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Prisoner Education Guide

Prison Legal News: January, 1992

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Volume 3, Number 1

In this issue:

  1. Police Chief Faces Conspiracy Count (p 1)
  2. Prison/Community Alliance Update (p 1)
  3. Racial Discrimination in Prison Challenged (p 2)
  4. Politicians Exploit Death Penalty (p 2)
  5. Editorial Comments (p 2)
  6. Election Year Demagoguery (p 3)
  7. Prison Homophobia Challenged (p 4)
  8. Prison Population Up, Escapes Down (p 4)
  9. Receiving State is Agent of Sending State; Qualified Immunity Examined (p 4)
  10. Four Cons Die in Missouri Jail Fire (p 4)
  11. Alaska Con Has Liberty Interest in Prison Job (p 5)
  12. HIV-Positive Cons Win Partial Victory (p 5)
  13. Geronimo Pratt Wins Injunction Against Future Harassment; Loses Drug Trafficking And Possession Appeal (p 5)
  14. Prison's TB Response Legally Inadequate (p 6)
  15. U.S. Prisons Accused of Human Rights Abuses (p 6)
  16. Deadly Strain of TB Found in New York Prisons (p 6)
  17. Federal Prisoner Gets Medical Records (p 6)
  18. Incarceration Rate Grows in First Half of 1991 (p 6)
  19. State Prison Systems Emulate Marion Control Unit (p 7)
  20. Non-Specific Infractions Violated Due Process (p 7)
  21. IMU's and Controlled Feeding at CBCC (p 8)
  22. Chilean Political Prisoners End Hungerstrike (p 9)
  23. Canadian Officials May End Ban on Sex Between Prison Inmates (p 9)

Police Chief Faces Conspiracy Count

Cross City, FL (11/91) - Charges of conspiracy to commit perjury have been lodged against the Cross City police chief and a state correctional officer who are accused of arranging for a man to impersonate an inmate during hearings of prison brutality charges.

The impostor posed as a prisoner who had brought brutality allegations. He testified under oath that the beating never took place.

Police Chief Tommy Lee Carter, 46, and Department of Corrections Lt. David Leslie Sanders, 35, were arrested Tuesday by Florida Department of Law Enforcement agents and charged with one count of conspiracy to commit perjury and three counts of paying another person to commit perjury.

Prison/Community Alliance Update

The Prison/Community Alliance (P/CA) has made progress. It now appears we will be able to have legislation proposed directly to the legislature this January. If this happens we will not be doing the initiative for the November 1992 election.

A sequence of events has shown we have the much-needed support in Olympia to help us meet our goal of having all offenders sentences adjusted to the SRA. The meeting on Friday, Dec. 6, 1991 before the Human Services Subcommittee on Corrections was extremely successful. It is still not a sure bet, but we have a much better chance to succeed now than we did.

Last November P/CA was contacted by former Rep. Doug Sayan who was at one time supportive of the Indeterminate Sentence Review Board (ISRB). He has taken a further look into the problems of the ISRB and is now helping us. His knowledge of the ISRB and his change in position has legislators in Olympia listening to him.

We have been told this is the first time organizations have testified before the House subcommittee in regards to the ISRB. Testimony prior to this was from individuals about individual problems. The P/CA was only ...

Racial Discrimination in Prison Challenged

Racial Discrimination In Prison Challenged

New York's Elmira Correctional Facility is plagued by racism toward prisoners in the areas of job placement, housing assignments, and discipline, the U.S. District Court for the Western District of New York held. Relying on both anecdotal and statistical evidence, the court found that whites tend to be assigned to the institution's more desirable housing blocks, to receive the best jobs, and to be disciplined less frequently, as compared with black and Hispanic prisoners.

The court also found that racism has played a part in officials' decision making on these topics, and that high level officials named as defendants are personally responsible through their failure to remedy conditions about which they had knowledge. After rejecting the officials' arguments that changes in policy and personnel have made the case moot, the court ordered the parties to meet to try to devise an injunction. See Santiaigo v. Miles, __ F.Supp.__ (WDNY, 1991), 50 Cr.L. 1112 (10-30-91).

Politicians Exploit Death Penalty

State-level lawmakers are using proposed death penalty legislation for political purposes rather than to deter crime, said the National Coalition to Abolish the Death Penalty on October 9, 1991.

The group released its annual survey of state legislation on the volatile issue, finding 183 bills in 41 states relating to the implementing, expanding or repealing of capital punishment.

