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Prison Legal News: February, 2016

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Volume 27, Number 2

In this issue:

  1. Florida’s Department of Corrections: A Culture of Corruption, Abuse and Deaths (p 1)
  2. Will Lawsuits and Exposés Lead to Reform of Florida’s Brutal Prisons? (p 14)
  3. From the Editor (p 16)
  4. Sex Offenders Rally to Fight Discriminatory Laws (p 18)
  5. Computer Risk Assessments Gaining Popularity in Granting Paroles (p 20)
  6. Supreme Court Sets Aside Florida’s Death Penalty Sentencing Procedure (p 22)
  7. $3 Million Settlement in Death of Mentally Ill Prisoner; Three Guards Indicted (p 22)
  8. Federal Judges Very Rarely Sanctioned for Misconduct (p 24)
  9. Police State: How America’s Cops Get Away with Murder (Book Review) (p 28)
  10. Male Guards’ Videotaping of Female Prisoners Being Strip Searched Results in $675,000 Settlement (p 30)
  11. Supreme Court Upholds Oklahoma’s Use of New Execution Drug (p 30)
  12. California’s Jail-building Boom: What Comes After Mass Incarceration? Local Incarceration. (p 32)
  13. The Slow, Painful Death of Bail in New York City (p 35)
  14. Environmental Problems Taint Plan for New Prison in Utah (p 36)
  15. Florida Jail Ends Postcard-Only Policy as Part of Settlement (p 36)
  16. Oregon DOC Envelope Art Ban Violates First Amendment (p 38)
  17. $250,000 Settlement for Estate of PA Prisoner Killed by Mentally Ill Cellmate (p 38)
  18. Use of Pseudonym Merited to Protect Prisoner from Victimization (p 39)
  19. Texas Prisons to Allow In-person Wedding Ceremonies after Prohibition on Proxy Marriages (p 40)
  20. PLN Settles Lawsuit against Florida Jail’s Postcard-only Policy (p 40)
  21. Louisiana Jail Detainee’s Death Leads to FBI Investigation, Charges (p 41)
  22. European Human Rights Court Finds UK Prisoners Wrongfully Denied Vote (p 42)
  23. California: Settlement in Race-based Prison Lockdown Suit; $2.375 Million in Fees and Costs (p 42)
  24. $2,250 Jury Award in Arkansas Prisoner’s Excessive Force Case (p 43)
  25. In Past Three Years, Governors in Three States Declare Moratorium on Executions (p 44)
  26. New York Prisoner’s Retaliation Claim Nets $147,000 in Damages, Fees and Costs (p 45)
  27. From Jailer to Jailed: Former NYPD Boss Urges Prison Reform (p 46)
  28. Former Washington Prisoner Exonerated, Receives Compensation, Arrested Again (p 47)
  29. Human Rights Groups Condemn Worsening Conditions in Venezuelan Prisons (p 48)
  30. $725,000 Award for Eye Loss Caused by Guard’s Assault (p 48)
  31. Minnesota Civil Detainee Raped by Cellmate Receives $203,000 Settlement (p 50)
  32. Vermont’s Policy of Sending Prisoners Out-of-State Found Unconstitutional (p 50)
  33. Wisconsin DOC Pays Former Prisoner for Miscalculating Sentence (p 51)
  34. Judge to Recommend Whether to Exonerate “San Antonio Four” of Sexual Assault Convictions (p 52)
  35. $350,000 Settlement for Estate of Prisoner Murdered at Georgia Prison (p 52)
  36. Illinois: Exonerated Sex Offender Sues for Wrongful Conviction (p 54)
  37. Ninth Circuit: Appeal Challenges Probation Revocation for Exercising First Amendment Rights (p 55)
  38. Civil Rights Advocates Laud Healthcare Settlement with Arizona Prison System (p 56)
  39. Staff-on-Prisoner Sexual Abuse Persists in New York Prisons (p 58)
  40. Union Supply Overcharges Sales Tax on Holiday Packages for TN Prisoners (p 60)
  41. Settlement Ends Montgomery, Alabama Debtor’s Prison (p 61)
  42. News in Brief (p 63)

Florida’s Department of Corrections: A Culture of Corruption, Abuse and Deaths

Florida, with the nation’s third-largest prison system, has a long and sordid history of abusing, neglecting and even killing its prisoners. Because most state prisons are in insular rural areas, the general public, aside from those with incarcerated loved ones or friends, has minimal awareness of what really occurs within facilities operated by the Florida Department of Corrections (FDOC) or its private contractors.

The FDOC has historically strived to preserve this lack of transparency by obfuscating the actual happenings in its prisons. The department’s modus operandi is to portray itself as a professional state agency that protects citizens from dangerous criminals, which requires an ever-increasing share of taxpayer dollars to keep society safe from a growing prison population.

Keeping its dirty laundry in-house is an administrative priority. Occasionally, however, particularly egregious incidents belie the FDOC’s carefully crafted vision statement of “changing lives to ensure a safer Florida,” and the public gets a glimpse of the reality behind prison walls.

For months after death row prisoner Frank Valdes died at the Florida State Prison on July 17, 1999, FDOC officials maintained that he committed suicide by diving head-first off his bunk, striking the bars in his cell. An autopsy, however ...

Will Lawsuits and Exposés Lead to Reform of Florida’s Brutal Prisons?

