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Prison Legal News: May, 2017

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Volume 28, Number 5

In this issue:

  1. Registration, Tracking of Sex Offenders Drives Mass Incarceration Numbers and Costs (p 1)
  2. Healthcare and Handcuffs: BOP Assigns Medical Staff to Security Positions (p 12)
  3. From the Editor (p 14)
  4. Fourth Circuit: IFRP Challenges Cognizable Under § 2241 (p 15)
  5. Out of Prison, Uncovered (p 16)
  6. NCCHC Adopts New Solitary Confinement Standards (p 20)
  7. U.S. Supreme Court Overturns Colorado’s Attempt to Keep Funds from Exonerated Prisoners (p 20)
  8. After Fourteen Years, BOP Settles Prison Legal News FOIA Suit for $420,000 (p 22)
  9. Report Says Private Prison Companies Increase Recidivism (p 23)
  10. Texas Prison System Bans Social Media for Prisoners (p 24)
  11. $200,000 Settlement Over Oklahoma Jail Prisoner’s Death (p 26)
  12. Quickest Path to Reducing Pretrial Incarceration? Eliminate Money Bail (p 26)
  13. Prosecutor’s Investigation Results in Release of Illinois Prisoner Convicted in 1957 Cold Case (p 28)
  14. $49,500 Settlement in New Jersey Jail Beating Suit (p 29)
  15. Vigilantes Assault, Rob and Murder Registered Sex Offenders (p 30)
  16. Medical Provider Blamed for Deaths at New York Jail Replaced by Another Contractor ... Then Another (p 32)
  17. Federal Judge Grants Ex-offender “Certificate of Rehabilitation” (p 32)
  18. Ninth Circuit: Warrantless Probationary Cell Phone Search Unconstitutional (p 33)
  19. New Hampshire Jail Doctor Suspended Pending Misconduct Hearing (p 34)
  20. Former Texas Police Officer’s Sexual Assault Case Reversed After 21 Years (p 34)
  21. CCA Prison Caught Recording Attorney-Client Meetings, Sharing Videos with Prosecutors (p 36)
  22. Failure to Accommodate Deaf Prisoner Costs Oregon DOC $400,000 (p 38)
  23. Private Probation Company Agrees to Multiple Settlements in Georgia (p 38)
  24. Vicarious Liability Not Available in Medical Malpractice Claim by NY Prisoner (p 39)
  25. Denial of Summary Judgment Upheld in Prisoner’s Retaliation, Excessive Force Suit (p 40)
  26. Petition Challenging Disciplinary Hearing Not Mooted After Prison Rescinds Sanction (p 40)
  27. Eighth Circuit: Exhaustion is Not a Pleading Requirement in FOIA Cases (p 41)
  28. Seventh Circuit: Warden’s Termination of Medical Diets was Deliberately Indifferent (p 42)
  29. Indiana County is Leader in Sending People to Prison (p 42)
  30. California: Condemned Prisoners Smuggle Drugs to Commit Suicide (p 44)
  31. UNICOR’s Manufacture of Defective Military Helmets Criticized (p 44)
  32. Delaware Supreme Court Declares Death Penalty Retroactively Unconstitutional (p 45)
  33. Missouri Prisoners Vexed by Bills for Incarceration Costs (p 46)
  34. Stipulated Order Desegregates Arizona Prisons; $195,000 in Attorney Fees Awarded (p 46)
  35. Seventh Circuit Remands Untimely Appeal for Rule 4(a) Extension (p 48)
  36. Flooding Forces Evacuation of Over 4,000 Texas Prisoners (p 48)
  37. Kansas: Self-Defense Must be Disproved in Prison Disciplinary Proceeding (p 49)
  38. Incarceration Nations: A Journey to Justice in Prisons Around the World, by Baz Dreisinger (p 50)
  39. Divided En Banc Sixth Circuit Blocks Release of Federal Mug Shots (p 50)
  40. Reform Advocates Applaud Expiration of CoreCivic Contract in D.C. (p 51)
  41. Dismissal of Federal Prisoner’s Lawsuit over Improper Solitary Confinement Affirmed (p 52)
  42. PLN Settles Censorship Suit Against Illinois County for $75,000, Policy Changes (p 52)
  43. Malnutrition, Disease Result in Deaths in Overcrowded Haitian Prisons (p 53)
  44. White House Justice Initiative Seeks Economic Boost from Policy Change (p 54)
  45. Delaware Supreme Court Strikes Down Death Penalty, Following Hurst Decision (p 54)
  46. Iowa Prisoner Awarded $1,000 for Jail Beating (p 55)
  47. Bonds Used to Finance Private Prisons, Jails Turn into Junk (p 56)
  48. The Case of the Disappearing Criminal Jury Trial (p 56)
  49. Oregon Prison System’s Medical Rule and Policy Invalidated (p 58)
  50. Fifth Circuit Upholds $2.85 Million Award in Suit over Jail Prisoner’s Death (p 58)
  51. Four Prisoners Murdered at South Carolina Facility (p 59)
  52. The Sentencing Project Explores Impact of Race and Ethnicity on U.S. Prison System (p 60)
  53. $25,000 Federal Jury Award in Suit over Teenager Raped in Oklahoma Jail (p 60)
  54. Las Vegas Judge Ousted after Ordering Public Defender Handcuffed (p 61)
  55. Federal Court Awards Virginia Prisoner $500 for Excessive Force Claim (p 62)
  56. Congress Passes Legislation Allowing BOP Guards to Carry Pepper Spray (p 62)
  57. News in Brief (p 63)

Registration, Tracking of Sex Offenders Drives Mass Incarceration Numbers and Costs

by Rick Anderson

The September 1988 rape and murder of 29-year-old Diane Ballasiotes in Seattle, Washington, followed by the 1989 rape and sexual mutilation of a 7-year-old Tacoma boy, were the seedlings of today’s nationwide sex offender registry laws – a 50-state network that tracks over 805,000 registrants and whose usefulness as a crime-prevention tool has been questioned and criticized.

Other cases from that same era – including the widely-reported 1989 kidnapping, sexual assault and murder of 11-year-old Jacob Wetterling in Minnesota, which was solved only late last year – led to a series of 1990-2000 state and federal statutes that established central registries for sex offenders, as well as residency restrictions and civil commitment laws.

Attorneys and advocates for change wonder how many of the nation’s more than 805,000 registered sex offenders are in prison or jail on any given day just for violating registration requirements – which are technical violations rather than sex crimes, and did not even exist before 1990. And how much does that, and registry enforcement efforts, add to the rising costs of tracking and monitoring sex offenders? In Palm Beach County, Florida, one officer said 20 deputies are assigned full time to check on ...

Healthcare and Handcuffs: BOP Assigns Medical Staff to Security Positions

by Christopher Zoukis

The federal Bureau of Prisons (BOP), facing chronic guard shortages, has resorted to either paying overtime to officers who work additional shifts or assigning nurses and other healthcare staff to security positions. In the latter case, one major shortcoming is that medical employees have minimal security training.

The Department of Justice’s Office of the Inspector General deemed the staffing shortage a “crisis,” with the BOP experiencing a medical staff vacancy rate of 40 percent or higher. For a corrections system struggling to provide healthcare for almost 190,000 prisoners, there were 656 medical job vacancies as of March 2016.

The nurses assigned to guard duty by the BOP were, for the most part, members of the U.S. Public Health Service (PHS), which has around 900 members working in federal prisons. PHS nurses, clinicians and therapists have “routinely been pressed into patrolling prison recreation yards, securing cell blocks, transporting inmates to and from maximum security zones, [and have] pulled regular shifts monitoring inmate telephone calls and correspondence,” USA Today reported on April 27, 2016.

