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Prison Legal News: May, 2015

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Volume 26, Number 5

In this issue:

  1. Twenty-Five Years of Prison Legal News (p 1)
  2. HRDC Litigation Project Update – 25th Anniversary Edition (p 12)
  3. From the Editor (p 26)
  4. California Probation Cannot Exceed Maximum for Unpaid Restitution (p 27)
  5. ICE Settles New York Immigration Raid Lawsuit for $1 Million (p 28)
  6. Ninth Circuit Upholds $106,000 in Damages Plus Attorney Fees for Withheld Evidence (p 28)
  7. Human Rights Groups, Environmentalists Oppose New Federal Prison on Former Coal Mine in Kentucky (p 30)
  8. Oregon Parole Board Orders Must Explain Decisions, but Orders Defined to Include Administrative Review Responses (p 30)
  9. Oregon Mental Patient’s Death Nets $1.4 Million (p 32)
  10. Lifetime GPS Monitoring of Sex Offenders Upheld in South Carolina (p 32)
  11. The Persistence of Mass Incarceration (p 34)
  12. Accuracy of Widely-Used Polygraph Machine Under Fire (p 36)
  13. Exonerated Colorado Prisoner Receives $1.2 Million under New Compensation Law (p 38)
  14. $7,500 Award for Ohio Prisoner in Slip and Fall Accident (p 38)
  15. New Jersey, Ohio DOCs Significantly Reduce Phone Rates (p 40)
  16. Seventh Circuit Orders New Trial due to Shackling of Prisoner Plaintiff (p 42)
  17. Former Prisoner Left Blind by Assault Obtains Reversal of FTCA Claim (p 42)
  18. Georgia Jail Pays $937,500 in Wrongful Death Settlement (p 43)
  19. Maine Sheriff, Mired in Controversy, Defeated in Re-election Bid (p 44)
  20. $50,000 Settlement for Prisoner’s Suicide at Iowa County Jail (p 45)
  21. Prisoner Files Lawsuit after Being Pepper Sprayed in Restraint Chair (p 47)
  22. When is a Person too Insane to Execute? (p 48)
  23. Fifth Circuit Reinstates Dallas County Jail Excessive Force Suit (p 48)
  24. The Wal-Mart Model: Not Just for Retail, Now It’s for Private Prisons Too! (p 48)
  25. Iowa DOC May Not Switch Administrative Law Judges in Mid-Disciplinary Process (p 50)
  26. California Pays $585,000 to Settle Suit by Prisoner Who Lost Eye Due to Poor Medical Care (p 51)
  27. First Circuit Vacates Massachusetts Prisoner’s $325,956.36 Damages, Attorney Fee Award (p 52)
  28. Due Process Requires Notice Prior to Court-Ordered Deduction from Prisoners’ Accounts (p 52)
  29. Former Prisoner Receives $50,000 Settlement for Beating by Ohio Jail Guard (p 53)
  30. Easing Residency Restrictions Helps Curb Homelessness Among Registered Sex Offenders (p 54)
  31. $500,000 Settlement in Georgia Prisoner’s Death while on Work Crew (p 55)
  32. Maryland County Jail Guards Receive Rights Mirroring Those of State Prison Guards (p 56)
  33. Convictions Affirmed for Two Former Rhode Island Guards Who Assaulted Prisoners (p 56)
  34. Disabled Minnesota Prisoner Settles Discrimination Lawsuit for $10,000, Other Relief (p 57)
  35. Dehydration Death of North Carolina Prisoner Prompts Investigations, Firings, Resignations (p 60)
  36. Ohio Prisoner Represents Himself, Beats Attempted Murder Charges (p 61)
  37. News in Brief (p 63)

Twenty-Five Years of Prison Legal News

The first issue of Prisoners’ Legal News (PLN) was published in May 1990. It was hand-typed, photocopied and ten pages long, and mailed to 75 potential subscribers with a budget of $50. The first three issues were banned in all Washington state prisons, the first 18 in all Texas prisons. Since then we have published 301 consecutive issues, grown to 72 pages with offset printing and now have approximately 9,000 subscribers in all 50 states.

This is how it happened.

Started in a Prison Cell

In 1987 I entered the Washington state prison system with a 304-month sentence. The following year I met Ed Mead, a political prisoner and veteran prison activist, at the Washington State Reformatory (WSR) in Monroe, Washington. Ed had been incarcerated since 1976. During that period of time he had been involved in organizing and litigating around prison conditions and issues. He had also started and published several newsletters, including The Chill Factor, The Red DragonandThe Abolitionist. By late 1988, Ed and I were jointly involved in class-action prison conditions litigation and other political work.

As the 1980s ended it became apparent that collectively prisoners were in a downhill spiral – they were ...

HRDC Litigation Project Update – 25th Anniversary Edition

HRDC Litigation Project Update – 25th Anniversary Edition

by Lance Weber

After 25 years of publishing Prison Legal News and nearly as many years of litigation over PLN’s right to send its magazine and books to prisoners, the right to communicate news and information about the U.S. criminal justice system to those who need it the most is as insecure as ever.