Florida’s prisons have become notorious for their abuse and neglect of the people in their care. Now, as per an agreement between the Florida Department of Corrections (DOC) and Disability Rights Florida, the state will be overhauling its system of treatment for people with mental illness at the Dade Correctional Institution (Dade CI), located just south of Homestead, which houses the prison system’s largest mental health facility.

Disability Rights Florida filed a lawsuit against the DOC following a series of articles published by the Miami Herald during their in-depth investigation over the past year. According to the Herald, individuals in the Transitional Care Unit (TCU) at Dade CI were subjected to various abusive forms of punishment by guards, such as being locked into showers rigged to reach a temperature of 180 degrees, being forced to fight one another for the staff’s entertainment, and being given food that contained laxatives and even urine. A group nicknamed “The Diet Shift” allegedly gave out empty trays on a routine basis, in order to starve the people in their custody.

Perhaps the most notable case of abuse is Darren Rainey. On June 23, 2012, Rainey, who was serving two years for cocaine possession and suffered from ...

From the Editor

For the past 26 years PLN has reported on conditions within the Florida Department of Corrections that have generally ranged from horrible to abysmal in a system long characterized by medical neglect, brutality, corruption and murder by prison officials, and long-time indifference or outright hostility by the governor and legislature. This month’s cover story is merely the latest installment in the sordid history of the Florida DOC. Sadly, Florida prisoners will not be able to read it. Since 2009 state officials have banned all issues of PLN, purportedly due to our advertising content but in reality as a thinly-veiled attempt to prevent Florida prisoners from reading about prison news and legal decisions they can use to help themselves.

Given that the Florida DOC is a prison system that murders prisoners with impunity, it should come as no surprise that government officials who do not respect the Eighth Amendment to the U.S. Constitution have no concern about the First Amendment, either. PLN filed suit over the Florida DOC’s censorship practices, and following a bench trial in January 2015, Judge Mark Walker upheld the ban on PLN – though also found due process violations by prison officials.

PLN has since appealed ...

Sex Offenders Rally to Fight Discriminatory Laws

Advocates for reforming laws restricting where registered sex offenders can live, and for challenging sex offender registries, have vowed to continue the fight despite facing roadblocks, which organizers admit make it difficult to eliminate the discriminatory treatment that many sex offenders face due to the nature of their convictions.

Victims’ rights advocates and prosecutors vigorously oppose any changes to statutes related to sex offenders, and reformers concede there has been little progress. Despite the bleak outlook, though, the number of advocacy groups that favor reforming punitive restrictions on sex offenders continues to grow as organizers plot new strategies to fight what some legal analysts believe are laws that sacrifice the rights of one group of citizens in order to favor the rights of others.

“I was terrified; I was hiding, hoping to stay under the radar,” admitted Larry Neely, referring to his 2003 sex offense. “Your fears are really rational. But if you don’t fight, you will lose.”

Neely’s remarks were aimed at convincing the 100 or so convicted sex offenders in attendance at the 2013 Justice for All: A Conference to Reform Sexual Offense Laws to come out of the shadows.

The conference, held at the Los ...

Computer Risk Assessments Gaining Popularity in Granting Paroles

New diagnostic computer programs designed to predict whether an offender will re-offend are being credited with helping reduce the number of prisoners in correctional facilities across the nation, but experts caution that while useful, the software tools are not perfect and should not be considered a panacea to long-standing issues of prison overcrowding.

In an unintentional and perhaps ironic demonstration of the new diagnostic programs, the population of the federal prison system – which does not use the software – continues to grow, while state prison populations have averaged a slight decline in recent years.

At the core of the programs are surveys that are administered to offenders, who are assigned risk points based on their answers to questions which range from only a dozen or so on some surveys to more than 100 on others. The risk assessment is then provided to parole boards to help determine whether the prisoner should be released or remain incarcerated, based on his or her likelihood to re-offend. In several states, risk assessments are also provided to judges to use in calculating offenders’ sentences.

At least 15 states have instituted policies requiring their corrections systems to use computerized risk assessments, according to the ...

Supreme Court Sets Aside Florida’s Death Penalty Sentencing Procedure

The U.S. Supreme Court, in an 8-1 decision, has ruled that Florida’s system of allowing juries to make death penalty recommendations that judges may or may not follow is unconstitutional. According to Justice Sonia Sotomayer, the “jury’s recommendation is not enough. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Only Justice Samuel Alito dissented from the January 12, 2016 majority ruling.

In the case of Florida death row prisoner Timothy Lee Hurst, convicted of murder in 1998, the jury voted 7 to 5 in favor of capital punishment, and the judge agreed and sentenced him to death. In Florida the jury plays only an advisory role in whether to apply the death penalty, which a judge is free to disregard.

The Supreme Court granted certiorari to “resolve whether Florida’s capital sentencing scheme violates the Sixth Amendment in light of Ring [v. Arizona], 575 U.S. ___, 135 S.Ct. 1531, 191 L.Ed.2d 558 (2015). We hold that it does, and reverse.” The Court then proceeded to note that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public ...

$3 Million Settlement in Death of Mentally Ill Prisoner; Three Guards Indicted

A $3 million settlement was paid to the parents of a 23-year-old mental health patient killed by three guards at Bridgewater State Hospital who were attempting to strap him into four-point restraints on a small bed. The incident also resulted in the resignation of the state’s top prison official.