Further contributing to the BOP’s questionable reassignment of nurses and other medical staff is a conflict between BOP staff members, who ...

From the Editor

This issue marks the 27th anniversary of Prison Legal News and our parent organization, the Human Rights Defense Center. When I first started publishing PLN from my prison cell in Clallam Bay, Washington in 1990, I didn’t think I would still be doing so 27 years later. We weren’t sure how long it would last but no one thought it would be this long.

In 1990 the U.S. imprisoned around a million people. By the end of the decade that number had doubled to 2 million and today hovers around the 2.3 million mark, give or take a few thousand. Among the drivers of mass incarceration has been the war on sex offenders. Sadly, PLN has had a front row seat for this unfolding debacle: a month before we began publishing, Washington became the first state to enact civil commitment for sex offenders and a sex offender registry. Three- and two-strike laws would come a few years later. As this issue’s cover story reports, sex offender regulations duly expanded and spread from there.

Today the government spends a huge amount of money – no one really knows how much but certainly in the millions of ...

Fourth Circuit: IFRP Challenges Cognizable Under § 2241

The Fourth Circuit Court of Appeals held in December 2015 that a federal habeas corpus petition under 28 U.S.C. § 2241 is the proper means for a federal prisoner to challenge their obligation to make restitution payments through the Bureau of Prisons’ (BOP) Inmate Financial Responsibility Program (IFRP). In this case, however, the district court dismissed the petitioner’s IFRP challenge following remand.

Jeremy Fontanez pleaded guilty to bank robbery and was sentenced to 420 months in prison. He was also ordered to pay $27,972.61 in restitution in accordance with the IFRP.

The IFRP is a BOP program that requires prisoners to make scheduled payments from their prison accounts toward court-ordered financial obligations. The IFRP is voluntary and the BOP cannot compel prisoners to participate. A prisoner with financial obligations who refuses to participate in the IFRP, however, may be denied numerous privileges, including preferred housing and work assignments. See: 28 C.F.R. § 545.11(d).

Fontanez signed a financial plan, agreeing to pay $25 each quarter toward his court-ordered financial obligations through the IFRP. One year later he filed a written request to be released from the IFRP, arguing that the IFRP payment requirement violated ...

Out of Prison, Uncovered

Medicaid for ex-prisoners saves money and lives, but millions are released without it.

He had to see a doctor. He had only a month’s worth of pills to control his delusions and mania. He was desperate for insurance coverage.

But the state failed to enroll him in Medicaid, although under the Affordable Care Act Indiana expanded the health insurance program, making most ex-prisoners eligible. Left to navigate an unwieldy bureaucracy on his own, he came within days of running out of the pills that ground him in reality.

“I have a serious mental disorder, which is what caused me to commit my crime in the first place,” said Ernest, who asked reporters to use only his middle name to protect his privacy. “Somebody should have been pretty concerned.”

The health law was supposed to connect Ernest and almost all other ex-prisoners for the first time to Medicaid coverage for the poor, cutting expensive visits to the emergency room ...

NCCHC Adopts New Solitary Confinement Standards

by Derek Gilna

Based on recent studies showing the adverse mental health effects of solitary confinement, the National Commission on Correctional Health Care (NCCHC) adopted new standards for solitary in a report and position statement released April 10, 2016.

The report defines solitary confinement as “the housing of an adult or juvenile with minimal to rare meaningful contact” with others for more than 15 consecutive days. It also describes the many euphemistic terms that U.S. prison officials use to refer to solitary, such as “administrative segregation” or ad seg, “intensive management,” “restrictive housing” and simply “the box.”

How widespread is the practice? The Association of State Correctional Administrators (ASCA) has estimated that as many as 70,000 prisoners are in solitary confinement at any given time, though other estimates are higher. The organization pointed out that its members have a priority “to operate institutions that are safe for staff and inmates and to keep communities to which prisoners will return safe,” according to ASCA president Leann K. Bertch.

However, Solitary Watch, a non-profit group that tracks the use of solitary confinement in U.S. prisons, noted that solitary is employed “not just for violent acts but also for non-violent ...

U.S. Supreme Court Overturns Colorado’s Attempt to Keep Funds from Exonerated Prisoners

by Derek Gilna

On April 19, 2017, the U.S. Supreme Court struck a powerful blow for the rights of exonerated prisoners when it reversed a decision of the Colorado Supreme Court that would have allowed the state to retain funds collected from two prisoners before their convictions were set aside. In doing so, the high court sent a strong message that Colorado’s policy of keeping the funds after the convictions were vacated violated basic concepts of due process.

Shannon Nelson was convicted in 2006 of five counts of physical abuse, sentenced to 20 years to life and ordered to pay $8,192.50 in court costs, fees and restitution. She appealed, was granted a retrial and was acquitted of all charges.

 Louis Alonzo Madden, convicted in 2005 of patronizing a prostituted child, was sentenced to an indeterminate prison sentence plus costs, fees and restitution of $4,413. His judgment was reversed on direct appeal.

At the time their convictions were set aside, Nelson had already paid $702.10 and Madden had paid $1,977.75 to the Colorado Department of Corrections. Both requested refunds of those payments after their release, which were refused. They filed separate lawsuits, and ...

After Fourteen Years, BOP Settles Prison Legal News FOIA Suit for $420,000

by Derek Gilna

When Congress passed the Freedom of Information Act (FOIA), 5 U.S.C. § 552, the theory was that it would inject some needed transparency into the federal government and make it easier for the public to obtain documents from federal agencies. However, such transparency has proven elusive ...

Report Says Private Prison Companies Increase Recidivism

by Derek Gilna

In June 2016, In the Public Interest (ITPI), a non-partisan public policy group, published a report titled “How Private Prison Companies Increase Recidivism,” based upon the fact that for-profit prisons rely upon incarceration to generate revenue – thus they have no incentive to provide rehabilitative programs that reduce recidivism. In a country with the highest incarceration rate in the world, this is a recipe for disaster.

According to a study by the U.S. Department of Justice (DOJ), “50% of incarcerated people return to prison within three years of being released.” The ITPI report noted that “Academic research has found that incarcerating people in prisons operated by private companies, which have business models dependent on incarceration, increases the likelihood of those people recidivating.”

The report further said that while governmental agencies, which do need not to generate profit, typically operate prisons with the goals of rehabilitating prisoners and protecting public safety, private prisons are beholden to stockholders who expect to receive a return on their investment.

“Often,” ITPI wrote, “achieving the profit comes at a cost to prisoners, those who work inside the prisons, and the broader public.”

Private prison companies sell their services to government agencies on ...

Texas Prison System Bans Social Media for Prisoners

by Matt Clarke

The Texas Department of Criminal Justice (TDCJ) added a rule to the April 2016 version of its Offender Handbook that bars prisoners from using any form of social media. Rule 111.N.4 states that “Offenders are prohibited from maintaining active social media accounts for the purpose of soliciting, updating, or engaging others, through a third party or otherwise.”

The policy change has sparked criticism among prisoner advocates who believe it violates the First Amendment freedom of speech rights of both prisoners and non-prisoners who wish to communicate with them.

Every U.S. prison system prohibits direct Internet access and cell phone use by prisoners. While a small number manage to post directly to their social media accounts using contraband cell phones, the majority of such accounts are maintained on behalf of prisoners by family members and friends. The TDCJ’s new rule effectively ends that practice.

“These regulations don’t just impact the inmate’s right to speech [but also] everyone else’s right to understand what’s going on in a prison,” said Dave Maass with the Electronic Frontier Foundation, an advocacy group dedicated to defending civil liberties on the Internet. “An inmate can put ...

