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Prison Legal News: July, 2017

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Volume 28, Number 7

In this issue:

  1. Hep C: The Deadliest Killer in Colorado’s Prisons is a Curable Virus (p 1)
  2. Eighth Circuit: No Speedy Trial Rights for Prisoner Placed in Administrative Segregation (p 9)
  3. From the Editor (p 10)
  4. Report Finds Substandard Medical Care in ICE Facilities (p 10)
  5. New York DOCCS Has Paid $10 Million to Prisoners Beaten by Guards Over Five-year Period (p 12)
  6. “Deal with the Devil” Turning on Mississippi Counties (p 14)
  7. Illinois Supreme Court: No Appointed State Expert in SDPA Recovery Proceeding (p 15)
  8. Continued Failure in Privatized Medical Care at Kentucky Jails (p 16)
  9. Texas Fraud Prosecutions Privately Funded by Insurance Company (p 18)
  10. Washington State Leads the Nation in Jailing Juvenile Status Offenders (p 20)
  11. Is Risk Prediction Real Criminal Justice Reform or Junk Science? (p 22)
  12. Seventh Circuit Affirms Summary Judgment to Defendants in Prisoner’s Wrongful Death Case (p 25)
  13. San Diego County Settles Prisoner Overdose Death for $2.3 Million (p 26)
  14. Landmark Settlement in Lawsuit Challenging Solitary Confinement in Delaware (p 26)
  15. Seventh Circuit Reverses Dismissal of Suit Over Denial of Ramadan Meals; $3,600 Settlement (p 28)
  16. Michigan Jail Sanctioned for Denying Access to Paralegals (p 28)
  17. GEO Group Acquires CEC in $360 Million Deal (p 29)
  18. Seventh Circuit: Prison Doctor Not Entitled to Summary Judgment on Deliberate Indifference Claim (p 30)
  19. New York State Attorney General Settles Suit Against Jail’s Medical Provider (p 30)
  20. George Soros’ Quiet Overhaul of the U.S. Justice System (p 32)
  21. Eighth Circuit Declines to Block Subpoena Requiring Missouri to Disclose Identities of Execution Drug Suppliers (p 34)
  22. Iowa: Lawsuit Against Halfway House Over Attack by Resident Dismissed (p 35)
  23. Texas Forensic Science Commission Addresses Problem with DNA Testing Protocols (p 36)
  24. Illinois High Court Upholds Sex Offender Requirements Struck Down in Other States (p 38)
  25. Dismissal of Mississippi Prisoner’s Suit Over Grievance Retaliation Upheld (p 38)
  26. Pennsylvania: Philadelphia Ethics Board Fines Former Prisons Commissioner (p 39)
  27. New York: Disciplinary Segregation Settlement Finalized; $1.6 Million in Attorney Fees Awarded (p 40)
  28. Summary Judgment in Favor of Alabama Prison Officials Reversed; Writ of Mandamus Denied (p 40)
  29. Former Michigan Prisoner Claims Sewage Spill Linked to Hepatitis C (p 42)
  30. Local Sex Offender Residency Restrictions Challenged in Texas (p 42)
  31. Texas Judges Jail Defendants too Poor to Pay Fines, Debts (p 44)
  32. Seventh Circuit Reverses Dismissal of Civil Rights Suit against Cook County Jail (p 45)
  33. Third Circuit Finds that Prisoners’ Verbal Grievances are Constitutionally Protected (p 46)
  34. Seventh Circuit Reinstates Illinois Prisoner’s Religious Rights Suit (p 46)
  35. Louisiana Fires Eight Prison Guards; Federal Investigation is Pending (p 47)
  36. Two Non-profit Foundations Provide Funding, Leadership for Criminal Justice Reform (p 48)
  37. Illinois Pays $450,000 to Prisoner Who was Raped, Punished for Reporting It (p 49)
  38. Report Finds Federal Informants at Risk of Retaliation; Court Penalizes Informant for Trial Outcome (p 50)
  39. Illinois Prisoner Wins Federal Civil Rights Suit over Mail Censorship (p 51)
  40. Prison Phone Update: Appellate Court Deals Major Blow to Prisoners and Their Families (p 52)
  41. Supreme Court Voids North Carolina Law Barring Sex Offenders from Facebook (p 52)
  42. BOP Education Program Revamp in Doubt as Chief is Sacked (p 54)
  43. New York Prison Cannot Hold Sex Offender Beyond Expiration of Sentence (p 54)
  44. Third Circuit Reverses Denial of Class Certification (p 55)
  45. Epidemic of Suicides in California Women’s Prison (p 56)
  46. Washington: Sentence for Escape Conviction Can Only be Enhanced by Other Escapes (p 57)
  47. California: Sex Offender’s Civil Commitment Overturned for Lack of Evidence (p 58)
  48. Wrongfully Arrested for Murder, Prisoner Dies in California Jail; Corizon Loses Contract (p 58)
  49. Eleventh Circuit Rejects Condemned Prisoner’s Challenge to Lethal Injection Drug (p 60)
  50. Lawsuit against Oklahoma Jail for Providing False Information Partially Reinstated on Appeal (p 60)
  51. Embattled Private Probation Company Ceases Operations (p 61)
  52. “Beat Up Squad” at New York Prison Accused of Killing Mentally Ill Prisoner (p 62)
  53. News in Brief (p 63)

Hep C: The Deadliest Killer in Colorado’s Prisons is a Curable Virus

by Alan Prendergast, Westword

When Joseph Deaguero went to prison almost three years ago, he had a pretty good idea of what to expect. He had been behind bars before, for a series of assaults and domestic-violence arrests. But this time around, Deaguero, who’s currently 52 years old and serving a twelve-year sentence for second-degree assault, began to wonder if he was going to survive the experience.

In 1996, Deaguero learned that he’d tested positive for hepatitis C, a blood-borne virus that attacks the liver and has infected 17 percent of the American prison population. At the time he was told not to worry about it; the virus can lie dormant in the system for decades without manifesting any symptoms, and about one in six of those infected will “clear” the virus on their own. In other cases, though, the virus leads to chronic liver disease, and a sizable number of the chronic cases – between 25 and 40 percent, depending on which studies you believe – can eventually develop into cirrhosis or liver cancer.

Shortly after he started serving his latest sentence, Deaguero complained of symptoms of a hep C flare-up: chronic fatigue, aching muscles and joints, a constant throbbing ...

Eighth Circuit: No Speedy Trial Rights for Prisoner Placed in Administrative Segregation

by Christopher Zoukis

The Eighth Circuit ruled on September 15, 2016, in a per curiam opinion, that the Sixth Amendment’s right to a speedy trial is essentially not applicable to prisoners held in administrative segregation pending criminal charges.

Rashad A. Wearing was incarcerated at the Federal Correctional Institution in Forrest City, Arkansas in April 2013 when he was found in possession of a shank. He was immediately placed in administrative segregation, and around a year later was charged with one count of being an inmate in possession of a prohibited object in violation of 18 U.S.C. §§ 1791(a)(2) and (d)(1)(B).

Wearing challenged the indictment for violating his right to a speedy trial under the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. Specifically, he argued federal prosecutors had failed to indict him within 30 days of his “arrest” – when he was placed in administrative segregation – as required by 18 U.S.C. § 3161(b).

On appeal, the Eighth Circuit determined that Wearing’s placement in administrative segregation immediately after being caught with a shank was not an arrest for purposes of his speedy trial rights. The Court of Appeals reached that ...

