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Prisoner Education Guide

Prison Legal News: April, 1992

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Volume 3, Number 4

In this issue:

  1. Cross Gender Pat Search Policy Upheld (p 1)
  2. Qualified Immunity Granted in Digital Rectal Searches (p 1)
  3. Claims Regarding Conditions in State Prison Were Sufficient to Survive Summary Judgment (p 2)
  4. Prisoners' Participation in Work, Training Reduces Recidism, Improves Behavior (p 2)
  5. The Death of HB 2834 (p 3)
  6. Corrections Costs to Soar, Study Warns (p 3)
  7. Complaint Should Not Be Dismissed for not Complying with Local Rule (p 4)
  8. Mass Graves Found in Venezuelan Prison (p 4)
  9. Son of Sam Law Struck Down (p 4)
  10. PLN Reader Sends ACLU Finger (p 4)
  11. In Memory-Farewell Brother Riegle (p 5)
  12. Lifers Litigation Update (p 5)
  13. Guard Liable for Hitting Prisoner (p 5)
  14. Court Reporters Entitled to Absolute Immunity (p 5)
  15. Prisoner Entitled to Discover Identity of Attackers (p 6)
  16. Law Would Let Prison Mothers Keep Kids (p 6)
  17. Counsel Appointed in Denial of Telephone, Beating Claim (p 6)
  18. CBCC Publisher Only Rule Upheld on Qualified Immunity Grounds (p 6)
  19. Editorial (p 7)
  20. Informant Testimony Must be Independently Weighed (p 7)
  21. Feds Seek $2.2 Billion for Federal Prisons (p 7)
  22. Counsel Should Be Appointed in Religious Suit (p 8)
  23. U.S. Murder Rate Increases Again (p 8)
  24. NY Prisoner Has Due Process Right to Remain In Population (p 8)
  25. Information on Visiting Needed (p 8)
  26. Some Thoughts on Crime and Punishment Rates (p 9)
  27. Test for Appointed Counsel on 1983 Suits (p 9)
  28. PLN Benefit Tape (p 10)

Cross Gender Pat Search Policy Upheld

A Washington prison's policy of subjecting fully clothed female inmates to random "pat searches" by male as well as female guards does not violate the first, fourth, or eighth amendments, a majority of the Ninth Circuit Court of Appeals held. The Jan. 10th ruling set aside a district court injunction barring implementation of the policy. The key to the majority's decision was its rejection of the district court's finding that the cross-gender searches were without penological justification. Rather, the majority said, prison officials have justified the policy through testimony that requiring same-sex searches would conflict with guards' collective bargaining agreement, create security problems by requiring female guards to leave their posts to conduct the searches, and make the searches more predictable.

Inmates contended that the policy infringes their religious freedom, in violation of the first amendment, because their religious beliefs forbid them from being touched by men other than their husbands. However, the majority concluded that the policy is reasonably related to prison officials' legitimate interests in institutional security, and that it therefore passes muster under Turner v. Safley, 482 U.S. 78, 41 CrL 3239 (1987). Given the problems associated with a same-sex rule, that alternative ...

Qualified Immunity Granted in Digital Rectal Searches

Qualified immunity Granted In Digital Rectal Searches

In a case that may affect the many Washington state prisoners who were subjected to digital rectal searches, the 4th circuit court of appeals upheld a jury finding of qualified immunity for Arizona prison officials who had conducted such searches.

The court had previously denied prison officials qualified immunity in this same case at 859 F.2d 736 (9th Cir. 1988). The case arose when the Arizona State Prison warden received a letter from a prisoner stating that prisoners were hiding gunpowder and blasting caps in their rectums. Based on this information and the potentially explosive situation, the defendants initiated digital rectal searches of all prisoners in one unit which resulted in 17 balloons of gunpowder and detonator cord being recovered. Prison officials used a medical assistant to conduct the digital rectal searches in an open hallway with prison guards present laughing at the prisoners with no inquiry being made into individual prisoners medical history to determine if the searches would aggravate existing medical problems. Some of the prisoners were not allowed to clean themselves for an hour after the search.

At trial a jury found that the prisoners 4th and 8th amendment ...