Only Massachusetts and one other state have their prison systems run their state mental health facility for criminal defendants. Virginia-based MHM Correctional Services (MHM) provides medical and mental health services to prisoners and pretrial detainees housed at Bridgewater, which is operated as a medium-security prison.

Joshua Messier had been diagnosed with paranoid schizophrenia and was being held at Bridgewater when he died in 2009. Surveillance video showed seven guards involved in the fatal altercation. Two of the guards pressed hard on Messier’s back while he was seated on a bed with his hands cuffed behind him, causing his chest to fold toward his knees. This maneuver, known as “suitcasing,” can cause suffocation and is prohibited by prison rules.

State medical examiner Mindy J. Hull ruled Messier’s death a homicide, saying he died of a heart attack while being “restrained by correctional officers during agitated state.” [See: PLN, May 2014 ...

Federal Judges Very Rarely Sanctioned for Misconduct

Federal judges, who have lifetime appointments, hold positions that give them unique power to control the future of defendants who appear before them in public proceedings. However, when it comes to examining the personal behavior of those same jurists, they are surrounded by a cloak of secrecy so impenetrable that only the most heinous misconduct is ever revealed to members of the public.

Most judicial misconduct occurs inside courtrooms and never comes to light, but some federal judges have stood on the other side of the bench for crimes they allegedly committed while not performing their judicial functions. In extreme cases, they have been stripped of their positions and sentenced to time behind bars.

U.S. District Court Judge Mark E. Fuller of the Middle District of Alabama resigned on August 1, 2015 after a five-judge panel convened by the Eleventh Circuit Court of Appeals found that his arrest on charges of beating his wife could constitute grounds for his impeachment by the U.S. House of Representatives and removal by the Senate.

“News of Judge Fuller’s impending resignation is a welcome outcome to a very painful breach of the public trust,” said Alabama’s 7th District Congresswoman Terri Sewell ...

Police State: How America’s Cops Get Away with Murder (Book Review)

Police State: How America’s Cops Get Away with Murder, by Gerry Spence
(St. Martin’s Press, 2015). 338 pages, hard cover. $19.40

Book review by Bill Trine

In recent years, the American public has witnessed shocking videos, taken by cell phones with video cameras, of citizens brutalized and killed by the police. Are these recently-publicized incidents of police brutality something new, or has this abuse of power pre-existed the widespread use of video-enabled phones? The answer to that question becomes clear in Gerry Spence’s new book, Police State: How America’s Cops Get Away with Murder. By using the stories of some of his most famous jury trials dating back to the 1970s, Spence demonstrates that the flaws in our criminal justice system are longstanding and in desperate need of correction.

However, the content of the book is much broader than its title suggests. Spence does not limit his criticisms in Police State to law enforcement, including the FBI, but extends them to prosecutors who sometimes join the police in abuses of power that trample on the constitutional rights of citizens. In short, he is critical of a criminal justice system that protects those police, prosecutors and sometimes judges who abuse ...

Male Guards’ Videotaping of Female Prisoners Being Strip Searched Results in $675,000 Settlement

In August 2014, a Massachusetts federal district court granted summary judgment to a class of 176 former and current prisoners who challenged a policy at the Western Regional Women’s Correctional Center (WCC) that allowed male guards to videotape female prisoners being strip searched. The court held the policy violated the ...

Supreme Court Upholds Oklahoma’s Use of New Execution Drug

Oklahoma death row prisoners filed a § 1983 civil rights lawsuit challenging the use of a new drug by prison officials to put them to death, but their effort fell short in the U.S. Supreme Court. The state had sought to use midazolam instead of sodium thiopental to perform executions, as sodium thiopental was in short supply.

Four of the plaintiffs had moved for a preliminary injunction, which the district court denied. The prisoners appealed, the Tenth Circuit affirmed and the U.S. Supreme Court held that the plaintiffs were unlikely to prevail on the merits of the case – a prerequisite for issuance of a preliminary injunction.

Justice Antonin Scalia wrote the Court’s June 29, 2015 majority opinion, stating, “First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims. See Baze v. Rees, 553 U.S. 35, 61, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008).... Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol ...

California’s Jail-building Boom: What Comes After Mass Incarceration? Local Incarceration.

by Anat Rubin, Marshall Project

In the desert city of Indio, California halfway between Los Angeles and the Arizona border, a small monument to the state’s prison downsizing experiment is materializing in a shopping center storefront, where former felons will soon have access to health screenings, substance-abuse treatment, job training, therapy and probation officers who look and sound more like social workers than law enforcement officials.

Less than a mile away, a far more ambitious project is taking shape. Across from the local courthouse, workers will soon break ground on a massive expansion of a county jail, a renovation that will ultimately more than quadruple its size from 353 to 1,626 beds. It’s the first of several jail expansions planned in Riverside County, where the local sheriff has called for 10,000 new jail beds in the next thirteen years.

Both projects are part of the effort California orefficials call “realignment” – a sweeping initiative to reduce the overcrowding of state prisons by turning over responsibility for non-violent offenders to the counties from which they came.

The policy, which has helped state prisons shed tens of thousands of prisoners, is also fueling a seemingly contradictory effort to re-incarcerate many ...

The Slow, Painful Death of Bail in New York City

by Jarrett Murphy, City Limits

In September 2015, New York’s chief judge said he would order the review of all bails imposed in low-level cases where a defendant did not pay, and push courts to consider alternatives to the cash transactions that now determine whether thousands remain free or behind bars awaiting trial.

