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Prison Legal News: November, 2017

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Volume 28, Number 11

In this issue:

  1. Five Years after Implementation, PREA Standards Remain Inadequate (p 1)
  2. Global Tel*Link Fails to Derail Prison Phone Suit but Dodges Class Certification (p 14)
  3. $285,000 Settlement in Wrongful Death Suit Against Ohio Jail (p 15)
  4. From the Editor (p 16)
  5. Fatal Tasering at North Carolina Jail Results in $350,000 Settlement, Investigation (p 17)
  6. Climate Refugees in Toxic Immigrant Jails Are Victims of Environmental Racism (p 18)
  7. Reform of Florida’s Criminal Justice Laws Urged (p 22)
  8. Federal Halfway House Closures Threaten to Extend Prison Time, Delay Reentry (p 24)
  9. President of New York City Guards’ Union Faces Corruption Charges (p 24)
  10. Tenth Circuit Holds Jail Guard May be Liable for Prisoner-on-Prisoner Assault (p 25)
  11. Arrested Texas Jail Nurse Refused to Test Blood Sugar of Prisoner Who Died (p 26)
  12. Florida Prisoners Denied Hernia Surgery Reach $2.1 Million Settlement (p 28)
  13. Alabama DOC: Partial Settlement on ADA, Mental Health Claims; $1 Million in Attorney Fees Awarded (p 28)
  14. Michigan Sheriff Settles PLN Censorship Suit for $295,000 (p 30)
  15. Wiccan Prisoner Wins Injunction to Wear Medallion; Case Settles on Remand (p 30)
  16. Washington Supreme Court Reverses Prisoner’s Parental Termination Order (p 31)
  17. The Elusive Dream: Closing Rikers Island (p 32)
  18. DOJ Applauds Pennsylvania’s Commitment to Treatment for Mentally Ill Prisoners (p 34)
  19. Lawsuit Alleges Four Oregon Prisons Served Food “Not for Human Consumption” (p 35)
  20. Community Funds, Federal Legislation Challenging Bail System from Different Angles (p 38)
  21. Colorado Narrowly Rejects Ballot Measure to End Slavery as Punishment for Crime (p 40)
  22. Westboro Baptist Church Members Continue to Work in Corrections (p 40)
  23. Nevada Supreme Court Holds Habeas Petition Not Mooted by End of Sentence (p 41)
  24. Former Sheriff Arpaio Guilty of Criminal Contempt, Receives Presidential Pardon (p 42)
  25. New York City Agrees to Settle with Rikers Island Rape Victims for $1.2 Million (p 43)
  26. Oregon Prison Guard Freed on Sex Charge, Victim Detained as Material Witness (p 44)
  27. Fourth Circuit Reverses Dismissal of Deaf Prisoner’s Civil Rights Claim (p 45)
  28. Obama Publishes Commentary on Criminal Justice Reform in Harvard Law Review (p 46)
  29. Virginia Jail Pays $250,000 to Settle Suit for Failure to Accommodate Deaf Prisoner (p 47)
  30. Texas Appellate Court Upholds $100,000 Damages Award in Jail Slip-and-Fall (p 48)
  31. Lawsuit Over 22 Years of Continuous Segregation Reinstated by Second Circuit (p 48)
  32. Wife of President Trump’s Ethics Attorney Caught Having Sex with Prisoner (p 49)
  33. Missouri Has Difficulty Retaining Provider for Execution Drugs (p 50)
  34. Washington State Pays $6.5 million to Family of Diabetic Prisoner Who Died (p 51)
  35. Georgia Prison Contraband Investigation Nets 130 Arrests, Guilty Pleas (p 52)
  36. Former Utah Jail Commander Pleads Guilty to Misuse of Public Money (p 55)
  37. Seventh Circuit Allows Prisoner’s Eighth Amendment Claim to Proceed (p 56)
  38. Michigan Court Forced to End “Pay or Stay” Policy (p 56)
  39. Eighth Circuit Reverses Finding of Due Process Violations in Minnesota Civil Commitment Program (p 58)
  40. Concern over Use of Prisoners to Clear Homeless Camps in Washington, Oregon (p 58)
  41. Prisoners in Flint, Michigan Lied to About Water Crisis; Lawsuit Settles (p 60)
  42. Supreme Court Declines to Hear Case on Jail Booking Fees (p 60)
  43. Cook County Jail Locked Down on Mother’s Day; Over 200 Workers Absent (p 61)
  44. News in Brief (p 63)

Five Years after Implementation, PREA Standards Remain Inadequate

“We should not be tolerating rape in prison.” – President Barack Obama, July 2015

by Derek Gilna

The Prison Rape Elimination Act (PREA), passed unanimously by Congress in 2003, was a rare instance of bipartisan cooperation, and its passage signaled that public officials could no longer ignore the problem of sexual abuse in our nation’s penal system

While there is no longer any debate that rape and sexual assaults in prisons and jails are not to be tolerated, implementation of the PREA standards has been painfully slow and, as a result, prisoners continue to be sexually victimized. Prison Legal News has reported extensively on this problem, including cover stories in August 2006, May 2009 and April 2012.he Prison Rape Elimination Act (PREA), passed unanimously by Congress in 2003, was a rare instance of bipartisan cooperation, and its passage signaled that public officials could no longer ignore the problem of sexual abuse in our nation’s penal system.

Tulsa County, Oklahoma jailer Ashley Michelle Smith was arrested and charged with sexually battering a prisoner on September 29, 2017. She is accused of having an inappropriate relationship, and was previously placed on administrative leave while an investigation was conducted.

Although PREA ...

Global Tel*Link Fails to Derail Prison Phone Suit but Dodges Class Certification

by Derek Gilna

An order entered by Western District of Arkansas federal judge Timothy L. Brooks on September 28, 2017 gave a mixed result to both sides in a hotly-contested lawsuit over excessive costs for prison and jail phone calls.