From the Editor

by Paul Wright

For the past 30 years, as mass incarceration rates have skyrocketed, so has the number of prisoners infected with hepatitis C (HCV). This is in part because so many prisoners are current or former intravenous drug users, and so much time and energy is spent arresting and imprisoning poor drug users. Illicit drug use behind bars and tattooing with dirty needles also contribute to the spread of HCV among prisoners.

For decades, prison officials have adhered to a policy of refusing to treat prisoners with HCV who were not exhibiting symptoms, claiming they were not yet in need of treatment, then once the prisoners were very ill they would refuse to provide treatment because it was too late or too expensive to do so.

With the recent advent of new drugs that can cure HCV with few debilitating side effects and shorter treatment regimens, the only excuse prison officials have for refusing to provide treatment is the high cost. Yet as repeatedly reported in PLN, when it comes to obtaining drugs to kill prisoners via lethal injections, many states will spare no effort or expense – purchasing execution drugs from compounding pharmacies and far-away countries like India ...

Report Finds Substandard Medical Care in ICE Facilities

by Derek Gilna

In a July 2016 report, Human Rights Watch (HRW) found that 16 of the 18 immigrant detainees who died in Immigration and Customs Enforcement (ICE) custody from 2012 to 2015 received substandard medical care, and that in 7 of those cases, inadequate care likely contributed to their deaths. According to HRW, two independent medical experts reached that conclusion after reviewing treatment notes, death reviews and other details of the medical care that was provided – or sometimes not provided.

“The records also show evidence of the misuse of isolation for people with mental disabilities, inadequate mental health evaluation and treatment, and broader medical care failure,” the report stated. Clara Long, a researcher at Human Rights Watch, added, “these death reviews show that system-wide problems remain, including a failure to prevent or fix substandard medical care that literally kills.”

Responding to similar complaints regarding ICE medical care in 2009, the Obama administration had promised improvements by providing more centralized oversight and better medical treatment. However, the HRW study indicates there have not been significant improvements since that time.

Even more troublesome was what the 18 deaths examined in the report say about medical care in ICE’s ...

New York DOCCS Has Paid $10 Million to Prisoners Beaten by Guards Over Five-year Period

by Joe Watson

Widespread abuse by prison guards across New York State has led to at least 175 monetary awards to prisoners from 2010 to 2015 totaling around $10 million, a newspaper investigation found. Those numbers only include cases involving guard brutality; other payouts, such as for inadequate medical care or wrongful convictions, were not counted.

The payments – most through settlements, though some were awarded in judgments – ranged from $1,250 to $450,000, according to the Poughkeepsie Journal, which published the findings of its investigation in September 2015 based on documents obtained through public records produced by the state Attorney General’s office.

According to civil rights attorneys and prisoner advocates, staff-on-prisoner assaults in facilities operated by the New York Department of Corrections and Community Services (DOCCS) have become increasingly brutal, often occurring when prisoners are restrained and resulting in broken bones, head trauma and other serious injuries. The guards involved in such incidents, who are represented by a strong union, rarely face disciplinary action.

“What has evolved has been basically an atmosphere and a culture of violence that is unchecked,” said Soffiyah Elijah, executive director of the Correctional Association of New York (CANY), a non-profit watchdog ...

“Deal with the Devil” Turning on Mississippi Counties

by David M. Reutter

As mass incarceration in the United States grew between 1990 and 2005, many lawmakers decided to ride the wave of “tough on crime” rhetoric by building new correctional facilities to house the increasing number of people being arrested, convicted and incarcerated. During that period, 544 detention centers were built in the U.S. – one every ten days for 15 years.

But a current trend to reduce incarceration levels rather than impose long sentences is causing the wave to recede, leaving fewer people to fill prison and jail beds which nonetheless continue to consume tax dollars for their debt service and maintenance costs.

Mississippi is a case in point. With its prison system bursting at the seams in the late 1990s, state officials often refused to accept prisoners from county jails, even when they were sentenced to prison terms. One sheriff went so far as to drive prisoners to a state facility and leave them handcuffed to the fence.

To address the problem, lawmakers offered local municipalities a deal: Build county-operated regional correctional facilities, and the state would promise to keep them at 80% capacity, paying $29.74 per prisoner per day. Local officials took out ...

Illinois Supreme Court: No Appointed State Expert in SDPA Recovery Proceeding

On May 19, 2016, the Supreme Court of Illinois held the state could not use a handpicked expert witness to give testimony in a recovery proceeding under the Sexually Dangerous Persons Act (SDPA).

James E. Grant was convicted of attempting to sexually assault a neighbor and related charges, and the prosecutor sought to civilly commit him under the SDPA, 725 ILCS 204/0.01, in lieu of prosecution on one charge. The trial court found Grant to be a sexually dangerous person and remanded him to the custody of the Illinois Department of Corrections (DOC).

Thirteen years later, Grant petitioned for recovery. The trial court ordered the DOC to prepare a socio-psychiatric report in accordance with section 9 of the SDPA. Grant requested appointment of an independent psychiatrist, claiming he could not receive a fair evaluation from the DOC’s psychiatrist. His request was denied.

The DOC’s report noted that Grant did not participate well in the program, had not progressed much and denied some of the facts in his case, but nonetheless recommended that he be released because he was at low risk to reoffend. The state objected and moved to have a psychiatrist “appointed” to examine Grant because it ...

Continued Failure in Privatized Medical Care at Kentucky Jails

by David M. Reutter

Private medical contractors have become popular among corrections officials eager to reduce the cost of providing health care to prisoners. As PLN continues to chronicle this phenomenon, we continue to find substantial evidence that for-profit companies fail to provide adequate medical care – including in county jails in Kentucky.

Nearly two-thirds of Kentucky’s jails have contracts with private medical providers Southern Health Partners (SHP) or Advanced Correctional Healthcare (ACH). SHP contracts with 30 jails in Kentucky and more than 170 facilities in 12 other states; ACH contracts with over 20 Kentucky jails plus more than 235 facilities in 16 other states.

For the most part, private medical providers are not subject to independent oversight.

“There is no inspection/investigation of the quality of medical care,” said Louisville attorney Greg Belzley, who has filed numerous lawsuits alleging that deficient health care has caused or contributed to deaths or near-deaths among prisoners in Kentucky jails.

“Doing the time is supposed to mean living in a jail with your liberty taken away, eating jail food, with unsavory characters. It doesn’t mean dying because your basic medical needs are ignored,” Belzley stated.

Yet that is exactly what happened ...

Texas Fraud Prosecutions Privately Funded by Insurance Company

by Matt Clarke

Texas lawmakers recently took action to address the relationship between the Texas Mutual Insurance Company (TMIC) and the Travis County District Attorney’s Office, after finding the connection between the pair was too close for comfort.

Since 2001, TMIC had paid the DA’s office around $4.7 million to prosecute insurance fraud cases investigated and presented to prosecutors by TMIC employees. The company made case referrals to the DA’s office, paid the costs for the fraud unit and provided investigators.

That arrangement had originally been mandated by the Texas legislature, at a time when TMIC (which was created by state lawmakers in response to an insurance market crisis) was subject to strict state controls. Since that time TMIC has been fully privatized and its reins drastically loosened – though its relationship with prosecutors remained in place.

Some critics have argued that allowing an insurance company to pay for a fraud unit with statewide jurisdiction, which only prosecutes fraud cases involving that company, represents a conflict of interest.