Judge Jonathan Lippman’s proposals came shortly after State Senator Michael Gianaris announced plans to propose legislation eliminating bail. Earlier last summer, Mayor de Blasio instituted policies to end the use of bail in certain misdemeanor cases. And at the behest of Council Speaker Melissa Mark-Viverito, the city’s 2015 budget included $1.4 million for a fund to pay some low-level bails.

Today’s array of officialdom against bail was unimaginable eight years ago, when City Limits published a 15,000-word exposé on the injustices and inefficiencies that riddle the system. Three years later, when our work was cited in a Human Rights Watch report called “The Price of Freedom,” the prospects for meaningful change were still bleak. A hint of movement came in 2012, when state law was changed to permit nonprofit organizations to operate bail funds; the Bronx Defenders had run such a fund from late ...

Environmental Problems Taint Plan for New Prison in Utah

 

by Panagioti Tsolkas

Utah is planning to open a 4,000-bed facility to replace the Utah State Prison in Draper. After several years of considering whether to relocate or rebuild the prison, the state has settled on relocation of the Utah Department of Corrections (DOC) facility.

Draper used to be a remote, rural area prior to becoming a prison town, but has since turned into a suburb. Draper’s mayor and city council members have been working with state lawmakers Greg Hughes, Howard Stephenson and LaVar Christensen to push the plan through the legislature.

In January 2014, the Prison Relocation and Development Authority (PRADA) released a “Master Plan for the Potential Relocation of the Draper Prison.” By the following month, Hughes and Christensen had moved a successful resolution through the House in favor of building the new prison complex.

In August 2015, PRADA narrowed the site selection process down from over 30 sites to just one. The chosen site comprises 693 acres in an area located just west of the Salt Lake City airport, and lawmakers are slated to purchase the land in early 2016.

However, the newly-selected location comes with a laundry list of environmental issues, including several ...

Florida Jail Ends Postcard-Only Policy as Part of Settlement

Last year, the Sheriff of Florida’s Flagler County agreed to a settlement that revoked a postcard-only policy at his jail and allowed prisoners to receive and send mail in envelopes.

Jennifer Underwood’s husband was held at the Flagler County Jail, making them subject to the postcard-only policy. The policy required all mail sent to prisoners to be on postcards purchased from the U.S. Postal Service with pre-printed postage. Jennifer was prohibited from sending “letters, cards, photographs, full-page drawings, newspaper and magazine clippings, photocopied materials, and pages printed from an internet webpage.”

Her husband, Thomas Underwood, was prevented from sending outgoing letters that exceeded two sheets of paper or contained “obscene language,” which included ordinary swear words. The policy left prisoners and their families and friends with “few alternatives” to communicate “privately and freely.”

The ACLU of Florida and the Florida Justice Institute filed a class-action suit on behalf of Jennifer Underwood in 2013, pointing out that collect calls made by prisoners were expensive and other prisoners could overhear the conversations. Communication at weekly visits was also over a telephone. Additionally, the jail did not allow visits by children under 12, and people who live far from ...

Oregon DOC Envelope Art Ban Violates First Amendment

On November 14, 2013, a federal judge denied summary judgment to Oregon prison officials, finding that their enforcement of a policy banning “envelope art” violated the First Amendment. Following a bench trial in early 2015, the district court held the policy unconstitutional and ordered injunctive relief.

The Oregon Department of Corrections (ODOC) adopted a rule requiring that incoming mail “be addressed to the inmate using only his/her committed name and SID number.” OAR 291-131-0025(1). The sender’s name and return address must be on the front of the envelope. ODOC interpreted this rule as authorizing the rejection of mail that included any other content, including artwork, on the front of the envelope.

After Oregon prisoner Jacob Barrett was transferred to New Mexico, he sent a letter to his cousin at the Oregon State Penitentiary (OSP) in January 2011. The letter was rejected and returned to Barrett, however, because he had drawn a picture on the envelope that depicted three skulls, dice and barbed wire.

Barrett appealed the rejection to OSP Superintendent Jeff Premo, who responded that the letter violated OAR 291-131-0025(1). Barrett sought administrative review, which was denied. He then filed suit in federal court alleging that ...

$250,000 Settlement for Estate of PA Prisoner Killed by Mentally Ill Cellmate

The Pennsylvania Department of Corrections (PDOC) paid $250,000 to settle a lawsuit filed by the estate of an elderly, handicapped prisoner who was killed by his psychotic cellmate at State Correctional Institution Forest.

Elwood Brasswell, 28, had a violent history attributed to his “acute psychotic behavior.” A diagnosis ...

Use of Pseudonym Merited to Protect Prisoner from Victimization

The Ninth Circuit Court of Appeals held on May 27, 2015 that a California death-sentenced prisoner had submitted sufficient evidence to proceed under a pseudonym rather than his real name. The appellate court noted this was an exceptional case that required deviation from its normal practice to protect the prisoner from further harm.

The ruling came in a case where the petitioner was granted penalty-phase habeas relief based on sealed, graphic evidence of repeated sexual assaults in prison and credible evidence that he would likely be subjected to more violence if his name was revealed.

The Court of Appeals considered the factors set forth in Does I through XXIII v. Advance Textile Corp, 214 F.3d 1058 (9th Cir. 2000). It concluded the prisoner’s case met the high bar for proceeding under a pseudonym, and because his real name was not used, the Court denied his request to seal much of the information in its underlying opinion, including all references to his history of sexual abuse that formed the evidentiary basis to grant him relief. See: Doe v. Ayers, 782 F.3d 425 (9th Cir. 2015).