In this case, one of the nation’s largest prison phone companies, Global Tel*Link (GTL), was defending yet another in a series of lawsuits filed by prisoners and their families who have long had to pay inflated phone rates. The plaintiffs alleged “that GTL charged them excessive rates to cover the costs of site commissions it paid to correctional facilities, and charged them deposit fees that unreasonably exceeded the cost of processing deposits into prepaid accounts.”

Complicating the litigation was the fact that it was one of four lawsuits pending in the Western District of Arkansas raising various claims related to prison phone services – including whether phone calls made by prisoners were intrastate (in-state) or interstate (long distance). GTL was named as a defendant in two of the cases while its competitor, Securus Technologies, was named in the other two.

GTL, Securus and other prison phone providers have a simple business model: exploit the desire of prisoners’ families ...

$285,000 Settlement in Wrongful Death Suit Against Ohio Jail

On December 13, 2016, officials in Butler County, Ohio agreed to settle a lawsuit brought by the daughter of a woman who died in the county’s jail just over four years earlier. Butler County will pay $285,000 in damages and attorney fees, lawyers for the sheriff’s office announced.

The ...

From the Editor

by Paul Wright

By now all PLN subscribers should have received our fundraiser mailing which includes our 2016 annual report and details our many activities, ranging from publishing and litigation to advocacy and media outreach. This provides a great overview of the depth and breadth of everything we do. We rely on donors like you to fund our advocacy and activism above and beyond publishing Prison Legal News; for example, our Prison Phone Justice and Stop Prison Profiteering campaigns rely almost entirely on funding from our readers.

All donations, no matter how large or small, make a difference in the work we do. Contributions are tax deductible and will have a real-world impact on the lives of prisoners around the nation. Please encourage your friends and family to make donations to support our work as well. If your prison or jail phone bill has gone down in the past 5 years thanks to our Campaign for Prison Phone Justice, why not donate 20% of the savings so we can continue working on these issues?

About two or three weeks after receiving this copy of PLN, all our subscribers will receive a free introductory issue of Criminal Legal News, our new ...

Fatal Tasering at North Carolina Jail Results in $350,000 Settlement, Investigation

Federal authorities are eyeing North Carolina’s Harnett County Sheriff’s Office for civil rights violations. Their attention was drawn to the Harnett County Jail (HCJ) after a video showed guards Tasering a pre-trial detainee three times and leaving him to die in a padded cell. While that incident was being investigated ...

Climate Refugees in Toxic Immigrant Jails Are Victims of Environmental Racism

by Candice Bernd, Truthout

In April 2017, the Northwest Washington again made headlines after more than 100 immigrant detainees launched a hunger strike to protest the conditions inside the for-profit immigration jail.

The demands reflected many of the concerns originally raised by detainees when they went on strike in 2014: abuse from guards, maggoty food, inadequate access to medical care and exorbitant commissary prices, to name a few. The detainees were also protesting the fact that they were running the prison’s basic services for wages of just $1 a day, some reportedly receiving only a bag of chips in exchange for waxing the prison’s floors.n April 2017, the Northwest Detention Center in Tacoma, Washington again made headlines after more than 100 immigrant detainees launched a hunger strike to protest the conditions inside the for-profit immigration jail.

Conditions at the immigration jail have drawn in local climate activists and other allies, who, in 2015, blockaded three exits where buses and vans usually carry out detainees for deportation. The activists’ interest in the jail is not only grounded in concerns about basic human rights – it’s also about environmental justice.

The 1,500-bed immigration jail, operated by the private prison giant ...

Reform of Florida’s Criminal Justice Laws Urged

by David M. Reutter

Florida taxpayers spend around
$2.3 billion annually on the state’s Department of Corrections – twice what they spend on Florida’s 28 public colleges combined. At least five other states also led by Republican governors and GOP legislative majorities – Alabama, Idaho, Mississippi, Nebraska and Utah – have enacted criminal justice reform measures projected to save $1.7 billion over the next two decades. But not Florida.

State lawmakers in Tallahassee debated several criminal justice reforms during the 2017 session. The most significant were included in a series of measures supported by the Florida Campaign for Criminal Justice Reform (FCCJR), composed of more than a dozen organizations working to improve Florida’s justice system. The results of those measures were:

• A proposed task force on criminal justice reform was not created; its 28 members would have included elected officials as well as members of the judiciary, law enforcement, academia, faith groups, advocacy organizations and former prisoners.

• A measure to give judges more discretion to make exceptions to mandatory minimum sentences for non-violent and drug possession offenses – and to choose alternatives to incarceration by expanding eligibility for non-prison sanctions and diversion programs – also failed ...

Federal Halfway House Closures Threaten to Extend Prison Time, Delay Reentry

by Derek Gilna

The Trump administration has proposed a reduced budget for the federal Bureau of Prisons (BOP) that would require the agency to cut its staff. As another result of budget cuts, the BOP has quietly terminated the contracts for more than a dozen halfway houses. Consequently, federal prisoners who had already received placement dates at those post-release facilities will spend more time in prison, and will have even less time to organize their reentry process of finding employment and housing.

At least sixteen halfway house contracts have been cancelled as of October 2017 according to BOP spokesman Justin Long, who claimed it was due to financial reasons. “The Bureau remains firmly committed to these practices, but has had to make some modifications to our programs due to our fiscal environment,” he said.

However, it is well known that it is more expensive to keep a person in prison than in a halfway house, and it is even more costly to re-incarcerate someone who has violated his terms of supervised release, perhaps because he was given insufficient time to prepare for that release. Halfway houses have been under greater pressure in recent years due to the large number ...