Claims Regarding Conditions in State Prison Were Sufficient to Survive Summary Judgment

On December 30th the U.S. Court of Appeals for the Fourth Circuit provided some illumination as to what sort of allegations by an inmate regarding allegedly unconstitutional prison conditions are adequate to withstand a motion by prison officials for summary judgment. In so doing, the court decided that a North Carolina prisoner must be allowed to proceed to trial on his claim under 42 USC 1983 that a combination of overcrowding and unsanitary conditions at the prison where he was incarcerated added up to cruel and unusual punishment in violation of the Eighth Amendment. The decision is one of the first rulings on prison condition lawsuits in the wake of the U.S. Supreme Court's decision in Wilson v. Seller, 49 CrL 2264 (1991).

The plaintiff alleged that the totality of conditions at the prison - including overcrowded cells, broken plumbing, insufficient shower facilities, inadequate clothing and blankets, deteriorating walls and ceilings, and pest infestation - violated the Eighth Amendment. The district court dismissed the suit, finding that the factual claims failed to allege cruel and unusual punishment.

Although federal courts have consistently held that a totality of prison conditions can add up to an Eighth Amendment violation, Wilson restricted ...

Prisoners' Participation in Work, Training Reduces Recidism, Improves Behavior

Federal Bureau of Prisons announces results of study

Prison inmates who have jobs or receive vocational training while incarcerated are better prisoners and are less likely to commit new crimes or become parole violators once they are released, according to a study conducted by the Federal Bureau of Prisons. The study, begun in 1983 and called the "Post Release Employment Project," is based on data on over 7,000 federal prisoners. Its results were announced December 19 by the bureau's director, J. Michael Quinlan.

The study compared prisoners who did at least six months' work for Federal Prison Industries or received vocational training, or both, with a control group who had not participated in these programs. Of the control group, 10.1 percent had either been arrested or committed a technical violation of their release conditions after being out for a year. The comparable figure for the study group was 6.6 percent. Inmates in the study group were also more likely to remain employed; at the end of a year 71.7 percent of the study group inmates were still employed as compared to 63.1 percent of the control group. The study group inmates also earned slightly ...

The Death of HB 2834

The Death Of HB 2834

HB 2834 is dead. It almost made it through the legislative process but died when the Senate bogged down on the health care issue.

Originally the bill read that the Indeterminate Sentence Review Board (ISRB) would be eliminated as of July 1992. This was part of the "Get tough on Crime Bill" by Rep. Hargrove. Kit Bail attached a $10 million fiscal note to the bill and it appeared the bill would die in the House Appropriations Committee. That is when the 'bite' of the bill was lost.

The part of the bill eliminating the ISRB in 1992 had to be stripped out in order to get the bill out of Appropriations. An amendment was then written which was watered down. It would not change the 1998 date but would require the ISRB to write a detailed plan to 'go out of business' by 1998. It would have also eliminated the 'lack of rehabilitation' but would have added 'serious risk to community.' Some offenders would have gotten off parole earlier. It would have, at least, stopped some of the recycling of inmates back into the system for technical violations or for misdemeanors. The ISRB would ...

Corrections Costs to Soar, Study Warns

Corrections Costs To Soar, Study Warns

By Ed Penhale, P-I Reporter

Annual costs for running Washington's state and local corrections operations will rise by 50 percent over the next four years, adding $182 million a year to that expense by 1996, two corrections consultants said recently.

As state and local lawmakers grapple over how to spend public money in a period of declining revenue, the consultants' report raises policy questions of whether corrections operating costs can be reduced.

"It's a very tough situation for the Legislature to be in," said Christopher Murray, one of the authors of the report made public at a meeting of the Washington Council on Crime and Delinquency.

Unless state and local governments reduce prison and jail construction plans and divert a much higher percentage of offenders to community supervision programs, however, there's not much politicians can do about the rising costs, said Merlyn Bell, the other consultant involved in the state-funded study.

That's because 17 percent of all offenders in the state those who are in total confinement in jails or prisons account for 83 percent of total corrections operating costs, Bell said.

The remaining 83 percent who are on community ...

Complaint Should Not Be Dismissed for not Complying with Local Rule

Stephen Stackhouse, a former Pennsylvania state prisoner, filed a civil rights suit claiming he was denied due process and subjected to cruel and unusual punishment while in prison.

The defendants filed for dismissal and for summary judgement, Stackhouse did not respond as required by local district court rules. The district court dismissed the action as a sanction for failing to comply with the local rule.

The court of appeals for the third circuit reversed and remanded. The court held that before a lower court can dismiss a lawsuit it must examine the complaint and analyze it to determine if it fails to state a claim for relief under FRCP 12 (b) (6). Summary judgement should not be granted solely because it is not opposed.