As evidenced by the current docket for the Human Rights Defense Center (HRDC), PLN’s parent non-profit organization, publications still continue to be censored by corrections officials, typically without any regard for PLN’s due process rights. Prison and jail mailroom staff frequently censor PLN’s publications and fail to send PLN any notice despite the fact that they may deliver censorship notices to each prisoner subscriber. Accordingly, PLN relies heavily on letters from prisoners to determine when its Constitutional rights are being violated, but the volume of correspondence received at our office makes the management of this information very challenging. Incoming mail relevant to censorship and due process violations sometimes exceeds a hundred pieces per day. Obviously, the volume of mail we receive is too great for us to respond to every letter; therefore, when you write to HRDC ...

From the Editor

From the Editor

by Paul Wright

It doesn’t seem like this is the 301st issue of Prison Legal News. When we published our first issue in 1990 I didn’t have an expectation of how long the publication would last nor did I think about its longevity very much. I still don’t. The rule of thumb in publishing is that if you make it past your first year, things tend to get better. And so it has been with PLN.

What has not improved is the state of the prison press. When we started publishing 25 years ago there were over 50 different independent prisoners’ rights publications in the U.S. plus several more in Canada. California alone had six. As the 90s wore on and the prison population doubled, prisoner publications fell by the wayside and went under, one by one. I think the combined forces of government repression, lack of money and political apathy contributed to the demise of the prison press, but that doesn’t account for all of it. Today PLN is the longest-lasting, nationally-circulated independent prisoners’ rights magazine in U.S. history.

The cover story summarizing our first quarter-century is of necessity a brief and condensed ...

California Probation Cannot Exceed Maximum for Unpaid Restitution

California Probation Cannot Exceed Maximum for Unpaid Restitution

by Mark Wilson

The California Court of Appeal, Sixth Appellate District, held on September 17, 2014 that trial courts lack authority to hold probationers in “suspended animation” beyond their maximum sentence to ensure full payment of victim restitution.

In California, restitution can be ordered as a probation condition and a court may not revoke probation for nonpayment unless the probationer has the ability to pay but willfully fails to do so. If nonpayment of restitution is not willful, a term of probation may be modified but not revoked.

Upon an alleged violation, a trial court can summarily revoke probation to preserve the court’s jurisdiction pending a formal revocation hearing. When a violation is established, the court may modify, revoke, terminate or reinstate probation. A felony probation term can not exceed the maximum sentence; probation may be extended up to five years, however, when the maximum sentence is five years or less.

On November 7, 2003, Heng Sem pleaded no contest to felony welfare fraud, which has a three-year maximum sentence. The trial court placed Sem on probation for three years in January 2004. As a condition of probation, she was ordered to ...

ICE Settles New York Immigration Raid Lawsuit for $1 Million

ICE Settles New York Immigration Raid Lawsuit for $1 Million

by Matt Clarke

Immigration and Customs Enforcement (ICE) has agreed to settle a class-action suit filed by 22 immigrants whose homes were raided by ICE agents in the New York City metropolitan area.

The settlement requires a change in ICE ...

Ninth Circuit Upholds $106,000 in Damages Plus Attorney Fees for Withheld Evidence

Ninth Circuit Upholds $106,000 in Damages Plus Attorney Fees for Withheld Evidence

by Mark Wilson

The Ninth Circuit Court of Appeals has upheld a $106,000 damage award and over $348,300 in attorney fees and costs for an innocent man’s 27-month pretrial confinement after two police detectives knowingly ...

Human Rights Groups, Environmentalists Oppose New Federal Prison on Former Coal Mine in Kentucky

Human Rights Groups, Environmentalists Oppose New Federal Prison on Former Coal Mine in Kentucky

by Panagioti Tsolkas

On March 30, 2015, organizations and individuals from across the country joined the Human Rights Defense Center (HRDC), PLN’s parent organization, in filing a comment opposing a plan by the U.S. Bureau of Prisons to build a new federal correctional facility in the Appalachian mountains of eastern Kentucky.

The 21-page comment was submitted pursuant to the National Environmental Policy Act (NEPA), which requires consideration of public input prior to the approval of projects that are recognized to have a significant environmental, as well as socioeconomic, impact. HRDC’s comment addressed multiple issues related to a draft Environmental Impact Statement (EIS) that analyzed two potential locations for constructing the largest federal prison in the region – both on former coal mining sites.

The comment followed several years of local controversy surrounding this project in a poor, rural region where the prison industry has made many unfulfilled promises of economic prosperity to local communities.

The comment provided a thorough analysis of the impact of the proposed facility and addressed social, economic and ecological concerns, including health impacts on the surrounding community from prison sewage and ...