President of New York City Guards’ Union Faces Corruption Charges

by David M. Reutter

Federal officials are pursuing corruption charges against Norman Seabrook, former president of the New York City Correction Officers’ Benevolent Association (COBA).

The charge of conspiracy to commit honest services fraud stemmed from Seabrook’s alleged acceptance of bribes to steer $20 million in union investments to Platinum Partners, a Manhattan hedge fund. Thanks to a cooperating witness identified by the New York Times as real estate investor Jona Rechnitz, the FBI was able to uncover the kickback scheme.

Seabrook served as COBA’s president for 21 years and was a 24-year veteran guard employed at the Rikers Island jail complex. PLN has published multiple articles about rampant corruption at Rikers, which has seen numerous employees arrested for trafficking contraband, having sex with prisoners and engaging in physical abuse. [See, e.g.: PLN, July 2015, p.1]. According to the federal indictment, Rechnitz paid for Seabrook to take trips to Las Vegas, California and Israel, and at least twice to the Dominican Republic.

On “either the November or December 2013 trip to the Dominican Republic,” Seabrook complained to Rechnitz that he “worked hard to invest COBA’s money and did not get anything personally from it.” Apparently forgetting ...

Tenth Circuit Holds Jail Guard May be Liable for Prisoner-on-Prisoner Assault

On November 14, 2016, the Tenth Circuit Court of Appeals upheld the denial of qualified immunity to a Colorado jail guard who failed to protect a prisoner from being assaulted.

James Durkee was incarcerated at the Summit County Detention Center when he was attacked by fellow prisoner Ricky Michael Ray Ramos. Ramos had a history of aggressive behavior against guards and other prisoners; he had previously threatened Durkee, and Durkee had notified jail officials of the threats. They had even noted that Ramos and Durkee “cannot attend any programs together or even be in the hallways or [booking] passing.” Jail staff, including Sgt. Ron Hochmuth, were made aware of this and initialed the notice.

Nonetheless, when Ramos was being escorted back from court, Hochmuth unshackled him in the booking area beside the attorney visitation room at the same time that Durkee was visiting with his lawyer.

Due to a large observation window in the room, Ramos and Durkee could see each other. When Sgt. Hochmuth told Ramos to proceed to his cell, he instead ran into the attorney visitation room and assaulted Durkee.

With the assistance of Denver attorneys Andrew McNulty and David A. Lane, Durkee filed a federal ...

Arrested Texas Jail Nurse Refused to Test Blood Sugar of Prisoner Who Died

by Matt Clarke

Texas licensed vocational nurse Brittany Johnson was arrested on June 28, 2016 and charged with misdemeanor negligent homicide in the death of female prisoner Morgan Angerbauer, 20, who died of diabetic ketoacidosis at the Bi-State Detention Facility in Texarkana, Texas. Johnson pleaded not guilty at a pre-trial hearing in February 2017; she was freed on bond and a trial date was initially set for May 15, 2017, though no outcome has been reported.

Meanwhile, a federal civil rights lawsuit filed by Angerbauer’s estate remains pending against LaSalle Corrections, the private company that manages the jail, as well as various LaSalle employees, including Johnson.

Angerbauer was arrested in Arkansas on a probation violation. She advised staff that she was a Type I diabetic when she was booked into the Bi-State jail, and was placed in a medical observation cell. Her blood sugar (glucose) level was so high that it was off the testing device’s scale. She was given 15 units of insulin.

The next day, her blood sugar tested at 487 mg/dl, which is considered dangerously high, and she received another 15 units of insulin. Normal blood sugar levels are between 70 and 110 mg/dl. An ...

Florida Prisoners Denied Hernia Surgery Reach $2.1 Million Settlement

by David M. Reutter

A $2.1 million settlement has been reached in a class-action lawsuit alleging the Florida Department of Corrections (FDOC) and Corizon, the department’s former private medical provider, denied hernia operations to prisoners to save money. 

Groin hernias are very common; it is estimated that the ...

Alabama DOC: Partial Settlement on ADA, Mental Health Claims; $1 Million in Attorney Fees Awarded

by David M. Reutter

The Alabama Department of Corrections (ADOC) has agreed to a partial settlement to ensure prisoners with disabilities receive treatment and services under the Americans with Disabilities Act (ADA). The settlement resolves portions of a class-action lawsuit that also raises claims related to medical and mental health care provided to prisoners.

ADOC prisoners with disabilities are often housed in facilities that cannot safely accommodate them, the lawsuit argued. Some offenders have been placed in units with higher security classifications for no reason other than their disabilities.

The June 2014 complaint described how a wheelchair-bound prisoner was forced to maneuver deeper into the prison – against the flow of prisoners – to access a wheelchair ramp. The partial settlement, filed on March 15, 2016, resolved Phase 1 of the bifurcated litigation, which dealt with ADA violations. [See: PLN, May 2016, p.1].

The agreement requires the parties to develop a plan “to provide for care, services, accommodations, programs, and activities” for disabled prisoners. It also provides that such prisoners will be placed in housing “that is fully accessible and compliant with the ADA” to meet their “particular disability or disabilities.” Prisoners may be subject to “clustering,” ...

Michigan Sheriff Settles PLN Censorship Suit for $295,000

by Derek Gilna

In June 2017, Prison Legal News obtained a substantial settlement from the Livingston County, Michigan Sheriff’s Office in a censorship lawsuit. The Livingston County jail agreed to settle after five years of litigation that challenged the facility’s mail policies and practices.

According to PLN managing editor Alex ...

Wiccan Prisoner Wins Injunction to Wear Medallion; Case Settles on Remand

by David M. Reutter

The Seventh Circuit Court of Appeals held an Illinois prisoner was entitled to a preliminary injunction permitting him to possess and wear a religious medallion.

Gilbert Knowles, incarcerated at the Pontiac Correctional Center, brought suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and moved for a preliminary injunction to allow him to wear a religious pendant called a “pentacle medallion” – a five-pointed star set in a circle less than an inch in diameter.