The court of appeals noted that it had examined the complaint and that the complaint might well survive dismissal. The court held the complaint should be substantively considered by the district court. See: Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3rd Cir. 1991).

Mass Graves Found in Venezuelan Prison

Mass Graves Found In Venezuelan Prison

A common grave containing the remains of at least 40 prisoners was recently uncovered in a Venezuelan prison located in the central city of San Juan de Moros.

The discovery has raised serious questions about the country's judicial and prison systems. While the prisoners are accusing the National Guard (NG) of killing the men, the NG says the prisoners themselves are responsible.

According to NG officials, after an uprising that lasted for more than 3 months, prisoners took control of the prison and established a "peace tribunal" to judge and condemn prisoners who committed crimes.

Latinamerica Press, Jan. 30, 1992

Son of Sam Law Struck Down

New York's "Son of Sam" law provided that those accused or convicted of a crime could not profit from such a crime by writing a book describing the offense. If such a book was written, the proceeds of same were to be given to the state's Crime Victim's Board, rather than the prisoner. The law remained on the books until recently when admitted organized crime figure Henry Hill successfully challenged the statute in the U.S. Supreme Court. Hill wrote a book about his life of crime. The state concluded that the book violated the Son of Sam law and ordered all money earned from the sale of the book handed over to the Crime Victim's Board. The petitioner brought suit under 42 U.S.C. 1983, seeking a declaration that the law violates the first amendment and an injunction banning its enforcement. The district court upheld the law, and the court of appeals affirmed.

The U.S. Supreme Court reversed, holding that the Son of Sam law is inconsistent with the first amendment because it singles out speech on a particular subject for a financial burden that it places on no other speech and no ...

PLN Reader Sends ACLU Finger

Recently the PLN received a letter from Kataza Taifa, imprisoned at the Westville Control Unit in Indiana. It included a copy of the following letter he has sent to the Indiana branch of the American Civil Liberties Union: "Dear ACLU Board Members, Since for what I understand to be financial reasons, you couldn't/wouldn't help expose our inhuman treatment through court proceedings. I felt if the ACLU, after acknowledging some violations here, was just based on money values. I felt we here owed you some money for three trips in 1991. Since I/we have no finances to pay the ACLU I'm giving you something much more precious. Indigent human beings shouldn't have to suffer due to [a] lack of funds.... "How much is your price on decency? "How much is your price on humanity?

In case you have forgotten, we are human too! If we have violated your Amerikan standards then we should be immediately executed, not tortured and treated like laboratory rats. We are human too!

"Our struggle is in consciousness, theirs is in separating." Enclosed with the above letter was an Indiana DOC mail rejection form stating they had confiscated from Kataza's ...

In Memory-Farewell Brother Riegle

By John Perrotti

On January 10, 1992, our bother Mike Riegle succumbed to his 2-year struggle with the AIDS virus. Mike was a strong supporter of the prisoner and gay rights struggle, and for more than ten years put out the outstanding prison page section of the national Gay Community News. Mike also joined the Prison Book Program, in Jamaica Plain, Mass., eight years ago and used his wide-ranging connections to assist in funding and establishing a "How To Manual" to assist others in developing prison book programs.

I met Mike years ago, during one of our hunger strikes. He was always supportive of our struggles for better conditions in the gulags, probably because Mike had seen the inside himself. He was always there for us, be it to provide books, funds or moral support. I amongst many will sorely miss him. But Mike's spirit of resistance will live on. Farewell Brother, until we meet for the next battle.

[Editor's Note: I became acquainted with Mike Riegle during the late 1970s though correspondence. We wrote to each other for years. He saw to it that many of my articles were printed in the Gay Community News. When my ...

Lifers Litigation Update

By John Midgely

Evergreen Legal Services

This is to update all interested persons on the progress of the Powell case in federal court. Recently, United States Magistrate Judge Sweigert made a recommendation to Judge Zilly that SHB 1457 be found ex post facto as to Mr. Powell. This is an important positive step, but it is very important to note that this is not by any means a final decision. The Magistrate Judge has only the power to make a recommendation, with the Judge making the actual decision. The State has the right to object to the Magistrate Judge's recommendation, and the actual decision is up to the judge. So, we will be waiting to see what the State does and what Judge Zilly's decision will be.

In addition, the case will very likely be taken to the Ninth Circuit federal appeals court no matter which way Judge Zilly rules. So, no matter which way the case goes in the federal district court, we are a ways yet from any kind of final resolution.