Oregon Parole Board Orders Must Explain Decisions, but Orders Defined to Include Administrative Review Responses

Oregon Parole Board Orders Must Explain Decisions, but Orders Defined to Include Administrative Review Responses

by Mark Wilson

On September 18, 2014, the en banc Oregon Supreme Court held that a 1999 law change does not exempt the state parole board from having to issue “final orders” explaining its decisions. However, the Court expanded the historic definition of the board’s final orders to include Administrative Review Responses, which means there will be few if any changes.

Most Oregon administrative agency decisions must be supported by factual findings and conclusions of law. This includes a “substantial reason requirement,” to articulate a rational connection between the facts found and the legal conclusions drawn therefrom.

The Oregon Board of Parole and Post-Prison Supervision (Board) is exempt from those statutory requirements. Accordingly, the Board has long argued that it is not required to explain its decisions beyond the boilerplate language used in its “Board Action Forms” (BAFs).

As previously reported in PLN, in 1997 the Oregon Court of Appeals first held that despite being exempt from making express factual findings and conclusions of law, the judicial review statute implicitly requires “substantial reason” to be evidenced in the Board’s orders. See: Martin v. Board ...

Oregon Mental Patient’s Death Nets $1.4 Million

Oregon Mental Patient’s Death Nets $1.4 Million

by Mark Wilson

The family of a man who died in his bed, just feet from a nurse’s station at the Oregon State Hospital (OSH), but whose body was not discovered for hours, accepted $1.4 million to settle a lawsuit filed ...

Lifetime GPS Monitoring of Sex Offenders Upheld in South Carolina

Lifetime GPS Monitoring of Sex Offenders Upheld in South Carolina

by Lonnie Burton

South Carolina’s Supreme Court hasrejected a challenge to a state law that requires lifetime GPS monitoring of certain sex offenders who violate the terms of their probation, parole or community supervision. The statute, known as “Jessie’s Law,” was passed in 2005 but applies to all sex offenders regardless of the date of their offense.

Anthony Nation was convicted in 2000 of committing a lewd act on a child under the age of sixteen and sentenced to 12 years in prison. Following his release in 2009, Nation accrued several probation violations; as a result, he was ordered by the circuit court to comply with lifetime GPS monitoring in accordance with Jessie’s Law, S.C. Code Ann. § 23-3-540.

Nation appealed, arguing that GPS monitoring cannot be imposed on a sex offender who was convicted prior to the statute’s effective date. Among other things, Nation challenged the law on ex post facto, equal protection, due process and double jeopardy grounds.

In a July 2, 2014 decision, the South Carolina Supreme Court dismissed each of Nation’s claims, holding that he raised no “new questions of law.” Further, citing ...

The Persistence of Mass Incarceration

The Persistence of Mass Incarceration

by James Kilgore

Over the last four years, “we have turned the corner” has become the dominant narrative on mass incarceration. The basis for this optimism appeared sound. From 2009-2012, total prisoner numbers were down nationally for the first time since the late 1970s, with the figures for Blacks behind bars also declining. Moreover, people in surprising places were making conciliatory noises. Attorney General Eric Holder grabbed some new handles – champion of employment access for people with felony convictions and promoter of lighter sentences for those with drug offenses. Some New Jim Crowdiscourse even crept into his rhetoric. The New York Times consistently peppered their op-ed pages with condemnation of the bloated U.S. carceral state, proclaiming in a May 24, 2014 piece that “The American experiment in mass incarceration has been a moral, legal, social and economic disaster. It cannot end soon enough.”

To top it off, the right wing joined the “softer on crime” fray. Grover Norquist and Newt Gingrich sparked a conservative anti-imprisonment drift through their Right on Crime organization which decried the excessive use and cost of punishment. Then Rand Paul followed suit, standing shoulder to shoulder with Cory ...

Accuracy of Widely-Used Polygraph Machine Under Fire

In the hands of a skilled operator, such as the late John Reid of John E. Reid and Associates, one of the early pioneers in the lie detection field, the polygraph can be a useful tool. Reid, along with noted Northwestern Law School criminal law professor Fred Inbau, essentially originated and popularized the use of polygraph testing in Chicago.

Although Reid felt that a polygraph was accurate more often than not, he never lost sight of the fact that the key component of its usefulness was not just the machine itself, but the training and skill of the operator. As the technology evolved this focus on skill has decreased, with more and more law enforcement agencies and private organizations relying on what they hope is an increasingly reliable lie detection device. [See: PLN, Dec. 2008, p.1].

However, recent revelations have cast doubt on the accuracy of one of the most popular polygraph machines, the LX4000 manufactured by Lafayette Instrument Company.

An article published by McClatchy DC alleges that the LX4000, widely used by federal agencies like the FBI, among others, has some “glitches.” Apparently one of those glitches is in the computerized measurement of a person’s perspiration, which ...

Exonerated Colorado Prisoner Receives $1.2 Million under New Compensation Law

Exonerated Colorado Prisoner Receives $1.2 Million under New Compensation Law

by Joe Watson

A man who spent over 17 years in prison for a murder he didn’t commit became the first Colorado prisoner to receive damages from the state under a new compensation law.