The district court denied the motion, finding Knowles “had not clearly demonstrated that he lacked an adequate remedy at law, did not face ‘irreparable harm’ (because he was being denied ‘only one aspect of his ability to practice his religion while his litigation is pending’), and was asking for injunctive relief that would require the defendants to act, rather than just preserving the status quo.”

On appeal, the Seventh Circuit held that courts have recognized “The Church of Wicca occupies a place in the lives of its members parallel to that of more conventional religions.” Knowles asserted a belief that the pentacle medallion protects his body and spirit against “harm, evil entities, and negative energy.” The ...

Washington Supreme Court Reverses Prisoner’s Parental Termination Order

by Lonnie Burton

In January 26, 2017, a divided Washington Supreme Court held that a trial court could not terminate the parental rights of an incarcerated father without considering the facts of his incarceration as required by legislative amendments to the statutes governing termination of parental rights. The 5-4 decision sent the case back to the trial court for reconsideration of its decision.

K.J.B. was born in April 2012. The child was immediately removed from the care of her biological mother due to the mother’s methamphetamine use. K.J.B. was then placed in foster care and never lived with her mother or biological father, J.B. Despite participating in regular visits with his daughter, the state moved to terminate J.B.’s parental rights in 2013, alleging that his “substance abuse addiction prevents him from parenting his child.”

The termination proceedings lasted for nearly two years. At the time of the hearing, J.B. had been locked up for 52 days on charges for which he was later sentenced to 74 months in prison. The trial court granted the state’s motion to terminate J.B.’s parental rights, holding that his drug problem alone rendered him ...

The Elusive Dream: Closing Rikers Island

by David M. Reutter and Matt Clarke

New York City’s Rikers Island, one of the nation’s largest jails, has a notorious history of violence – both by guards and prisoners. City leaders have long sought to solve the problem that Rikers poses, but resistance by local residents to housing prisoners in other locations in New York has hampered those efforts.

In March 2017, a blue-ribbon panel headed by former state Chief Judge Jonathan Lippman was set to call for Rikers’ closure, according to the New York Post. Just before that announcement, though, Mayor Bill de Blasio unveiled his vision for the 200-acre jail complex: To close Rikers within 10 years and replace it with a system of smaller facilities located in each of the city’s five boroughs.

The plan marked an about-face for the mayor, who just a year earlier had rejected calls from Governor Andrew Cuomo and City Council Speaker Melissa Mark-Viverito to shutter the facility. In part, the decision was due to the high cost of operating the jail complex; the city reportedly spent over $132,000 per prisoner to run Rikers in fiscal year 2016, with a total corrections budget of $1.29 billion.

In June 2017 ...

DOJ Applauds Pennsylvania’s Commitment to Treatment for Mentally Ill Prisoners

by David M. Reutter

The U.S. Department of Justice (DOJ) has ended its investigation into the Pennsylvania Department of Corrections’ (PDOC) use of solitary confinement for prisoners with serious mental illness or intellectual disabilities (SMI/ID).

PLN reported the January 5, 2015 settlement of that investigation after the DOJ found prison officials had subjected prisoners with SMI/ID to solitary confinement under conditions that violated their constitutional rights and Title II of the Americans with Disabilities Act. [See: PLN, Nov. 2015, p.30].

The DOJ’s post-settlement April 14, 2016 letter to Governor Tom Wolf said the PDOC had made “significant improvements” by showing a “commitment to reforming its use of solitary confinement on prisoners with SMI/ID.”

The PDOC’s willingness to work with the DOJ’s “experts to change policies and procedures that lay the groundwork for protecting prisoners with SMI/ID from inappropriate and harmful solitary confinement,” its implementation of initial reforms and its receptivity to the DOJ’s concerns about implementation of those reforms indicated it was headed in the right direction.

The DOJ’s letter highlighted five points which convinced them “that the same pattern or practice of violations we found early in our investigation does not ...

Lawsuit Alleges Four Oregon Prisons Served Food “Not for Human Consumption”

On May 9, 2017, attorney Leonard R. Berman filed a class-action lawsuit in the U.S. District Court in Portland, Oregon on behalf of three prisoners who claim they were forced to eat fish and chicken intended as "bait food," and were also served spoiled milk. The prisons cited in the complaint were Two Rivers Correctional Institution in Umatilla, Columbia River Correctional Institution in Portland, the Oregon State Penitentiary in Salem and Coffee Creek Correctional Facility in Wilsonville.

Former prisoner Bridgette Lewis, who served time at Coffee Creek in 2013, said she witnessed food marked "not for human consumption" being prepared and served to prisoners at that facility. Prisoners suffered stomach and intestinal pain and discomfort and were often nauseated during and after meals, the suit claims.

Tiffanie Lewis, another former Coffee Creek prisoner, was a kitchen worker in 2015 and saw spoiled milk, meat and produce served to women housed at the facility. The complaint further alleges that prison officials would have the substandard food items moved to refrigerated trucks prior to state health inspections, then return them to the kitchen when the inspection was complete.

The lawsuit accuses the Oregon Department of Corrections of civil ...

Community Funds, Federal Legislation Challenging Bail System from Different Angles

by Christopher Zoukis

Kalief Browder was a 16-year-old arrested in New York City in 2012 on charges of stealing a backpack. The charges were later dismissed, but not before he sat in jail on Rikers Island for three years – part of which was spent in solitary confinement – because he couldn’t afford to post $3,000 bail. He committed suicide after his release, in 2015.

Browder’s story was cited by U.S. Senators Kamala Harris and Rand Paul when announcing legislation they had jointly sponsored in July 2017.