“This arrangement makes me uncomfortable,” said Travis County Judge Sarah Eckhardt, who consulted with county attorneys about the appropriateness and legality of the arrangement and placed it on the Travis ...

Washington State Leads the Nation in Jailing Juvenile Status Offenders

More than two decades have passed since the murder of 13-year-old runaway Rebecca Hedman spurred Washington State lawmakers to pass a bill allowing judges to send at-risk children to juvenile detention centers. But implementation of the “Becca Bill” has become controversial because Washington now uses the law to incarcerate children who have not committed any crimes more than twice as much as any other state.

In 1994, the year before the Becca Bill was enacted, Washington incarcerated juveniles for non-criminal offenses just 222 times. By 1997 that number had increased to 2,053. So-called “status offenders” – juveniles charged with offenses such as skipping school, coming home after curfew and not doing their homework or household chores – were locked up 2,812 times in 2013.

Rebecca Hedman, known as Misty to her friends, had become addicted to crack cocaine and was prostituting herself to pay for the drugs. She absconded from a drug rehabilitation program in Spokane. Then one day in October 1993, John Medlock, who paid Becca $50 for sex, demanded his money back because he was dissatisfied; she refused and he smashed her head six times with a baseball bat before dumping her body near the Spokane ...

Is Risk Prediction Real Criminal Justice Reform or Junk Science?

by Joe Watson

With its criminal justice system bursting at the seams, one state has decided to take a controversial step to alleviate the pressure.

In 2015, Pennsylvania officials indicated the state would become the first in the nation to mandate the widespread use of risk predictors (also referred to as risk assessments) to determine how much time defendants should spend behind bars.

State judges will use statistical probability to determine whether offenders are likely to commit future crimes, data that until recently was almost exclusively used in the re-entry phase to determine how to best supervise prisoners upon their release from prison or jail.

Now, thanks to state legislation passed in 2010, those considered unlikely to engage in future criminal behavior will receive shorter sentences or avoid prison time altogether, which would ease overcrowding in state prisons and help reduce the $2 billion Pennsylvania spends on its corrections system each year.

But on the flipside, as critics of so-called “evidence-based sentencing” argue, offenders deemed at greater risk of committing new crimes – based on such factors as their age, gender, criminal record, educational background and even their history of arrests, not just convictions – could spend more time in ...

Seventh Circuit Affirms Summary Judgment to Defendants in Prisoner’s Wrongful Death Case

by Lonnie Burton

On October 17, 2016, the Seventh Circuit Court of Appeals upheld a district court’s order granting summary judgment in favor of the warden and a private health care provider in a case where a prisoner suffered an asthma attack and later died. The prisoner’s estate alleged that his death occurred because the cell where he was housed did not have an emergency call button and the facility lacked a medical director, among other claims.

On May 26, 2010, prisoner Marvin T. McDonald was housed in a segregation unit at the Pinckneyville Correctional Center (PCC) in Illinois. At about 5:00 p.m. that day, he began to suffer an asthma attack. McDonald, however, did not receive any treatment until 12:15 a.m., in part because there were no emergency call buttons in the segregation cells, forcing his cellmate to bang on the door to get the guards’ attention.

Once in the health care unit – run by private contractor Wexford Health Sources – there was no on-call doctor. Although the unit was supposed to be overseen by a permanent medical director, that post had been vacant for over a year. After a nurse contacted a doctor ...

San Diego County Settles Prisoner Overdose Death for $2.3 Million

by Derek Gilna

On August 2, 2016, officials in San Diego County, California agreed to settle a federal civil rights suit stemming from a prisoner’s death caused by a drug overdose at the county’s central jail.

According to the complaint, Bernard Victorianne, 28, was arrested for driving under the influence ...

Landmark Settlement in Lawsuit Challenging Solitary Confinement in Delaware

by Christopher Zoukis

A game-changing settlement has been reached in a federal lawsuit over the treatment of prisoners held in solitary confinement in Delaware state prisons.

The suit, filed on August 6, 2015 by the Community Legal Aid Society, Inc. (CLASI), with representation by the ACLU of Delaware and the ...

Seventh Circuit Reverses Dismissal of Suit Over Denial of Ramadan Meals; $3,600 Settlement

by Matt Clarke

On January 4, 2016, the Seventh Circuit Court of Appeals reversed the dismissal of a lawsuit brought by a Muslim prisoner who was denied several sack meals during Ramadan.

Michael L. Thompson, incarcerated at the Waupun Correctional Institution in Wisconsin, filed a federal civil rights action alleging ...

Michigan Jail Sanctioned for Denying Access to Paralegals

by Derek Gilna

On June 23, 2016, jail officials in Genesee County, Michigan entered into a federal consent decree that required them to provide detainees with bottled water to replace water at the jail that was contaminated by lead. [See: PLN, March 2016, p.22]. As part of the consent decree, counsel for the prisoners, Trachelle Young, was allowed to communicate with her clients to monitor compliance. However, when Young sent her paralegals to interview the prisoners they were denied entry, with jail staff stating only licensed attorneys would be granted access.

Young filed suit, claiming there had been a violation of the consent decree and seeking declaratory and injunctive relief under 42 U.S.C. § 1983. In her complaint, she “cited Procunier v. Martinez, 416 U.S. 396 (1974) and Johnson v. Avery, 393 U.S. 483 (1969) as a basis for jurisdiction, i.e. standing to challenge the jail’s refusal to allow her paralegals access to the jail.”

The district court issued a sua sponte order to show cause which stated “the complaint, on its face, did not appear to state an injury to her...,” and that Young apparently lacked standing. In her response, Young ...

GEO Group Acquires CEC in $360 Million Deal

In an all-cash transaction that closed on April 6, 2017, private prison firm the GEO Group, Inc. acquired New Jersey-based Community Education Centers (CEC), a for-profit reentry and treatment provider. GEO plans to integrate CEC into its existing business operations.

The $360 million deal expands GEO’s annual revenue by approximately $250 million and brings the company’s bed count to around 99,000 worldwide. GEO operates facilities in the U.S., Australia, South Africa and the UK; it has more than 23,500 employees globally.

“This important transaction represents a compelling strategic fit for our company as it further positions GEO to meet the demand for increasingly diversified correctional, detention, and community reentry facilities and services across the United States,” said George C. Zoley, the company’s chairman and CEO.

He added that the purchase would allow GEO “to expand the delivery of enhanced in-prison rehabilitation including evidence-based treatment, integrated with post-release support services through our industry-leading ‘GEO Continuum of Care.’”

Despite the company’s claims, it successfully objected to a shareholder resolution filed by PLN managing editor Alex Friedmann that would have required GEO to spend just 5% of its net income on reentry and rehabilitative programs for prisoners, beyond ...

Seventh Circuit: Prison Doctor Not Entitled to Summary Judgment on Deliberate Indifference Claim

by Lonnie Burton

On September 8, 2016, the Court of Appeals for the Seventh Circuit reversed a district court’s order granting summary judgment to a federal prison doctor who refused to adequately treat a prisoner with severe burns on his legs. However, summary judgment in favor of a health services administrator was proper, the appellate court ruled.