In September 2013, almost a year-and-a-half after his release from prison, Robert “Rider” Dewey, 52, collected the first $100,000 annual installment of $1.2 million he received from Colorado officials for his wrongful conviction.

“It hasn’t brought me peace of mind. It hasn’t brought me closure,” he said. “It hasn’t made me forget what I went through. Nothing’s going to make that go away.”

Dewey was convicted and sentenced to life in prison for the 1994 rape and murder of 19-year-old Jacie Taylor in the town of Palisade, Colorado.

After initially refusing to cooperate with the police, Dewey reportedly told detectives he knew Taylor and had been to her apartment, though he always maintained his innocence. Police recovered a bloody shirt in Dewey’s apartment and built their case against him around it, resulting in his conviction.

New DNA technology, however, not only resulted in Dewey being released in April 2012 but also ...

$7,500 Award for Ohio Prisoner in Slip and Fall Accident

$7,500 Award for Ohio Prisoner in Slip and Fall Accident

by David Reutter

An Ohio Court of Claims awarded over $7,500 to a prisoner for injuries suffered from a slip and fall, after finding liability for negligence against the Ohio Department of Rehabilitation and Correction (ODRC) in a ...

New Jersey, Ohio DOCs Significantly Reduce Phone Rates

New Jersey, Ohio DOCs Significantly Reduce Phone Rates

According to an April 9, 2015 press release issued by New Jersey Advocates for Immigrant Detainees, LatinoJustice PRLDEF and the New York University School of Law Immigrant Rights Clinic, the New Jersey Department of Corrections (DOC) has resolved a contract dispute involving its phone service provider. As a result, phone rates in New Jersey prisons are expected to drop to under $.05 per minute starting by August 2015.

Further, while the DOC had stopped accepting commission kickback payments from prison phone companies in 2014, county jails that signed onto the DOC’s phone contract continued to receive commissions of up to 56%. As a result, some jails charged $8.50 for a 15-minute in-state call. Under the DOC’s new phone contract, counties that join the contract can no longer receive kickbacks and must charge the lower rates.

Following an order by the Federal Communications Commission that capped interstate prison phone rates in February 2014, the New Jersey DOC reduced its rates – first to $.19 per minute, then to $.17, $.15 and finally to $.13 per minute in January 2015.

Under the new contract with Global Tel*Link (GTL), the phone rates will ...

Seventh Circuit Orders New Trial due to Shackling of Prisoner Plaintiff

Seventh Circuit Orders New Trial due to Shackling of Prisoner Plaintiff

by Lonnie Burton

On April 4, 2014, the Seventh Circuit Court of Appeals granted a new trial to a prisoner who had sued jail guards alleging claims of excessive force, who was required to be visibly shackled throughout the trial.

While a pretrial detainee at the Langlade County Jail in Wisconsin, Brian A. Maus filed suit under 42 U.S.C. § 1983 arguing that guards and other employees had used excessive force against him in two incidents that occurred in 2007. His claims survived summary judgment and went to trial in the U.S. District Court for the Eastern District of Wisconsin. At the time, Maus was no longer held at the jail; he had been transferred to a state prison.

After losing at trial, Maus appealed. He raised only one issue – that he was denied a fair trial because he was forced to wear shackles and prison clothes in full view of the jury, while the defendants were allowed to wear their guard uniforms.

According to the Court of Appeals, the district court judge made no effort to prevent the shackles from being seen by the ...

Former Prisoner Left Blind by Assault Obtains Reversal of FTCA Claim

Former Prisoner Left Blind by Assault Obtains Reversal of FTCA Claim

by David Reutter

On August 11, 2014, the Seventh Circuit reversed the dismissal of a former prisoner’s Federal Tort Claims Act (FTCA) complaint alleging negligence by the federal Bureau of Prisons (BOP). The reversal required the Illinois federal district court overseeing the case to consider the plaintiff’s equitable tolling argument.

While imprisoned at the Federal Correctional Institution at Greenville, Gerald Hill was attacked by another prisoner armed with a metal object. The attack caused Hill to lose one eye and seriously impaired the vision of the other, leaving him “blind or nearly so.”

Hill filed a negligence claim, alleging that BOP officials had allowed the facility to become overcrowded and failed to protect prisoners from violence. Once released from prison, he filed a notice of address change to a halfway house. Unfortunately he was evicted from the halfway house and his suit was dismissed without prejudice for failing to notify the court of his new address.

A motion to set aside the dismissal, filed by counsel retained by Hill, was denied. Six months later Hill’s attorney filed a second lawsuit. The district court dismissed that suit, which was ...

Georgia Jail Pays $937,500 in Wrongful Death Settlement

Rodney Earl Graham, 30, died while in the custody of Georgia’s Douglas County jail on November 4, 2009. Arrested on a probation violation for possession of marijuana, he became seriously ill after about a week at the lock-up. Graham requested medical care but instead was placed in a detox cell despite pleas from his family that he needed treatment for a kidney condition. The surveillance camera inside the cell captured his gradual deterioration over a three-day period and eventual, painful death from renal failure.

