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Prison Legal News: May, 2017

Issue PDF
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. Flooding Forces Evacuation of Over 4,000 Texas Prisoners (p 48)
  36. Seventh Circuit Remands Untimely Appeal for Rule 4(a) Extension (p 48)
  37. Kansas: Self-Defense Must be Disproved in Prison Disciplinary Proceeding (p 49)
  38. Divided En Banc Sixth Circuit Blocks Release of Federal Mug Shots (p 50)
  39. Incarceration Nations: A Journey to Justice in Prisons Around the World, by Baz Dreisinger (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. Delaware Supreme Court Strikes Down Death Penalty, Following Hurst Decision (p 54)
  45. White House Justice Initiative Seeks Economic Boost from Policy Change (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. Fifth Circuit Upholds $2.85 Million Award in Suit over Jail Prisoner’s Death (p 58)
  50. Oregon Prison System’s Medical Rule and Policy Invalidated (p 58)
  51. Four Prisoners Murdered at South Carolina Facility (p 59)
  52. $25,000 Federal Jury Award in Suit over Teenager Raped in Oklahoma Jail (p 60)
  53. The Sentencing Project Explores Impact of Race and Ethnicity on U.S. Prison System (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 ...

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 ...

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 ...

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 ...

Out of Prison, Uncovered

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

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

$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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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’s ...

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 ...

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 ...

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 ...

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 Black ...

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 ...

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 ...

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 ...

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 ...

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 ...

$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 ...

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 ...

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 ...

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 was ...

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 ...

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 ...