Federal prisoner Jessie Rivera suffered second-degree burns on his left leg, foot and ankle after he slipped and fell into a pool of boiling water while employed as a kitchen worker at the Federal Correctional Institution in Oxford, Wisconsin. His wounds were initially dressed and treated by a prison nurse, who prescribed a narcotic pain medication. Several months later, after repeatedly complaining of continued pain and numbness in his left leg, Rivera was scheduled to see the prison’s doctor, Ravi Gupta.

According to Rivera’s complaint, Dr. Gupta refused to examine him, look at his medical records or authorize any treatment whatsoever. Instead, he told Rivera that he would not have burned himself if he hadn’t been in prison, and that “only God” could help him, according to court pleadings. Dr. Gupta also threatened to issue Rivera a disciplinary report if he continued to ...

New York State Attorney General Settles Suit Against Jail’s Medical Provider

by Derek Gilna

In July 2016, New York State Attorney General Eric T. Schneiderman filed a lawsuit against Armor Correctional Health Services, the medical provider for the jail in Nassau County. The suit alleged a dozen prisoners had died at the facility, in large part due to substandard medical care ...

George Soros’ Quiet Overhaul of the U.S. Justice System

Progressives have zeroed in on electing prosecutors as an avenue for criminal justice reform, and the billionaire financier is providing the cash to make it happen.

by Scott Bland, Politico

While America's political kingmakers inject their millions into high-profile presidential and congressional contests, Democratic mega-donor George Soros has directed his wealth into an under-the-radar 2016 campaign to advance one of the progressive movement’s core goals – reshaping the American justice system.

The billionaire financier has channeled more than $3 million into seven local district-attorney campaigns in six states over the past year – a sum that exceeds the total spent on the 2016 presidential campaign by all but a handful of rival super-donors.

His money has supported African-American and Hispanic candidates for these powerful local roles, all of whom ran on platforms sharing major goals of Soros’, like reducing racial disparities in sentencing and directing some drug offenders to diversion programs instead of to trial. It is by far the most tangible action in a progressive push to find, prepare and finance criminal justice reform-oriented candidates for jobs that have been held by longtime incumbents and serve as pipelines to the federal courts – and it has inspired fury ...

Eighth Circuit Declines to Block Subpoena Requiring Missouri to Disclose Identities of Execution Drug Suppliers

by Lonnie Burton

Richard Jordan and Ricky Chase, on death row in Missouri, challenged lethal injection as an execution method by contending it was cruel and unusual punishment in violation of the Eighth Amendment. After the federal district court denied a motion to dismiss filed by Missouri prison officials, Chase and Jordan served a third-party subpoena on the Missouri Department of Corrections (MDOC) seeking information on the use of pentobarbital in lethal injections as well as the identities of pharmacies that provide that drug to the MDOC.

State prison officials then filed a motion to quash the subpoena. When the district court denied that motion and ordered the MDOC to produce the majority of the information sought by the plaintiffs, the department filed a petition for a writ of mandamus in the Eighth Circuit Court of Appeals to prevent enforcement of the subpoena.

The MDOC argued that under FRCP 45(d)(3)(A)(iv), it would impose an “undue burden” if the state had to reveal the identities of its execution drug suppliers because pharmacies would quit supplying the drugs if they were publicly exposed. That, the MDOC argued, would in turn “prevent the state from carrying out lawful sentences ...

Iowa: Lawsuit Against Halfway House Over Attack by Resident Dismissed

by Christopher Zoukis

The Eighth Circuit of Appeals has upheld the dismissal of a lawsuit filed against an Iowa halfway house and several state officials over injuries caused by a halfway house resident.

Tamela Montgomery alleged that Angenaldo Bailey, who was staying at the Curt Forbes Residential Center in Ames, broke into her house and shot her three times. She also claimed that she had a protective order against Bailey, and local police and the halfway house were aware of the order.

According to Montgomery, police officials and staff at the center knew about the protective order because Bailey violated it multiple times on the same day he shot her. It was undisputed that Montgomery contacted the police to report the violations and even warned them that Bailey would try to kill her if the police questioned him but did not arrest him.

She was correct. After being questioned by police officers about the protective order violations, but not arrested, Bailey returned to Montgomery’s residence, shot her three times and then shot himself in the head.

Montgomery sued the City of Ames; several Ames police officers; the Curt Forbes Residential Center; John McPherson, the center’s manager; the State of Iowa ...

Texas Forensic Science Commission Addresses Problem with DNA Testing Protocols

by Matt Clarke

The mission of the Texas Forensic Science Commission (TFSC) is to set standards for the use of scientific evidence in the state’s criminal justice system. In investigating the proper standards for DNA testing during the summer of 2015, the Commission came to the unsettling conclusion that the population distribution statistics used to calculate the probability of one person having the same DNA profile as another were off. Way off.

Using a protocol that had been in place since 1999, DNA experts routinely testified that the probability of a random person’s DNA matching the DNA profile discovered at a crime scene was one in millions or even billions. However, in May 2015 the FBI announced there were discrepancies in the population statistics used to calculate DNA probabilities in cases involving genetic material from multiple people, and the Commission issued a new protocol based on the FBI’s updated data.

When the new protocol was introduced, forensic scientists believed it would simply be a refinement of the numbers produced by the old method. That’s what defense attorney Roberto Torres thought after old protocol calculations indicated the likelihood of crime scene DNA that was similar to his client’s being somebody else’s ...

Illinois High Court Upholds Sex Offender Requirements Struck Down in Other States

by Lonnie Burton

On October 20, 2016, the Illinios Supreme Court declared constitutional a law that requires convicted sex offenders to report their email addresses, Internet identities and related online data to law enforcement officials. The unanimous decision found a provision of the Sex Offender Registration Act, 730 ILCS 152/101 et seq. (1996), survived a First Amendment challenge because the government’s interest in “protecting the public” outweighed the offenders’ forced disclosure of their personal information.

The case involved Mark Minnis, adjudicated as a juvenile sex offender, who failed to inform law enforcement authorities about updates to his Facebook page. Minnis was indicted for failure to register under Section 3(a) of the Act when he did not list his Facebook account when he registered in August 2014, and police later found he had not reported changing his Facebook cover photo.

Minnis challenged the law as overbroad and vague in May 2015, and a state court judge agreed it was overbroad under the First Amendment, both on its face and as applied to Minnis.

The Act, which was amended in 2007, requires sex offenders to report and update “all email addresses, instant messaging identities [and] chat room identities,” as ...

Dismissal of Mississippi Prisoner’s Suit Over Grievance Retaliation Upheld

The dismissal of a lawsuit filed by Mississippi state prisoner Bobby Wilson, Jr., alleging violation of his free speech rights and retaliation by prison officials, was upheld by the Mississippi Court of Appeals on August 30, 2016.

Wilson claimed that prison guard Tameka Edwards refused to open his cell door so he could use the restroom during two-hour dayroom activities. Edwards allegedly told Wilson that the doors could only be opened on the half-hour. Wilson argued that his door hadn’t been opened in over an hour, and told Edwards he would be filing a grievance against her.

True to his word, Wilson submitted a grievance that night but addressed it incorrectly. And true to her position as a prison guard, Edwards issued a Rule Violation Report (RVR) against Wilson the next day for intimidating and threatening her by saying he would file a grievance. He was found guilty and received a 30-day suspension of phone privileges, but successfully appealed his disciplinary conviction.

Wilson then filed a § 1983 suit in Sunflower County Circuit Court, alleging that Edwards had issued the RVR in retaliation for his statement that he would file a grievance, which he claimed was constitutionally protected speech. He ...