$200,000 Settlement Over Oklahoma Jail Prisoner’s Death

by Matt Clarke

A $200,000 settlement in a lawsuit filed over the death of a mentally ill Oklahoma jail prisoner emphasizes what Oklahoma sheriffs have been saying for years: they are ill prepared to deal with the rapidly increasing number of mentally ill detainees in their jails.

Sheriffs in ...

Quickest Path to Reducing Pretrial Incarceration? Eliminate Money Bail

by Derek Gilna

According to the non-partisan Prison Policy Initiative (PPI), the fastest way to reduce the number of pretrial detainees held in local jails is simple: Eliminate or reduce the use of money bail.

In a money bail system, defendants unable to come up with the required funds to pay their bond amount (or 10% of the bond if they use a bail bondsman) remain in custody until their case reaches its conclusion or is dismissed. Proponents of limiting the use of money bail point to both the unfairness of the current system and its cost.

In a May 2016 report titled “Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time,” PPI noted there are 646,000 people held in over 3,000 local jails throughout the U.S. Around 70 percent of those individuals are pretrial detainees who have not been convicted, and therefore are presumed innocent. Holding those people – many of whom are indigent – in custody until they are able to post bail has doubled the jail population in the past two decades.

“We find that most people who are unable to meet bail fall within the poorest third of society ...

Prosecutor’s Investigation Results in Release of Illinois Prisoner Convicted in 1957 Cold Case

by Christopher Zoukis

Jack Daniel McCullough, a 76-year-old veteran and former police officer, was convicted in 2012 of the 1957 abduction and murder of a young girl in perhaps the oldest cold case in the nation to go to trial. He was sentenced to life in prison and his murder conviction was affirmed on appeal. See: People v. McCullough, 2015 IL App (2d) 121364, 38 N.E.3d 1 (Ill. App. Ct. 2d Dist. 2015).

But newly-elected Dekalb County State’s Attorney Richard Schmack was not convinced of McCullough’s guilt. Schmack embarked on a six-month review of the case, including reams of vintage police and FBI reports from the original investigation – most of which were not allowed into evidence during McCullough’s bench trial.

At the end of the review, Schmack concluded that McCullough’s alibi was legitimate and he could not have committed the crime. Noting that the state was “ethically compelled and constrained to admit the existence of clear and convincing evidence” establishing a defendant’s innocence, Schmack joined McCullough’s attorneys in seeking his immediate release.

Despite the rare agreement of both prosecutor and defense counsel, Judge William Brady initially refused to free McCullough in late ...

$49,500 Settlement in New Jersey Jail Beating Suit

A mentally ill former New Jersey prisoner and Salem County officials agreed on March 4, 2016 to settle a lawsuit that alleged guards at the Salem County Jail beat him to the point where he had to be hospitalized.

Harold Jones, a resident of Minotola, New Jersey, is both diabetic ...

Vigilantes Assault, Rob and Murder Registered Sex Offenders

by Matt Clarke

As repeatedly reported in Prison Legal News, for over a decade registered sex offenders have been targeted by vigilantes and assaulted, robbed and murdered due to their past crimes. And as noted in this issue’s cover story, that is part of the dark side of sex offender registries, which allow public access to offenders’ residential addresses and other personal information. Such information not only endangers registered sex offenders but also those who live with them and, in at least one case in Dallas, Texas, an innocent victim. That Dallas man, who was beaten with a baseball bat, had simply moved into an apartment recently vacated by a sex offender.

PLN believes these incidents are more widespread and occur with greater frequency than reported in the mainstream media. [See, e.g.: PLN, Sept. 2016, p.49; June 2015, p.63; Feb. 2013, p.50; April 2007, p.18].

In one of the earliest cases of registry vigilantism, two registered sex offenders who were living in the same home in Bellingham, Washington were murdered in 2005 by a man who gained access to their residence by claiming to be an FBI agent investigating threats made against sex offenders ...

Medical Provider Blamed for Deaths at New York Jail Replaced by Another Contractor ... Then Another

by Joe Watson

For three years, elected officials in Niagara County, New York refused to give the families of Tommie Lee Jones and Daniel Pantera the satisfaction of terminating the county jail’s contract with for-profit healthcare provider Armor Correctional Health Services.

Instead Armor left on its own terms, refusing a new deal with the county when local officials denied the Florida-based company’s demands for more money and negotiated a new contract with a different for-profit medical provider.

“There is no firing. They don’t want it anymore,” said Niagara County Attorney Claude A. Joerg, referring to the jail’s healthcare contract. “It’s not a response to the report from the state.”

The report to which Joerg referred was released in 2014 by New York’s Commission of Correction and blamed the December 2012 deaths of Jones, 51, and Pantera, 46 – both just two weeks after Armor entered into a three-year contract with the county – on Dr. Steven C. Gasiewicz, the company’s medical director at the Niagara County Jail. The report found the pair of deaths were due to “grossly inadequate medical and mental health care,” and recommended that the county consider severing its relationship with Armor ...

Federal Judge Grants Ex-offender “Certificate of Rehabilitation”

by Derek Gilna

New York U.S. District Court Judge John Gleeson, known for his well-reasoned opinions, has, in addition to his usual duties, immersed himself in other issues not typically associated with the federal judiciary.

For example, he has encouraged prosecutors to revisit cases where the interests of justice dictate that prisoners be released based upon new evidence or prosecutorial misconduct. Also, his recent grant of a “certificate of rehabilitation” to a former non-violent offender has focused attention on the issue of removing barriers that released prisoners face, particularly in terms of obtaining employment.

In granting the non-traditional relief, Gleeson seized upon recent pronouncements by the federal executive branch that encouraged prosecutors and judges to eliminate collateral consequences that prevent ex-offenders from fully reintegrating into society.

Judge Gleeson had originally convicted the defendant, identified only as “Jane Doe,” for a non-violent felony related to an auto accident fraud scheme. Doe, a single mother of two children, had been a certified nurse – but her conviction made her ability to find a job dependent on whether her employer conducted a background check. She attempted to form her own nursing agency to address that problem, and also worked as a house cleaner ...

Ninth Circuit: Warrantless Probationary Cell Phone Search Unconstitutional

The Ninth Circuit Court of Ap­peals has held that a warrantless, suspicionless search of a probationer’s cell phone violated the Fourth Amendment, and that evidence discovered during the search must be suppressed.

Paulo Lara was on probation for a California drug offense. His probation agreement required him to submit to warrantless, suspicionless searches of his person and property; he was also required to initial a “Fourth Amendment waiver.”

On October 2, 2013, probation officers Jennifer Fix and Joseph Ortiz arrived unannounced at Lara’s residence after he failed to appear for a meeting.

Ortiz spotted a cell phone and examined it. He reviewed the most recently sent text messages and discovered a text containing three photos of a semiautomatic handgun on a bed. The picture had been sent to “Al,” who asked if the gun was “clean.” Lara responded “yup” and Al asked “What is the lowest you will take for it?” and “How much?”

Fix and Ortiz did not find a gun in the house. They did find a knife, however, which violated the terms of Lara’s probation, and he was arrested.

Lara’s cell phone was then taken to a forensics lab for analysis. Lab ...

New Hampshire Jail Doctor Suspended Pending Misconduct Hearing

In April 2016, New Hampshire’s Board of Medicine suspended the license of a doctor who treated prisoners at the Valley Street Jail in Hillsborough County. The suspension followed allegations of professional misconduct.

Dr. Matthew J. Masewic worked part time at the Valley Street Jail. He also served as director of medical services at the state psychiatric hospital. The suspension did not affect Masewic’s ability to practice outside correctional facilities, however the Board of Medicine found he posed a danger if he continued to practice medicine at the jail.

The Board’s report on the suspension, which was described as an emergency stop-gap measure, detailed four cases as part of its investigation into inadequate nurse supervision and patient mistreatment by Dr. Masewic from 2011 to 2015.

