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Prisoner Education Guide

Prison Legal News: March, 1992

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Volume 3, Number 3

In this issue:

  1. The Continuing Racism Against Black Pre-SRA Offenders (p 1)
  2. Prison Radio Program Available (p 2)
  3. Taking of Property May State Federal Claim (p 2)
  4. 'Partial Victory' In Attica Prisoners' Case (p 2)
  5. Probation and Parole Figures Up Again (p 3)
  6. Legislative Update (p 3)
  7. Detainee's Beating is Cruel and Unusual (p 4)
  8. Status of Monroe's Litigation Against Double Bunking (p 4)
  9. Prison Visitor May Not Be Unreasonably Searched (p 5)
  10. The Protection of the Law (p 5)
  11. New York Installs 3,000 Prison Beds (p 5)
  12. Editorial (p 6)
  13. Unsuccessful Litigant Can Be Obligated to Pay Defendant's Cost (p 6)
  14. Constitutional Right for Cons to Buy Lottery Tickets? Federal Court Says Nyet (p 6)
  15. Prisoner Must Be Informed of HIV Status (p 7)
  16. People's War in Peru (p 8)
  17. Credibility of Informants Must be Weighed (p 8)

The Continuing Racism Against Black Pre-SRA Offenders

By Leland Jordan

As most readers know, effective in July of 1984, the State of Washington moved from an indeterminate sentencing scheme to a determinate one. It did so in part on the basis of the conclusions reached by numerous studies of Washington's criminal justice system. These studies concluded that Blacks were in fact discriminated against at all levels of law enforcement, i.e., from arrest to courtroom, to consideration (or lack of consideration) for parole or for probation, to prison, and that once imprisoned, Black prisoners were serving more time for the same crimes as committed by Whites.

What this meant is that Blacks were the first to come to prison but the last to leave. That we were denied probation in instances where it was granted to Whites of similar status. That we were ten times more likely to be arrested, ten times more likely to be charged with a crime, and ten times more likely to be given a prison sentence, as a similarly situated White person. The studies concluded that the single reason for these disparities was racism.

The Sentencing Reform Act (SRA) effectively placed all prisoners, Black and White, who committed crimes after July ...

Prison Radio Program Available

Women Against Imperialism and Out of Control have produced a 13-part radio program dealing with the American prison system and political prisoners within it. The program has already aired in San Francisco and they are now seeking to distribute it nationally and internationally for a wider airing and distribution.

The series consists of: Historical Perspectives, A Crisis in Prisons: General Conditions, Black and New Afrikan Political Prisoners, Antiwar Imprisoned Activists, Native American Political Prisoners, Plowshares Activists, Repression and Grand Juries, White Anti-Imperialist Activists, Puerto Rican Political Prisoners and Prisoners of War, International Issues, Control Units and Lockdowns, Women Who Kill in Self Defense, and Activism Inside and Outside of Prison.

So if you know of any radio stations in your area who would be willing to air the national distribution version of this program when it comes out please contact W.A.I. They also need to get word of the series availability publicized so feel free to reproduce and distribute this blurb in other publications. For information contact: Noelle Hanrahan, Prison Radio Project, c/o 2420 - 24th Street, San Francisco, CA 94110.

Taking of Property May State Federal Claim

Colorado prison officials confiscated a state prisoner's stereo and refused to return it to him. Freeman, the prisoner, filed several administrative grievances with no success. He filed suit in small claims court and defendants did not respond, and when he sought default judgement the state court never answered. Nine months after he filed the suit, prison officials induced him to dismiss it by promising to return his stereo. They did not return it.

Freeman then filed suit under 42 U.S.C. 1983 in federal court claiming deprivation of his property without due process. The district court dismissed the suit. In doing so it cited Hudson v. Palmer, 468 US 517, 533-36, 104 S. Ct. 3194, 3203-05 (1985), which held that state officials taking an individual's property did not implicate the due process clause as long as there was an adequate state post deprivation remedy.

The Court of Appeals for the Tenth Circuit reversed the dismissal and remanded the case back to the lower court. The court held that Freeman had set forth specific facts stating that effective state remedies were denied to him and thus his only effective avenue of relief lie in a 1983 filed in ...

'Partial Victory' In Attica Prisoners' Case

From: Workers World Newspaper

A bitterly divided jury returned a mixed verdict Feb. 4 in the lawsuit by former inmates at Attica Prison against four former New York state officials. The suit by the Attica Defense Committee grew out of the bloody, murderous assault by the state against unarmed prisoners in 1971.