Because nothing has been finally decided, we do not expect the Indeterminate Sentence Review Board to change any lifers' time at this point. Therefore ...

Guard Liable for Hitting Prisoner

Guard Liable For Hitting Prisoner

Ronald Neal is a Michigan state prisoner who was punched in the groin by a prison guard. Neal filed suit under 1983 claiming that his 8th amendment and due process rights had been violated, he also included a pendent tort claim for assault and battery ...

Court Reporters Entitled to Absolute Immunity

Court Reporters Entitled To Absolute Immunity

Jeffrey Antoine was charged with bank robbery and tried in US district court in Tacoma, WA. Shanna Ruggenberg was the court reporter at trial and was responsible for producing the transcript for Antoine's appeal after he was convicted.

For over 4 years Ruggenberg failed to provide the complete transcript, communicate with counsel or comply with court orders to produce the transcript. In 1988, over 2 years after the trial, Ruggenberg told the court that she had lost most of the tapes and notes of the trial. Some were later found but a substitute reporter was unable to reconstruct the transcript. On his criminal appeal the ninth circuit remanded the case to the district court to determine if he had been prejudiced by the lack of a transcript.

Antoine then filed a civil rights action against Ruggenberg and her employer, Byers & Anderson, a Tacoma court reporting company. The district court in Tacoma granted summary judgement to the defendants, holding that they are absolutely immune from lawsuits as "quasi judicial agents."

The court of appeals for the ninth circuit affirmed. It held that court reporters, like court clerks, bankruptcy judges and such, are quasi-judicial officers ...

Prisoner Entitled to Discover Identity of Attackers

Prisoner Entitled To Discover Identity Of Attackers

Chris Murphy filed a 1983 suit claiming that while he was imprisoned in the Harris County Jail, in Texas, he was beaten and attacked by jail guards in retaliation for having complained of jail conditions. The district court dismissed his complaint as being "frivolous" because Murphy was unable to identify all the guards who attacked him.

On appeal the fifth circuit court of appeals reversed dismissal and remanded the case back to the lower court for discovery.

The court of appeals noted that the reason Murphy was unable to identify his attackers is because, according to the complaint, the guards had removed their nametags and some had worn inmate coveralls during the assault.

The court of appeals held the district court had erred in dismissing the lawsuit without providing Murphy an opportunity to conduct discovery in an effort to identify the attackers. The court notes that such information in the form of duty rosters, personnel records, etc, might be readily available. See, Murphy v. Kellar, 950 F.2d 290 (5th Cir. 1992).

Law Would Let Prison Mothers Keep Kids

A bill has passed the Illinois State House and Senate which will allow female inmates to keep their children with them until the children reach the age of six. The bill is designed to help preserve a positive relationship between mother and child. It provides that the Department of Corrections shall be permitted to set up day work release programs for non-violent female prisoners who either have young children or who are pregnant.

From: Corrections Compendium

Counsel Appointed in Denial of Telephone, Beating Claim

Counsel Appointed In Denial Of Telephone, Beating Claim

Billy Tucker was arrested and jailed in Kendall County, Ill. At the time of his arrest he was bloody and had a broken hand and ribs. He was taken to a hospital and washed but not treated for his broken bones. He was denied medical treatment for his broken bones for the entire nine and a half months he was in the Kendall County jail. As a result, he suffered permanent physical deformations. For four days he was also denied access to a phone, after which he was only allowed to use a monitored phone. Tucker filed suit under 1983, claiming violation of his 8th and 14th amendment rights.

The district court dismissed his complaint for not responding to defendant's motion to dismiss portions of his complaint. The court did so without ruling on Tucker's motion to appoint counsel.

On appeal, the 7th Circuit Court of Appeals reversed and remanded the case. The court of appeals held that Tucker's complaint should not have been dismissed unless the district court first notified Tucker of the consequences of not following the briefing schedule. The court also held that the district court ...

CBCC Publisher Only Rule Upheld on Qualified Immunity Grounds

Martin Johnson was a federal prisoner sent to the Clallam Bay Corrections Center (CBCC) in Washington state as a boarder. He filed suit challenging numerous aspects of prison conditions under the due process clause of the federal constitution. The district court in Seattle dismissed the suit on motion by the state for summary judgment. Johnson appealed and the court of appeals affirmed the dismissal in its entirety. The opinion supersedes 926 F.2d 921, where the court had found in favor of Johnson on the publishers only rule aspect of the suit.