The state did not contest the sealing of records in the district court or ...

Texas Prisons to Allow In-person Wedding Ceremonies after Prohibition on Proxy Marriages

Prisoners in Texas will once again be allowed to marry someone on the outside under new rules formulated by the Texas Department of Criminal Justice (TDJC) in the wake of an outcry of public opinion following a September 1, 2013 ban on marriage by proxy adopted by the Texas legislature.

“Given the restrictions and understanding offenders have a legal right to marry, the agency is drafting a policy that allows an inmate to marry a non-incarcerated person within our facilities,” TDCJ spokesman Jason Clark told the Associated Press in November 2014, reversing a long-held policy that prohibited prison weddings as a security risk.

The announcement drew praise from the American Civil Liberties Union of Texas.

“We know that prisoners with strong family connections are more likely to succeed when they’re released,” said ACLU legal and policy director Rebecca L. Robertson, “and allowing prisoners to marry is one important way TDCJ can encourage and support those family bonds.”

Under the policy change, prison marriages must comply with prison visitation rules, be consistent with the prisoner’s visitation status and require no special amenities. The outside spouse is responsible for arranging all of the details, including securing the marriage license ...

PLN Settles Lawsuit against Florida Jail’s Postcard-only Policy

After PLN filed suit, a South Florida federal district court granted a preliminary injunction requiring the St. Lucie County Jail (SLCJ) to keep its amended postcard-only policy in effect during the litigation, which later resulted in a settlement.

PLN filed a civil rights action challenging SLCJ’s postcard-only policy in December 2013, which required all incoming correspondence to be on postcards. [See: PLN, Jan. 2014, p.42]. The following month, SLCJ amended its policy.

The amended policy exempts privileged mail, which is defined as mail from attorneys, courts, public officials, government agencies and the news media; privileged mail need not be in postcard form and can be opened only in the prisoner’s presence to check for contraband.

The amendment further exempts publications such as the books, magazines and periodicals PLN sends to prisoners confined at SLCJ. Prisoners who wish to receive such reading materials must pay for them in advance, and they have to be sent direct from the publisher.

PLN moved, in part, for the amended policy to remain in effect during its challenge to the jail’s postcard-only policy. The matter was referred to Magistrate Judge Frank J. Lynch, Jr., whose subsequent report and recommendation found that PLN did not ...

Louisiana Jail Detainee’s Death Leads to FBI Investigation, Charges

Nimali Henry, 19, died on April 1, 2014 while in the custody of the St. Bernard Parish Prison in Louisiana after jail employees failed to provide her with proper medication and treatment that they knew she needed.

The FBI initiated an investigation a month after Henry’s death due to a “possible failure to provide adequate care to inmates that could rise to the level of a criminal civil rights violation,” and on December 3, 2015 a federal grand jury indicted guards Andre Dominick, Timothy Williams, Debra Becnel and Lisa Vaccarella for civil rights violations and making false statements to the FBI.

A coroner’s report found that Henry had likely died due to a blood clot resulting from a rare blood disorder. Despite her family members’ efforts to inform jail staff that she was very sick, Henry was never evaluated by a doctor or given her medication. Each of the four guards facing charges is accused of lying to FBI investigators regarding their knowledge of and response to Henry’s medical condition. If convicted, they face up to life in prison for the civil rights violations.

A federal lawsuit was filed on behalf of Henry’s infant daughter in January 2015, but ...

European Human Rights Court Finds UK Prisoners Wrongfully Denied Vote

In August 2014, the European Court of Human Rights (ECHR) in Strasbourg, France ruled against the United Kingdom and in favor of UK prisoners who were denied the right to vote in the 2009 European elections. The prisoners had argued that the UK’s voting ban constituted a violation of their human rights. British Prime Minister David Cameron strongly disagreed, saying the concept of prisoners being allowed to vote made him “physically sick.” The ECHR, however, declined to award damages or legal fees despite its rebuke of the UK’s actions.

By agreeing to join the European Union (EU), countries give up some of their legal sovereignty on issues considered to be important to the welfare of the Union as a whole, including trade, manufacturing, agriculture, transportation and basic human rights. The UK prisoners who filed suit were not seeking to vote in a local or UK-wide election, but rather in one where representatives to the EU Parliament were chosen.

The ECHR’s ruling followed its 2005 decision that barred the UK from preventing prisoners from voting in UK elections. [See: PLN, Aug. 2006, p.17]. Despite that adverse decision, the UK Parliament maintained the voting ban for prisoners, provoking continued calls ...

California: Settlement in Race-based Prison Lockdown Suit; $2.375 Million in Fees and Costs

On July 21, 2014, a California federal judge approved class-action status in a lawsuit filed by state prisoners challenging the statewide practice of race-based prison lockdowns. U.S. District Court Judge Troy L. Nunley of the Eastern District of California also appointed two law firms to represent the class. A ...

$2,250 Jury Award in Arkansas Prisoner’s Excessive Force Case

In a verdict handed down on August 21, 2014, a federal jury found in favor of an Arkansas prisoner who claimed prison guards had provoked him into attacking them so they could beat him. The jury award of $2,250 included compensatory and punitive damages.