"This legislation is not introduced because our elected lawmakers want out streets to be safer, but because they want to inflame and polarize the votes," said Leigh Dingerson, director of the group. "Our elected officials spend vast amounts of time and energy engaging in an ultimately self-indulgent game of drafting and sponsoring death penalty legislation, not because it's good law, but because it's perceived as good politics.

An example of such a law might be the one introduced in Texas that calls for executions to be "carried out at noon on the courthouse steps in the county where the offense occurred."

Dingerson said the bills filed this year were rarely debated and rarely passed but they are a harbinger that the death penalty will be used in the forthcoming elections campaigns. She said the death penalty is becoming a so-called ...

Editorial Comments

By Ed Mead

Welcome to issue number one of the third volume of the Prisoners' Legal News. Paul and I are starting our third publishing year with a major trimming of the newsletter's mailing list. You should be sure to look at the address label on the last page of this issue. If the label has "Final Notice" or "Last Issue" printed on it, then you will be dropped from the mailing list unless we hear from you soon. A Last Issue notice means that you have received the PLN for some time, but have not recently communicated with or otherwise supported the paper. Such notices are the only means we have of making room for new readers, as our mailing list has a fixed ceiling we cannot yet afford to increase.

Paul and I are pleased to have a mailing list that contains so many generous and dedicated people. Your ongoing expressions of support make it an enjoyable experience for us to publish the PLN each month. Yet we do have a few of the other kind of readers; the ones who want us to work on their personal cases, do legal research on their convictions, mail photocopies ...

Election Year Demagoguery

Washington State attorney general Ken Eikenberry has announced that he will be running for the governor's office on the Republican Party ticket. Eikenberry has been attorney general since 1980 and is serving up a typical Republican economic program with regards to turning the state economy around, i.e., no new taxes (where have we heard that one before), easing environmental laws and some vague measures.

Of interest to prisoners is Eikenberry's "anti-crime proposals." Eikenberry is a former FBI agent. He is telling voters he will push for mandatory anti-drug testing in state prisons. Apparently Mr. Eikenberry isn't very familiar with what his office is doing because the Washington DOC already has a mandatory drug testing program and his office defended the constitutionality of that program (and won) before the state Supreme Court in 1987. Could Mr. Eikenberry be preying on the voters fears and trying to capitalize on citizens ignorance of the prison system? Or is he just shooting from the hip?

His other proposals include "creating a board to review early releases of prisoners." This is when the Sentence Reform Act has been the law since 1984 which abolished the parole board and sets a fixed ...

Prison Homophobia Challenged

A prisoner in a state prison filed a federal civil rights lawsuit complaining that he was removed from his job as a prison bakery worker because he is a homosexual. The federal trial court, in determining whether the prisoner should be allowed to proceed with his lawsuit as a pauper, ruled that this claim was not frivolous.

The court rejected the prisoner's argument, saying Title VII of the Civil Rights Act of 1964, prohibiting sex discrimination in employment, applied in this case, holding that the term "sex" used in the statute refers to gender, not to sexual orientation. Additionally, it found that the lawsuit did not state a due process claim, since a prisoner has no right to be assigned to a particular prison job.

However, the court concluded that the suit might state a valid equal protection claim, since the question of whether claims of discrimination because of homosexual orientation will support a valid equal protection claim "is a subject of some current debate." The inmate was therefore granted permission to proceed as a pauper. See, Kelley v. Vaughn, 760 F.Supp.161 (W.D. Mo. 1991).

Prison Population Up, Escapes Down

According to a poll conducted by Corrections Compendium magazine, there were fewer escapes in 1990 than in 1989. In 1989, there were 7,816 escapes reported from 48 states (1.33%). In 1990, those same systems reported 7,244 escapes (1.11%) - a decrease of 572 at a time when prison populations were growing by more than 60,000. Figured in proportion to the inmate population, the escape rate has been going down since 1984 (when it was 1.93%). No reason was given for the decrease in the number of escapes.

The survey found that five private citizens were killed by escaping inmates during the two-year period (over 15,000 escapes). Five inmates died while escaping. Three were from auto accidents, one drowned, and the fifth was crushed to death while trying to escape from a Nevada prison in a garbage truck. Most systems reported no violent incidents as a result of escapes.

Most escapes were from minimum or community custody, where escape is easier. Only a small number of escapes took place from medium or maximum security institutions - 428 in 1989 and 327 in 1990. In 1990, California had the highest number of escapes (1,406), while Oregon ...