A November 2011 case involved an incident where Masewic refused a prisoner access to medication prescribed by a hospital physician after the prisoner returned from an emergency room visit for chest pains.

In another case from the summer of 2012, Dr. Masewic ascribed a prisoner’s complaints of acute abdominal pain and bowel obstruction to an assault by other prisoners, though when the prisoner was finally taken to a hospital, doctors found pelvic ...

Former Texas Police Officer’s Sexual Assault Case Reversed After 21 Years

by Matt Clarke

Brian Edward Franklin was a Fort Worth, Texas police officer for more than a decade before he was convicted of aggravated sexual assault of a child and sentenced to life in prison in 1995. On April 6, 2016, the highest criminal court in Texas reversed his conviction, saying the state’s case against him relied on perjured testimony. The testimony in question was that of the alleged victim. The court noted that her perjury had caused other witnesses to give false testimony as well, depriving Franklin of due process.

The reversal allowed the state to prosecute Franklin again using the same indictment. However, there was no DNA or other forensic evidence to support the allegations of sexual assault. And since Franklin’s conviction was reversed based on perjured testimony – upon which the prosecution’s case rested – it would be extraordinarily difficult for prosecutors to win a conviction at a second trial.

On May 4, 2016, two days after the Texas Court of Criminal Appeals issued its mandate reversing the case, Franklin appeared before state District Judge Wayne Salvant for a bond hearing. The bond was set at $10,000 and Franklin was released the next day.

In ...

CCA Prison Caught Recording Attorney-Client Meetings, Sharing Videos with Prosecutors

In March 2017, Special Master David R. Cohen filed a request with the U.S. District Court in Kansas, seeking to enlarge his investigation into whether the Leavenworth Detention Center (LDC) and the private contractor that operates the facility, Corrections Corporation of America (CCA, which recently rebranded as CoreCivic), had improperly recorded privileged attorney-client meetings and shared those recordings with federal prosecutors. Having determined that the recordings were in fact made and shared, Cohen now wants to determine whether that practice was commonplace.

His review had already found 227 phone call recordings and at least 30 videos of attorney-client meetings in the U.S. Attorney’s Office in Kansas City. Around 700 attorney visits may have been recorded without the parties’ knowledge – violating a fundamental protection for criminal defendants established by the Sixth Amendment.

Cohen, a federal law clerk, was appointed by U.S. District Court Judge Julie Robinson, who issued an order in August 2016 directing LDC and CCA officials to immediately stop recording private attorney-client meetings and phone calls. The order came after a hearing confirmed that CCA had made recordings of confidential conversations between prisoners and their lawyers, and gave some of them to prosecutors in response ...

Failure to Accommodate Deaf Prisoner Costs Oregon DOC $400,000

On November 3, 2016, a federal jury awarded a deaf former Oregon prisoner $400,000, finding prison officials had violated his civil rights by failing to accommodate his hearing disability.

David VanValkenburg, 51, is deaf and must communicate through a sign language interpreter. During his 13 years in the custody of the Oregon Department of Corrections (ODOC),he was denied a qualified interpreter and access to jobs, programs and services available to non-disabled prisoners.

VanValkenburg filed suit in federal court, alleging that prison officials violated the Americans with Disabilities Act (ADA) by failing to accommodate his deafness. He sued for what he described as a “systemic failure to effectively communicate with him from the beginning of his prison term in November 2000.”

The case proceeded to trial and VanValkenburg’s attorneys, Matthew C. Ellis and Shenoa Payne, told the jury during opening statements that the ODOC’s May 12, 2012 non-discrimination and “effective communication policy” requires prison officials to make programs and services available to all prisoners on an equal basis, and to investigate the best ways to accommodate prisoners if they are deaf or hearing-impaired. Prison officials must also provide auxiliary aides and services to help prisoners compensate for ...

Private Probation Company Agrees to Multiple Settlements in Georgia

by Derek Gilna

In July 2016, just before trial, Sentinel Offender Services, a private probation company, agreed to pay a $200,000 settlement to LaSaundria J. Walker for illegally keeping her in jail after she completed her term of probation. Sentinel also agreed to pay Hills McGee $75,000 to settle a lawsuit after he was jailed for two weeks for failing to pay community supervision fees.

Those settlements were in addition to a jury award of $50,000 in compensatory damages and $125,000 in attorney’s fees to Kathleen Hucks, another Sentinel client, for false arrest and imprisonment. [See: PLN, Feb. 2017, p.48]. More than a dozen people have sued the company in both Richmond and Columbia counties in Georgia, plus a dozen more in other jurisdictions, accusing Sentinel of committing numerous civil rights violations.

Augusta attorney Jack Long has led efforts to prevent Sentinel and other private probation firms from profiting from improper business practices – which typically include imposing numerous fees on probationers, then having them jailed when they are unable to pay. The subject of an article published by the American Bar Association in 2014, Long, as well as other attorneys, have argued that Sentinel ...

Vicarious Liability Not Available in Medical Malpractice Claim by NY Prisoner

Last year, the New York Supreme Court, Appellate Division held the state’s Department of Corrections and Community Supervision (DOCCS) could not be found vicariously liable for the actions of contract physicians.

Steven Garofolo filed a medical malpractice claim in the Court of Claims against DOCCS alleging that while incarcerated at the Woodbourne Correctional Facility, he sustained injuries as a result of treatment and operations performed by Drs. Stephen Schwartz and Jonathan Holder, who provided care pursuant to contracts with DOCCS.

The suit argued DOCCS was liable under negligence and vicarious liability theories. After the Appellate Division’s reversal of DOCCS’ motion to dismiss, the state moved for partial summary judgment on the medical malpractice claims based on vicarious liability. The Court of Claims denied the motion and ordered a trial, finding that Garofolo “reasonably believed that Schwartz and Holder were acting as ostensible agents of defendant, thereby potentially rendering defendant vicariously liable for any acts of malpractice by the doctors.”

The Appellate Division disagreed, holding the Court of Claims should have granted the state’s motion. The appellate court noted that according to precedent, “a hospital or an entity, such as DOCCS, may be vicariously liable for the medical ...

Denial of Summary Judgment Upheld in Prisoner’s Retaliation, Excessive Force Suit

by Matt Clarke

On July 29, 2015, the Eighth Circuit Court of Appeals affirmed a federal district court’s denial of summary judgment to two U.S. Marshals who allegedly arranged to have a prisoner beaten at an Arkansas jail.

James Clayton Solomon was convicted of violating the terms of his federal supervised release and agreed to voluntarily surrender, but instead absconded. Before he fled, Solomon sent a letter to the federal court stating his hope that Chief Judge Jimm Larry Hendren of the Western District of Arkansas “dies a slow and painful death.”

Solomon was apprehended in California and transported to a federal facility in Oklahoma. U.S. Marshal Susan Jones and a contract guard transported him back to Fort Smith, Arkansas. During the trip, Jones showed Solomon a copy of his correspondence and informed him “he’d pay for writing that type of letter to the judge.”

As he was being transported from Fort Smith, the Marshals allegedly told him that he “should never have written that letter to the judge and they were going to make sure [he] was punished for that letter.” They also reportedly said he was being sent to the Benton County Criminal Detention ...

Petition Challenging Disciplinary Hearing Not Mooted After Prison Rescinds Sanction

by Lonnie Burton

On April 22, 2016, the Kansas Court of Appeals reversed a ruling by the Leavenworth County District Court dismissing a habeas petition filed by a prisoner challenging the findings and sanctions imposed at a prison disciplinary proceeding. The district court had held that because prison officials rescinded the sanctions after the petition was filed, it was moot.