Keith Moore, a state prisoner ...

In Past Three Years, Governors in Three States Declare Moratorium on Executions

In Past Three Years, Governors in Three States Declare Moratorium on Executions

by Christopher Zoukis

Three states have imposed moratoriums on the death penalty since 2013, raising to 11 the number of states that still have a death penalty but have stopped executing prisoners for reasons ranging from doubts about the fairness of capital punishment to the cost of executions.

Pennsylvania’s newly-elected Governor Tom Wolf announced his state’s moratorium on February 13, 2015 when granting a reprieve to Terrance Williams, who had been scheduled for execution after exhausting appeals of his conviction and capital sentence for beating a man to death with a tire iron in 1984.

Philadelphia District Attorney Seth Williams challenged the governor’s ability to grant reprieves, declaring that Wolf had overstepped his authority if it was his intent to halt the execution of all 181 prisoners on Pennsylvania’s death row.

But in a unanimous ruling issued December 21, 2015, the Pennsylvania Supreme Court upheld Wolf’s moratorium because the reprieve did not establish an end date nor was it related to Williams’ – or any other prisoner’s – specific circumstances.

“We find no limitation on the executive reprieve power relating to the duration of the reprieve, so long ...

New York Prisoner’s Retaliation Claim Nets $147,000 in Damages, Fees and Costs

A New York federal jury entered a verdict that awarded a state prisoner $40,002 in a case alleging a First Amendment retaliation claim, and post-trial the court awarded over $107,000 in attorney fees and costs.

New York prisoner Juan Hernandez initiated a pro se civil rights action against ...

From Jailer to Jailed: Former NYPD Boss Urges Prison Reform

“It’s time for America to stop destroying lives, professions, and children. It’s time for a real national bipartisan movement to make our criminal justice system what it is supposed to be.”

So declared former New York City Police Commissioner Bernard Kerik in an April 29, 2015 commentary for CNBC. Kerik went from being one of the most influential law enforcement chiefs in the country to a convicted felon, serving three years of a four-year federal prison sentence for filing false tax returns and making false statements. The latter included lies concerning $225,000 in work done on his Bronx home by a mob-linked contractor, and lying to the White House about a Department of Homeland Security post.

“I learned that the deprivation of freedom is far more profound than one can imagine, and that going to prison is like dying with your eyes open,” wrote Kerik, who was released from federal custody in late 2013. One thing is for certain, he added: “We are creating a permanent American underclass of society that is costing the American taxpayers billions of dollars over the reported cost of incarceration.”

Kerik now knows about incarceration from both sides of the bars ...

Former Washington Prisoner Exonerated, Receives Compensation, Arrested Again

A wrongfully convicted former Washington prisoner was awarded $546,383 in compensation under a new state law for spending 10 years in prison on robbery and burglary charges for crimes he did not commit.

Brandon Redtailhawk Olebar was arrested following a February 2003 incident involving at least eight attackers who broke into the home of his sister’s ex-boyfriend. The man was pistol whipped and beaten unconscious during the 10-minute assault.

The victim told police officers his attackers had “feather” facial tattoos and he recognized Olebar’s sister as one of the assailants. Olebar, then 19 years old, was picked out of a photo lineup by the victim two days after the incident. Despite not having facial tattoos and presenting an alibi defense, Olebar was convicted by a jury and sentenced to 16.5 years in prison. His sister pleaded guilty to robbery charges and received 20 years.

In 2011, two law students, Nikki Carsley and Kathleen Kline, at the Innocence Project Northwest (IPNW), which is based out of a clinical law program at the University of Washington Law School, began investigating the case and developed a body of evidence to prove Olebar was not involved in the crime.

They were able ...

Human Rights Groups Condemn Worsening Conditions in Venezuelan Prisons

As long ago as 1997, the advocacy group Human Rights Watch issued a report that characterized conditions in Venezuelan prisons as “violat[ing] both Venezuelan law and international human rights standards.” The group pointed to dangerous overcrowding as perhaps the greatest fundamental problem in that country’s prisons.

Recent reports, however, indicate that conditions have worsened – with corruption, crime, drugs and violence being everyday occurrences. Armed battles between prisoners and authorities are common, and prisoners who are not among the strongest, wealthiest or most powerful are ruled by those who are, effectively putting the imprisoned in charge of the prisons according to Carlos Nieto Palma, director of the prison monitoring group A Window for Liberty.

“Being sent to a Venezuelan jail is like being buried in a cemetery for the barely alive. It’s a living hell,” a former prisoner identified only as “El Varón” said in an interview with The Guardian. “You know when you go in, but you never know when or how you’ll come out.”

In recent years, the economic stagnation that has rocked Central and South America, coupled with the decline in world oil prices, has hit Venezuela especially hard – straining resources and ...

$725,000 Award for Eye Loss Caused by Guard’s Assault

A New York Court of Claims awarded $725,000 to a prisoner who lost an eye after being attacked by a jail guard.

Prisoner Warren Davis, 31, suffers from keratoconus, a congenital eye condition in which the cornea changes from a spherical to a more conical shape, adversely affecting vision ...

Minnesota Civil Detainee Raped by Cellmate Receives $203,000 Settlement

The state of Minnesota agreed to a $203,000 settlement in a lawsuit brought by a civil detainee at the Minnesota Sex Offender Program (MSOP) that alleged a policy or custom of disregarding patient safety, resulting in the detainee suffering “a brutal physical and sexual assault by his roommate.” ...