Receiving State is Agent of Sending State; Qualified Immunity Examined

Receiving State Is Agent Of Sending State; Qualified Immunity Examined

An Iowa prisoner was under punitive segregation when he was transferred to the Texas prison system and released to the general population. When he was later transferred back to Iowa, the prisoner was returned to punitive segregation, without a hearing. The prisoner filed a civil rights complaint pursuant to 42 U.S.C. 1983, arguing that his release into general population in Texas constituted an exoneration of his disciplinary sentence. The district court agreed on the due process issue, but held that prison officials had qualified immunity (barring the prisoner's claim for damages).

On appeal the U.S. Court of Appeals for the Eighth Circuit upheld the lower court's finding that the prisoner's due process rights were violated, but reversed the district court's finding of qualified immunity. In upholding the due process claim, the appeals court agreed that release into the general population of the receiving state is equivalent to a release into the general prison population in the sending state, in "that the receiving state acts solely as an agent for the sending state." Thus Iowa was bound by the actions of its agent, Texas ...

Four Cons Die in Missouri Jail Fire

Four Cons Die In Missouri Jail Fire

A fire that started in a malfunctioning generator sent thick smoke billowing into the Taney County Jail in Forsyth, MO, last September 14th, killing four prisoners. Thirteen other prisoners were hospitalized for smoke inhalation.

The fire began when an extension cord connected to a battery charger on an auxiliary generation short-circuited. Electrical power was lost because of the short circuit, and the jail's electronically controlled cell doors would not open.

Inmates were trapped in their cells until fire fighters arrived with air masks and used special tools to open each cell. The fire never spread to the jail itself.

Alaska Con Has Liberty Interest in Prison Job

An Alaskan prisoner was subjected to a random urine test using the Enzyme Multiplied Immunoassay Technique (EMIT). He tested positive for marijuana use. Immediately after the test results came in, and without a disciplinary hearing, the prisoner was removed from his job in correctional industries. He was subsequently found guilty on an infraction charging him with drug use. The finding of guilt was based solely on the alleged positive EMIT result.

The prisoner then filed a suit in state court, claiming the existence of a protected liberty interest in continued participation in the prison industries work program. He said he was denied due process when he was withdrawn from the program based only on the positive EMIT test, without a hearing or an opportunity for a retest. The trial judge dismissed the case, saying, "[t]he plaintiff has no interest in his position of prison employment with the state that rises to or receives constitutional protection". The lower court then cited several federal cases that established the absence of any liberty or property interest in prison employment.

The Supreme Court of Alaska reversed, holding that under Alaskan law prisoners do have an enforceable interest in continued participation in rehabilitation programs ...

HIV-Positive Cons Win Partial Victory

In a significant victory for prisoners who have been tested positive for the Human Immunodeficiency Virus (HIV), the virus that causes AIDS, the U.S. Court of Appeals for the Eleventh Circuit reversed a lower court order in a case that had challenged the prisoners' conditions of confinement. Prisoners who have tested HIV-positive had brought the suit, which the appeals court sent back to the lower court for further proceedings.

The court ruled that the federal Rehabilitation Act requires Alabama prisoners infected with HIV be considered "handicapped." They therefore cannot be arbitrarily excluded from programs and activities under section 504 of the Act.

The appeals court also held that the trial court may have erred in dismissing the prisoners' claim that they were denied adequate access to a law library and other legal resources. The court, however, denied claims made by prisoners that medical care was inadequate and that their rights of privacy were violated by Alabama's mandatory segregation of HIV-positive prisoners.

Section 504 of the Rehabilitation Act prohibits a federally funded state program from discriminating against a handicapped individual solely on the basis of the handicap.

The court concluded that HIV-positive prisoners were " handicapped" within the meaning of ...

Geronimo Pratt Wins Injunction Against Future Harassment; Loses Drug Trafficking And Possession Appeal

Elmer "Geronimo" Pratt is a political prisoner convicted after an FBI COINTELPRO frame job of murdering a school teacher during an alleged robbery attempt of the victim and her husband on a Santa Monica tennis court. Pratt has consistently maintained that the FBI framed him for the murder because of his political activities in the community. That was over twenty years ago. Today Pratt was unsuccessful in making a similar claim with respect to a prison disciplinary committee that found him guilty of marijuana possession and drug trafficking. The federal court hearing the case ruled that Pratt's claim of retaliatory motive for the charges was "not well-taken." According to the district court's opinion, one of the informants in this case told prison officials that on two occasions Pratt had arranged to have packages containing marijuana sent, under fictitious names, to Receiving & Release (R&R). Once the drugs arrived, the informant purportedly retrieved the drugs, keeping a portion of the package for himself, and smuggled the rest to the yard. Besides Pratt, the informant implicated another inmate in a similar scheme and accused yet another of smuggling.

Pratt was placed in segregation and his cell searched. Cops claim to ...

