Trends in Prisoner Litigation, as the PLRA Enters Adulthood
by Margo Schlanger*
The Prison Litigation Reform Act (PLRA),1 enacted in 1996 as part of the Newt Gingrich “Contract with America,”2 is now as old as some prisoners. In the year after the statute’s passage, some commenters labeled it merely “symbolic.”3 In fact, as was evident nearly immediately, the PLRA undermined prisoners’ ability to bring, settle and win lawsuits.4 The PLRA conditioned court access on prisoners’ meticulously correct prior use of onerous and error-inviting prison grievance procedures.5 It increased filing fees,6 decreased attorneys’ fees7 and limited damages.8 It subjected injunctive settlements to the scope limitations usually applicable only to litigated injunctions.9 It made prison and jail population caps—previously common—far more difficult to obtain.10 And it put in place a rule inviting frequent relitigation of injunctive remedies, whether settled or litigated.11
The resulting impact on jail and prison litigation has been extremely substantial. In two articles about a decade ago, I presented descriptive statistics showing the PLRA-caused decline in civil rights filings and plaintiffs’ victories,12 and the likewise declining prevalence of court-ordered regulation of jails and prisons.13 ...
PLRA Attorney Fee Limits Inapplicable to Discovery Violation Awards
In April 2014, a Virginia federal district court awarded $15,980 in attorney fees for a discovery violation in a class-action prisoner civil rights suit. The court’s award came after it found the PLRA does not apply when granting attorney fees ...
16 Years of Failure to Treat Neurological Disorder Results in $48,000 Award
by David Reutter
A New York Court of Claims awarded a prisoner $48,000 for pain and suffering caused by prison medical staff rendering inadequate treatment during his first 16 years of incarceration, “including a failure to ...
From the Editor
by Paul Wright
Next April will mark the 20th anniversary of the Prison Litigation Reform Act (PLRA) – the continuing legacy of President Clinton and Congress which has done more to undermine the rule of law and constitutional rights since the internment of Japanese Americans in concentration camps during World War II.
When the PLRA was enacted in 1996, prisons and jails in some 42 states were under court injunctions or consent decrees designed to remedy unconstitutional conditions of confinement. In one of the most reactionary pieces of legislation in several generations (today no one remembers that Congress passed and Clinton signed the Defense of Marriage Act to ensure gays and lesbians could not be married at the same time the PLRA was enacted, and while DOMA has since been found unconstitutional, prisoners remain screwed), the PLRA served to ensure prisoners face extraordinary barriers just to have their constitutional claims heard by a federal court. No one else in America needs to exhaust an administrative remedy system set up by the very same people who are violating the Constitution in order to have their claims heard in federal court.
While the propaganda of the time claimed ...
More Jurisdictions Don’t Renew Corizon Contracts – Including Big Loss in New York City
by Greg Dober
Recent news for for-profit prison and jail healthcare provider Corizon with respect to contract renewals has not been good. In June 2015, it was announced that two of the company’s clients, the New York City jail system – including Rikers Island – and the Allegheny County Jail in Pennsylvania, would not be renewing their contracts with Corizon to provide medical services to prisoners. In both cases, the contracts were not renewed due to issues related to the company’s performance.
The jails are at opposite ends of the size spectrum, with Rikers holding approximately 11,000 prisoners and the Allegheny County Jail housing approximately 2,000. Yet Corizon was unable to effectively manage either facility, resulting in the loss of the contracts. Both New York City and Allegheny County chose not to have the contract rebid to any of the other large private medical care providers, such as Centurion, Naphcare or Wexford Health Sources.
Additionally, according to an April 2015 news report, “since 2012, Corizon has lost statewide contracts covering 84,000 inmates in Maine, Maryland, Minnesota and Pennsylvania.” [See: PLN, March 2014 ...
Hundreds of South Carolina Prisoners Sent to Solitary Confinement Over Facebook
by Dave Maass
In the South Carolina prison system, accessing Facebook is an offense on par with murder, rape, rioting, escape and hostage-taking.
Back in 2012, the South Carolina Department of Corrections (SCDC) made “Creating and/or Assisting with a Social Networking Site” a Level 1 offense, a category reserved for the most violent violations of prison conduct policies. It’s one of the most common Level 1 offense charges brought against prisoners, many of whom, like most social network users, want to remain in contact with friends and family in the outside world and keep up on current events. Some prisoners ask their families to access their online accounts for them, while many access the Internet themselves through a contraband cell phone (possession of which is yet another Level 1 offense).
Through a request under South Carolina’s Freedom of Information Act and other public records, the Electronic Frontier Foundation (EFF) found that, over the last three years, prison officials have brought more than 400 disciplinary cases for “social networking” – almost always for using Facebook. The offenses come with heavy penalties, such as years in solitary confinement and ...
$36 Million Awarded to Two Men Wrongfully Convicted of Rape, Murder
by David Reutter
A New York federal jury awarded $36 million to two of three former prisoners wrongfully convicted in the 1984 rape and murder of a teenage girl.
The horrific death of Theresa Fusco, 16, was a high-profile ...
Breaking News: CDCR Settles Solitary Confinement Class-Action Suit
by Derek Gilna
The California Department of Corrections and Rehabilitation (CDCR) has long been criticized for its excessive use of solitary confinement, and no facility has been subject to more criticism than Pelican Bay State Prison, which confines over 1,100 prisoners in supermax conditions that some observers have called “torture.”