After three months of dramatic testimony and four weeks of turbulent deliberations, the nine-member jury found Deputy Warden Karl Pfeil liable for the violence unleashed against the prisoners. But jurors deadlocked on liability of three other state officials who held greater authority.

Juror Lafayette Smith, a teacher, told reporters she felt all the defendants should have been held liable. "I don't think justice was served. I can't go back to my classroom and teach justice."

Akil al-Jundi, a leader in the historic prison rebellion, told reporters: "We've got a partial victory in that we got Karl Pfeil. It would have been momentous to have gotten Oswald and Mancusi or one of the other big fish." Lawyers for the prisoners vowed to appeal the verdicts and press for a new trial on the deadlocked decisions.

In January, Judge John Elfvin had left for a month-long Caribbean ...

Probation and Parole Figures Up Again

Probation And Parole Figures Up Again

It should come as no surprise to PLN readers that all statistics relating to crime and punishment are on the increase. The 1990 probation and parole figures recently released by the Bureau of Justice Statistics contains no surprises.

During 1990 the number of adults on probation or on parole increased to record high levels. State and federal agencies reported that 2,670,234 adult offenders were on probation and 531,407 were on parole - an estimated 1.7% of all adults in the United States. The number of men on probation or parole was about 3% of all adult males.

The estimated total of adults in the nation under some form of correctional supervision, including those in local jails or state and federal prisons, reached a new high of over 4.3 million - an increase of about 7% since 1989 and 44% since 1985. An estimated 1 out of every 43 adults in the U.S. were under some form of correctional supervision on a given day in 1990. One in every 24 men and 1 in every 162 women were being supervised.

The probation population in 1990 showed a 5.9% gain over ...

Legislative Update

By Carrie Roth, Prison/Community Alliance

As most of you already know, until last November we were planning on trying an initiative to the people which would eliminate the Indeterminate Sentence Review Board. If we had gotten 150,001 signatures within a specified period of time, we could have put this issue before the voters in the November 1992 election.

Then, in November, 1991, we were contacted by former Representative Doug Sayan. He wanted to know why we weren't going the legislative route. We told him we weren't sure how to do it. He said he would help. On Dec. 6, 1992 we were among several organizations and individuals who testified before the House Subcommittee on Corrections. We realized then that we had a lot of support in Olympia. A draft bill was written and introduced to the Subcommittee as HB 2834. It passed and then went to Human Services. Kit Bail, Chair of the Indeterminate Sentence Review Board (ISRB), attached a $10 million fiscal note to it. In other words, she was saying that it would cost $10 million to do the conversion from the ISRB to the SRA. Whether or not this was true, this caused ...

Detainee's Beating is Cruel and Unusual

Detainee's Beating Is Cruel And Unusual

Marcus Miller was a detainee in the Tulsa, OK, jail when he was ordered out of the jail law library. Miller refused and jail guards knocked him to the floor, handcuffed him and put him in a holding cell where they beat, kicked, stomped and choked him. Miller was taken to his cell and chained to his bunk and the bars of his cell. Miller filed suit under 42 U.S.C. 1983 and the district court dismissed the suit for failure to state a claim.

The Court of Appeals reversed in part and affirmed in part. The court held that the lower court had erred in considering matters beyond the pleadings when it dismissed Miller's suit; the lower court should have converted it into a motion for summary judgement and given Miller notice of the change and an opportunity to present evidence on his behalf.

The Court held that because Miller wrestled with jail guards when ordered out of the law library, their actions in subduing Miller were reasonable.

However, Miller complaint that he was beaten, kicked, stomped and choked after he was subdued and handcuffed does state a claim under ...

Status of Monroe's Litigation Against Double Bunking

By Ed Mead

Bob Stalker, the Washington state attorney for Monroe prisoners on their suit against double bunking, recently visited that prison to discuss the current status of the Litigation with inmate club heads and the Resident advisory Council (RAG). The meeting lasted for approximately two hours, during which Mr. Stalker explained the current legal position and discussed strategies.

In January the U.S. Supreme Court handed down a decision making it easier for states to set aside or modify consent decrees, but the new ruling was not nearly as bad for prisoners as it could have been. Stalker said that although our legal position is now worse than it was before the high court's ruling, we are still in pretty good legal shape. Where before prisoners had something in the neighborhood of an 80 or 90 percent chance of success, he said the odds of prevailing are currently around 60 to 70 percent in the U.S. district court, and a bit less than that on any appeal to the court of appeals.