Pennsylvania: Philadelphia Ethics Board Fines Former Prisons Commissioner

On May 31, 2017, the Philadelphia Ethics Board levied a $2,000 fine against former Prisons Commissioner Louis Giorla for violating conflict of interest rules that prohibit city employees from benefitting from any of their official actions for two years after leaving city employment. According to a settlement agreement between Giorla and the Ethics Board, once he left his position with the city he became a consultant for Corizon Health – a company he had contracted with to provide prisoner medical care while serving as Prisons Commissioner.

“We want to make sure the city’s getting the best deals when they enter into contracts, and that vendors aren’t being approved who have made some kind of side agreement with city officials to hire them in the future and to benefit from that contract financially,” said Ethics Board executive director Shane Creamer. He added the Board found no evidence that Giorla had prearranged his $4,000-a-month consulting job with Corizon while still employed with the city, though a photo published by the company showed Giorla posing with three top-level Corizon officials at his 2015 retirement luncheon.

As part of the settlement agreement with the Ethics Board, Giorla agreed to end his ...

New York: Disciplinary Segregation Settlement Finalized; $1.6 Million in Attorney Fees Awarded

by Matt Clarke

On March 31, 2016, U.S. District Court Judge Shira A. Scheindlin granted final approval to a historic settlement between the New York Civil Liberties Union (NYCLU) and New York State that will usher in comprehensive reform of disciplinary solitary confinement in the state’s prison system. The ...

Summary Judgment in Favor of Alabama Prison Officials Reversed; Writ of Mandamus Denied

by Christopher Zoukis

On September 16, 2016, the Court of Civil Appeals of Alabama reversed an order by the Montgomery Circuit Court granting summary judgment in favor of state prison officials in a lawsuit filed by a state prisoner alleging constitutional violations.

Ronald D. Veteto claimed that he was forced to cell with fellow prisoner Anthony Merriweather at the St. Clair Correctional Facility, even though they were incompatible, and that Merriweather had engaged in a course of behavior designed to make Veteto change cells. Such behavior included “depriving Veteto of sleep, stealing his belongings, and, ultimately, physically assaulting him.”

Veteto further alleged that Merriweather had paid a fellow prisoner to stab him four times, calling him a “rat” – presumably because Veteto had reported Merriweather’s behavior to prison staff.

Veteto asserted claims against Merriweather for theft, conversion, assault and battery, nuisance and “willfulness and wantonness.” He also alleged that Warden Dewayne Estes and prison guards Kenneth Peters and Carla Graham had violated his constitutional rights to be free from cruel and unusual punishment and racial discrimination (Veteto is white, Merriweather is black), by failing to “protect him from Merriweather’s illegal and unconstitutional conduct.”

Defendants Merriweather, Estes, Peters ...

Former Michigan Prisoner Claims Sewage Spill Linked to Hepatitis C

by Panagioti Tsolkas

"That was just like opening a fire hydrant" is how former Michigan state prisoner Glen Lilly described the thousands of pounds of raw sewage that flooded the basement at the Parnall Correctional Facility as a result of a plumbing disaster that spanned several months.

“It shot onto the wall and was splattering all the way to the ceiling,” he added.

Lilly, a 55-year-old union carpenter, had no formal training as a plumber. He was serving a 26-month sentence for driving offenses and was released on parole in February 2017. But the experience at Parnall followed him home in the form of breathing problems, bronchitis and fatigue, which eventually led to a diagnosis of hepatitis C that Lilly claims is linked to repeated exposure to sewage in the prison’s basement.

Officials had ordered him to open a cleanout valve to relieve pressure that caused shower areas and toilets at the facility to back up with human waste.

A Michigan Occupational Safety and Health Administration (MIOSHA) investigation into the incident, obtained by the Detroit Free Press under the state’s Freedom of Information Act, affirmed testimony from Lilly and other prisoners regarding the sewage spill.

Lilly earned $96 a month ...

Local Sex Offender Residency Restrictions Challenged in Texas

by Matt Clarke

In many U.S. cities, local ordinances prohibit registered sex offenders from living in certain areas – generally within 1,000 feet or more of schools, playgrounds and daycare centers. But when a city is just a few dozen blocks in size, such ordinances can effectively force sex offenders to move out of the area altogether. The Texas legislature has taken up that issue on behalf of the state’s smallest cities – those with fewer than 5,000 residents – which are known as “general-law” municipalities.

In November 2015, Texas attorney Richard Gladden – who represents Texas Voices for Reason and Justice, Inc. (TVRJ), a nonprofit organization that advocates for better legislation on sex offender residency and registration ordinances – sent 46 Texas general-law cities a letter of intent to sue over allegedly unlawful residency restrictions. The letter maintained that such ordinances violate state law because a general-law city is only authorized to enact ordinances mandated by the state government. Along with his letter of intent, Gladden enclosed a copy of a 2007 letter from the Texas Attorney General’s Office to the chair of the Committee on Health and Human Services that explained the AG’s position on ...

Texas Judges Jail Defendants too Poor to Pay Fines, Debts

by Matt Clarke

The original 1836 Constitution of the Republic of Texas included a prohibition against imprisoning people who were unable to pay their debts. In the modern Texas Constitution, that concept is enshrined in the state’s Bill of Rights: “No person shall ever be imprisoned for debt.” Yet despite that clear mandate, Texas judges routinely jail people who are unable to pay fines for traffic citations and other minor offenses.

The U.S. Supreme Court has weighed in on this issue. In two separate, unanimous decisions, it held that incarcerating people too poor to pay fines violated the federal Constitution – unless, as was ruled in 1983, it could be demonstrated that a defendant “willfully refused” to pay. Ironically, one of the high court’s decisions involved a Texas case over unpaid traffic tickets, Tate v. Short, 401 U.S. 395 (1971).

Texas state law and an instruction manual for Texas judges declare that, before jailing a defendant for failure to pay fines, the court must first hold a hearing on the defendant’s ability to pay and, if he or she is financially unable, offer community service as an alternative. An indigent defendant is to be imprisoned only if ...

Seventh Circuit Reverses Dismissal of Civil Rights Suit against Cook County Jail

by Derek Gilna

Kevin Dixon was a pretrial detainee at the Cook County Jail in Chicago, Illinois when he was diagnosed with a paratracheal mass. Unfortunately, according to the Seventh Circuit, medical personnel at the facility “were aware of the problem, but they accused [him] of malingering, gave him over-the-counter analgesics, and ordered him to seek psychiatric care.” Later taken to a hospital when his condition rapidly deteriorated, Dixon died of lung cancer in January 2009.

After her appointment as the administrator of his estate, Dixon’s mother filed a § 1983 federal civil rights action against Cook County and a doctor and nurse who worked at the jail’s Cermak Acute Care Facility. According to the complaint, “County policy resulted in such poor communication among the medical providers who saw Dixon that nobody put all the pieces together, figured out what was wrong and how serious it was, and took appropriate steps, ... [and] the individual defendants knew about (or had reason to know of) Dixon’s condition and were deliberately indifferent in the face of that knowledge.”

The county and individual defendants filed a F.R.C.P. 12(b)(6) motion to dismiss for failure to state a cause ...

Third Circuit Finds that Prisoners’ Verbal Grievances are Constitutionally Protected

by Christopher Zoukis

The Third Circuit Court of Appeals has held that a prisoner’s verbal grievance made to prison staff was protected speech under the First Amendment, and gave rise to a civil action when the prisoner faced retaliation for making a verbal complaint.