However, after six years of litigation, dozens of depositions, multiple expert witness statements and reports, the exchange of tens of thousands of documents in discovery and multiple motions, a federal lawsuit that began as a pro se prisoner complaint in 2009 and later became a class-action finally settled on August 31, 2015 following months of intense negotiations. [See: PLN, Oct. 2014, p.30; Oct. 2012, p.1].
The settlement discussions came to a head shortly after the CDCR’s final motion to dismiss was denied and discovery was closed by the district court.
As part of the settlement, the CDCR agreed to stop placing prisoners in indeterminate solitary confinement in Special Housing Units (SHUs) based upon alleged “security threat group” (gang) membership; to release long-term SHU prisoners back to general population after a transition period; and to institute a modified two-year ...
Due Process Violation for “Sham” Reviews During 13 Years in Segregation
by David M. Reutter
The Sixth Circuit Court of Appeals reversed a grant of summary judgment to prison officials on a due process claim, holding there was sufficient evidence for a jury to determine whether a prisoner received “sham” reviews during almost 13 years in administrative segregation.
Michigan state prisoner Charles J. Selby was held in isolation at the Marquette Branch Prison from 1998 to 2011 after he was found to pose a serious escape risk. He is serving a life sentence for murder, a two-year sentence for being a felon in possession of a firearm and a two-to-five year sentence for attempted escape.
Seven years after his placement in solitary confinement, “Selby developed respiratory problems, frequent panic attacks, confusion, concentration and memory problems, infections, insomnia, paranoia, and hallucinations. He experienced despair, depression, and thoughts of suicide.”
After Selby filed suit, the federal district court granted summary judgment to the defendants on his due process and religious rights claims, and he appealed. Notably, Selby was released from segregation about 18 months after filing his lawsuit. By virtue of that release, his Religious Land Use and Institutionalized Persons Act ...
North Carolina Guard Gets Three Months for Killing Prisoner
by Christopher Zoukis
A North Carolina guard was ordered to serve three months in jail after being found guilty of beating to death a prisoner who had been arrested on an open container charge and minor drug violation.
Video footage from the Wake County Detention Center showed guard Markeith Council, 28, pick up Shon Demetrius McClain and slam him head-first into the floor, twice, after a brief altercation.
Council, a former college football player, is 6’3” and weighs 290 pounds; McClain was 5’6” and weighed 145 pounds. McClain died 13 days after the June 4, 2013 incident from blunt force trauma to his head.
A jury found Council guilty of involuntary manslaughter in December 2013 after viewing the video and hearing testimony from witnesses. [See: PLN, Sept. 2014, p.56].
Council claimed that he was worried about “what was going on around [him],” and “didn’t have time” to reach for his pepper spray when subduing McClain.
“This is a very sad case. It’s a case where someone didn’t need to die,” stated Wake County District Attorney Colon Willoughby.
While a jail spokesman claimed that Council had suffered minor injuries ...
HRDC and 93 Organizations Ask EPA to Consider Prisoners in Environmental Justice Plan
The Human Rights Defense Center (HRDC), PLN’s parent non-profit organization, submitted a public comment to the U.S. Environmental Protection Agency (EPA) on July 14, 2015 to provide input on the agency’s EJ 2020 Action Agenda Framework, highlighting the lack of consideration for environmental justice among the millions of prisoners in the United States.
The comment was co-signed by 93 social justice, environmental and prisoners’ rights organizations from across the country. Additional groups such as the Sierra Club (the largest membership-based environmental organization in the U.S.) and the EJ Forum (a coalition of 42 environmental organizations) submitted their own remarks to the EPA that included statements of support for HRDC’s comment.
The EJ 2020 Action Agenda Framework is designed to help the EPA “advance environmental justice through its programs, policies and activities” by “making a visible difference in environmentally overburdened, underserved, and economically distressed communities” that are vulnerable to environmental issues such as air and water pollution.
HRDC argued that the EPA should take prisoners into consideration with respect to environmental justice and impacts on minority and low-income populations to the same extent as non-prisoners, because ...
Ninth Circuit Finds Forfeited Assets Satisfy Restitution Order; Eleventh Circuit Disagrees
by Derek Gilna
Greg Carter served a 70-month federal prison sentence for defrauding U.S. airlines with phony tickets, along with several co-defendants. As part of his conviction he forfeited cash, real estate and other assets for the purpose of satisfying over $505,000 in court-ordered restitution. Shortly after his release from prison, Carter was advised that he still owed restitution; he filed a motion with the district court to clarify the amount and status of his restitution order.
Carter argued that at the time of sentencing it was understood by all parties involved in the case that the amount of restitution had already been satisfied by the assets seized by and forfeited to the government, and that his restitution obligation was therefore satisfied in full.
The same district court judge who had indicated at Carter’s sentencing that the forfeited assets covered the restitution amount contradicted his earlier judgment, stating forfeiture and restitution were two different processes and the fact that Carter had forfeited his assets did not necessarily mean he had fully paid his restitution. The court found that Carter was still liable for the difference between the ...
$1.2 Million Award for Failure to Treat New York Prisoner’s Rectal Bleeding
by David Reutter
A New York Court of Claims awarded $1.2 million to a former prisoner who was diagnosed with advanced colon cancer after prison medical personnel failed to properly treat his complaints of rectal bleeding ...