“I think he died a death that an animal would not be permitted to die in this country,” stated Assistant District Attorney Bonnie Smith.

Represented by Nicholas C. Moraitakis of Atlanta, Graham’s estate filed a wrongful death lawsuit on behalf of his wife, Cathy, and 2-year-old daughter. The suit alleged that Graham had suffered from a treatable disorder that required medication, and the denial of that medication and medical care by jail staff caused his death.

Without admitting liability, county officials agreed to settle with Graham’s family in February 2011 for $937,500. In July 2013, a separate, confidential settlement was reached with Dr. Jimmy Graham (no relation to Rodney Graham), who reportedly oversaw medical ...

Maine Sheriff, Mired in Controversy, Defeated in Re-election Bid

Maine Sheriff, Mired in Controversy, Defeated in Re-election Bid

The sheriff of Washington County, Maine has lost his bid for re-election following eight tumultuous years that left him beset with one highly-publicized incident after another.

The Bangor Daily News reported on November 5, 2014 that former Maine state trooper Barry Curtis had defeated incumbent Sheriff Donnie Smith by roughly 2,000 votes – 7,356 to Smith’s 5,494. The election signaled the end of an era marked by lawsuits, allegations of theft and misuse of county jail prisoner funds, and a domestic abuse case that led to the arrest of Smith’s wife.

The most recent revelation came just two weeks before the election, when 17 former Washington County Sheriff’s Office employees filed suit against Smith, claiming he had violated their privacy rights by including their names and Social Security numbers in documents sent to the Secretary of State’s office.

The lawsuit alleged invasion of privacy, intentional infliction of emotional distress and negligence; the plaintiffs are seeking unspecified damages that would allow them to monitor and protect their private identifying information from theft or misuse.

Attorneys for Smith called the suit “bottom-of-the-barrel politicking,” noting it was filed shortly before ...

$50,000 Settlement for Prisoner’s Suicide at Iowa County Jail

$50,000 Settlement for Prisoner’s Suicide at Iowa County Jail

by Gary Hunter

Black Hawk County and NaphCare, Inc. have agreed to pay equal shares of a $50,000 settlement to the estate of a prisoner who hanged himself at the county jail.

Michael Adair had an 18-year history of ...

Prisoner Files Lawsuit after Being Pepper Sprayed in Restraint Chair

Prisoner Files Lawsuit after Being Pepper Sprayed in Restraint Chair

by Derek Gilna

A Maine state prisoner who was pepper sprayed at close range after being placed in a restraint chair is suing the prison captain who wielded the chemical irritant during a 2012 incident that was captured on video and made public by a Portland newspaper.

Prisoner Paul Schlosser III, serving a seven-year sentence for robbery at the Maine Correctional Center in Windham, filed the lawsuit in May 2014 against Capt. Shawn Welch, who was initially fired but later reinstated with a 30-day suspension.

“In my investigation it appears that the situation went from a security situation to a punishment one,” Maine Department of Corrections (MDOC) investigator Scott Durst wrote in a report. Durst formerly served as a detective for the Maine Drug Enforcement Agency.

“The behavior [of the officer] was completely outrageous,” said Schlosser’s then-attorney, C. Donald Briggs III. “It was completely unjustified. It’s very difficult to even watch the video. It’s just terrible.”

The security video was made public by the Press Herald/Maine Sunday Telegram on the newspaper’s website. The MDOC investigation determined that Welch had violated several prison policies and used excessive ...

When is a Person too Insane to Execute?

When is a Person too Insane to Execute?

by Matt Clarke

The Fifth Circuit Court of Appeals is hearing arguments to determine whether a Texas death row prisoner is too mentally ill to execute for murdering his in-laws as their daughter and granddaughter looked on.

The appellate court issued a stay on December 3, 2014 for Scott Panetti, 56, less than 12 hours before he was scheduled to be executed for the 1992 deaths of Joe and Amanda Alvarado, his wife’s parents. The Court of Appeals stated in its order that the stay was granted “to allow us to fully consider the late arriving and complex legal questions at issue in this matter.”

“We are grateful that the court stayed tonight’s scheduled execution of Scott Panetti, a man who has suffered from schizophrenia for three decades, for a careful review of the issues surrounding his competency,” stated Panetti’s attorneys, Gregory W. Wiercioch and Kathryn M. Kase.

“Mr. Panetti’s illness, schizophrenia, was present for years prior to the crime, profoundly affected his trial, and appears to have worsened in recent years,” they continued. “Mr. Panetti has not had a competency evaluation in seven years, and we believe that ...

Fifth Circuit Reinstates Dallas County Jail Excessive Force Suit

Fifth Circuit Reinstates Dallas County Jail Excessive Force Suit

by Matt Clarke

On July 17, 2014, the Fifth Circuit Court of Appeals reversed the dismissal of a lawsuit filed by the widow of a former Texas prisoner alleging excessive use of force by guards at the Dallas County Jail.