The court of appeals for the 9th circuit held that Johnson had no due process right to a hearing prior to being locked in his cell for not going to school or working. Likewise, he had no right not to be housed in a state prison.

The court of appeals, in it's previous opinion, had remanded Johnson's challenge to the "publishers only" rule (which allows all books and magazines to be sent only from the vendor or publisher), as it affected his right to receive soft cover publications from any source. The appeals court also held that prison officials had not shown a security need in ...


Editorial Comments

By Paul Wright

Welcome to another issue of the PLN . In this edition you will find an ad for the " PLN Benefit Tape." The tape has songs contributed by several bands to help us do some fund-raising to continue publishing the newsletter. While it may not be as fancy as the benefit tapes for Amnesty International, with big name stars, it is a fine sounding tape of avant- industrial and punk music. It is a bargain for only $5.00, which includes an 18-page copy of the "Best Of PLN ." All profits will go to help us continue publishing. So buy one if you can, and be sure to encourage others to buy the tape as well.

Next month will mark our second year (24 continuous issues) of publishing the PLN . We printed our first issue in May of 1990, and since then we have steadily grown and improved, both in terms of the paper's form and content. This is largely due to the hard work of our outstanding team of outside supporters. We are proud of the fact that, despite various ups and downs, we have managed to maintain a regular publishing schedule.

Long-time readers of ...

Informant Testimony Must be Independently Weighed

Informant Testimony Must Be Independently Weighed

Spellmon Bey is a Texas prisoner who was infracted for threatening other prisoners in order to extort commissary and sexual favors from them. The infraction was written by the unit captain, based on informant testimony, and listed only the date and time the infraction was written, not when the acts allegedly occurred. Spellmon Bey was found guilty at the disciplinary hearing solely on the reporting captain's testimony that a confidential informant had supplied the basis for the charge. The hearing officer refused to allow 3 character witnesses to testify on Spellmon Bey's behalf, and refused to consider evidence showing he was on cell confinement which would have made it impossible for him to commit the alleged offenses. As a result of the infraction he lost custody status, goodtime and was placed in segregation. He filed suit under 1983 claiming violation of his due process rights.

While the Magistrate recommended dismissal of the entire complaint, the district court overruled most of the recommendation finding it was not frivolous.

The court held Spellmon Bey had adequately claimed violation of his due process rights by not being told when and where the alleged offense had ...

Feds Seek $2.2 Billion for Federal Prisons

Feds Seek $2.2 Billion For Federal Prisons

At a news conference held in Washington on January 29th, George J. Terwilliger III, acting deputy attorney general, said that the Department of Justice (DOJ) will seek a Fiscal Year 1993 budget of $11.3 billion, an increase of $1 billion, or nearly 9 percent, over the $10.3.billion in total funding available in 1992. For the federal prison system (FPS), DOJ is seeking an allocation of $2,246,031,000 for FY 1993 - an increase of 184,800,000 over FY 1992.

"The budget proposal continues the vigorous law enforcement programs established by President Bush and reflects the high priority the Administration assigns to fighting violent crime." Terwilliger said.

"Violent crime must be addressed forcefully by federal, state and local law enforcement agencies working in partnership," continued Terwilliger. To that end, the Department's request for violent crime totals $485.6 million, which represents $92.4 million more than the 1992 enacted level, a 24 percent increase.

"Incarceration of violent criminals is the central ingredient in the Department's attack on violent crime," Terwilliger told reporters. "Current overcrowding problems will become even more severe with the expected successes of the ...

Counsel Should Be Appointed in Religious Suit

Counsel Should Be Appointed In Religious Suit

A Muslim prisoner in Nebraska sought to send a $2.00 donation to a Mosque in Lincoln, which prison officials refused to permit him to do. The practice of Zakah, a form of charity, is one of the 5 basic pillars of the Islamic faith. From 1978 until 1986 the plaintiff regularly made such donations. In 1988 prison officials refused to allow him to withdraw funds from his inmate account for Zakah.

Abdullah filed suit claiming his right to practice his religion and his right to equal protection and due process had been violated. He proceeded to trial on his religious claims, appearing Pro Se, and lost. The equal protection and due process claims were dismissed on summary judgement. On appeal, the eighth circuit court of appeals reversed in part, affirmed in part and remanded the case.

The court of appeals held that the district court had erred in refusing to appoint counsel to represent Abdullah. The court noted the complexity of the case and the fact that in a jury trial the absence of counsel will likely have an adverse impact on the Pro Se litigant. At pages 1035-36 the court sets ...