Cell Phones Confiscated from Prisoners Given to Charities
by Christopher Zoukis
Thousands of cell phones seized from prisoners nationwide have been donated to charitable causes, including domestic violence programs and Cell Phones for Soldiers.
Cell phones are considered contraband in every prison and jail in the U.S. In many jurisdictions, their possession or use by a prisoner is a criminal offense, including in the federal Bureau of Prisons. [See: PLN, June 2011, p.34]. Despite such penalties there is a burgeoning market for cell phones behind bars, and many end up being found by prison officials. In California alone, 12,151 phones were seized from prisoners in 2013.
As the confiscation of contraband cell phones has become more common, many have been donated to charitable organizations.
The Pennsylvania Department of Corrections gave more than 1,100 cell phones to the Pennsylvania Coalition Against Domestic Violence. The phones are refurbished by Verizon HopeLine and then provided to domestic violence victims. Phones that cannot be reused are recycled, with the proceeds donated to the program. The Alabama DOC sends confiscated cell phones to HopeLine and proceeds from the sale of refurbished phones are used for grants for domestic violence shelters.
Inside the Small California Town with a Lot of Prisons, but Not Much Opportunity
by Matt Tinoco
Adelanto, California is a small high desert town just a two-hour drive northeast of Los Angeles, but it feels a long, long way away from Southern California’s stereotypical palm trees and beaches.
This is a town, like many others around the country, that exists largely thanks to America’s overgrown prison industry. There are three incarceration facilities within its city limits, providing beds for up to 3,340 prisoners. Two of these facilities are privately owned and operated by GEO Group, one of the U.S.’s largest private prison operators. The San Bernardino County Sheriff’s Department operates the third. On Adelanto’s border with its neighbor city Victorville is a gigantic federal complex that’s home to another 4,600 prisoners.
In late November 2014, the town’s outgoing city council decided that they needed more prisons, approving by a vote of four to one plans for the construction of two new correctional facilities. One was to be a privately owned and operated 1,000-bed facility from GEO Group, and the other a $327 million, 3,264-bed facility developed independently by Doctor Crants, the co-founder of the private prison company Corrections Corporation of America, that’s ...
DC Circuit Denies Appeal of Order to Release Force-Feeding Videos
by Derek Gilna
Abu Wa’el (Jihad) Dhiab was imprisoned at the U.S. military prison in Guantanamo Bay, Cuba when he went on a hunger strike. Authorities then repeatedly extracted him from his cell and force-fed him. Thirty-five videos of that procedure convinced a District of Columbia federal district court to stop the force-feeding, and the court ordered the partial redaction, release and publication of the videos after various media outlets intervened in Dhiab’s pending habeas corpus petition. Unsurprisingly, the federal government was uncooperative in releasing the embarrassing videotapes.
The government appealed to the D.C. Court of Appeals, seeking an interlocutory order barring release of the videos or in the alternative a writ of mandamus prohibiting their publication. In a unanimous May 29, 2015 decision, the Court denied both requests. The appellate court observed that it has “jurisdiction from all final decisions of the district courts,” provided they are “final decision[s] ... by which a district court disassociates itself from a case.”
As the D.C. Circuit noted, “The district court’s ... orders in this case plainly do not match that description ... [since it ordered] that ‘counsel shall ...
Closed Colorado Prison Converted into Homeless Program
by David Reutter
Nearly two years after it opened on September 3, 2013, supporters of Fort Lyon, a former Colorado prison-turned-homeless facility, say it’s too soon to call the program administered by the Colorado Coalition for the Homeless a success. But officials say there is growing support for the sprawling campus in extreme southeast Colorado that once housed minimum-security prisoners but now accommodates more than 200 men and women who previously lived on the streets.
Fort Lyon, a former frontier fortress, was a veterans hospital for about 80 years until 2001, when it became too expensive to operate. State officials converted it into a prison, but Governor John Hickenlooper ordered it closed in 2011 due to budget cuts. Amid a great deal of controversy, Fort Lyon was converted into a facility to house chronically homeless persons suffering from addictions they could not overcome in an urban environment.
The sprawling campus is remote, but in many ways idyllic: located on 552 acres, the former prison can house up to 775 people. The facility has two swimming pools, eight wells, a water treatment plant, agricultural facilities, sports fields, metal and wood shops, a state-of-the-art kitchen ...
Two Kentucky Jail Guards Face Charges in Prisoner’s Death
by David Reutter
A special prosecutor has been appointed to try a first-degree manslaughter case against two Kentucky jail guards indicted in the 2013 beating death of a 54-year-old prisoner who was being held on a DUI charge. Assistant Attorney General Barbara Maines-Whaley was named on February 26, 2014 to serve as prosecuting attorney.
Maines-Whaley will present the state’s evidence against Kentucky River Regional Jail guards Damon W. Hickman and William C. Howell, who were indicted for the July 9, 2013 death of prisoner Larry Trent after an altercation at the jail. Following the incident, Trent was restrained and placed in a holding cell. At around 10:50 a.m., jail staff found him unresponsive; he was transported to a local hospital where he was pronounced dead.