Charles Mack, incarcerated at the Federal Correctional Institution in Loretto, Pennsylvania, filed a lawsuit over anti-Muslim harassment at his prison work assignment in the commissary. According to his complaint, prison guards Doug Roberts and Samuel Veslosky discriminated against and harassed him because he was a Muslim, causing him to fear being harmed due to his religious beliefs.

Specifically, Mack alleged that Roberts slapped an “I LOVE BACON” sticker on his back, and in front of several prisoners Veslosky said, “there is no good Muslim, except a dead Muslim!” When Mack spoke to Jeff Stephens, the guards’ supervisor, about these incidents, he was told they would be looked into.

But Stephens did nothing and Mack was later fired from his commissary job for the pretextual reason that he was “caught bringing [commissary] slips in for inmates.”

Mack again complained to Stephens, who again said he’d look into it but did nothing. Mack also verbally complained ...

Seventh Circuit Reinstates Illinois Prisoner’s Religious Rights Suit

by Lonnie Burton

On October 17, 2016, the Seventh Circuit granted the appeal of an Illinois state prisoner who had sued for violations of his religious rights. The appellate court held that a previous claim he had filed in state court based on the same set of facts did not bar his federal lawsuit.

In July 2010, prisoner Donald L. McDonald filed suit in the Illinois Court of Claims against officials at the Stateville Correctional Center for violations of his First Amendment right to free exercise of his Muslim faith. McDonald alleged that Muslim prisoners at Stateville were not allowed to attend Friday prayer service, that prison officials regularly stole prayer rugs and Arabic cassette tapes, and that Christians were permitted to have more volunteers enter the prison than Muslims.

The Court of Claims held a hearing but then failed to issue a decision for over two years. Meanwhile, McDonald filed suit in federal district court in March 2013, alleging the same violations. Three months later the Court of Claims finally issued a terse two-page decision dismissing McDonald’s suit that addressed only one of his claims, holding that Muslim services occurred every Friday at Stateville unless the facility was on ...

Louisiana Fires Eight Prison Guards; Federal Investigation is Pending

On March 30, 2017, the Louisiana Department of Public Safety and Corrections fired eight guards amid a federal investigation into the January 9, 2017 beating of 34-year-old prisoner John Harold at the Elayn Hunt Correctional Center.

An internal investigation conducted by prison officials determined that Lt. Andre Riley, Master Sgt. Adrian Almodovar, Capt. Charles Philson, Lt. Troy Rogers, Lt. Eric Norwood and Lt. Michael Collins punched and kicked Harold during and after a cell extraction, then continued the beating both in a transport van and the infirmary. Van driver Jarod Verret was terminated for allegedly witnessing the beating and failing to intervene, while Maj. Kevin Durbin was fired for failing to oversee the cell extraction in violation of departmental policy.

Harold was restrained during the assault, and one of the guards dropped a wheelchair on him after he was thrown from an infirmary bed to the floor. He had refused to obey orders, spit on one of the guards and used profanity.

“We will not tolerate this type of behavior,” James M. LeBlanc, the state’s Corrections Secretary, said in a statement. “This is a sad day in our department’s history. These individuals do not represent the 99 percent of ...

Two Non-profit Foundations Provide Funding, Leadership for Criminal Justice Reform

by Matt Clarke

On April 12, 2016, the MacArthur Foundation announced grants totaling nearly $25 million to support 20 jurisdictions working to create fairer and more effective systems of local law enforcement. The grants are part of the $100 million Safety and Justice Challenge Initiative, a five-year funding push to reform our nation’s criminal justice system at the local level.

Additionally, on January 23, 2017, the Laura and John Arnold Foundation announced that former White House advisors Lynn Overmann and Kelly Jin had joined the foundation to continue the work they began under the Obama administration’s Data-Driven Justice Initiative. With the Trump administration’s recent punitive change in criminal justice policy, the Arnold Foundation will use data and analytics to address reform efforts.

Although largely overlooked by the “end mass incarceration” movement, which focuses on state and federal prisons, the population of prisoners in local jails has tripled since the 1980s. There are around 11.6 million jail admissions each year in the U.S., about 20 times the number of prison admissions.

A chief focus of these reform efforts is to reduce racial disparities among jail populations. Like prison systems, local jails include disproportionately high numbers of blacks and Latinos ...

Illinois Pays $450,000 to Prisoner Who was Raped, Punished for Reporting It

by Lonnie Burton

An Illinois State prisoner who was raped agreed to settle his lawsuit against Illinois Department of Corrections (IDOC) officials who punished him for reporting the sexual assault. The $450,000 payout was one of the largest in state history for a prison retaliation case.

In August 2011 ...

Report Finds Federal Informants at Risk of Retaliation; Court Penalizes Informant for Trial Outcome

by Derek Gilna

Last year the Federal Judicial Center (FJC), part of the Court Administration and Case Management Committee of the Judicial Conference of the United States, published a study that found criminal defendants who cooperated with the government were often harmed or threatened with harm. However, a recent federal appellate decision raises the troubling possibility that informants may not get sentence reductions in exchange for their testimony if prosecutors fail to secure a conviction.

The 155-page FJC study, released in February 2016, goes to considerable lengths to catalogue incidents where informants faced retaliation, based on reports from various agencies on the judicial, prosecutorial and correctional side of the criminal justice system. Among the violent acts intended to intimidate informants and their families, the study cited the following examples:

• “The home he and his family resided in was shot up the day before he was scheduled to testify.”

• “[They] burned his house down.”

• “Name posted on Top Snitches Facebook page.”

• “Told family members to put his name on rats.com.”

• “Flyers posted in his neighborhood that he cooperated.”

The FJC study noted that “Among all types of harm or ...

Illinois Prisoner Wins Federal Civil Rights Suit over Mail Censorship

by Derek Gilna

Kevin A. Williams, a state prisoner at the Pontiac Correctional Center in Illinois, was serving a 65-year sentence for murder. While at Pontiac he ordered a copy of his victim’s death certificate, but prison staff blocked his receipt of that document and an accompanying unsigned note from the court clerk that said Williams would have a “place in hell.”

Williams filed a civil rights lawsuit in federal district court alleging violation of his First Amendment rights, which was eventually dismissed. The Seventh Circuit Court of Appeals disagreed, however, and overturned the dismissal.

As the appellate court noted in its September 20, 2016 ruling, ‘“prisoners have protected First Amendment interests in both sending and receiving mail,’ Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999), [but] a prison can confiscate an inmate’s mail if confiscation ‘is reasonably related to legitimate penological interests.’”

Nonetheless, the Court of Appeals held prison officials must produce “some evidence to show that the restriction is justified.” In the current case, Williams was told he could not have the death certificate “because it posed a threat to the safety and security of the institution and would negatively impact ...

Prison Phone Update: Appellate Court Deals Major Blow to Prisoners and Their Families

by Carrie Wilkinson

In a September 2016 article on the fight for comprehensive prison and jail phone reform, PLN reported that while limits on ancillary fees had been implemented by the FCC, intrastate (in-state) rate caps were stayed by the D.C. Circuit Court of Appeals after the FCC’s order was appealed by Global Tel*Link, Securus and other Inmate Calling Service (ICS) providers as well as various corrections officials. [See: PLN, Sept 2016, p.26].