Prison's TB Response Legally Inadequate

Prisoners at a Minnesota correctional facility filed a class action lawsuit challenging the tuberculosis screening and control procedures at the prison as so inadequate that they constituted cruel and unusual punishment in violation of the eighth amendment. The trial court agreed with the inmates, but denied an injunction because it ...

U.S. Prisons Accused of Human Rights Abuses

An international human-rights group recently charged that the U.S. prison authorities are engaging in "numerous human-rights abuses" through the increasing use of " super maximum security" prisons modeled after the federal prison in Marion, Ill. Condemning what it called the "Marionization" of the nation's prison system, Human Rights Watch said in a new report that 36 states have created such prisons - rigidly regimented institutions in which inmates are usually confined in solitary cells with few opportunities for exercise or contact with other inmates.

In some cases, Human Rights Watch charges, these state institutions violate international standards for the treatment of prisoners adopted by the United Nations.

Deadly Strain of TB Found in New York Prisons

Deadly Strain Of TB Found In New York Prisons

[Editor's Note: The following article is reprinted from the November 15, 1991, issue of "The Colombian."]

A virulent new strain of tuberculosis has killed 12 inmates and one guard in the New York state prison system and poses a "deadly threat" across the nation, the state prison chief said today. Corrections Commissioner Thomas Coughlin said the TB strain was drug resistant.

Four inmates died at the university Hospital of the Health Science Center in Syracuse, and eight died at St. Clare's Hospital in New York City. The guard who died was assigned to watch the inmates being treated in Syracuse, Coughlin said.

"My concern is not only the 28,000 employees of this department, but their families and their communities. I am also concerned for the health of the 60,000 inmates, their visitors, their families and their communities," Coughlin continued.

"This new strain of TB has been identified in other parts of the nation, and is a new and deadly threat to all of us," said Coughlin. "It is an airborne bacteria that can be spread by acts as common as coughing."

The TB strain was confirmed in ...

Federal Prisoner Gets Medical Records

A federal prisoner filed a request for his medical records under the U.S. Privacy Act, 5 U.S.C. 552a. The Bureau of Prisons (BOP), released 56 pages of the prisoner's medical file, but withheld the remaining 66 pages of files, which contained the evaluations and opinions of the physicians who treated him. The U.S. District Court ordered all of the records disclosed, saying: "The BOP's actions in this case ... are inconsistent with the requirements of the Privacy Act. The intention of the Act is to enable any individual to gain access to his record or to any information pertaining to him.' The Act specifically requires agencies to produce medical records."

In addressing the BOP regulation used to justify the withholding of certain medical records, the court ruled that the administrative regulation violated the statutory law. The Privacy Act, the court continued, "permits agencies to devise 'special procedures' for disclosure of medical records, but the purpose of such procedures must be to protect the individual's privacy from intrusion by others, not to withhold records from the person who is himself the subject of the records."

The court then took the unusual step of granting summary ...

Incarceration Rate Grows in First Half of 1991

Incarceration Rate Grows In First Half Of 1991

The nation's state and federal prison population grew by 30,149 inmates, just under four percent, during the first half of1991 to reach a record 804,524 men and women as of June 30, the U.S. Justice Department's Bureau of Justice Statistics announced on October 13. This increase was the equivalent of about 1,160 more inmates every week

During the first half of last year, the federal prison population grew by 3.1 percent, compared to an increase of 4 percent among the 50 states. Prisoners in the Western states increased by 5.1 percent during the first half of the year, compared to a 4.2 percent increase in the Northeast. Southern and Midwestern prisoner counts grew by 3.5 percent. Four states recorded double-digit half-year increases - Rhode Island by 14.3 percent; New Hampshire, 11.6 percent; Nevada, 10.6 percent; and Colorado, 10 percent. Washington State had a prison population growth rate of 9.5 percent during the first six months of 1991.

During the first half of the last year the number of female inmates in state and federal prisons grew 4.5 percent ...

State Prison Systems Emulate Marion Control Unit

By Faw Dowker and Glen Good

Inspired by the Federal Bureau of Prisons' seven year experiment with a super-maximum security "control unit" prison at Marion in southern Illinois, state prison systems across the country have begun operating their own similar facilities. Control unit prisoners are subjected to nearly round-the-clock cell confinement and other draconian "security measures." Together, these measures impose on prisoners a regimen of near-total isolation, inescapable boredom, and often, physical brutality. This proliferation of control unit prisons is accelerating as the nation enters the third decade of spiraling imprisonment rates and a more openly vindictive administration of "justice." Poor people, and particularly people of color, bear an overwhelmingly disproportionate share of the resulting misery, both behind the prison walls and in the society at large.