Although an official cause of death was not released, the state medical examiner’s preliminary report cited “jail beating” as the cause of Trent’s injuries. That report found Trent had suffered “blunt impacts of the head, trunk, and extremities with multiple skeletal and visceral injuries.”
In an incident report obtained by the Hazard Herald newspaper, Howell wrote that Trent “came out fighting. I tased ...
California: Private Medical Provider can be Liable for ADA Violations; Class-action Suit Settles
by David M. Reutter
A California federal district court held in September 2014 that a jail’s private medical provider may be held liable under Title III of the Americans with Disabilities Act (ADA); the class-action lawsuit later settled, with the jail agreeing to make a number of policy changes.
At issue was a complaint that alleged the Monterey County Jail (MCJ) had substandard conditions that included “violence due to understaffing, overcrowding, inadequate training, policies, procedures, facilities, and prisoner classification; inadequate medical and mental health care screening, attention, distribution, and resources; and lack of policies and practices for identifying, tracking, responding, communicating, and providing accessibility for accommodations for prisoners with disabilities.” [See: PLN, June 2014, p.1].
The defendants, including the County of Monterey, Monterey County Sheriff’s Office and California Forensic Medical Group (CFMG), filed motions to dismiss. MCJ frequently houses more than 1,100 prisoners; the majority are pretrial detainees who stay an average 30-40 days.
Health care at the facility is provided under a contract with CFMG, which is responsible for determining “the method, details, and means of performing services.” The complaint in the ...
Texas Leads the Nation in Both Executions and Exonerations
by Matt Clarke
Texas has long been notorious for applying the death penalty, executing more prisoners than any other state. Between 1976 and September 1, 2015, Texas carried out 528 executions – nearly five times as many as neighboring Oklahoma, which ranked second in the U.S. according to the Death Penalty Information Center.
More recently, however, Texas has become known for the flip side of the capital punishment coin – leading the nation in the number of exonerations, passing the most generous compensation package for wrongfully convicted prisoners of any other state, and enacting laws to help prevent wrongful convictions and hold prosecutors responsible.
From 1994 to 2014, Texas saw 52 prisoners exonerated after DNA evidence revealed they did not commit the crimes for which they had been convicted and sentenced, according to the Innocence Project. Counting all wrongful convictions, including those not involving DNA evidence, there have been 215 confirmed exonerations in Texas.
“The big story for the year is that more prosecutors are working hard to identify and investigate claims of innocence,” said Samuel Gross, who authored a 2014 report for the National Registry of Exonerations (NRE ...
Mississippi Indictments Illustrate Prison Phone Corruption
by Derek Gilna
Two Mississippi businessmen, Irb Benjamin, 69, and Sam Waggoner, 61, face federal charges in connection with a scheme in which kickbacks were paid to former Mississippi Department of Corrections (MDOC) Commissioner Christopher B. Epps in return for the awarding of state and county contracts to Mississippi Correctional Management (MCM) and Global Tel*Link (GTL).
According to court documents, Waggoner, a paid consultant for GTL, the nation’s largest prison phone service provider, received from the company “five (5) percent of all revenue generated by the inmate telephone services contracts it had with the state of Mississippi.”
In turn, Waggoner allegedly provided bribes to Epps. According to federal prosecutors, “Specifically, on or about July 30, 2014, and on or about August 26, 2014, the defendant, Sam Waggoner, paid kickbacks in the form of cash generated by his monthly commission from GTL to Christopher B. Epps,” in violation of 18 U.S.C. § 666(a)(2).
Prisoners’ rights advocates, including the Human Rights Defense Center (HRDC), the parent organization and publisher of Prison Legal News, have long been critical of phone contracts entered into between companies like GTL and corrections agencies ...
CCA Prison in Ohio Loses BOP Contract
The privately-owned Northeast Ohio Correctional Center (NOCC) in Youngstown no longer holds prisoners for the Bureau of Prisons (BOP) after the federal agency declined to renew its contract with Corrections Corporation of America (CCA).
According to CCA, around 1,400 BOP prisoners and 580 detainees for the U.S. Marshals Service were housed at the 2,016-bed facility. The prison employed about 400 people.
The non-renewal of the two-year contract between CCA and the BOP was announced in late December 2014, and the contract expired in May 2015. The BOP’s new contract, with CCA competitor GEO Group, is worth $792.3 million and lasts for at least four years with options to extend up to 10 years.
The BOP prisoners at NOCC were transferred to the GEO-operated Moshannon Valley Correctional Center in Philipsburg, Pennsylvania and Great Plains Correctional Facility in Hinton, Oklahoma. NOCC will continue to house detainees for the U.S. Marshals under a contract that expires in 2018; however, that small population is unlikely to sustain the facility over the long-term.
The decision to award the BOP contract to GEO Group did not sit well with local officials. Mahoning County Commissioner ...
Doctor Involved in Botched Oklahoma Execution Unsuccessfully Sued in Federal Court
by Christopher Zoukis
The family of Oklahoma prisoner Clayton Lockett, whose botched execution caused international outrage, filed a federal lawsuit that accused the doctor who oversaw the April 29, 2014 execution of “human medical experimentation in torturing [him] to death.” The district court dismissed the case and the family has filed an appeal.