As a result of that appeal the intrastate rate caps never went into effect, though interstate (long distance) rate caps ordered by the FCC in 2013 remained in place, at $.25/min. for collect calls and $.21/min. for debit and prepaid calls. Thus, in some cases – particularly local jails –unregulated in-state phone rates are much higher than long-distance rates. Within state prison systems, intrastate rates range up to $5.70 for a 15-minute call (in Kentucky), though in 22 states they are $.11 per minute or less.

Shortly before oral argument was scheduled in the D.C. Court of Appeals, counsel for the FCC advised the Court that due to a change in the composition of the FCC (resulting from the new ...

Supreme Court Voids North Carolina Law Barring Sex Offenders from Facebook

by Derek Gilna

In a unanimous decision, on June 19, 2017 the U.S. Supreme Court struck down a North Carolina statute that prohibits convicted sex offenders from accessing “a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” N.C. Gen Stat. Ann. §§ 14-202.5(a), (e).

While over 1,000 sex offenders in North Carolina had been prosecuted for violating the law, the Supreme Court found their access to such websites was protected under the First Amendment.

Lester Peckingham, a convicted sex offender, was arrested after he posted a joyous comment on his Facebook page concerning the dismissal of a traffic ticket he had received.

He was convicted of violating the statute that prohibits sex offenders from accessing social networking sites, including Facebook, and received a suspended sentence. There were no allegations that Peckingham ever had contact with a minor through the Internet or his Facebook page, or had violated any other state law.

Justice Anthony Kennedy, writing for the Court, noted that the statute could not stand: “In order to survive intermediate scrutiny, a law must be ...

BOP Education Program Revamp in Doubt as Chief is Sacked

by Christopher Zoukis

In its waning days, Obama administration officials announced plans to expand education efforts in federal prisons and to provide more direction and oversight to the programs previously run separately at each facility.

Former Attorney General Loretta Lynch announced in late November 2016 that for the first time, the Bureau of Prisons (BOP) had hired an education specialist as superintendent of a planned “semi-autonomous school system” within the BOP. Lynch prominently noted Amy Lopez, a veteran prison educator, was relocating from Texas to become the new point person for upgrading BOP educational programs.

Lopez was previously director of instruction for the large statewide educational school district Texas created for prisoners in the Texas Department of Criminal Justice, and had also held a number of other correctional education posts in Texas.

More background on outgoing DOJ officials’ plans for creating a new, more centralized BOP education system came in a January 9, 2017 memo from then-Deputy Attorney General Sally Yates. It noted research has found prisoners in educational programs are 43% less likely to be re-imprisoned than those not taking part in educational programs while incarcerated – meaning every dollar spent for prison education can bring savings four to ...

New York Prison Cannot Hold Sex Offender Beyond Expiration of Sentence

The Supreme Court's Appellate Division, Third Department, held that the New York State Department of Corrections and Community Supervision (DOCCS) may not hold a prisoner beyond his maximum sentence expiration date even if suitable post-release housing has not been found. It also held that DOCCS is statutorily obligated to assist prisoners in finding suitable housing.

William Green was convicted of multiple sex offenses in 2013 and received a sentence of three years in prison followed by seven years of post-release supervision (PRS). He was later adjudicated a level III sexually violent offender under the Sex Offender Registration Act.

Green was not freed on his conditional release date or sentence expiration date, and filed a habeas corpus petition in state court seeking his release. The Supreme Court (a trial-level court in New York) denied the petition on the grounds that Green had not secured suitable housing in light of his level III sex offender status, which required that he be released to an approved residence or a residential treatment facility (RTF) following clearance from the Office of Mental Health. He appealed.

The Appellate Division noted that, during the pendency of the appeal, the Supreme Court had ordered Green to receive ...

Third Circuit Reverses Denial of Class Certification

by Christopher Zoukis

The Court of Appeals for the Third Circuit has resurrected a challenge to the constitutionality of 8 U.S.C. § 1226(c), the section of the Immigration and Nationality Act that requires mandatory detention of undocumented immigrants who have committed certain crimes.

The challenge was brought in 2012 by plaintiffs Garfield Gayle, Neville Sukhu and Sheldon Francois. On behalf of themselves and all similarly situated individuals, they alleged that the mandatory detention provision of § 1226(c) violated constitutional guarantees of procedural and substantive due process.

Years of litigation ensued, and the district court ultimately ruled for the plaintiffs on their individual claims – finding the mandatory detention provision did indeed violate due process – but against them on their request for class certification.

On appeal, the Third Circuit reversed each ruling. The individual claims were reversed because the plaintiffs had been released prior to the district court’s decision, rendering their constitutional challenge moot. As such, the lower court lacked jurisdiction to rule on the merits of their claims.

However, in reversing the denial of class certification, the Court of Appeals reinstated the constitutional challenge. The Court held that “class claims can breathe life into an ...

Epidemic of Suicides in California Women’s Prison

by Christopher Zoukis

Suicides at the California Institution for Women (CIW) in Chino have surged to alarming levels. Six prisoners have killed themselves within the past three years, according to Krissi Khokhobashvili, spokesperson for the California Department of Corrections and Rehabilitation (CDCR). In the same period, she added, there were 71 suicide attempts at CIW, one of two women’s prisons in the state.

In one recent case, Bong Sook Chavez, 56, committed suicide at CIW in November 2016. The San Pedro woman, who pleaded no contest to a voluntary manslaughter charge in the fatal stabbing of her 10-year-old daughter, was serving a 12-year sentence.

At the time of her sentencing the Los Angeles County District Attorney’s Office said she suffered from “significant mental health issues.” In addition to being suicidal, she was depressed and had been diagnosed with a brain tumor. The San Bernardino County Coroner’s Office reported she was found in her cell with a sheet around her neck.

According to the CDCR, there was just one suicide at CIW in the six-year period between 2006 and 2013. In fact, Matthew A. Lopes, a special master appointed by U.S. District Court Judge Lawrence Karlton, reported in May ...

Washington: Sentence for Escape Conviction Can Only be Enhanced by Other Escapes

Division III of the Washington State Court of Appeals held on June 21, 2016 that a sentence for a conviction of “escape from community custody” may only be enhanced or increased by other escape convictions.

Washington state prisoner Terry Baker pleaded guilty in February 2015 to a charge of escape from community custody. He and the state disagreed on what his offender score – or “points” – should be. In Washington, a sentence is increased by the number of a defendant’s prior felony convictions. Points are imposed not only for prior felonies, but also for other factors like committing a crime while under sentence for another crime or being on community custody at the time of the offense.

The parties’ disagreement centered on two sentencing statutes: One that said a sentence for escape from community custody may only be enhanced by prior escape convictions, and another that specified a point be added to a defendant’s offender score if he was on community custody when the offense was committed.

Baker had three prior escape convictions, and by the very nature of his current conviction he was on community custody when he escaped. The trial court accepted the state’s argument that Baker’s ...

California: Sex Offender’s Civil Commitment Overturned for Lack of Evidence

On October 24, 2016, a division of the California Court of Appeal reversed a ruling by a Los Angeles County judge that found a thrice-convicted sex offender was a “Sexually Violent Predator” who should be indefinitely committed to a state hospital. The appellate court held there was a lack of evidence to support that finding.