The Pretrial Integrity and Safety Act of 2017 (S.1593) would incentivize states with $10 million in grant funding over a three-year period to change or eliminate money bail by implementing “individualized, pretrial assessments with risk-based decision making.” The bill is supported by more than 30 criminal justice organizations.

Meanwhile, another reform effort is taking aim at the money bail system from a grassroots level. Volunteers organizing themselves into community bail funds are raising money and pooling resources to post bond for those who cannot afford it. Community bail funds have been established in New York, Chicago, Massachusetts, Connecticut and California, among other areas. [See: PLN, June 2017, p.30 ...

Colorado Narrowly Rejects Ballot Measure to End Slavery as Punishment for Crime

by Matt Clarke

In November 8, 2016, Colorado voters rejected a ballot measure that would have amended the state constitution to remove 140-year-old language allowing slavery and involuntary servitude as punishment for crime. The removal of the exception to the constitution’s general prohibition against slavery and involuntary servitude was rejected by a margin of 16,685 votes, less than 1% of the 2,576,759 votes cast to decide the measure, known as Amendment T.

Amendment T was pushed by Together Colorado, a non-partisan, multi-racial, multi-faith group that had the support of the League of Women Voters Colorado, the ACLU, major newspapers in the state and various religious organizations. The ballot measure was sponsored in the Colorado legislature by state Senator Jessie Ulibarri and Representatives Jovan Melton and Joseph Salazar. Proponents received over $91,000 in donations compared to no contributions to opponents of the amendment.

Will Dickerson, lead organizer for Together Colorado, said he believed the majority of the “no” votes came from people who were confused by the wording of the issue on the ballot. Those who do not understand a ballot measure tend to vote “no,” according to Richard B. Collins, a professor of constitutional law ...

Westboro Baptist Church Members Continue to Work in Corrections

by Matt Clarke

Fred W. Phelps, Sr., 85, was widely known as the founder and leader of the Westboro Baptist Church in Topeka, Kansas – a cult-like group that practices hate speech at the most inappropriate venues, including funerals for soldiers killed in combat. The church, which has no relation to the mainstream Baptist Church, is reportedly considered a hate group by the Anti-Defamation League and Southern Poverty Law Center.

Phelps made headlines as he publicly decried the U.S. for its tolerance of homosexuality. In a press release directed at what he perceived as Republican Ted Cruz’s lukewarm opposition to gay rights, Phelps said, “Unless you are loudly, boldly and unequivocally proclaiming that ‘God Hates Fags,’ that ‘Fags Doom Nations,’ and that America is therefore doomed, you are not a legitimate candidate to lead this nation in these last, dark days AND you are ashamed of Christ.”

Cruz, a 2016 presidential candidate, has publicly opposed gay marriage, gender-identity restroom use and other extensions of civil rights to the LGBT community, which provides some insight into the level of the Westboro Baptist Church’s ideological hatred and bigotry.

Phelps was considered a brilliant civil rights lawyer in the ...

Nevada Supreme Court Holds Habeas Petition Not Mooted by End of Sentence

In a case of first impression, the Supreme Court of Nevada held that a state habeas corpus action filed while a person was incarcerated was not mooted by his subsequent release from all forms of custody.

In 2011, while a state prisoner, Lazaro Martinez-Hernandez filed a petition for writ of habeas corpus alleging ineffective assistance of counsel and deprivation of appeal. In 2013, the district court granted the petition in part, finding he was wrongfully deprived of an appeal and entitled to an out-of-time appeal. The ineffective assistance of counsel claims were not addressed.

In 2014, Martinez-Hernandez’s conviction and sentence were affirmed on direct appeal; the following year he filed a supplement to his 2011 petition. The appellate court dismissed the petition as moot because he was no longer in custody or on probation or parole.

Drawing heavily on the U.S. Supreme Court’s decision in Carafas v. LaVallee, 391 U.S. 234 (1968), the Nevada Supreme Court held “that in instances where collateral consequences of a conviction exist, a habeas petition challenging the validity of a judgment of conviction does not become moot when the petitioner, who was in custody at the time the petition was filed, is released ...

Former Sheriff Arpaio Guilty of Criminal Contempt, Receives Presidential Pardon

by Joe Watson

Former Maricopa County, Arizona sheriff Joe Arpaio’s words, rather than his misdeeds, finally landed him on the verge of going to prison – but he was pulled back from the brink after receiving a presidential pardon.

The self-proclaimed “America’s Toughest Sheriff,” who was ousted by voters in November 2016 after nearly a quarter-century in office, was found guilty of criminal contempt by a federal district court on July 31, 2017. Arpaio, 85, had been charged with willfully violating an injunction in a racial profiling case, Melendres v. Arpaio, by continuing to have his deputies target Hispanics during traffic stops.

In her written judgment, U.S. District Court Judge Susan Bolton said Arpaio had exhibited “flagrant disregard” for a December 2011 injunction that was intended to halt the former sheriff’s harassment of Hispanics and his raids of Phoenix-area businesses that allegedly employed undocumented immigrants.

“Not only did [Arpaio] abdicate responsibility, he announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise,” Judge Bolton wrote, citing Arpaio’s own public comments 20 times in her order.

In June 2017, former Maricopa County Sheriff’s Office (MCSO) chief ...

New York City Agrees to Settle with Rikers Island Rape Victims for $1.2 Million

by Derek Gilna

In May 2017, the City of New York agreed to pay $1.2 million to two female prisoners to resolve claims of rape and sexual assault by a male guard at the city’s Rose M. Singer facility on Rikers Island. Rikers, one of the nation’s largest jail ...

Oregon Prison Guard Freed on Sex Charge, Victim Detained as Material Witness

"She was in chains,” said Betsy Rawls, an attorney representing a former prisoner who was incarcerated as a material witness against the prison guard who sexually abused her. “Belly chains and shackles. And she’s the victim.” The guard, meanwhile, was released on bail.