David Lane, a civil rights attorney, said he obtained information that Dr. Johnny Zellmer, an emergency room physician at McAlester Regional Medical Center, was filling in for another doctor on the execution team on two days’ notice and was poorly trained in execution protocols. Lane stated, “I called [Zellmer] and said, ‘Dr. Johnny, I’m a civil rights lawyer in Denver and I have inside information that you participated in the execution of Clayton Lockett. If you tell me you had nothing to do with that execution, I will not sue you,’” Zellmer reportedly replied, “Y’all have to talk to the prison about that.”
Lockett’s execution attracted widespread condemnation after witnesses reported seeing him writhing and groaning on the death gurney during the lethal injection process. The drug used to kill Lockett, Midazolam, had ...
PLN Settles Censorship Suit against GEO Group at Indiana Prison
In August 2015, Prison Legal News settled a federal lawsuit against The GEO Group, the nation’s second-largest for-profit prison company, over First Amendment violations at the New Castle Correctional Facility in Indiana.
PLN filed the suit in November 2014 against GEO Group and New Castle Superintendent Keith Butts. According to the complaint, GEO had censored at least ninety issues of PLN’s monthly publication mailed to prisoners at the facility, allegedly because “Prison Legal News contains advertisements from companies that provide pen-pal services to prisoners,” and “[t]he Indiana Department of Correction has a policy, applicable to New Castle, prohibiting prisoners from participating in pen-pal services.”
However, noting that state prisons in Indiana did not censor its publication, PLN argued that GEO’s policy “has no rational basis as many publications that prisoners are allowed to receive contain advertisements promoting the sale of items and/or services that the prisoners cannot access.” Additionally, GEO Group had failed to provide notice of its rejection and censorship of PLN’s monthly publication.
PLN sought monetary damages, as well as declaratory and injunctive relief plus attorney fees and costs. On January ...
New Mexico County Jail Pays $1.5 Million to Mentally Ill Prisoner
by Derek Gilna
In February 2014, Valencia County, New Mexico agreed to pay $1.5 million to settle a federal civil rights complaint alleging deliberate indifference to a prisoner’s known physical and mental illnesses.
Jan Green, 50, was ...
Guard Admits Guilt, but Lawsuit Dismissed against Jail Supervisors
by Derek Gilna
A civil rights complaint filed against officials at the Two Bridges Regional Jail in Wiscasset, Maine was dismissed by a federal court, even after a male guard admitted to improperly touching a female prisoner. The guard, Brian Bossie, a probationary employee who no longer works at the facility, pleaded guilty in April 2012 to sexually assaulting former prisoner Amanda Hayes.
Following Bossie’s plea, a charge of unlawful sexual touching was dropped and the assault charge was later dismissed as part of a deferred prosecution.
Hayes, 34, filed suit in 2013 under 28 U.S.C. § 1983, alleging that Bossie’s supervisors at the jail, Col. Mark Westrum and Lt. Richard Thompson, were aware of his unwanted advances towards Hayes and other female prisoners. According to the complaint, “Throughout the month of September 2011, Officer Bossie made several sexual comments and remarks to Ms. Hayes, ... requested that Ms. Hayes be naked when he did cell checks, ... [and these] sexual comments and remarks to Ms. Hayes were unwelcomed and unprovoked by Ms. Hayes and frightened her.”
The lawsuit, which sought damages against the jail and its supervisory staff, was ...
Texas Prison Guard Union Urges Death Row Reforms
by Christopher Zoukis
In a move that surprised many in the prison reform community, the president of the local chapter of a Texas prison guards’ union wrote a letter to the Texas Department of Criminal Justice (TDCJ) on January 20, 2014, urging officials to introduce major reforms in the state’s handling of death row prisoners.
Lance Lowry, president of Huntsville’s Local 3807 of the American Federation of State, County and Municipal Employees (AFSCME), wrote the letter amid the TDCJ’s review of conditions at the Polunsky Unit in Livingston, where Texas death row prisoners are held.
Prisoners at Polunsky are housed in solitary confinement, confined to their cells 23 hours a day. “Recreation” comes in the form of exercise one hour per day, alone in a dog-run type enclosure. Televisions are not permitted, nor are prisoners allowed to use the telephone or participate in education, work or religious programs.
While a three-tiered classification system allows some condemned prisoners a radio and occasional non-contact visits, all prisoners remain on death row until their execution or, in the rare case, release, for several decades on average.
According to Lowry, the draconian conditions at Polunsky are ...
PLN Prevails in Censorship Suit against Virginia Beach Sheriff’s Office
by Gary Hunter
In March 2015, the U.S. District Court for the Eastern District of Virginia granted summary judgment in favor of Prison Legal News (PLN) against the Virginia Beach Correctional Center (VBCC), and granted declaratory and injunctive relief. Further, the court later awarded over $93,000 in attorneys’ fees and costs.
From May 2012 through August 2012, the VBCC mailroom rejected all issues of PLN sent to prisoners at the facility, but failed to provide proper notice to PLN or conduct a proper review of such censorship decisions when they were appealed. VBCC claimed that PLN’s publication violated a variety of institutional policies, including ads that contained “sexually explicit material ... ordering forms with prices, catalogs [and] brochures.”
PLN filed suit against Sheriff Kenneth Stolle, accusing the Virginia Beach Sheriff’s Office (VBSO) of First Amendment and due process violations. [See: PLN, Oct. 2013, p.47]. In December 2014 the district court upheld the VBSO’s policy of banning publications “that contain ‘ordering forms’ with prices,” but reserved judgment as to the claim related to sexually explicit materials.