The club heads and RAC voted unanimously to have Mr. Stalker continue with the legal struggle to defend the consent decree against further state encroachment ...

Prison Visitor May Not Be Unreasonably Searched

Dawn Cochrane filed suit under 42 U.S.C. 1983 claiming her fourth amendment right to be free from unreasonable searches was violated when she was told to submit to a strip search or she would never be allowed to visit her father in prison again. Cochrane had visited her father in Rhode Island prisons for many years with no problems. Her father had previously overdosed on cocaine and when questioned by the police had told them it was supplied to him by defendant Quattrocchi, a prison official. After which Quattrocchi threatened him. The district court directed verdicts in favor of the defendants, holding there was no fourth amendment violation because Cochrane had consented to the search and it was reasonable in scope.

The Court of Appeals for the First Circuit vacated the ruling and remanded the case for a new trial.

The court of appeals held prison visitors retain fourth amendment rights to be free from unreasonable searches and seizures. The court held that a prison visitor confronted with a choice of submitting to a strip search or foregoing a visit cannot provide legally cognizable consent to a search. The court also held that it was the choice itself ...

The Protection of the Law

The Protection Of The Law

By Bill Dunne

There are lots of laws on the books that say the various agencies of the government must do (or not do) this or that for the governed, from whom the "just powers" of those agencies purportedly derive. Two primary principles of democracy are that these laws apply equally to all people regardless of wealth, race, religion, condition of servitude, etc. and that no person or group can be deprived of the benefits these laws supposedly guarantee without due process. Such principles, however, live only in popular political mythology; real rights are dependant on the power to enforce them, as the following illustrates.

28 USC Sec. 1821(a)(1) mandates payment of witness fees to any witness in attendance on any federal court or before any person authorized to take a deposition pursuant to any rule or order of a federal court. Pursuant to Federal Rule of Civil Procedure 30(a), all depositions by prisoners are by leave of the court. "Attendance" means not only actual on-the-stand testifying time, but also time spent in travelling to and from court and waiting to testify, even if it turns out that the witness is not ...

New York Installs 3,000 Prison Beds

New York installs 3,000 Prison Beds

In December the New York state DOC began installing 3,000 new bunks in 10 prisons as part of a $40 million emergency program designed to help with overcrowding. The state also hired 760 new guards, many of whom had been laid off in 1991.

The new bunks will be placed on top of existing beds in medium security prisons. There will be no double bunking in maximum-security prisons. State DOC officials said the emergency double bunking plan was intended to reduce a backlog of 3,000 sentenced prisoners in New York City jails awaiting transfer to the DOC.

From: Corrections Today


Editorial Comments

By Ed Mead

Don't be discouraged if not much in the way of struggle is taking place at your prison, as it isn't happening here either. The political situation in your joint is probably pretty much the same as it is at institutions all across the nation. Maybe there is more prisoner-on-prisoner violence or guard brutality at one place or another, more or less filth or crowdedness, but the bottom line is that there really is not much taking place in terms of solidarity or struggle on the inside.

Of course it was not always that way. Old timers who did bits back in the late '60s and early '70s will remember what it was like in those days, when there was a progressive movement on the outside and prisoners had a sense of direction and purpose.

I don't see the present state of things changing in any significant way until there is once again a viable mass movement on the streets. It was the existence of the anti-Vietnam war struggle on the outside that worked to instill a sense of radicalism and resistance in the nation's prison system. We on the inside trail ...

Unsuccessful Litigant Can Be Obligated to Pay Defendant's Cost

Unsuccessful Litigant Can Be Obligated To Pay Defendant's Costs

Three Michigan state prisoners filed suit and were granted permission by the district court to proceed in forma pauperis, without the prepayment of fees or court costs. The case was dismissed on defendant's motion for summary judgment, and the dismissal was affirmed on appeal. The prison official defendants then moved for imposition of $128.00 in costs to be taxed against the plaintiffs' prison accounts (which held 94¢, $3.00 and $34.00). The district court granted the motion. The court of appeals for the 6th circuit appointed counsel to represent the plaintiff prisoners on this issue, then affirmed the contested taxation of costs and remanded the case back to the lower court.