Brian Balzer, 42, was hired by the Oregon Department of Corrections (ODOC) in 1999 and began working at the Coffee Creek Correctional Facility (CCCF), Oregon’s only women’s prison, in 2011. Two years later he abruptly resigned and let his law enforcement certification expire in December 2013. ODOC spokeswoman Betty Bernt refused to say why.

The reason for Balzer’s resignation finally became clear when he was indicted by a grand jury on November 25, 2015. He was charged with one count of first-degree custodial sexual abuse and one count of supplying contraband at CCCF. The contraband charge alleged that Balzer gave perfume samples to a prisoner.

Soon after her 2014 release from CCCF to a halfway house in Eugene, Oregon, Brandy Lee Buckmaster, 41, told a staff member that she “wanted to spend the night” with Balzer, according to court records. Balzer planned to visit her while in Eugene on business for AFSCME, a union that ...

Fourth Circuit Reverses Dismissal of Deaf Prisoner’s Civil Rights Claim

by Derek Gilna

Thomas Heyer, who is completely deaf, was initially convicted of possessing child pornography, then violated his supervised release and was imprisoned for eighteen months in 2007. Before he was released from federal prison, prosecutors filed an Adam Walsh petition seeking to civilly confine him as a “sexually dangerous person.” While civilly confined at a Bureau of Prisons (BOP) facility at Butner, North Carolina, Heyer filed a civil rights suit for deliberate indifference to his medical condition, based upon that institution’s failure to provide him with an American Sign Language (ASL) interpreter. He also alleged violations of the Rehabilitation Act.

The federal district court granted summary judgment to the BOP, and Heyer appealed. On February 23, 2017, the Fourth Circuit vacated most of the summary judgment order and reinstated Heyer’s claims.

The appellate court noted that the Adam Walsh Act required Heyer to remain in civil custody “until such time as the government determines that his ‘condition is such that he is no longer sexually dangerous to others, or will not be sexually dangerous to others if released under a prescribed regimen of medical, psychiatric, or psychological care or treatment.’” Heyer had argued that the BOP’s ...

Obama Publishes Commentary on Criminal Justice Reform in Harvard Law Review

by Christopher Zoukis


Barack Obama made history by becoming the first president to contribute to legal scholarship by having an article published in a law journal while in office. The article, titled “The President’s Role in Advancing Criminal Justice Reform,” appeared in the January 2017 issue of the prestigious Harvard Law Review, a publication that Obama once headed as a student in 1990. He was the first black president of the journal.

The 56-page commentary focused on why criminal justice reform is necessary, what reforms were made during Obama’s tenure as president and the future of reform efforts. White House staff told reporters that the article was intended to keep the issue of criminal justice reform alive and moving forward in future administrations.

“It is my hope,” said then-White House Counsel Neil Eggleston, “that by publishing a piece of this scope in the Harvard Law Review, the president can educate the next generation of lawyers about these issues.”

The article begins with Obama’s understanding of why a fair and effective justice system is crucial to the success of a modern democracy, given the massive expenditures of the criminal justice system as well as current opinions on crime ...

Virginia Jail Pays $250,000 to Settle Suit for Failure to Accommodate Deaf Prisoner

In December 2016, a $250,000 settlement was reached in a lawsuit brought by a deaf prisoner who was effectively unable to communicate during a six-week stay at a jail in Arlington County, Virginia. The suit pushed the sheriff’s office to implement new procedures to accommodate prisoners with disabilities.

Abreham ...

Texas Appellate Court Upholds $100,000 Damages Award in Jail Slip-and-Fall

Lawsuit Over 22 Years of Continuous Segregation Reinstated by Second Circuit

by Lonnie Burton

On January 24, 2017, the Court of Appeals for the Second Circuit reversed a ruling by a New York federal district court that dismissed a lawsuit brought by a prisoner who had challenged the constitutionality of his 22 consecutive years in solitary confinement. The appellate court concluded there were triable issues of fact regarding whether prison officials had afforded the prisoner substantive due process; it also held the district court erred in granting summary judgment without adequate notice.

Patrick Proctor has been incarcerated in the New York State Department of Corrections and Community Supervision (DOCCS) since the late 1980s, when he was sentenced to 32½ years to life on convictions for murder, robbery and attempted escape. Proctor’s early years in prison were rife with misconduct, and he eventually was sanctioned to ten years in disciplinary segregation after he and an accomplice escaped from the maximum-security Shawangunk Correctional Facility in 1994.

During his time in solitary, Proctor continued to receive infractions for such misbehavior as removing his handcuffs, throwing feces at staff, setting fires and stabbing other prisoners. Later, however, his behavior began to improve and his time in segregation was reduced to nine years and one month ...

Wife of President Trump’s Ethics Attorney Caught Having Sex with Prisoner

by Monte McCoin

The wife of an attorney who serves as an ethics advisor to President Donald Trump’s revocable trust – an entity intended to separate Trump’s business and political activities – was arrested on September 5, 2017 after she was caught having sex with a prisoner at Virginia’s Fauquier County Adult Detention Center.

Teresa Jo Burchfield, 53, was detained when she was found in the midst of “suspicious” activity in the backseat of her car in the jail’s parking lot. She was arrested and charged with misdemeanor unauthorized delivery when deputies discovered vitamin pills, cigarettes and other contraband she had allegedly given to a 23-year-old, unidentified trustee prisoner, who told police that he and Burchfield had been meeting for a month. She was subsequently released on $5,000 bond.

According to a criminal complaint obtained by the Fauquier Times, “[Burchfield] was caught in the backseat of her vehicle with an inmate. When the inmate exited the vehicle, he handed me a bag of brown pills (capsules), that he claims to be workout pills.”

Teresa’s husband, attorney Bobby R. Burchfield, is a member of the Republican National Lawyers Association and served during the presidencies of George H.W ...