Before the court could make a final ruling, the VBSO changed ...
Understanding Mass Incarceration: A People’s Guide to the Key Civil Rights Struggle of Our Time, by James Kilgore (The New Press, 2015). 272 pages, $17.95 (paperback)
Book review by Russ Immarigeon
“Mass incarceration” has become a term that is quickly slipping into the everyday consciousness of ordinary Americans. In this welcome volume, social activist James Kilgore offers an excellent introduction to the emergence and emergency of mass incarceration. Overall, Understanding Mass Incarceration is a useful guide, for practitioners as well as observers of criminal justice, to this historical phenomenon.
Kilgore, who teaches at the University of Illinois at Urbana-Champaign, served six years in prison, where he drafted three novels that have since been published. A frequent contributor to print and electronic sources of information on criminal justice reform, Kilgore is an educator who communicates easily and effectively with his readers.
Understanding Mass Incarceration describes the basics and the faces of mass incarceration. The statistics of mass incarceration are monumental and widely reported. Kilgore introduces them, but, more pointedly, he focuses on the relationship between the “Lock ‘Em Up and Throw Away the Key” movement and the growth of popular support for a rapidly expanding prison estate. He covers the ...
West Virginia Prisoner Wins Over $905,000 in FTCA Claim
by Derek Gilna
A federal prisoner was seriously and permanently injured when, after fleeing from a prison fight, he slipped in a pool of blood and slammed into a metal railing. Following a two-day bench trial in Wheeling, West Virginia ...
New York: Burns from Faulty Steam Cooker Net Prisoner $2,500
by Mark Wilson
Last year, the New York Court of Claims awarded a prisoner $2,500 after he suffered burns from a faulty steam cooker. The court found prison officials had negligently failed to fix the cooker despite being ...
Pennsylvania: $65,000 Settlement for Brain Injury Caused by Guard’s Excessive Force
by David Reutter
Pennsylvania’s Erie County Prison (ECP) agreed to pay $65,000 to settle a federal lawsuit claiming a guard used excessive force on a prisoner, causing brain damage.
Jerome McCallion was housed in ECP’s Restrictive Housing ...
Grand Jury Report: Prisoners in Charge at Mississippi County Jail
by David Reutter
The prisoners seem to be in control of the Hinds County, Mississippi Detention Center because the jail does not have enough staff to adequately monitor them, according to a scathing Hinds County Grand Jury report filed on October 2, 2014 in County Circuit Court. The grand jury members inspected the facility, which became the focus of a U.S. Department of Justice civil rights investigation to determine if prisoners were in danger of violence following a March 2014 riot that left one prisoner dead and at least seven others injured.
“We noted that there were not enough officers to secure the Jail,” the report said. “Those officers that were on duty there were frightened of the inmates. The inmates seemed to be in control of the Jail as a result of the shortage of guards.”
The grand jury laid the blame directly at the feet of Hinds County Sheriff Tyrone Lewis. “After hearing from the Sheriff and his team, we are of the opinion that Sheriff Lewis is incompetent to oversee the jail or keep pretrial detainees or state inmates in a safe manner or ...
Sesame Street Creates Muppet with Father in Jail
by Christopher Zoukis
Sesame Street has a new muppet character: Alex, whose father is incarcerated. “My dad’s in jail,” he says in an online video. “I don’t like to talk about it.”
Alex is featured in Sesame Street’s online teaching kit, “Little Children, Big Challenges,” which is a series of resources for children and their parents dealing with adversity, from bullying to divorce. The fuzzy blue-haired muppet is depicted as facing a wave of questions from his peers about “carceration.” Sofia, a neighbor, explains that incarceration “is when someone breaks the law, a grown-up rule, and then they have to go to jail or prison.” Alex says of his father, “I just miss him so much.... Sometimes I just feel like I want to pound a pillow and scream as loud as I can.”
Jeanette Betancourt, vice president for outreach and educational practices at Sesame Workshop, said the video is intended to give support and comfort to children like Alex.
“We are not looking at the cause of the incarceration of the parent, but the impact of the incarceration on the lives of children and their ...
North Carolina Prisons Slow to Change Attitudes about Mentally Ill Prisoners
by David M. Reutter
The head of North Carolina’s Division of Adult Correction and Juvenile Justice is calling for more than $20 million in additional state funding to pay for changes in the way the state prison system takes care of its approximately 4,600 mentally ill prisoners – 12% of North Carolina’s total prison population.
The request by corrections commissioner W. David Guice came in the wake of the high-profile dehydration death of mentally ill prisoner Michael Anthony Kerr on March 12, 2014 after more than a month in solitary confinement, when the water to Kerr’s cell had twice been disconnected. [See: PLN, May 2015, p.60]. Guice made the request when he appeared before a December 11, 2014 meeting of the Joint Legislative Oversight Committee on Justice and Public Safety that was convened to examine the state’s treatment of mentally ill prisoners.
Guice requested $16 million to hire 308 new employees to help manage mentally ill prisoners, plus additional funding to operate 72 beds for mentally ill prisoners at Central Prison in Raleigh that are in place but not being used due to budget cuts, according to ...
by Andrew Extein, Truthout
Is my Furby a computer?”