The control unit concept was first implemented in H-Unit at Marion Federal Penitentiary in 1972, when prisoners protesting the guards' beating of Mexican prisoner Jesse Lopez were locked in nearly round-the clock isolation for years on end. During the 1970's, the most politicized and resistant prisoners from throughout the federal prison system were transferred to Marion. Their organized resistance, culminating in the longest prison work stoppage in U.S. prison history in ...

Non-Specific Infractions Violated Due Process

Two prisoners found guilty of participation in "violent group conduct" challenged the sufficiency of the evidence presented at their hearings to establish their guilt. The principal evidence utilized were written misconduct reports stating that all inmates present in a mess hall (numbering around 140) actively participated in a riot.

The highest court in New York has concluded that, "without some specificity as to the offensive conduct attributed" to these individual prisoners, the reports alone did not constitute "substantial evidence" of guilt. It therefore overturned the disciplinary determinations, with the results annulled and all references to the proceedings expunged from the prisoners' records.

The reports, by various observers of the disturbance, stated that "all inmates" in the mess hall threw objects, yelled, screamed, and rushed towards officers. Both prisoners admitted their presence in the mess hall, but denied participating in the disturbance. There was, additionally, a statement by a confidential inmate informant stating that one of the two inmates had been seen throwing trays and plates at officers.

The court noted that the Department of Correctional Services itself requires that every incident of inmate misconduct involving danger to life, health, security or property "be reported as soon as practicable, in writing ...

IMU's and Controlled Feeding at CBCC

IMU'S and Controlled Feeding At CBCC

As part of the continuing trend across the U.S. to open control units the Clallam Bay Corrections Center in Washington state has opened an Intensive Management Unit (IMU). Currently prisons at Shelton, Wa. and Walla Walla, Wa., have IMU's. The physical set up at CBCC is identical to that of the Shelton IMU and the segregation unit had in fact been operated with more restrictive conditions than either of the other IMU's, even through the CBCC facility was not formally an IMU. With increasing overcrowding and repression throughout the Washington state prison system the opening of yet another IMU is an attempt to control and intimidate the prison population.

CBCC is currently preparing to nearly double the prison population from 570 to nearly 900 prisoners. Double bunks had already been installed in all of the prison cells and now mattresses been provided as well. CBCC now has 740 prisoners.

A new practice being used, based on a similar program developed in the Missouri state prison system is that of "controlled feeding." If this sounds like something farmers use to feed animals, the analogy is appropriate. Prisoners at CBCC now go ...

Chilean Political Prisoners End Hungerstrike

On November 13, 1991, four Chilean political prisoners ended a 44-day hungerstrike. 24 hours after a street demonstration supporting them had culminated with the detention of 252 people by police. The announcement was formulated by the hungerstrikers themselves in the hospital where they were interned over the weekend due to the seriousness of their health needs.

"From it's first day the strike was defined as an action of protest and denunciation without pretending to obtain our liberty with this action" they said in a declaration.

They questioned " a government that preferred to use the same laws with which the dictatorship tried us and which has refused to consider a law of procedural nullity which would take into account the fact that all of our trials and processes are tainted because they originated under torture." The communiqué also strongly criticized the parliament and the judiciary and remarked that "the struggle for the liberty of the political prisoners is now in the hand of the people."

The prisoners who suspended the strike are being processed for actions taken against the military regime headed by Augusto Pinochet between Sept. 11, 1973 and March 11, 1990.

The strike was to demand that trials ...

Canadian Officials May End Ban on Sex Between Prison Inmates

Canadian Officials May End Ban On Sex Between Prison Inmates

by Rod Mickleburgh

Toronto Globe and Mail

TORONTO - Canadian federal corrections officials are considering an end to the ban on sex between prisoners, in light of the government's decision to make condoms available.

The issue has arisen because the new policy will put prisons in the odd position of handing out condoms to prisoners who may not legally use them.

"We're aware of this dichotomy, and we are looking at changes," said Dr. Jacques Roy, director general of healthcare services for Corrections Canada.

Roy said yesterday that sex between prisoners has always been considered a violation of the federal Penitentiary Act on the grounds that it disturbs "good order and discipline" in the prison.

"But now we are wondering whether this interpretation of the act will still stand. We're asking for new legal advice." Corrections communications director John Vandoremalen said sexual activity "is a disciplinary offense within the institution, but that is starting to be questioned. By providing condoms, we are acknowledging the existence of homosexual relations in our prisons. We are not condoning it, but we can't stick our heads in the sand."

He said ...


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