Vermont’s Policy of Sending Prisoners Out-of-State Found Unconstitutional

A Vermont Superior Court held the policy of the Vermont Department of Corrections (VDOC) to send hundreds of male prisoners to out-of-state facilities, regardless of whether they have close bonds with their young children, while keeping all women prisoners at in-state facilities, violates the equal protection clause and common benefits clause of the state constitution.

VDOC prisoner Michael Carpenter was transferred to the Lee Adjustment Center in Kentucky, operated by Corrections Corporation of America (CCA), under a policy that was purportedly created to alleviate overcrowding in Vermont prisons. Carpenter is the father of twin boys who were four-and-a-half years old at the time he was transferred.

From their birth, Carpenter was with his sons every day caring for their needs. He was described as a “natural parent” by the boys’ mother, who said, “they wanted him more than me.” When he was first incarcerated the children were brought to visit Carpenter each week.

After he was sent to the CCA facility in Kentucky to serve his sentence, however, it was impossible for him to see his children. Carpenter filed suit, asking the court to issue declaratory relief and order the VDOC to return him to Vermont.

The Vermont Superior ...

Wisconsin DOC Pays Former Prisoner for Miscalculating Sentence

On April 4, 2014, the Wisconsin Department of Corrections (DOC) was ordered to pay $7,600 to former prisoner Robin N. Gavinski for holding him too long in prison. Gavinski was serving three sentences that were supposed to run concurrently; due to an administrative error, however, DOC employees calculated one of the sentences as consecutive. As a result, instead of being released on June 18, 2011, Gavinski was held until August 7, 2012 – amounting to an extra 417 days in prison.

Gavinski filed his first suit against the DOC in March 2013. In his original claim he requested $67,465.04 for lost wages and attorney fees, but at the time was unable to determine the names of the prison employees responsible for erroneously calculating his time. Following the advice of his attorney, he voluntarily dropped the claim.

Drawing a parallel between his own illegal incarceration and prisoners who are later proven innocent and released, Gavinski reinitiated his suit against the DOC, requesting a review by the State of Wisconsin Claims Board. He recalculated damages under § 775.05 Stats and proposed an alternative settlement of $7,600.

Even though they admitted to making the error, DOC officials fought ...

Judge to Recommend Whether to Exonerate “San Antonio Four” of Sexual Assault Convictions

A San Antonio, Texas judge is considering what he will recommend to the Texas Court of Criminal Appeals after hearing testimony that four women convicted of sexually abusing two young girls in 1994 should be exonerated. The women, who are known to their supporters and in the media as the “San Antonio Four,” have maintained their innocence since they were convicted and sent to prison in 1997.

On November 11, 2013, three of the women were granted personal recognizance bonds after a court recommended that their convictions be reversed; they had served 15 years in prison. Visiting Senior Judge Pat Priest will determine whether all four should be formally exonerated; the recommendation to reexamine their convictions came in a state habeas proceeding after the prosecution admitted that expert testimony used at trial was scientifically flawed. In addition to that admission, one of the victims recanted her story.

Elizabeth Ramirez, 40, was sentenced to 37½ years in prison after being convicted of sexual assault of a child and indecency with a child for allegedly sexually abusing her two nieces, who were 7 and 9 years old at the time. Also charged in the case were Ramirez’s roommate, Kristie Mayhugh, 42 ...

$350,000 Settlement for Estate of Prisoner Murdered at Georgia Prison

The Georgia Department of Corrections (GDC) agreed to pay $350,000 to settle a civil rights action filed by the estate of a prisoner murdered at Hays State Prison (Hays).

As previously reported in PLN, in late 2012 and early 2013 four Hays prisoners were killed over a five-week period ...

Illinois: Exonerated Sex Offender Sues for Wrongful Conviction

An Illinois man who was wrongfully convicted of a sex offense, and released from prison after his supposed victim was discredited, has filed a federal lawsuit against the city of Chicago, the Chicago police department and other defendants as a result of his 2002 conviction for a rape he did not commit. In the meantime, Carl Chatman, 59, has had to defend himself against the faulty bookkeeping of Illinois’ sex offender registry.

Chatman was released from prison in 2013 thanks to the efforts of the Northwestern Law School’s Center on Wrongful Convictions. The prosecution did not oppose his certificate of innocence; in fact, the Cook County State’s Attorney’s office provided hard copies of Chatman’s release documents to the Illinois Department of Corrections, and prison officials claimed they entered a “Court Ordered Discharge” into the state’s criminal database – though they failed to indicate the reason for the discharge. As a result, Chatman’s name continued to appear on the sex offender registry and he was later arrested for failure to register.

“The whole thing is kind of a mess, and it really ought to be cleaned up and fixed so this kind of thing doesn’t happen,” said Rob Warden, executive ...

Ninth Circuit: Appeal Challenges Probation Revocation for Exercising First Amendment Rights

A former federal prisoner is appealing the revocation of his supervised release for engaging in conduct that he argues is protected under the First Amendment. The Cato Institute, Electronic Frontier Foundation, ACLU, Brechner First Amendment Project at the University of Florida and First Amendment Coalition filed a joint amicus brief in support of an appeal by Darren David Chaker, who seeks to reverse a San Diego federal judge’s decision to revoke his probation due to comments he made on an online blog.