With five months in jail and eight months of parole behind him, and four years of probation to go, Trevor finds himself contemplating the artificial intelligence of a Furby, and its threat to his future.
As a registered sex offender, Trevor must abide by a bewildering array of rules, regulations and restrictions. He was introduced to the maze upon parole: He wasn’t supposed to use a computer or the Internet, but his parole officer didn’t initially inform him of these constraints. Ironically, he found out his parole conditions online.
Later, during a mandatory polygraph test, a police officer slid a pen and paper toward Trevor, demanding that he write down every username and online alias he has ever had. Trevor, a young, self-identified “freaky queer video/net artist,” found this request laughable and troublingly out-of-touch.
“They didn’t even understand that any time you comment on anything on a site you have to usually create a username, or any of the endless crap you have to create accounts for online,” he said. “They still seem stuck in the mid-90s or something, as if I have one email address and ...
TDCJ’s $100 Annual Fee for Prisoner Health Care Held Constitutional
by David M. Reutter
The Fifth Circuit Court of Appeals has found constitutional a Texas statute requiring prisoners to pay a $100 annual health care services fee when they receive medical treatment.
The ruling came in a lawsuit filed by Texas prisoner Robert C. Morris, who challenged a 2011 amendment to Texas Government Code § 501.063, naming Governor Rick Perry as the defendant. As amended, the statute provides that any prisoner “who initiates a visit to a health care provider shall pay a health care services fee to the Texas Department of Criminal Justice (TDCJ) in the amount of $100.”
The annual fee “covers all visits to a health care provider that the inmate initiates until the first anniversary of the imposition of the fee.” If the prisoner’s trust fund balance is insufficient, then “50 percent of each deposit to the fund shall be applied toward the balance owed until the total amount owed is paid.” Prison officials “may not deny an inmate access to health care as a result of the inmate’s failure or inability to pay a fee.”
The amendment to § 501 ...
Former West Virginia Judge Pleads Guilty, Sentenced
by Joe Watson
A former Mingo County, West Virginia circuit judge was sentenced to 50 months in federal prison and fined $6,000 after pleading guilty to federal conspiracy charges which grew out of a plot to silence an FBI informant who planned to provide federal investigators with information damaging to a political crony – Mingo County’s Sheriff. Former Judge Michael Thornsbury, 59, could have received up to 10 years in prison and a $250,000 fine.
“Mr. Thornsbury’s conduct was shocking and appalling,” said U.S. Attorney Booth Goodwin following the sentencing on June 9, 2014. “It was worthy of a stiff sentence.”
Even so, Goodwin recommended that Thornsbury’s sentence be reduced by 10 months because he had cooperated with authorities, providing information that led to the arrests of former Mingo County Commissioner David Baisden and former Mingo County prosecutor Michael Sparks.
Investigators said Thornsbury told them the three men had hatched a scheme to protect their political ally – then-Sheriff Eugene Crum – from a federal investigation into alleged drug and campaign finance law violations by pressuring Mingo County businessman George White to fire the attorney who was helping ...
Michigan to Accommodate Religious Rights of Muslim Prisoners
by David M. Reutter
After a Michigan federal district court ruled the Michigan Department of Corrections (MDOC) had violated the religious rights of Muslim prisoners by denying them the ability to attend Eid meals and refusing to accommodate their need to attend weekly prayer services, the MDOC reached an agreement which included the provision of halal food and attendance at religious services that conflict with prison work schedules.
Those legal victories came in a class-action lawsuit filed by the ACLU of Michigan in 2009 on behalf of Muslim and Seventh-day Adventist prisoners alleging violations of their rights under the Religious Land Use and Institutionalized Persons Act, the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.
In a May 24, 2013 order, the district court granted summary judgment to the plaintiffs after adopting a magistrate’s report and recommendation. The court’s subsequent order of relief declared the class members have a right “to attend, congregate for, observe and celebrate ... the Eid ul-fitr and Eid ul-Adha feasts.” The MDOC was ordered to use the Handbook on Religious Groups to identify those feasts, as well as Ramadan fasts and Seders.
Special provisions ...
Report on Prosecutorial Coercion in Obtaining Drug Pleas
by Derek Gilna
A report by Human Rights Watch highlighted what criminal law experts have known for years – that federal prosecutors have almost unlimited power in drug cases to coerce guilty pleas, and they are not afraid to use it. The report mentions several examples where first-time drug offenders resisted an initial plea bargain, and were shortly thereafter hit with superceding indictments seeking long mandatory minimum sentences.
When Congress passed laws requiring the application of mandatory minimum sentencing, the clear intent was for the most severe penalties to be reserved for drug “kingpins,” not couriers or street-corner peddlers. Instead, prosecutors soon learned that most drug prosecutions were “easy wins,” while judges were constrained by the language of the statutes to sentence defendants to long prison terms. Power shifted from the judicial branch to the executive branch, and prosecutors were only restrained by their consciences. In other words, some were not restrained at all.
According to the report, “prosecutors often charge or threaten to charge mandatory minimums not because they result in appropriate punishment, even in the view of the prosecutor, but to pressure defendants to plead guilty and to ...