Missouri Has Difficulty Retaining Provider for Execution Drugs

by David M. Reutter

The Missouri Department of Corrections ran afoul of the state’s public records laws when it tried to withhold its source of propofol, a lethal injection drug, a state court judge ruled. That’s when the drug’s supplier found out how it was being used – and demanded it back.

Missouri officials then announced they would switch to pentobarbital, which is commonly used to euthanize pets. But its supplier turned out to be a compounding pharmacy cited for numerous regulatory violations, which quit providing the drug.

After that, the state turned to an unnamed source for its lethal injection drugs and obtained a court order allowing it to keep the source secret – only to have a judicial error reveal that the drug is manufactured by a company that disallows its use in executions.

As previously reported in PLN, states have increasingly experienced difficulty in obtaining lethal injection drugs after domestic manufacturers, such as Pfizer, restricted their use and foreign manufacturers prohibited their export to the United States. [See: PLN, July 2016, p.58; March 2014, p.46]. To fill the void, states have started using compounding pharmacies to produce execution drugs. [See: PLN, April 2015, p.40 ...

Washington State Pays $6.5 million to Family of Diabetic Prisoner Who Died

In April 2015, a jury in Spokane, Washington awarded $8 million to the family of a 57-year-old prisoner described as a “brittle diabetic” who was allowed to die when state prison guards, rather than seeking medical attention, restrained him after he went into hypoglycemic shock. The verdict was twice the ...

Georgia Prison Contraband Investigation Nets 130 Arrests, Guilty Pleas

by David M. Reutter

About 130 people have been arrested following a joint two-year investigation by the FBI and the Georgia Department of Corrections (GDOC). Indictments for 75 of the arrestees were announced in September 2015; another 46 indictments, all involving current or former prison employees, were reported in February 2016. [See: PLN, March 2017, p.38].

Known as “Operation Ghost Guard,” the investigation targeted contraband in GDOC facilities and crimes perpetuated by prisoners through cell phones and outside accomplices.

“The indictments allege that inmates managed and directed a number of fraud schemes that victimized citizens from across the country from within the Georgia prison system using contraband cell phones,” said John A. Horn, U.S. Attorney for the Northern District of Georgia.

State prisoner Kevin Patterson, reportedly a member of the Ghost Face Gang who trafficked meth and heroin prior to his incarceration, was busted after state and federal law enforcement officials, relying on a confidential source, recorded him directing the sale of tens of thousands of dollars in drugs from his cell in July 2015, using a cell phone.

“The unfortunate common denominator to this criminal conduct,” Horn noted, “is the pervasive availability of contraband ...

Former Utah Jail Commander Pleads Guilty to Misuse of Public Money

by Monte McCoin

Galen Bret Allred, 47, the former commander of the Iron County Correctional Facility in Utah, pleaded guilty on September 7, 2017 to one third-degree felony count of misuse of public funds. Millard County Attorney Patrick Finlinson prosecuted the case when the Iron County Attorney’s Office cited its longstanding relationship with Allred as a conflict of interest. Finlinson agreed to accept a plea in abeyance; he then dismissed three other counts as part of the arrangement.

Under Allred’s plea deal, he will pay an $800 fee as well as reimburse Iron County for unauthorized credit card charges. Finlinson agreed to move for dismissal of the final pending charge against the former jail commander if Allred successfully completes the terms of the plea agreement, including not committing any other crimes. The charges stemmed from Allred’s use of a county-issued credit card to put gas into his personal vehicle.

Court documents show that he misused the credit card four times between March 2015 and June 2016. In addition to the felony charges, Allred was also disciplined by the Utah Peace Officer Standards and Training Council; he lost his peace officer’s certification as a result of the Council’s sanctions.

Allred, who ...

Seventh Circuit Allows Prisoner’s Eighth Amendment Claim to Proceed

by Christopher Zoukis

The Court of Appeals for the Seventh Circuit has reversed a district court’s ruling that a former prisoner’s Eighth Amendment claim of cruel and unusual punishment could not go forward. The appellate court did, however, uphold the dismissal of a First Amendment claim.

Seyon R. Haywood accused a prison teacher of attacking him while he was incarcerated at the Shawnee Correctional Center in Illinois. He was charged with making a false statement and ended up in segregation for two months; he also lost one month of good-time credits.

While in segregation, Haywood claimed that he suffered freezing conditions due to a broken window in his cell and the failure of the prison’s power system during a winter storm. He complained, but no one fixed the window and he was refused extra clothes or blankets.

Haywood sued the warden, Jody Hathaway, under 42 U.S.C. § 1983, and claimed the disciplinary charge had violated his right to free speech. Applying precedent, the Seventh Circuit held his damages claim could not proceed because the disciplinary conviction had not been overturned. “Heck [v. Humphrey, 512 U.S. 477 (1994)] and Edwards [v. Balisok, 520 U.S. 641 (1997 ...

Michigan Court Forced to End “Pay or Stay” Policy

by David M. Reutter

A Michigan state district court judge was ordered to end a “pay or stay” policy that he used to toss poor defendants in jail for their inability to pay fines, fees and court costs. 

The ACLU of Michigan assigned interns and fellows to watch the court proceedings of 38th District Court Judge Carl F. Gerds III, the only district judge in Eastpointe, Michigan. Time and again, the ACLU’s court watchers “routinely witnessed Judge Gerds impose sentences that required the defendant either immediately to pay the full amount of the fines, fees, and costs assessed or be sent to jail for a specified number of days.”

That statement came from Charlotte Bershbeck, a part-time, unpaid civil liberties fellow. “When imposing such sentences, Judge Gerds did not inquire into a defendant’s ability to pay,” she added.

