September 10, 2014.

Police in Charleston, West Virginia arrested Conifer, 34, in July 2012 and charged him with “receiving support from prostitution; pimping” after a man from New Jersey informed them that Conifer had offered to sell him children for sex during an online conversation.

According to authorities, Conifer, using the screen name “derekscarbo93,” told the man, “Well, gimmie an idea of age, service, [amount] of time u want, and I can try to give you an exact price, depending on the boy,” and “haha. Call me a pimp if u want 2. Don’t bother me.”

Later in the conversation, Conifer allegedly offered to show the man a photo of an “unbelieveably cute white boy” he could provide “in a hurry,” claiming he had “hookups” all over New Jersey. He then reportedly sent the man a photo of a young boy wearing ...

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

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

by Matt Clarke

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

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

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

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

Introduction of Nolo Plea to Challenge Prisoner’s Credibility was Error

Introduction of Nolo Plea to Challenge Prisoner’s Credibility was Error

by David M. Reutter

The Third Circuit Court of Appeals held in January 2014 that a Pennsylvania federal district court erred when it allowed into evidence a nolo contendere (no contest) plea for the purpose of challenging the credibility of a prisoner who claimed guards had used excessive force.

While held in the Restrictive Housing Unit at the Northampton County Prison, prisoner Iman Sharif was involved in an altercation with several guards. The facts related to that confrontation were highly contested.

Guard Nathan Picone claimed that as he was collecting dinner trays, Sharif “sucker punched” him. Picone testified that after he was struck, he tried to protect himself from additional punches and kicks. Another guard, Brian Potance, assisted Picone and entered Sharif’s cell, hitting him with an open hand in an attempt to “get him to the ground.”

In contrast, Sharif said he was talking to Picone in an attempt to get “under his skin” when Picone punched him. He testified that Potance and guard Thomas Pinto joined Picone in hitting and choking him; he also said he was assaulted after being placed in a restraint chair.

Following the ...

Ohio DOC Director Wants Return to Stricter Law after 2012 Spike in Positive Drug Tests

Ohio DOC Director Wants Return to Stricter Law after 2012 Spike in Positive Drug Tests

Drug testing in Ohio prisons in October 2012 revealed the highest level of prisoner drug use in more than a decade, though the head of the state corrections department blamed the spike in positive drug tests on the testing itself at one state prison.

Ohio Department of Rehabilitation and Correction (ODRC) Director Gary C. Mohr said in January 2013, when the results of the annual “saturation” drug tests conducted throughout the state prison system were released, that the figures were skewed because one unidentified facility had targeted so-called “likely” drug users instead of administering the tests randomly as required.

Regardless, Mohr acknowledged that didn’t detract from the fact that drug use in Ohio prisons was growing and, according to the Columbus Dispatch, insisted he was making no excuses and was taking steps to reduce the prevalence of drugs in state facilities.

“When we see an increase,” Mohr said, “it’s taken very seriously.”

A total of 6,828 prisoners at 28 ODRC facilities were tested in October 2012, with 227 – or 3.32% – returning positive results. Most tested positive for marijuana, though ...

California Parole Term Not Shortened by Improper Parole Denial

California Parole Term Not Shortened by Improper Parole Denial

by Mark Wilson

On February 3, 2014, the California Supreme Court held that a prisoner erroneously denied parole was not entitled to have his parole term reduced by the length of improper confinement.

Johnny Lira was sentenced to an indeterminate sentence of 15 years to life for a 1981 murder. In December 2005, the California Board of Parole Hearings (Board) denied Lira parole for the ninth time. He successfully challenged that denial in a state habeas corpus proceeding, and the Board held a new hearing in November 2008.

The Board found Lira suitable for parole at the rehearing, but then-Governor Arnold Schwarzenegger reversed the Board’s decision in April 2009 and Lira challenged the reversal in another state habeas proceeding.

While the habeas case was pending, the Board again found Lira suitable for parole in November 2009. This time the Governor did not review or reverse the decision, and Lira was released on April 8, 2010, subject to a maximum five-year parole term.

Lira argued in his habeas proceeding that he should receive “credit against his parole term for all the time he spent in prison” between the improper 2005 parole denial ...