10th Circuit Reverses Dismissal of Halfway House Escape Charge
by Derek Gilna
A federal prisoner without any detainers (“holds” placed by other law enforcement agencies) can generally count on a period of community confinement at the end of his sentence, during which he reports to a halfway house under the direct supervision of the Bureau of Prisons (BOP). Most federal circuit courts agree that the halfway house time, even if served on home confinement, counts against the prisoner’s sentence, and it stands to reason that an unauthorized absence from a halfway house or home confinement would thus be considered “escape.”
A district court judge in Kansas disagreed, finding that when Michael Ko failed to return to his residence while on home confinement, based on an alert from his GPS monitoring device, that failure did not constitute an escape.
The court dismissed the indictment filed against Ko for escape from custody, reasoning “the absence of Supreme Court or Tenth Circuit precedent addressing the facts in this case” required dismissal.
In reversing the district court’s judgment, the Tenth Circuit noted the terms of Ko’s confinement included constant monitoring, the wearing of an electronic monitoring device and limitations as to travel and ...
Chicago City Council Approves Reparations for Police Torture Victims
by Joe Watson
The Chicago City Council has voted to approve a $5.5 million package that will pay reparations and fund other benefits to victims of torture at the hands of notorious former police commander Jon Burge and his cadre of officers. The May 6, 2015 approval of the package culminates a decade-long effort to compensate the more than 100 victims – mostly African-American men – who suffered physical and psychological abuse at the hands of police during almost two decades under Burge’s reign. [See: PLN, Dec. 2011, p.14; Oct. 2004, p.1].
The reparations package includes maximum payments of $100,000 to torture victims, plus free city college tuition and job training to victims and their families, as well as city-funded psychological, family and substance abuse counseling. No payments will be made to family members of torture victims who have since died, though they can receive other benefits.
Authorities alleged that from 1972 to 1991, Burge was in charge of a group of white Chicago police detectives who forced confessions from suspects by routinely using electric shocks, mock executions, and suffocation with plastic bags and typewriter covers, and ...
Sex Assault Charges against Wiccan Ex-Prison Chaplain Dismissed
by Joe Watson
A Wiccan former prison chaplain at the Oshkosh Correctional Institution in Wisconsin pledged to sue the Wisconsin Department of Corrections after she was cleared of criminal charges in a bizarre faux hostage scheme that involved allegations of sex with a prisoner behind a barricaded office door. Reverend Jamyi Witch was fired in March 2012 after the charges were filed; she also claimed she was the target of anti-religious rhetoric from Wisconsin Governor Scott Walker, when Walker was still a state Assemblyman.
The criminal charges against Witch, a 54-year-old Wiccan who changed her last name from Welch to reflect her religion, were dismissed in August 2013 because the prisoner involved in the incident changed his story and prosecutors were not confident they could convict her, according to Winnebago County Deputy District Attorney Scott Ceman.
Witch was hired in 2001 as the state’s first Wiccan prison chaplain. [See: PLN, March 2002, p.32]. She was accused of hatching a plan in which the unidentified prisoner came into her office, barricaded the door with a bookshelf and Witch’s wheelchair, then sexually role-played as if Witch was his mother. The hostage plan, she ...
Alabama: On April 9, 2013, Kenneth Wayne Patton was arrested on a domestic violence charge. When he arrived at the Etowah County Jail, he informed guards that he used to be employed at the St. Clair Correctional Facility and should be put in protective custody. Despite that warning, he was placed in general population. Prisoners at the jail eventually discovered Patton's former occupation and assaulted him; he suffered a broken nose, cuts and a broken tooth. In April 2015, Patton filed a federal lawsuit against jail officials accusing them of deliberate indifference for failing to protect him.
Arizona: No injuries were reported after a fire broke out on July 25, 2015 at a prison in Florence run by Corrections Corporation of America (CCA). CCA issued a statement that said the fire at the Central Arizona Detention Center started in a dryer in the laundry room. Flames spread to the roof through a vent and ignited some plastic, causing extensive heavy black smoke. A Florence official said the fire did not cause “serious damage” to the facility.
Arkansas: On April 18, 2015, Pulaski County sheriff’s officials intercepted a phone call which indicated that contraband would be left in a vehicle ...
Criminal Justice Resources
Compiles information about prisoner torture, beatings, rape, etc. to include in reports about U.S. prison conditions; also works on death penalty issues. Contact: Amnesty International, 5 Penn Plaza, New York NY 10001 (212) 807-8400. www.amnestyusa.org
Black and Pink
Black and Pink is an open family of lesbian, gay, bisexual, transgender and queer prisoners and “free world” allies who support each other. A national organization, Black and Pink reaches thousands of prisoners across the country and provides a free monthly newspaper of prisoner-generated content, a free (non-sexual) pen-pal program and connections with anti-prison movement organizing. Contact: Black and Pink, 614 Columbia Rd., Dorchester, MA 02125 (617) 519-4387. www.blackandpink.org
Center for Health Justice
Formerly CorrectHELP. Provides information related to HIV in prison – contact them if you are not receiving proper HIV medication or are denied access to programs due to your HIV status. Contact: CHJ, 900 Avila Street, Suite 301, Los Angeles, CA 90012 (213) 229-0985; HIV Hotline: (213) 229-0979 (collect calls from prisoners OK). www.centerforhealthjustice.org
Works to exonerate the wrongfully convicted, in both cases involving DNA evidence and those that do not. Centurion only takes 1-2 ...