The court of appeals held that 28 U.S.C. 1915(d) only allows actions to be initiated without prepayment of costs and does not forever defer payment of these costs and indigent plaintiffs may eventually have to pay those costs.

The court found there was no chilling effect on prisoner litigation resulting from the imposition of costs and it also rejected a challenge to the practice based on the first amendment. The court held that ...

Constitutional Right for Cons to Buy Lottery Tickets? Federal Court Says Nyet

By Robert Pierce

To file or not to file, frivolousness is the question. Wisconsin prisoners answered the question by filing a lawsuit alleging that they were constitutionally entitled to purchase lottery tickets. The action stated that under the first amendment they had a right to buy state revenue enhancement lottery chances. The prisoners said they wished to express their love for their families by sending them lottery tickets. The court responded by noting that "lottery tickets are commerce, not speech. Inmates may say all they want about lotteries (or prison rules about lotteries) but the First Amendment has no more to do with buying lottery tickets than with buying chocolate from the prison commissary." See Aiello v. Kingston, 947 F.2d 834 (7 Cir. 1991).

Aside from spanking the convicts' claims, the court was essentially saying the "F" word (which in this case stands for frivolous) to jailhouse lawyers and litigants. For a further discussion of the subject of frivolousness in general see Neitzke v. Williams, 490 U.S. 319, S.Ct. 1827 (1989), which gives the test for deciding whether or not a claim is frivolous, malicious, repetitive, etc.

The issue of frivolousness is a delicate one for prisoners ...

Prisoner Must Be Informed of HIV Status

Prisoner Must Be Informed Of HIV Status

Tyrone McIlwain was a Virginia prisoner who overdosed on heroin and was taken to the Prince William hospital emergency room for treatment. Without his knowledge or consent, blood tests were performed which revealed he was HIV positive (HIV is the virus which causes AIDS). He was never informed of the test nor treated for the condition. He was returned to prison and eventually released, whereupon he infected his wife with the AIDS virus. Both filed suit under 1983 against the Virginia DOC, the hospital, the emergency room physician, and David Mathis - a doctor under contract to treat prisoners. The defendants moved for a summary judgement which the court granted in part.

The court dismissed the hospital as a defendant stating that it was not a state actor for 1983 purposes, as no contract existed between the hospital and DOC to treat prisoners, nor did the hospital routinely treat prisoners or have a policy denying treatment to prisoners.

The court denied summary judgement to Mathis because there were material issues of fact in dispute as to whether or not he knew of McIlwain's condition and refused to inform him of such.

The court ...

People's War in Peru

By Paul Wright

In 1980 the Communist Party of Peru (PCP, also known in the media as Sendero Luminoso or Shining Path) launched a popular war of liberation in Peru. The PCP is Maoist in orientation and receives no outside support from any country. In 12 years of guerrilla war, they have carried out over 120,000 armed actions and now control roughly one third of Peru's territory. The Peruvian government has responded to this situation with increasing repression and brutality. Peru leads the world in the number of "disappeared" (people taken by the security forces and never seen or heard from again), and in the number of political murders and kidnappings. The military rules some 60% of the country under harsh "state of siege" laws that have suspended press freedom, the right to counsel, court hearings, the closing of schools and universities, and so on.

Peru is experiencing an extreme economic crisis as a direct result of 500 years of capitalist "development" that has left the vast majority of the people living in misery and poverty, while a small minority is very wealthy. The government is unable and unwilling to provide basic services such as health care, schooling ...

Credibility of Informants Must be Weighed

Credibility Of Informants Must Be Weighed

Jerome Russell, a New York state prisoner at Greenhaven prison, was infracted for assaulting another prisoner. Three confidential informants submitted statements to prison officials identifying Russell and four others as the assailants. At his hearing Russell requested that the victim, the other four accused, two guards on duty at the time of the assault, and the three informants be called to testify on his behalf. The hearing officer refused to call all of his witnesses, although two did testify.

The defendants (prison officials) moved for summary judgement on all claims, which the district court granted in part. The court held that no reason was given by the hearing officer in refusing to call the prison guards as witnesses, and thus it was unclear if his actions were arbitrary or had a sound reason.

The court denied summary judgement to the hearing officer who did not conduct any inquiry into the credibility of the confidential informants.

In denying the defendants' motion for qualified immunity, the court held that it was well established in 1989 that a prisoner could not be found guilty of a disciplinary violation based on the testimony of confidential informants unless the ...


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