The Globalization of Supermax Prisons, edited by Jeffrey Ian Ross (Rutgers University Press, 2013). 240 pages, $28.95 paperback

The Globalization of Supermax Prisons,
edited by Jeffrey Ian Ross
(Rutgers University Press, 2013).
240 pages, $28.95 paperback

Book review by Gary Hunter

"Zero tolerance” is a phrase that has found its way into many facets of our society. But nowhere is it more prevalent than in the vocabulary used by lawmakers when waging our nation’s relentless, ongoing wars on crime and drugs. Justice and due process have taken a backseat to punishment as mass incarceration has become the norm, and placing prisoners in long-term solitary confinement is now a widely accepted practice.

This anthology, The Globalization of Supermax Prisons, edited by Jeffery Ian Ross, provides unique insights into a worldwide approach to the depersonalization of incarceration through segregation. Approximately 7.2 million people in the U.S. are under correctional supervision of some type, including 2.3 million confined in prisons and jails. It is estimated that 25,000 prisoners are held in supermax facilities, and there is evidence that this disturbing trend has gone global.

In 1983, two guards were stabbed at the federal correctional institution in Marion, Illinois. Prisoners were placed on 23-hour-a-day lockdown, policies were rewritten and what was formerly a maximum-security prison was transformed ...

Jail Closes “God Pod,” Agrees to Accommodate Muslim Prisoners

Jail Closes “God Pod,” Agrees to Accommodate Muslim Prisoners

The Pierce County Jail (PCJ) in Washington State agreed to adopt new policies to protect the religious rights of Muslim prisoners as part of a settlement agreement in litigation brought by the ACLU of Washington and the Public Interest Law ...

Pennsylvania’s Megan’s Law Struck Down, Some Prisoners Released

Pennsylvania’s Megan’s Law Struck Down, Some Prisoners Released

by David M. Reutter

In December 2013, the Pennsylvania Supreme Court struck down the state’s version of Megan’s Law, holding the legislature had violated the “single subject” rule of the Pennsylvania Constitution.

The Court’s ruling resulted from an appeal filed by James H. Neiman, Jr., who was convicted in 2007 of various sexual offenses. He was found by the trial court to be a sexually violent predator, which required him to register as a sex offender and comply with reporting requirements pursuant to Megan’s Law upon release from his 13½-to-27 year sentence.

Neiman challenged Act 152 of 2004, arguing it violated the single subject rule; Act 152 had amended Pennsylvania’s Megan’s Law. The Act began as an eight-page bill that sought to amend sections governing “deficiency judgment procedures in the courts of common pleas after an execution sale of real property.”

After bouncing between committees in the state House and Senate, Act 152 grew to 59 pages due to amendments related to eviction proceedings, the jurisdiction of county park police, the statute of limitations for asbestos cases and the Megan’s Law amendments. The Superior Court that reviewed Neiman’s appeal found ...

Malpractice Suit Proceeds against Michigan Defense Attorney in Wrongful Conviction Case

Malpractice Suit Proceeds against Michigan Defense Attorney in Wrongful Conviction Case

by David Reutter

A former prisoner whose sexual assault conviction was reversed after he served seven years in prison can sue his attorney for malpractice after the Michigan Supreme Court denied leave to appeal an appellate court’s ruling.

Jackob Trakhtenberg, 73, was convicted of second-degree sexual conduct for allegedly touching the genitals of his eight-year-old daughter and forcing her to touch his genitals. He was convicted following a bench trial; his attorney didn’t ask for a jury, didn’t make an opening statement and only called Trakhtenberg as a witness.

After his appeal was denied, Trakhtenberg filed a legal malpractice claim against his defense attorney, Deborah McKelvy. Meanwhile, he moved for relief from judgment in his criminal case. That motion was denied, as was an appeal. The Michigan Supreme Court, however, ordered an evidentiary hearing.

Voluminous testimony was taken at the hearing. The appellate court reversed based on collateral estoppel, as it found in the malpractice case that McKelvy’s performance fell within the “attorney judgment rule.” It also held she was not ineffective. The Michigan Supreme Court reversed and upheld the trial court’s ruling, finding that McKelvy’s “performance in ...

Georgia: Mandamus Available to Compel Law Library Access

Georgia: Mandamus Available to Compel Law Library Access

by David Reutter

he Georgia Supreme Court held in February 2014 that a trial court erred in denying the filing of a prisoner’s petition for mandamus seeking access to a law library.