The case began in December 2014 when Lansing Correctional Facility (LCF) guard R. Maddox charged prisoner Vaccaro Stano with a disciplinary report for being intoxicated. Following a disciplinary hearing a month later, Stano was found guilty and the hearing officer imposed sanctions that included a $10 fine and 60-day restriction of privileges. The 60-day restriction was suspended, and the LCF warden and Secretary of Corrections denied Stano’s appeals and affirmed the findings and sanctions.

Stano filed a petition for a writ of habeas corpus pursuant to K.S.A. 2015 Supp. 60-1501, alleging that the disciplinary hearing was not held in a timely manner, evidence and witnesses were withheld, and there was insufficient evidence to support the guilty finding.

Twelve days after the habeas petition was filed, the district court ordered LCF to produce Stano for an evidentiary hearing ...

Eighth Circuit: Exhaustion is Not a Pleading Requirement in FOIA Cases

The Court of Appeals for the Eighth Circuit reversed the dismissal of a former federal prisoner’s Freedom of Information Act (FOIA) suit, holding that he was not required to plead exhaustion in his complaint.

Darnell Wesly Moon filed a lawsuit against the federal Bureau of Prisons (BOP), challenging the denial of his FOIA request under 5 U.S.C. § 552. He had requested copies “of all administrative remedies” that he submitted to BOP officials while held in a Communications Management Unit at USP Marion. The district court dismissed his suit before serving the defendant because Moon did not plead exhaustion of administrative remedies in his initial complaint.

Moon appealed and the Eighth Circuit reversed in a terse ruling on April 28, 2016. Citing Elnashar v. United States Dep’t of Justice, 446 F.3d 792 (8th Cir. 2006), the Court of Appeals agreed “that a litigant must exhaust administrative remedies before bringing a FOIA action in federal court.” Nevertheless, given “that FOIA is silent as to whether exhaustion is a pleading requirement or an affirmative defense,” the appellate court held “the argument of non-exhaustion is an affirmative defense rather than a pleading requirement.” Accordingly, “Moon was not required to ...

Seventh Circuit: Warden’s Termination of Medical Diets was Deliberately Indifferent

The Court of Appeals for the Seventh Circuit ruled that a prison warden who cancelled all prescribed medical diets without first consulting a doctor was deliberately indifferent to the serious medical needs of a prisoner who had been receiving a medical diet.

In 1998, Illinois lifer Donald McDonald was diagnosed with high cholesterol and prescribed a low-cholesterol diet. He received dietician-approved meals without interruption for more than ten years at the Stateville Correctional Center.

When Marcus Hardy was appointed warden at Stateville in 2009, however, he immediately fired the dietician and cancelled all medical diets without consulting the prescribing physicians. As a result, McDonald had to eat a regular diet that included foods the dietician had warned him to avoid – including cheese, eggs and foods with high amounts of mayonnaise. He sought reinstatement of his low-cholesterol diet, but medical personnel repeatedly told him they could not reinstate the prescription because food service staff could no longer provide such meals.

McDonald filed suit in federal court against Hardy and Assistant Warden Daryl Edwards, alleging they were deliberately indifferent to his serious medical needs when they cancelled and then refused to reinstate his medically-prescribed diet.

McDonald requested discovery during the litigation, including ...

Indiana County is Leader in Sending People to Prison

by Lonnie Burton

In a major shift from just a decade ago, rural areas of the U.S. are more likely to send people to prison than urban areas. While big cities have been trying to reduce incarceration rates, large parts of rural and suburban America have gone in the opposite direction. Residents of small counties – those with populations under 100,000 – are now 50 percent more likely to go to prison than those in more populous counties, compared to just ten years ago. In fact, one small county in Indiana is proudly leading the way in locking people up.

That would be Dearborn County in eastern Indiana. The elected prosecutor for Dearborn County and neighboring Ohio County, Aaron Negangard, is unapologetic about being the leading contributor to the state’s prison population.

“I am proud of the fact that we send more people to jail than other counties,” he said. “That’s how we keep it safe here.” So safe that the county has imposed prison terms on over 5,000 residents – more than San Francisco and Durham, North Carolina combined.

The county not only sends more people to prison than other, larger counties, it also imposes sentences that ...

California: Condemned Prisoners Smuggle Drugs to Commit Suicide

by Christopher Zoukis

As the 31 states that practice capital punishment struggle to find the chemicals necessary to execute condemned prisoners, in at least one state the prisoners themselves are successfully bringing in large quantities of drugs, which they sometimes use to commit suicide – to cheat the metaphorical hangman’s noose.

This is both ironic and troubling.

California’s death row is extremely crowded. There were 749 prisoners on the state’s death row as of March 30, 2017 – almost three times as many as in Texas. The reason for this is simple: Since 1976, Texas has executed 538 prisoners but California has executed just 13.

In fact, California hasn’t put a single prisoner to death in over a decade.

This is partly due to the difficulty that some states are experiencing in obtaining lethal injection drugs. Large pharmaceutical companies such as Pfizer have begun restricting the sale of chemicals to state agencies that intend to use them for executions; as a result, some states are resorting to shady transactions to obtain the necessary drugs. [See: PLN, March 2014, p.46].

Meanwhile, prisoners on California’s death row, who typically spend decades in isolation, are patronizing the robust illicit ...

UNICOR’s Manufacture of Defective Military Helmets Criticized

by Derek Gilna

The Office of the Inspector General of the U.S. Department of Justice (DOJ) released a report in August 2016 that was sharply critical of ArmorSource LLC and its subcontractor, Federal Prison Industries (FPI), better known as UNICOR, for the manufacture of defective combat helmets for the U.S. military. Despite evidence of negligence and poor supervision and inspections, the DOJ declined to prosecute.

UNICOR, the federal prison system’s industry program that provides jobs and vocational training for prisoners, has come under criticism for providing insufficient training, using antiquated machinery and having indifferent supervision, resulting in inferior products. Further, prisoners’ rights advocates claim the use of low-cost prison labor amounts to exploitation. Prison Legal News has previously reported on problems surrounding UNICOR’s helmet manufacturing program. [See: PLN, Jan. 2011, p.20].

According to the DOJ, in 2008 UNICOR received a subcontract from ArmorSource to produce 23,000 combat helmets at a cost of $229 to $239 each, for a total of more than $23 million. UNICOR made an initial delivery of 3,000 helmets from an FPI program at a prison in Beaumont, Texas. “However [they] did not receive payment for ... 3,000 helmets because ...

Delaware Supreme Court Declares Death Penalty Retroactively Unconstitutional

On December 15, 2016, Delaware’s Supreme Court issued a unanimous 15-page decision that held the unconstitutionality of the state’s death penalty statute should be applied retroactively to prisoners previously sentenced to death. [Also, see p. 54.]

While the ruling only mentioned Derrick Powell, 29, the state’s youngest death row prisoner, it effectively commuted the sentences of twelve men on Delaware’s death row to life without parole. It was consistent with two prior state Supreme Court decisions from 1973 and 1977 when three and nine prisoners, respectively, were removed from death row after the Court declared capital punishment in the state unconstitutional.

Delaware’s chief public defender, Brendan O’Neill, said of the most recent ruling, “It seems only just to correct a sentence of death, which was imposed under a system that has been deemed unconstitutional.”

The decision resulted from a January 2016 ruling by the U.S. Supreme Court that struck down Florida’s practice of allowing judges – not juries – to pronounce death sentences. Alabama and Delaware were the only other states that permitted judges to override a jury’s recommended sentence of life.

Powell’s attorney, Patrick Collins, applauded the ruling. “Obviously we are ...

Missouri Prisoners Vexed by Bills for Incarceration Costs

by Matt Clarke

Current and former Missouri state prisoners have been experiencing “sticker shock” as they are presented with bills for the cost of their incarceration.