The ACLU’s complaint was filed on behalf of Donna Elaine Anderson, who faced sentencing on a contempt charge for failure to license her dogs and appear in court on the dog license tickets. She was indigent and unable to pay $455 in fines, fees and costs, which subjected her to a near certainty of jail time under Gerds’ “pay ...

Eighth Circuit Reverses Finding of Due Process Violations in Minnesota Civil Commitment Program

by Matt Clarke

On January 3, 2017, the Eighth Circuit Court of Appeals handed down an opinion that reversed a district court’s finding of substantive due process violations in a civil rights complaint brought by civilly committed sex offenders in Minnesota.

In the class-action suit, sex offenders who had been committed pursuant to the Minnesota Civil Commitment and Treatment Act (MCCTA), Minnesota Statute § 253D, claimed the MCCTA and practices of the managers in the Minnesota Sex Offender Program (MSOP) had violated their substantive due process rights both facially and as applied.

Minnesota’s civil commitment program is known for its large number of residents – at around 720, the state has the highest per capita population of civilly committed sex offenders in the nation. It is also known for not discharging those residents; only one person has been unconditionally released from the program during its 20-year history. [See: PLN, Oct. 2016, p.49]. Civilly committed offenders are confined at secure treatment centers in Moose Lake and St. Peter.

Following months of litigation and a six-week bench trial, U.S. District Judge Court Donovan Frank issued an injunction after finding that, among other issues, the MSOP’s low release rate and lack ...

Concern over Use of Prisoners to Clear Homeless Camps in Washington, Oregon

Prisoners in Flint, Michigan Lied to About Water Crisis; Lawsuit Settles

by David M. Reutter

As the lead-tainted water crisis in Flint, Michigan developed in 2015 and 2016, detainees held at the Genesee County Jail (GCJ) were told the water they drank, cooked with and bathed in was safe. [See: PLN, March 2016, p.22]. That lie was the subject of a class-action federal lawsuit that resulted in a quick settlement.

In October 2015, the Genesee County Health Department declared a public health emergency, telling residents that Flint’s water had dangerously high levels of lead. The mayor declared a state of emergency two months later, saying the city’s pipes were still leaking lead.

While residents avoided tap water, between October and December 2015 the prisoners at GCJ received only nine days of bottled water. Once the bottled water was discontinued, they “were required to drink, to bathe in, and consume food prepared with tap water from the City of Flint,” the class-action complaint stated.

GCJ again began to distribute bottled water on January 23, 2016, but prisoners were only given two 12-ounce bottles twice a day.

“Prior to this, they had already started handing out bottles of water when this first broke out in October, and they stopped, saying that ...

Supreme Court Declines to Hear Case on Jail Booking Fees

by Christopher Zoukis

The U.S. Supreme Court has declined to rule on the issue of jail “booking fees” – fees charged when arrestees are jailed, which are not always returned upon their release.

The case involved a $25 fee charged to everyone arrested in Ramsey County, Minnesota. One person who was arrested, charged $25 and then released found out how hard it is to get a refund. Corey Statham had been arrested for disorderly conduct, but his case was dismissed and he was freed from jail. When he tried to get his $25 back, Statham learned that he would first have to prove his innocence before the booking fee would be returned.

Attorney Jason M. Hiveley, representing Ramsey County, acknowledged there are hoops to jump through in order to get the $25 fee back. “There is some legwork involved,” he said. “They can do it as soon as they have the evidence that they haven’t been found guilty.”

Forcing defendants to prove they aren’t guilty in order to have their own money returned runs afoul of the presumption of innocence and the right to due process, Statham argued. Additionally, jail booking fees such as those in Ramsey ...

Cook County Jail Locked Down on Mother’s Day; Over 200 Workers Absent

by Monte McCoin

On Sunday, May 14, 2017 – Mother’s Day – 86 guards called out sick at the Cook County Jail in Chicago while another 120 cited the Family Medical Leave Act to justify their absences. The jail was locked down except for “essential movement,” but its visitation schedule remained in effect despite around 32 percent of employees on the 7 a.m. to 3 p.m. shift failing to report for duty.

According to the ChicagoSun-Times, 420 guards had called out sick on Mother’s Day in 2016 and more than 520 were no-shows on Father’s Day about a month later.

Mass sick-outs by staff at the Cook County Jail are rather commonplace, particularly in the days surrounding major sporting events. PLN previously reported that more than 950 employees called out sick during a blizzard over the February 1, 2015 Super Bowl weekend. Shortly thereafter, between May 2-3, 2015, jail officials were unsure whether to blame the “Pacquiao-Mayweather flu” or the “Kentucky Derby flu” for 637 no-shows. [See: PLN, Nov. 2015, p.63]. The trend continued with 235 absences on Super Bowl Sunday in 2016. This year, the big game saw 239 no-shows across two shifts. [See ...

News in Brief

Alabama: During a search of arrestee Jesse O’Neal Roberts in March 2017, a stolen gun was discovered after it fell out of his underwear. A jail guard wrote in a report: “I immediately considered that he defecated on himself before noticing a familiar shape in the form of a pistol in his boxers.” According to a sheriff’s spokesperson, Roberts, 23, was being booked into the Limestone County Jail on a charge of public intoxication; not surprisingly, guards reported that he had been walking “strangely” when he arrived at the facility. The weapon was an unloaded .380 Jimenez Arms. Authorities said it was unclear whether the owner wanted it back.

Arkansas: Volunteer jail chaplain Scotty Scaggs, 46, was arrested on August 14, 2017 on charges of rape and sexual indecency with a child. In May, state police informed the Marion County Sheriff’s Office that they had received a tip about alleged sexual misconduct involving Scaggs, and investigators reported that he had sexual contact with at least one underage girl. Scaggs has been suspended from his volunteer position at the Marion County jail pending the outcome of the investigation; he was released on $15,000 bond.

Australia: On February 7, 2017 ...


 

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