After being sentenced to life plus a term of years, Waseem Daker was housed in the Special Management Unit at the Georgia Diagnostic and Classification State Prison. He moved for a new trial following his conviction and stated his intention to seek a direct appeal to the Georgia Supreme Court. However, his repeated requests to prison officials for access to a law library were fruitless.

Daker moved to compel the warden to grant him law library access by filing a petition for writ of mandamus accompanied by a motion to proceed in forma pauperis. The following month, the trial court ordered the clerk to prohibit the filing of the petition after concluding it was facially frivolous. The in forma pauperis motion also was denied.

The Georgia Supreme Court granted Daker’s application for discretionary review, and examined his right of access to the courts based in large part on Bounds v. Smith, 430 U.S. 817 (1977).

Bounds held that access ...

Fifth Circuit Holds Prison Officials Need Not be Named in Grievances

Fifth Circuit Holds Prison Officials Need Not be Named in Grievances

by Matt Clarke

On November 15, 2013, in an unpublished decision, the Fifth Circuit Court of Appeals reversed the summary dismissal of a Texas prisoner’s civil rights action, holding that he did not have to name the defendants in his grievances so long as the facts at issue were sufficiently presented to alert prison officials to the problem and give them an opportunity to correct it. The appellate court also held that a prisoner need not continue to pursue administrative remedies once the maximum amount of relief available has been granted.

Perry Patterson, a Texas Department of Criminal Justice (TDCJ) prisoner housed at the Telford Unit, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 alleging that Medical Director Reginaldo Stanley, physician’s assistant Maria Berger and Lt. Candice Studdard had violated his Eighth Amendment rights and retaliated against him when medical staff canceled his prescription for sunglasses without conducting an eye examination and ordered the confiscation of his sunglasses. Further, Studdard pursued disciplinary charges against him for possession of contraband (the sunglasses).

Patterson alleged he had been prescribed the sunglasses since arriving at TDCJ and ...

Florida Supreme Court: Review of Parole Commission Revocation Order Limited

Florida Supreme Court: Review of Parole Commission Revocation Order Limited

by David M. Reutter

On January 23, 2014, the Florida Supreme Court quashed an appellate court’s order because it exceeded the scope of second-tier review of a prisoner’s habeas corpus petition challenging the revocation of his conditional release.

The petition, filed by prisoner Robert Taylor, challenged an order by the Florida Parole Commission (FPC) that revoked his conditional release, which is a type of supervision imposed on certain classes of prisoners upon completion of their sentence. Conditional release lasts for the amount of good time a prisoner earned.

Taylor was found by a parole examiner to have committed a “willful and substantial” violation by his admitted use of marijuana in 2010. The FPC stated it was in “the best interests of society,” as well as Taylor’s best interests, that he be returned to prison. A circuit court denied Taylor’s habeas petition, in which he argued the FPC did not “state with particularly” its reasons for departing from the parole examiner’s recommendation to reinstate his conditional release.

Florida’s First District Court of Appeal, on second-tier certiorari review, considered the facts in the case and concluded that a miscarriage of justice ...

News in Brief

News in Brief

Alabama: On April 4, 2014, WBRC News reported that six people had been arrested and five others were wanted in connection with a scheme to smuggle drugs hidden in Bibles into the Shelby County Jail. Small index tabs were attached to the Bibles that contained smaller strips of Suboxone. Shelby County Drug Enforcement Task Force Commander Lt. Kevin Turner said prisoners’ family members and friends had met outside the jail to prepare the Bibles, though it was estimated that less than a dozen were successfully delivered to prisoners. The jail has since changed its policy and no longer allows books to be brought in.

Arizona: After a female prisoner at the Coconino County jail complained to a staff member that guard Pete C. Gomez had asked her to expose herself, Gomez admitted to the misconduct. Flagstaff police opened an investigation into the allegations, and on April 9, 2014, Gomez was arrested on suspicion of unlawful sexual conduct in a correctional facility. Police Sgt. Cory Runge told reporters, “We don’t want to damage the public trust with law enforcement so we try to be transparent and be as forth-coming as possible. We take these things very seriously.” ...


 

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