The Missouri Incarceration Reimbursement Act (MIRA) has been around since 1988, but wasn’t seriously enforced until 2006. Under MIRA, prisoners can be billed for the full past and future costs of their incarceration if it is believed they have the ability to pay 10% of the cost of two years in prison (about $2,200 annually). The statute allows state officials to seize 90% of a prisoner’s assets or income stream to satisfy the debt. With the costs of incarceration so high, such debts can be significant. [See: PLN, April 2014, p.28].

A hypothetical prisoner serving a ten-year flat prison term would be liable for the entire cost of his incarceration – around $220,000 – should he have approximately $4,400 in assets. And state officials could move to collect the full amount even after he is released. Pensions and government benefits are not exempt, which can leave former prisoners with insufficient funds for housing or even food.

For example, when he was released after serving a four-month “shock” sentence for drunk ...

Stipulated Order Desegregates Arizona Prisons; $195,000 in Attorney Fees Awarded

by Matt Clarke

Decades after prisons in the Deep South were desegregated by the federal courts, a federal judge has approved a stipulated order desegregating housing and job assignments in Arizona Department of Corrections (ADC) facilities. The February 5, 2016 order by U.S. District Court Judge Cindy Jorgenson also ...

Seventh Circuit Remands Untimely Appeal for Rule 4(a) Extension

On April 29, 2016, the Seventh Circuit reversed the dismissal of a civil detainee’s untimely appeal with instructions to treat a pro se post-judgment motion as a request for an extension of time under Fed.R.App.P. 4(a)(5).

In 2006, Timothy Bell was civilly committed to the Treatment and Detention Facility in Rushville, Illinois as a sexually dangerous person. He was later convicted of violently assaulting a guard and sentenced to four years in prison. When Bell’s prison term expired in 2010, he was returned to Rushville. Believing he was entitled to release, he refused to cooperate.

Ultimately, guards forcibly segregated Bell and took his clothing; he was held in solitary for eight days, naked, in uncomfortably cold conditions. When he finally cooperated on the ninth day, the guards returned his clothes and moved him to general population.

Bell filed suit in federal court, alleging that his due process rights were violated by his confinement in a cold segregation cell without clothes for eight days. Observing that “routine discomfort is part of the penalty” for committing crimes, the district court held the “terms of Bell’s confinement therefore did not violate the Cruel and Unusual ...

Flooding Forces Evacuation of Over 4,000 Texas Prisoners

by Matt Clarke

Historic flooding along the Brazos River in southeast Texas last year forced the Texas Department of Criminal Justice (TDCJ) to evacuate three facilities near Rosharon that housed more than 4,000 prisoners.

The evacuations began on May 29, 2016, when the Stringfellow and Terrell Units were evacuated, according to TDCJ spokesperson Jason Clark. Those units contained around 2,600 prisoners, most of whom were sent to facilities north of Houston, about 100 miles away. [See: PLN, Nov. 2016, p.63].

An altercation occurred at the Luther Unit when, after the power failed, evacuated prisoners refused to return to their assigned areas. Guards deployed chemical agents on around 50 prisoners who failed to follow orders, Clark said. No guards were injured, he added, and there was “no public safety threat,” but three prisoners were taken to the hospital – one for stitches and two for unidentified reasons.

About 150 trustees were evacuated to the Ramsey Unit which is located on the same large prison farm complex as Stringfellow and Terrell. The current Ramsey Unit was built on higher land after the original flood-damaged Ramsey Unit was demolished. Ironically, the Stringfellow Unit was constructed on the flood-prone site of the ...

Kansas: Self-Defense Must be Disproved in Prison Disciplinary Proceeding

by Lonnie Burton

The Kansas Supreme Court held on June 17, 2016 that prison authorities must disprove a claim of self-defense when a prisoner is charged with fighting and asserts he was merely defending himself. The ruling overturned a Court of Appeals decision which had upheld a judgment by a hearing officer that placed the burden to show self-defense on the prisoner.

William May was incarcerated at the Larned Correctional Facility in Kansas in 2012 when he got into a fight with a fellow prisoner. May claimed he was attacked and only defended himself, but still was found guilty of fighting by the hearing officer, who held that “with no evidence of self-defense,” he had been “involved in a fight.”

May then filed a petition challenging his infraction under K.S.A. 60-1501 in Reno County District Court, claiming there was no evidence to support the decision of the hearing officer and asking the court to reverse the infraction. Finding that the hearing officer “made no attempt to evaluate the reasonableness” of May’s self-defense claim, the district court held the decision violated May’s right to due process and overturned the guilty finding.

The Kansas Court of Appeals reversed ...

Incarceration Nations: A Journey to Justice in Prisons Around the World, by Baz Dreisinger

Incarceration Nations by Baz Dreisinger (Other Press, 2016). 325 pages, $19.00 (hardcover).

When John Jay College of Criminal Justice Professor Baz Dreisinger began her two-year pilgrimage to prisons around the world, she probably told herself she was seeking the best practices in each penal system to help her understand what might be done to reform the mass-incarceration-driven justice system that prevails in the United States. It certainly seemed to come as a surprise when she concluded that reform may not be the answer at all – reform is too insufficient a concept, and wholesale replacement should be the goal.

That was not the only surprise Dreisinger confronted in her stirring hybrid of memoir and scholarly treatise, which never fails to portray the essential humanity of prisoners, victims and ordinary citizens in exquisite prose. Despite her expertise as a founder of John Jay’s Prison-to-College Pipeline program, which brings college classes into New York prisons and the formerly incarcerated into John Jay as students, Dreisinger was unprepared for the national philosophy of forgiveness and re-acceptance into the community practiced in Rwanda. A greater surprise: such compassion is even extended to the tens of thousands who took ...

Divided En Banc Sixth Circuit Blocks Release of Federal Mug Shots

by Derek Gilna

In a 9-7 decision, the en banc Sixth Circuit blocked the release of mug shots of federal criminal defendants, finding that the Internet had caused individuals to be “haunted” by Freedom of Information Act (FOIA) requests that resulted in their booking photos being posted online. Judge Deborah Cook, who wrote the majority opinion, reversed a 1996 decision that found criminal defendants lacked a privacy interest in their mug shots.

According to the Court of Appeals, “in 1996, this court could not have known or expected that a booking photo could haunt the depicted individual for decades. Experience has taught us otherwise. As the Tenth and Eleventh Circuits recognize, individuals have a privacy interest in preventing disclosure of their booking photos.”

That earlier case, Detroit Free Press v. U.S. Department of Justice, 73 F.3d 93 (6th Cir. 1996), designated “Free Press I,” had been contradicted by contrary rulings in other circuits, which focused on the technological changes that had occurred over the past twenty years. In its most recent suit filed against the Justice Department, the Detroit Free Press again argued that criminal defendants could not block access to their mug shots after they had been ...

Reform Advocates Applaud Expiration of CoreCivic Contract in D.C.

At midnight on January 31, 2017, a welcome change came to the District of Columbia’s jail system with the expiration of the District’s 20-year contract with CoreCivic – formerly known as Corrections Corporation of America – to operate the Correctional Treatment Facility (CTF), which houses around 600 minimum- and medium-security prisoners, female prisoners and juveniles adjudicated as adults.

The facility returned to public control, prompting celebration from criminal justice reform advocates who had waged a three-year campaign to oust CoreCivic from D.C. Jeremy Mohler, a member of the ReThink Justice DC Coalition, wrote that the organization had won a previous anti-privatization victory when it successfully campaigned to stop the District’s jail system from contracting with troubled for-profit medical provider Corizon. [See: PLN, Oct. 2015, p.20].