On appeal from his civil commitment under California’s Sexually Violent Predator Act (SVPA), John Wright argued that his diagnosis of “hebephilia” was fundamentally flawed and insufficient to justify the trial court’s judgment. Hebephilia is a controversial diagnosis involving sexual interest in pubescent-age children. “It’s in that in-between area from pre-pubescent to post-pubescent,” according to the appellate opinion. [See: PLN, Aug. 2012, p.1].

Wright was originally convicted in 1996 – at age 26 – of a sex offense involving a 14-year-old girl. In 2001, he was convicted of two more sex offenses involving girls aged 14 and 15. And four years later Wright was convicted of engaging in oral sex with an underage female.

Following his 2005 conviction, the state filed a motion to commit Wright under the SVPA. Wright elected to have a bench trial, at which a state’s expert, Dr. Michael Musacco ...

Wrongfully Arrested for Murder, Prisoner Dies in California Jail; Corizon Loses Contract

by Matt Clarke

When police were notified about the death of Terry Cameron, 58, in March 2016, they quickly arrested her husband, Melvin Stubbs, 65. Stubbs was a diabetic amputee who used a wheelchair. Nonetheless, police said there were signs of a struggle, Stubbs and Cameron both had defensive wounds, Cameron’s face was covered with a pillow and the answers that Stubbs gave during police questioning were inadequate – sufficient evidence to justify his arrest, they claimed. But ninety minutes after Stubbs was booked into jail he was dead.

The Alameda County Coroner’s Office later determined the cause of Cameron’s death was not homicide but rather acute bacterial meningitis.

“What they did to him was horrible,” stated Manuel Primas, Stubbs’ former brother-in-law. “His last thought must’ve been, ‘My wife just died and I’m in here for murder.’ And then he died. That’s a hell of a way to go.”

Oakland police said Stubbs had not been answering questions about Cameron’s death very well, “due to what looks like a medical condition.” The symptoms of meningitis, a contagious disease, include mental confusion. But it wasn’t until they received the coroner’s report on Cameron’s death that Stubbs’ behavior ...

Eleventh Circuit Rejects Condemned Prisoner’s Challenge to Lethal Injection Drug

by Christopher Zoukis

On November 2, 2016, the Eleventh Circuit upheld a district court’s denial of death row prisoner Thomas D. Arthur’s challenge to the use of the drug midazolam in the lethal injection protocol used by the State of Alabama.

Arthur challenged midazolam as the first in a series of three drugs administered during executions. Midazolam took the place of pentobarbital as the initial drug, used to induce unconsciousness, when pentobarbital became unavailable due to restrictions imposed by the manufacturer. Arthur alleged the use of midazolam would violate the Eighth Amendment’s prohibition on cruel and unusual punishment because it created “a substantial risk of serious harm ... there is a high likelihood that midazolam will fail to render [him] insensate from the excruciatingly painful and agonizing effects of the second and third drugs.”

Applying recently-decided U.S. Supreme Court law, the Eleventh Circuit denied both Arthur’s facial challenge to the drug and his “as applied” challenge. In Glossip v. Gross, 135 S.Ct. 2726 (2015) [PLN, Feb. 2016, p.30], the Supreme Court held that in order to successfully challenge a method of execution, a prisoner must plead and prove: 1) that the proposed method presents a risk that ...

Lawsuit against Oklahoma Jail for Providing False Information Partially Reinstated on Appeal

On July 19, 2016 the Court of Civil Appeals of Oklahoma reversed, in part, a lower court order dismissing a suit against jail officials accused of providing false and misleading information about a former defendant to a website that published the information online.

Aaron Lee Benshoof was arrested in Garfield County, Oklahoma on a charge of first-degree burglary, which was dismissed without costs in April 2013. However, Benshoof’s jail mugshot was published on OK Jailbirds, a website that obtains public booking photos, criminal charge information and names of arrestees from local law enforcement agencies, and posts them online.

Benshoof filed suit against Garfield County and several jail officials for repeatedly providing false information to OK Jailbirds, which made it appear that he had been convicted of first-degree burglary. According to Benshoof’s pro se complaint, his mugshot with the words “First Degree Burglary” below it was published on OK Jailbirds based on information provided by the Garfield County jail, which caused him “loss of friends, being questioned in humility” [sic], loss of job opportunities and even death threats.

The defendants filed a motion to dismiss that was eventually granted by the trial court. The court held the defendants were acting within ...

Embattled Private Probation Company Ceases Operations

by Derek Gilna

In July 2016, Pathways community Corrections, a private probation company, announced that it had voluntarily ceased operations in Tennessee following a series of complaints, a federal lawsuit and an investigation by state officials that uncovered evidence the company had unfairly extracted money from poor probationers. According to Kevin Walter, communications director for the Tennessee Department of Commerce and Insurance, which filed a complaint against Pathways in 2015, “They no longer provide any private probationary services in Tennessee.”

Things started going bad for Pathways – formerly known as Providence Community Corrections – after a federal lawsuit exposed a scheme in which probationers were held in jail for lack of funds to post bail while wealthier offenders were allowed to bond out. A federal class-action filed by affected probationers in Rutherford County, Tennessee resulted in an injunction that prevented the company from issuing arrest warrants with a bond requirement when people couldn’t afford to pay. [See: PLN, Nov. 2016, p.42].

According to the lawsuit, Pathways engaged in a conspiracy “to funnel misdemeanor probation cases in which court debts are owed to a private company, which then extorts money out of individuals who have no ability to pay ...

“Beat Up Squad” at New York Prison Accused of Killing Mentally Ill Prisoner

by Joe Watson

A number of prisoners at the medium-security Fishkill Correctional Facility in upstate New York swore under oath that fellow prisoner Samuel D. Harrell III was kicked and beaten to death by as many as twenty guards in April 2015.

According to at least 19 signed affidavits, the prisoners watched as the guards shouted racial slurs, threw Harrell down a staircase and jumped on him “like he was a trampoline.” One witness wrote that Harrell was “bent in an impossible position” as he lay on the concrete floor.

“His eyes were open,” the statement read, “but they weren’t looking at anything.”

Harrell, a 30-year-old African American whose nickname was JRock, had told other prisoners earlier in the day that he would be going home and a family member was en route to pick him up. But he had a history of mental illness, including delusions and bipolar disorder, and actually had more than five years remaining on his sentence for a drug conviction.

After Harrell gathered his belongings to leave he was confronted by a group of guards, known to most Fishkill prisoners as the “Beat Up Squad,” who threw him to the ground ...

News in Brief

California: Ignacio Adrian Sobers Jr., 31, entered into a plea agreement in federal district court on February 9, 2017. He agreed to plead guilty to one count of acceptance of a bribe by a public official. The former guard at the U.S. Penitentiary in Victorville was accused of providing a prisoner with MP3 players, pornographic magazines and pornographic movies, all considered contraband, in exchange for $1,000. “With the full knowledge that his conduct was illegal and posed a threat to the security of the prison, this defendant betrayed his oath to the United States by accepting a bribe in exchange for smuggling contraband to a prisoner,” said U.S. Attorney Eileen M. Decker.

California: Prisoner Howard Webber operated a tax fraud scheme for two years while incarcerated at San Quentin State Prison, the Santa Clara County Jail and Milwaukee Secure Detention Facility. Along with an outside accomplice, Clifford Bercovich, Webber stole the identities of around 700 fellow prisoners and used their personal information to file fraudulent tax returns. The scheme netted Webber and Bercovich more than $600,000. On January 24, 2017, Webber was convicted of mail fraud, conspiracy to commit mail fraud and wire fraud; he ...


 

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