U.S. Murder Rate Increases Again

The nation's murder rate for 1991 reached its highest level in a decade, topping 24,000 for the first time, figures indicate.

Based on a survey of federal, state and local law enforcement agencies, the Senate Judiciary Committee estimates there were 24,020 homicides last year, up 580 from 23,440 slayings reported in 1990. This record high represents a 2.5 percent increase over the year before. In the years 1985 to 1991, the murder toll has soared by more than 25 percent.

The national murder rate figures reflect a hike not only in the number of slayings, but the chance of becoming a homicide victim, since the murder rate increased faster than the population, according to Census Bureau figures released in January.

Sen. Joseph R. Biden, Jr., chairman of the Senate Judiciary Committee, used the report to point out that the United States' murder toll is more than 2.5 times greater than the combined murder total for Canada, France, Germany, Great Britain, and Japan during 1988. Like the opportunist politician he is, Biden used the new figures to push for passage of the harsh omnibus anti-crime bill that stalled in Congress last December.

The top three ...

NY Prisoner Has Due Process Right to Remain In Population

New York state prisoner Altagarcia Santana filed a civil rights suit, pursuant to 42 U.S.C. 1983, claiming that his right to due process had been violated when he was placed in "keeplock" and not given a hearing for five days. When the hearing took place it lasted for four days. The district court dismissed Santana's suit for failure to state a claim upon which relief could be granted.

On appeal the second circuit court of appeals reversed and remanded the case. The appeals court noted that New York state has created a due process liberty interest for it's general population prisoners to remain free from keeplock status, absent the existence of specific security concerns. Once a prisoner is placed in keeplock, due process requires a hearing within a reasonable time.

The court of appeals held that it would not conclude beyond a doubt that Santana could not prove facts entitling him to relief, and that the district court had erred in dismissing the suit. See, Santana v. Keane, 949 F.2d 584 (2 Cir. 1991).

Information on Visiting Needed

Information On Visiting Needed

The Criminal Justice Ministries is trying to change the Iowa prison visitation law, which does not allow citizens to visit more than one person in the system (family and clergy are excepted). The Department of Corrections tells us this is common practice in other states. We know there are states where this is not true, but would like to get a better sense of how common this restriction is.

Please contact us and tell us what the policy is regarding this area of visitation. Send your information to: Criminal Justice Ministries, P.O. Box 70033, Des Moines, IA. 50311.

Some Thoughts on Crime and Punishment Rates

By Ed Mead

Elsewhere in this issue of the PLN we reported figures reflecting that the nation's murder rate for 1991 reached it highest level in a decade, topping 24,000 for the first time, a 25 percent increase since 1985. We pointed out that America's murder toll is more than 2.5 times greater than the combined 1988 murder total of Canada, France, Germany, Great Britain, and Japan.

In earlier issues we've reported similar figures, reflecting increases in other categories of crime. "The Uniform Crime Rate Report," we wrote in an earlier issue, "shows that during the same period [1990] rape and assault were up by 10 percent, and robbery was up by 9 percent. These increases boosted the overall violent crime index rate to 8 percent higher than the same period last year.

Indicative of these articles is a quote by Bureau of Justice Statistics director Steve Dillingham, who said: "The annual increase of more than 80,000 inmates from midyear 1989 to midyear 1990 was the largest annual growth in 65 years of prison population statistics." So all major categories of crime are on the rise, and the number of people being locked up ...

Test for Appointed Counsel on 1983 Suits

Test For Appointed Counsel On 1983 Suits

A court considering an indigent prison inmate's request for appointed counsel to aid him in pursuing a civil rights action under 42 USC 1983 should consider, as a threshold matter, how hard the prisoner has already tried to retain an attorney to represent him on a contingency basis, so said the U.S. Court of Appeals for the Seventh Circuit. The court reasoned that "once indigency is established, we believe that [28 USC] 1915(d) [governing requests for appointed counsel] requires a threshold inquiry into the indigent's efforts to secure counsel. Accordingly, when deciding whether or not to grant a request for counsel under 1915(d), the district judge must first determine if the indigent has made reasonable efforts to retain counsel and was unsuccessful or that the indigent was effectively precluded from making such efforts." If this requirement is met, the district court should proceed to consider the rest of the factors for appointing counsel set forth in Maclin v. Freake, 650 F2d 885 (CA 71981), such as the merits and complexity of the claim and the inmate's ability to represent himself. If no reasonable efforts by the inmate ...

PLN Benefit Tape

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