A 2015 report by the Washington Lawyers’ Committee for Civil Rights and Urban Affairs found that juveniles at the CTF were subjected to “excessive” solitary confinement. It also found that CoreCivic was charging 31% more than the national average for correctional management.

Beyond the District of Columbia, CoreCivic has long been known nationwide for its record of violence, sexual assaults, escapes, riots and inadequate medical care in its facilities. 

 

Sources: www.washingtonpost ...

Dismissal of Federal Prisoner’s Lawsuit over Improper Solitary Confinement Affirmed

by Christopher Zoukis

The Court of Appeals for the Second Circuit has dealt a blow to the constitutional rights of imprisoned writers.

On December 11, 2012, after serving a lengthy sentence for arson-related crimes in connection with environmental activism, Daniel McGowan was released to the Brooklyn House Residential Reentry Center (RRC) to serve the remainder of his sentence. While a resident of the RRC, McGowan published an article on the Huffington Post’s website, using his own byline (i.e., name), titled “Court Documents Prove I was Sent to a Communications Management Unit (CMU) for my Political Speech.”

That article, published on April 1, 2013, detailed McGowan’s claim that he was placed in a highly restrictive Communications Management Unit in retaliation for publishing political opinion pieces. When Tracy Rivers, Residential Reentry Manager at the New York Residential Reentry Management Office of the Bureau of Prisons, read the article, she issued McGowan an incident report and ordered him remanded to a federal detention facility.

McGowan then spent 22 hours in the Special Housing Unit (SHU) of the Metropolitan Detention Center. That’s how long it took for the BOP to realize that McGowan had been placed in the SHU for ...

PLN Settles Censorship Suit Against Illinois County for $75,000, Policy Changes

by Lonnie Burton

On June 17, 2016, Kane County, Illinois ratified a settlement agreement with Prison Legal News to resolve a federal lawsuit after dozens of copies of PLN sent to prisoners at the county’s jail were rejected. The county agreed to pay $75,000 in fees to PLN ...

Malnutrition, Disease Result in Deaths in Overcrowded Haitian Prisons

On February 20, 2017, the Jamaica Observer reported that overcrowding, malnutrition and infectious diseases that flourish in tight quarters have led to an increasing number of prisoner deaths, including 21 at the Port-au-Prince National Penitentiary the previous month.

“This is the worst rate of preventable deaths that I have encountered anywhere in the world,” said Dr. John May, a Florida physician and co-founder of the non-profit group Health Through Walls. As men continue to die unnecessarily at the National Penitentiary, Port-au-Prince chief prosecutor Danton Leger has been holding mass burials, even purchasing caskets and floral arrangements for deceased prisoners, who previously were dumped in a potter’s field.

“The men in there are forced to live like animals. They can at least be buried like people,” Leger told the Associated Press.

“Straight up: This is hell. Getting locked up in Haiti will drive you crazy if it doesn’t kill you first,” said Vangeliste Bazile. Bazile, a homicide suspect, was being held in prolonged pre-trial detention – like 80 percent of those incarcerated in Haitian jails. “Only the strong can make it in here,” added Ronel Michel, imprisoned in one of the crumbling cellblocks where a lack of toilets forces prisoners ...

White House Justice Initiative Seeks Economic Boost from Policy Change

by Derek Gilna

Former President Obama’s Council of Economic Advisors produced a report in April 2016 that concluded the United States would gain an economic boost by reducing the nation’s level of imprisonment.

According to the report, titled “Economic Perspectives on Incarceration and the Criminal Justice System,” investments in “police and policies that improve labor market opportunity and education attainment are more cost-effective than additional incarceration.”

Calling for a $10 billion investment in police spending, the report also suggested increasing the federal minimum wage to $12 by 2020, claiming that together those initiatives would result in a three- to five-percent decrease in crimes rates and a “societal benefit” of $8 billion to $17 billion.

The Council also called for a “holistic approach to criminal justice reform,” arguing that investments in early childhood education and community policing should be paired with “expanding expungement, ‘banning-the-box,’ and limiting blanket criminal record exclusion in occupational licensing laws.”

Improving an ex-offender’s access to health care and housing should also be undertaken, along with “new approaches to fines, fees, and bail that do not criminalize poverty.”

“The reason we have so many more people in prison than any other developed country is not ...

Delaware Supreme Court Strikes Down Death Penalty, Following Hurst Decision

by Derek Gilna

On August 2, 2016, the Delaware Supreme Court, in Rauf v. State of Delaware, struck down the state’s death penalty in a closely-watched decision. Benjamin Rauf was charged with first-degree felony murder, and the state indicated it would seek capital punishment. However, the U.S. Supreme Court’s January 12, 2016 decision in Hurst v. Florida, which invalidated that state’s death penalty, prompted the Superior Court to seek guidance from Delaware’s highest court before proceeding to trial.

Hurst held that the “Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” [See: PLN, Feb. 2016, p.22]. According to the ruling in Rauf, the Superior Court certified five questions of law to the state Supreme Court.

In a 148-page opinion that traced the history of capital punishment in the United States, the Delaware Supreme Court followed the holding in Hurst, finding the state’s death penalty statute did not “sufficiency respect ... a defendant’s Sixth Amendment right to trial by jury.”

The first question the Court considered was whether “a sentencing judge in a capital jury proceeding, independent of the jury, [may] find the existence ...

Iowa Prisoner Awarded $1,000 for Jail Beating

A late December 2016 decision by the Board of Supervisors for Black Hawk County, Iowa not to appeal a federal judge’s ruling paved the way for a $1,000 judgment won by a prisoner who was beaten by other prisoners.

James Robert Ernst II was being held at the ...

Bonds Used to Finance Private Prisons, Jails Turn into Junk

by Christopher Zoukis

The promise of safe, humane and less costly prisons has been used for decades by the private prison industry to sell its products. As prison populations skyrocketed, local, state and federal governments became convinced that financing and building more and more correctional facilities was the way to go. So did investors, who picked up municipal bonds used to finance private prison construction in droves.

But lately the bottom is falling out of the prison and jail bond market.

Almost immediately after the U.S. Department of Justice announced plans to discontinue the use of privately-operated Bureau of Prisons facilities in August 2016, S&P Global Ratings downgraded bonds for several private prisons to below junk status. That meant the ratings giant believed they were essentially worthless, as the debt was likely to go into default.

The now junk-status bonds include those used to finance prisons in Garza, Reeves and Willacy counties in Texas. The Willacy facility, which has over $60 million in bond debt, is currently vacant after a February 2015 riot left it uninhabitable. [See: PLN, Dec. 2016, p.20].

Referring to Willacy County in particular, S&P Global Ratings credit analyst Kate Boatright stated, “the ...

The Case of the Disappearing Criminal Jury Trial

by Christopher Zoukis

Every person accused of a crime has the right to a trial by jury. That right is enshrined in the U.S. Constitution, and is available to anyone charged with a serious criminal offense.

But the number of jury trials is dwindling, replaced by plea bargains.

 “‘12 Angry Men’ is more a cultural concept than a regular happening,” said Daniel C. Richman, a professor at Columbia Law School, referring to the iconic movie about jury deliberations during a criminal trial.

Evidence of the decline in jury trials abounds. In Wisconsin, 1.09 percent of all criminal cases ended with a trial by jury between 2009 and 2013, according to state data. In Santa Cruz, California, the period of 2007 through 2012 saw less than 2 percent of criminal cases go to trial; in 2011, the county didn’t have a single jury trial in a criminal case.

Former Santa Cruz County Judge Jose Lerma expressed shock over those numbers.

“It’s a startling statistic, yes,” he said. “What the reasons for it are, though, is very difficult to say.”

Cecelia Klingele, a University of Wisconsin-Madison Law School Professor and criminal law expert, believes the decreasing number of ...