Gregory Maurice Kitchen was a pretrial detainee at the jail in January 2010 when he was seen “digging through other detainees’ personal property” and “mumbling, walking backwards, and avoiding eye contact.” He was transferred to the jail’s medical unit in the West Tower for a psychiatric evaluation. Once there he urinated on himself, said he heard his mother’s voice, cried and admitted to having suicidal thoughts. After he was observed hitting his head on the cell door and walls, he was taken to a nursing station for evaluation but “broke free from the guards, started screaming, and grabbed one of the nurses.” He was then placed in a restraint chair and later transferred to the jail’s North Tower administrative segregation unit.

The next day, a prisoner in a nearby cell attempted suicide. While jail guards were responding to that incident, Kitchen began screaming obscenities, crying out for his mother ...

The Wal-Mart Model: Not Just for Retail, Now It’s for Private Prisons Too!

The Wal-Mart Model: Not Just for Retail, Now It’s for Private Prisons Too!

by Carl Takei

The nation’s biggest and baddest for-profit prison company suddenly cares about halfway houses – so much so, that they want in on the action.

About a year after acquiring a smaller firm that operates halfway houses and other community corrections facilities, Corrections Corporation of America (CCA)
CEO Damon Hininger announced  that “[r]eentry programs and reducing recidivism are 100 percent aligned with our business model.”

Wait, what?

High recidivism rates mean more people behind bars, and CCA depends on more and more incarceration to make its billions. Since when do they actually want people to do well after they get out, instead of being sucked back into the system?

It’s tempting to be hopeful. Is this a long-overdue acknowledgment that it’s morally bankrupt to make money off of imprisoning human beings? Is the nation’s largest for-profit prison company really admitting that mass incarceration has destroyed too many communities and that locking fewer people behind bars is a good thing?

Come on. It’s CCA. We can’t afford to be naïve. The motivation behind this announcement is where it always is for CCA: the bottom line.

If ...

Iowa DOC May Not Switch Administrative Law Judges in Mid-Disciplinary Process

Iowa DOC May Not Switch Administrative Law Judges in Mid-Disciplinary Process

by Matt Clarke

On August 20, 2014, a federal district court held that the Iowa Department of Corrections (DOC) had violated a prisoner’s due process rights when it reassigned his disciplinary case to a new administrative law judge (ALJ) after learning that the originally-assigned ALJ might rule in the prisoner’s favor.

In 2010, disciplinary action was initiated against state prisoner Joe Louis Byrd, who was accused of participating in the gang rape of another prisoner. His case was assigned to long-time ALJ William Soupene. After meeting briefly with Byrd during an evidentiary hearing, Soupene continued the hearing for further investigation. He called the DOC investigator and DOC central office, requesting additional information and a credibility statement from the investigator because there did not appear to be evidence to support the rape allegation and the alleged victim did not seem credible. Soupene was told the investigation had been pending a long time and there should be sufficient evidence already available in the record. He said he would dismiss the disciplinary case unless he received a credibility statement from the DOC investigator.

Instead, Deputy Director Diane Wilder Tomlinson ordered the warden ...

California Pays $585,000 to Settle Suit by Prisoner Who Lost Eye Due to Poor Medical Care

California Pays $585,000 to Settle Suit by Prisoner Who Lost Eye Due to Poor Medical Care

by Michael Brodheim

California prison officials paid $585,000 to former prisoner Frank Lucero to settle his federal lawsuit alleging that he lost an eye due to inadequate medical care received while serving ...

First Circuit Vacates Massachusetts Prisoner’s $325,956.36 Damages, Attorney Fee Award

First Circuit Vacates Massachusetts Prisoner’s $325,956.36 Damages, Attorney Fee Award

by Mark Wilson

On September 24, 2014, the First Circuit Court of Appeals held that Massachusetts prison officials were entitled to qualified immunity for segregating a pretrial detainee. Accordingly, the Court reversed the prisoner’s $47,500 damage award plus an award of $258,000 in attorney fees and $20,456.36 in costs.

Albert Ford was confined at the Massachusetts Correctional Institution at Cedar Junction (MCI-Cedar Junction). He was repeatedly placed in the Department Disciplinary Unit (DDU), a maximum-security housing unit, for weapon possession, conspiring to introduce heroin, conspiring to assault other prisoners and other serious misconduct.

Ford violently attacked two guards and took a nurse hostage in 2002. He stabbed both guards with a 4½-inch shank, then held the knife to the nurse’s throat. One guard required immediate medical care for puncture wounds to his mid- and lower back.

Ford was charged with armed assault with intent to murder. At a January 2003 disciplinary hearing, he was also sanctioned with 10 years in DDU – the maximum possible DDU sanction.

Ford completed his original sentence on January 6, 2007 but remained incarcerated as a pretrial detainee ...