Nevada Attorney General’s Office investigator Leesa Fazal had seen Chaker’s blog post, which provided information on why Fazal had been “forced out of the Las Vegas Metro Police Department.” Fazal felt the blog insulted her credibility and reported it to her superior at the Attorney General’s Office, then to the FBI and the Las Vegas Metro Police Department. All three agencies declined to arrest Chaker. She then contacted Chaker’s federal probation officer, who had him jailed pending a hearing. The probation officer did not verify whether Chaker’s blog comments were truthful or not.

Although she was in court, the government did not call Fazal as a witness during the hearing. Further, rather than requiring the government to ...

Civil Rights Advocates Laud Healthcare Settlement with Arizona Prison System

by Joe Watson and Derek Gilna

Civil rights organizations hailed the settlement of a class-action lawsuit filed against the Arizona Department of Corrections (ADC) in the wake of scores of prisoner deaths and preventable injuries stemming from medical treatment so poor that one private prison healthcare company withdrew from its contract. A federal court in Phoenix approved the settlement on February 18, 2015, bringing an end to the suit filed by the American Civil Liberties Union (ACLU), Prison Law Office, Arizona Center for Disability Law and others on behalf of more than 33,000 Arizona state prisoners. [See: PLN, Sept. 2012, p.34].

“The Arizona Department of Corrections has agreed to changes that will save lives,” Prison Law Office director Don Specter said after the settlement agreement was first announced. “This settlement will bring more humane treatment for prisoners with serious healthcare needs, and the potential for their conditions to improve rather than worsen.”

“At last, the Arizona Department of Corrections will provide its prisoners with adequate medical, mental health, and dental care,” he continued. “This is what the Constitution and our consciences demand.”

However, ADC Director Charles L. Ryan issued a statement that seemed, on ...

Staff-on-Prisoner Sexual Abuse Persists in New York Prisons

The Second Circuit Court of Appeals held on August 11, 2015 that guards who subject prisoners to sexual fondling may violate the prisoners’ constitutional rights. The ruling came in the wake of media reports that the New York Department of Corrections and Community Supervision (DOCCS) has high rates of staff-on-prisoner ...

Union Supply Overcharges Sales Tax on Holiday Packages for TN Prisoners

Once a year, the Tennessee Department of Correction (TDOC) allows prisoners and their family members to order special holiday packages, consisting mainly of snacks, candy and other food items. The holiday packages can include items totaling up to $125, and each prisoner can receive only one package. Orders can be placed online or using paper forms provided by prison staff.

Upon reviewing the December 2014 holiday package list provided by Union Supply, a California-based company, PLN managing editor Alex Friedmann noticed that the sales tax ranged from 9.25% to 9.75%, reflecting the full 7% state sales tax plus a variable county sales tax. Under Tennessee law, however, food items (with the exception of candy and certain other specified items) are taxed at a lower state rate of 5% plus the county tax. Thus, Union Supply was charging prisoners and their families more sales tax than allowed by state law.

After contacting the Tennessee Department of Revenue and verifying that out-of-state companies must comply with Tennessee sales tax statutes, and that most of the food items in the holiday packages fell within the lower food tax rate, Friedmann brought this issue to the attention of Union Supply’s general counsel ...

Settlement Ends Montgomery, Alabama Debtor’s Prison

Debtor’s prison has come to an end in the city of Montgomery, Alabama. Following a federal district court’s grant of a preliminary injunction requiring the city to correct its unconstitutional practice of jailing people who could not afford to pay fines, the city capitulated and entered into an extensive settlement agreement.

As previously reported in PLN, the use of private companies to provide probation services and collect fines in criminal cases has been wrought with abusive efforts to squeeze profits from the poor. [See: PLN, Jan. 2014, p.18]. Jailing impoverished defendants due to their inability to pay spawned multiple lawsuits against the City of Montgomery, where that practice was commonplace.

Harriet Cleveland, 50, received several tickets for failing to have car insurance when stopped at police checkpoints in her neighborhood. She was barely getting by after losing her job during the Great Recession, but was ordered to pay $140 monthly toward her fines. She paid what she could, which put her further behind.

Faced with the threat of losing her home, Cleveland asked for relief. The probation office told her she could go to court, which she knew would land her in jail. She was not the only one ...

News in Brief

Alaska: Two prisoners walked away from the GEO Group-operated minimum-security Northstar Center, a transitional living facility near Fairbanks, in separate incidents on October 2, 2015. Steven David Luten, 30, absconded at around 11:00 a.m. but was tracked by his footprints in the snow and recaptured nearby. Abel Aguilar, 27, fled the facility in a getaway vehicle around 11 p.m. the same day but was also quickly located and caught. Both men were charged with escape. There were at least five other walkaways from the Northstar Center in 2015.

Arizona: Maricopa County jail nurse Lytonya Hickbottom, 37, was arrested on October 6, 2015 after she admitted to passing nude photos of herself to her maximum-security prisoner-boyfriend, Ramon Cummings. She also posted $100 to Cummings’ prisoner account and agreed to smuggle drugs to him inside the Fourth Avenue Jail. The naked photos were found in Cummings’ cell. Detectives received a tip about Hickbottom’s relationship with Cummings, which was confirmed by monitoring phone calls between the two. Hickbottom faces an internal affairs proceeding and was fired following her arrest.

Arizona: Most people are anxious to get out of jail, but 29-year-old David Spurlock made concerted attempts to stay behind bars ...


 

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