Oregon Prison System’s Medical Rule and Policy Invalidated

The Oregon Court of Appeals held in March 2016 that an Oregon Department of Corrections (ODOC) rule which authorized the Health Services clinical director to appoint the chief medical officer for each state prison was invalid because it conflicted with a statute that gives that authority to each prison’s superintendent. The appellate court also found that a health services policy was invalid because it constituted a rule but had not been adopted in accordance with the rulemaking requirements of Oregon’s Administrative Procedures Act (APA).

Oregon state prisoner and successful litigator Arlen Smith filed a facial challenge to an ODOC health services rule and policy. ORS 183.400 authorizes courts to invalidate a rule if it violates constitutional provisions, exceeds the agency’s statutory authority or was adopted without compliance with APA requirements.

Smith first challenged OAR 291-124-0016(2), which purports to authorize the ODOC Health Services clinical director to “appoint a chief medical officer ... for each DOC institution.” Smith argued that the rule was invalid because it exceeded the ODOC’s statutory authority, as expressed in ORS 179.360(1)(f), which authorizes each prison’s superintendent to “designate a physician licensed by the Oregon Medical Board to ...

Fifth Circuit Upholds $2.85 Million Award in Suit over Jail Prisoner’s Death

by Matt Clarke

On November 29, 2016, the Fifth Circuit Court of Appeals upheld a jury award of $1.5 million for pain and suffering and $917,000 for wrongful death in a lawsuit brought by survivors of a prisoner who died after being held for four days in an ...

Four Prisoners Murdered at South Carolina Facility

On April 7, 2017, four minimum-security prisoners at the Kirkland Correctional Institution in Columbia, South Carolina were found dead in a cell. A South Carolina Law Enforcement Division investigation revealed that John King, 52; Jason Kelley, 35; Jimmy Ham, 56; and William Scruggs, 44 were strangled after being lured into the cell by fellow prisoners Denver Simmons and Jacob Philip. Two of the victims were also beaten and stabbed with broken broomsticks. The attacks were partially captured on surveillance video.

Simmons, 35, and Philip, 25, were charged with four counts of murder; each was already serving a life sentence for unrelated double homicides, and both may now face the death penalty. Authorities were unclear as to the motive for the killings or how Simmons and Philip tricked the men into entering the cell. The Department of Corrections will conduct an internal investigation into the murders after the criminal investigation is finished, DOC Director Bryan Stirling told the Associated Press

The Kirkland facility operates a specialized housing unit for prisoners considered the state’s most dangerous, as well as an assessment and classification unit, and a 24-bed infirmary. In 2015 the prison was the scene of previous violence when two prisoners ...

The Sentencing Project Explores Impact of Race and Ethnicity on U.S. Prison System

by Derek Gilna

A June 2016 report by The Sentencing Project found that blacks are incarcerated in state prisons at much higher rates than whites – up to ten times the incarceration rate in five states. The report offered recommended solutions to what is clearly a national problem.

Fueled by “America’s failed experiment with mass incarceration,” the U.S. prison population has increased over 500% in the past forty years. Fortunately, states like New Jersey, New York, Rhode Island and California have adopted meaningful reforms that reduced their incarceration rates by 20-30%, while still driving down crime rates. Sadly, despite reforms in various states, the disparity of incarceration rates of blacks and Hispanics compared to those of whites is still shocking.

The Sentencing Project describes the harsh reality: “African Americans are incarcerated in state prisons at a rate that is 5.1 times the imprisonment of whites. In five states (Iowa, Minnesota, New Jersey, Vermont, and Wisconsin), the disparity is more than 10 to 1.” Additionally, according to the report, “In twelve states, more than half of the prison population is black: Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia.” The racial ...

$25,000 Federal Jury Award in Suit over Teenager Raped in Oklahoma Jail

by Matt Clarke

On March 2, 2016, a federal jury awarded $25,000 to a woman who had been repeatedly sexually assaulted by a Tulsa, Oklahoma jailer when she was a minor held at the Tulsa County jail.

LaDona A. Poore was 17 years old when she was incarcerated at ...

Las Vegas Judge Ousted after Ordering Public Defender Handcuffed

On February 28, 2017, the Nevada Commission on Judicial Discipline ordered former Las Vegas Justice of the Peace Conrad Hafen to never again serve as a judge in the state. Hafen also agreed to a public censure after admitting he had violated judicial canons; his ouster came after four separate complaints were filed with the Commission.

According to the Las Vegas Review Journal, in December 2014 a defendant received 50 days in jail for causing a disruption in Hafen’s courtroom, but he failed to file an order of contempt. A year later the judge failed to file a similar order for a man sent to jail for 10 days when he tried to represent himself at trial. A third complaint stated that in April 2016, Hafen sentenced a woman to 25 days after she “started screaming and yelling” at the judge, but he again failed to file a contempt order.

The most intense criticism against Judge Hafen resulted from a May 2016 incident in which he ordered a defense attorney to be handcuffed and refused to let her speak as her client was sentenced to jail. Hafen lost a bid for re-election a month later. Public defender Zohra Bakhtary ...

Federal Court Awards Virginia Prisoner $500 for Excessive Force Claim

by Lonnie Burton

Following a bench trial on November 15, 2015, a magistrate judge in the U.S. District Court for the Western District of Virginia recommended awarding a state prisoner $500 after determining that two prison guards had used excessive force against him. The magistrate’s Report and Recommendation ...

Congress Passes Legislation Allowing BOP Guards to Carry Pepper Spray

by Derek Gilna

The “Eric Williams Correctional Officers Protection Act” (S.238), named after a federal prison guard murdered by a prisoner at USP Canaan in Pennsylvania, passed both houses of Congress by unanimous votes. The bill provides authority for Bureau of Prisons (BOP) employees to carry OC pepper spray in medium and higher security facilities.

Federal lawmakers were energetic in their praise of Williams, 34, and lamented his death in the line of duty. He was kicked down a flight of stairs, brutally beaten and stabbed over 100 times by prisoner Jessie Con-Ui on February 25, 2013; Williams was working alone in a housing unit at the time. [See: PLN, July 2013, p.56].

Con-Ui, 40, is currently facing first-degree murder charges and prosecutors are seeking the death penalty. He reportedly said he killed Williams over a “disrespect issue.”

Under the Act, federal prison employees who are allowed to carry pepper spray must undergo training; further, the Government Accountability Office is required to evaluate the impact of the legislation, including the effect of issuing pepper spray to BOP staff on reducing crime and violence in federal prisons, whether staff at lower-security facilities should be provided with pepper spray and ...

News in Brief

News in Brief

Argentina: Ten years ago, Gabriel Herrera was serving time for fraud and robbery when he murdered his then-wife, Veronica Castro, during a conjugal visit. On January 5, 2017, Herrera killed his current girlfriend, Andrea Neri, 19, in a similar fashion during a visit at the Villa Las Rosas Jail. Corrections officials said Herrera stabbed Neri repeatedly with a pointed wooden tool before hanging her in his cell. The couple’s two-month-old baby was present during the murder. Andrea’s uncle, Jose Neri, said, “We were worried about her seeing him because of his past. She knew what he had done at the other jail but young people can sometimes be stubborn.” The prison’s governor was suspended after the incident.

Arizona: A for-profit company that provides prison food services donated $80,000 to a campaign committee opposing a legal cannabis measure included in Arizona’s November 2016 ballot. Food Services of America, headquartered in Scottsdale and a subsidiary of Services Group of America, has been criticized in the past for failing to meet nutritional requirements in the meals it serves to prisoners. The company’s donation may have proven helpful to the anti-legalization push; on November 8 ...


 

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Disciplinary Self-Help Litigation Manual