Due Process Requires Notice Prior to Court-Ordered Deduction from Prisoners’ Accounts

Due Process Requires Notice Prior to Court-Ordered Deduction from Prisoners’ Accounts

by David Reutter

The Third Circuit Court of Appeals held on August 14, 2014 that prison officials must provide due process before seizing funds from prisoners’ institutional accounts to satisfy fines, restitution and other costs assessed at sentencing.

Before the appellate court were the consolidated appeals of Pennsylvania state prisoners Domingo Colón Montañez and Timothy A. Hale. In both cases the federal district court had granted summary judgment to the defendants, who were Pennsylvania Department of Corrections (PDOC) officials.

Montañez and Hale alleged violations of their Due Process Clause rights by the PDOC’s implementation of a program that automatically deducts funds from prisoners’ accounts to pay court-ordered restitution, fines and costs. To implement the 1998 Act 84 that authorized the deductions, prison officials enacted policy DC-ADM-005, which requires the seizure of 20% of a prisoner’s account balance that exceeds $10 for payment towards court-ordered financial obligations.

After they were subjected to the policy and funds were deducted from their accounts without notice or an opportunity to be heard, Montañez and Hale filed suit.

The Third Circuit agreed with the district court that Montañez’s claim was barred by the applicable ...

Former Prisoner Receives $50,000 Settlement for Beating by Ohio Jail Guard

Former Prisoner Receives $50,000 Settlement for Beating by Ohio Jail Guard

by Derek Gilna

Jordan Sand, 18, previously incarcerated at the Lorain County jail in Elyria, Ohio as a juvenile offender, received a $50,000 settlement from the county after he was brutally assaulted in 2012 by former guard ...

Easing Residency Restrictions Helps Curb Homelessness Among Registered Sex Offenders

Spurred by a growing number of homeless registered sex offenders, some states, cities and towns have begun relaxing stringent restrictions on where sex offenders may live – a trend supported by public officials and advocates who argue that such a strategy actually creates a safer environment for everyone.

Rather than posing a greater threat to the community, registered sex offenders are easier for authorities to track under the lesser restrictions because they have more latitude to find stable housing – which in turn lowers the risk they will re-offend, according to officials who have successfully lobbied to relax so-called sex offender “buffer zones.”

Beginning in the mid-1990s, states and cities began passing laws that limited where registered sex offenders could live, preventing them from settling near schools, playgrounds, day care centers and other places where children congregate. The idea, experts said, was to keep sex offenders from committing new crimes – even those whose original offenses did not involve minors. About 30 states and thousands of cities and towns nationwide now have such laws, while other jurisdictions continue to enact them.

However, a growing number of communities are eliminating or scaling back housing restrictions because research reveals they don’t ...

$500,000 Settlement in Georgia Prisoner’s Death while on Work Crew

$500,000 Settlement in Georgia Prisoner’s Death while on Work Crew

The family of a prisoner killed while working on a road crew in Georgia accepted a $500,000 settlement in a wrongful death suit. The main cause of action was predicated upon a failure to train employees.

Prisoner John F. Glass, 40, was assigned to a road crew at the Troup County Correctional Institution on November 14, 2007 when he was involved in a fatal accident. Glass and five other workers were cutting grass and picking up trash along a road in Troup County when another prisoner’s tractor became stuck.

The supervisor, guard Donrell Gates, ordered Glass and Smith to attach a chain to a van to pull the tractor and bush hog out of an embanked ditch. As they were doing so, a rock flew out from beneath the bush hog, striking Glass in the throat.

For three to five minutes before he lost consciousness, Glass waved frantically to those around him for help, as he bled profusely from the wound. He was pronounced dead at a local hospital.

His estate, which included a minor son, alleged Troup County had failed to train prisoners and work supervisors on ...

Maryland County Jail Guards Receive Rights Mirroring Those of State Prison Guards

Maryland County Jail Guards Receive Rights Mirroring Those of State Prison Guards

A new Maryland law extends legal rights to guards at two county jails during investigations and disciplinary proceedings similar to those provided to guards in state prisons and several other counties. Then-Governor Mark O’Malley signed legislation in April 2013 that grants the protections to guards at the Allegany and Harford County jails.

Maryland’s Correctional Officers’ Bill of Rights (COBOR), which covers state prison guards, provides that guards cannot be required to disclose financial or family information unless the disclosure is required by state or federal law or the information is necessary to investigate a possible conflict of interest. The new law extends those rights to jail guards in Allegany and Harford counties.

Unlike COBOR, the new statute does not enumerate or define “misconduct” but does specify procedures for brutality complaints, which COBOR doesn’t.

“However, COBOR does specify that an appointing authority may not recommend disciplinary action against a correctional officer for excessive use of force against an inmate based solely on the uncorroborated statement of the inmate unless the appointing authority determines that there exists any indicia of reliability to support the inmate’s allegation,” according to fiscal ...

Convictions Affirmed for Two Former Rhode Island Guards Who Assaulted Prisoners

Convictions Affirmed for Two Former Rhode Island Guards Who Assaulted Prisoners

by David Reutter

Rhode Island’s Supreme Court has affirmed the convictions of two former state prison guards who were found guilty of assaulting multiple prisoners. The Court said the cases “present a rare look into the dark side of prison life and the human cost and institutional consequences that result when rogue correctional officers deviate from established prison standards.”

The charges against former DOC Capt. Gualter Botas, 44, and Lt. Kenneth Viveiros, 65, stemmed from their mistreatment of prisoners at state correctional facilities in 2005 and 2006. Both were fired on February 12, 2007 following their convictions on misdemeanor counts of beating prisoners Robert Houghton, Anthony Romano, Jose Gonzalez and Matthew Gumkowski. Botas also was charged with an assault on prisoner Michael Walsh – whom he allegedly forced to eat his own feces. [See: PLN, Aug. 2007, p.28; Aug. 2006, p.42].

On July 18, 2013, Superior Court Judge Daniel A. Procaccini sentenced Botas to 18 months in prison and 18 months suspended after rejecting a motion to reduce his sentence. [See: PLN, Feb. 2014, p.56]. Due to Botas’ rank within the corrections department, Procaccini explained ...

Disabled Minnesota Prisoner Settles Discrimination Lawsuit for $10,000, Other Relief

Disabled Minnesota Prisoner Settles Discrimination Lawsuit for $10,000, Other Relief

by Robert Warlick

Minnesota prisoner Michael Dahlin filed suit on November 22, 2012 against state prison officials, alleging discrimination due to his disabilities in violation of the Minnesota Human Rights Act (MHRA).

Dahlin suffered from disorders that included spinal ...

Dehydration Death of North Carolina Prisoner Prompts Investigations, Firings, Resignations

North Carolina prisoner with a history of mental illness who was found dead in a transport van after being transferred to another prison died due to dehydration, according to the North Carolina Medical Examiner’s Office.

However, the state pathologist who conducted the autopsy on Michael Anthony Kerr, 54, said records provided by the Department of Public Safety were so scanty and incomplete that she was unable to determine whether his death was accidental, a suicide or a homicide.

Prison records indicate that Kerr was held in solitary confinement for 35 days prior to his death and had spent the last five days of his life handcuffed and largely unresponsive. Prison officials repeatedly turned off the water to his cell because he had flooded it, and put him on a diet of milk and nutraloaf. The milk was later ordered withheld.

“They treated him like a dog,” said Kerr’s sister, Brenda Liles.

Kerr died on March 12, 2014 as he was being transported from the Alexander Correctional Institution to the Central Prison hospital in Raleigh, a three-hour trip, for mental health care. The medical examiner’s report noted that when Kerr arrived in Raleigh he was unresponsive and could not be ...

Ohio Prisoner Represents Himself, Beats Attempted Murder Charges

Ohio Prisoner Represents Himself, Beats Attempted Murder Charges

An Ohio supermax prisoner, repre­senting himself while on a month-long hunger strike, won an acquittal in February 2013 on attempted murder charges stemming from fights with prison guards, though he was convicted of lesser charges.

Cornelius “Soja” Harris, serving a 97-year sentence at the Ohio State Penitentiary (OSP) in Youngstown, argued to a jury in Mahoning County Common Pleas Court that ongoing abuse by prison guards left him no choice but to fight back.

“I have been in prison for a long time now, and I never expected prison to be easy,” he said in his opening arguments on January 24, 2013. “But the way I have been treated by guards has crossed the line to inhumane.”

After firing his attorney, Mark Lavelle, who sat in the court gallery during the trial, Harris chose to defend himself – cross-examining witnesses, presenting video evidence and offering an “occasional rant against the prison system,” according to one news report.

In describing to the jury surveillance video from 2009 and 2010 that showed him fighting with guards and allegedly pushing one guard down a flight of stairs, Harris admitted that the videos ...

News in Brief

News in Brief

Brazil: A prison guard was suspended after 13 felony offenders escaped the Rio Grande prison through a tunnel on August 17, 2014, recorded the escape on a cell phone and posted the video online. In a nation struggling with government corruption, it is alleged that the guard may have been bribed to overlook inspections of the cellblock for nearly 60 days prior to the escape.

Bolivia: On September 14, 2014, an armed clash involving gunfire erupted between foreign and Bolivian prisoners at the El Abra Penitentiary in Cochabamba, killing four prisoners and wounding eleven others. Denis Meijia, the regional head of the Cochabamba Penitentiary System, confirmed that a shootout had occurred at the facility; other reports said the fighting broke out after a power failure during a Mass ceremony. Hundreds of police officers restored order before dawn the next morning.

Colorado: An intensive investigation led to charges and a subsequent August 26, 2014 plea agreement by prisoner Ray Wolfe, who falsely reported that he had found a hair in a meal of beef stroganoff served at the Summit County jail. Wolfe was sentenced on four felony counts to 8 years in prison, combining an assault charge and ...


 

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