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Prisoner Education Guide

Prison Legal News: August, 1992

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Volume 3, Number 8

In this issue:

  1. Ohio Criminal Sentencing Commission Update (p 1)
  2. Washington Lifers Litigation Update (p 1)
  3. 1991 Prison Population Up 6.2% (p 2)
  4. Blacks Likely to Spend More Time In Jail (p 2)
  5. Interstate Compact Does Not Create Liberty Interest (p 2)
  6. High AIDS Rate Behind Bars (p 2)
  7. Study Finds Sentencing Bias in Washington State (p 3)
  8. Prison Chief Gains Right to Counter-Sue Cons for Riot Damage (p 3)
  9. Guards Need Not Disclose Identity Of HIV-Positive Cons (p 3)
  10. Supreme Court Defines "Frivolous" Lawsuits (p 3)
  11. Three Strikes, You're Out (p 4)
  12. ABA Says Use of Prisons Not Effective Way to Fight Crime (p 4)
  13. NCCHC Asks Congress to Improve Prison Health Care (p 5)
  14. Infracting Cop Cannot Hear Own Infraction (p 5)
  15. High Court to Decide if Convict Group is "Person" for IFP Status (p 5)
  16. Supreme Court To Define "Prevailing Party" for Purposes of Attorney Fees (p 5)
  17. Criticism of Peru Articles (p 6)
  18. Federal Prisoner Must Exhaust BOP Remedies Before Seeking Habeas Corpus Relief (p 7)
  19. Prison Costs More than Harvard (p 7)
  20. Adverse Change in Board Rules is Ex Post Facto (p 7)
  21. Detroit's Former Chief Guilty of Embezzling (p 8)
  22. Washington's DOC Boss Talks That Talk. Can He Walk That Walk? (p 8)
  23. Virginia Sets Guidelines for Terminally-Ill Prisoners (p 8)
  24. Lompoc Prison Strike (p 9)
  25. From The Editor (p 9)
  26. Court Bans Double Celling (p 10)
  27. Censoring Mail From Courts Violates Due Process (p 10)
  28. DOC Must Provide Involuntarily Committed With Treatment (p 10)
  29. Rectal Search Upheld (p 10)
  30. Wisconsin Lockdown (p 11)
  31. Indiana Control Unit Prisoners File Suit and Strike (p 12)
  32. Transfer Violates Access Rights (p 13)
  33. Prisoner Entitled to Protection and Toilet Access (p 13)
  34. Court Rules on Service and Venue (p 13)

Ohio Criminal Sentencing Commission Update

By John Perotti

There have been a lot of rumors of abolishing the parole board in Ohio. Here are the facts in relation to this rumor. In 1990 former Governor D. Celeste created the Ohio Criminal Sentencing Commission to study Ohio's sentencing scheme and to issue recommendations for changes to the general assembly. It will be their job to transform the recommendations into statutory law.

Members of the commission include five judges, two senators, one state representative, head of Ohio's Public Defender Commission, a prosecutor, and a sheriff. The Bar Association has a delegate and their is an advisory council consisting of representatives from the Ohio Halfway House Association, Correctional Institution Inspection Committee, Case Western College of Law, Ohio Chief Probation Officers, County Commission Association and Department of Rehabilitation and Corrections.

The commission is in consensus that violent and career criminals should be incarcerated in prisons, while third and fourth degree non-violent offenders be placed in local facilities. Also that post release (parole) conditions and services [be] imposed on all offenders released from serving their minimum sentence.

A consensus was also reached that the sentence meted would consist of a basic minimum sentence, determined by the judge who ...

Washington Lifers Litigation Update

By John Midgley

This is a further update on the "lifers" litigation. The current status of the Powell case is as follows: US District Court Judge Thomas Zilly has held that SHB 1457 is ex post facto as applied to Mr. Powell. The state has appealed to the US Court of Appeals for the Ninth Circuit. The states attorney has agreed with us to brief the case on an expedited schedule and to ask the Ninth Circuit to expedite the hearing. This means that we will be able to get the parties' briefs to the court more quickly than is usually the case. Of course, we cannot control how quickly the Ninth Circuit will hear or decide the case, but we have filed with the court an agreed motion asking for the expedited hearing and chances are good the court will respond favorably given that both parties have agreed.

In the meantime, as many of you know, prison superintendents have refused, on advice of the Attorney General's office, to even decide whether to grant any certificates of meritorious conduct. Therefore, the certification process is currently on hold.

We have decided, given the expedited schedule in the Ninth Circuit and ...

1991 Prison Population Up 6.2%

The population of state and federal prisons (not counting jails) rose 6.2 percent last year, reaching a new record high of more than 823,000, according to a study by the federal Bureau of Justice Statistics (BJS). The increase amounted to a need for 900 prison beds each week last year. The latest increase meant that the nation's prison population is now 2.5 times what it was in 1980.

The highest percentage increase last year were in Rhode Island (15.9 percent), Washington state (14.5 percent), New Hampshire (14.2 percent), and Arkansas (13.9 percent). California's increase of 4,500 inmates was the largest number of new prisoners, but 1991 was the first year since 1977 that California's percentage increase fell below the national average.

Depending on how prison capacities are defined, the nation's state and federal prisons were operating at 16 to 31 percent above capacity, BJS said. More than 12,000 state prisoners were being held in local jails or other facilities because of crowding in state institutions.

See, Prisoners in 1991 (NCJ-134729), a ten-page bulletin, include state-by-state listings of inmate populations, increases, crowding levels, and other information. Write the ...

Blacks Likely to Spend More Time In Jail

Blacks Likely To Spend More Time In Jail

Without sentencing guidelines, employed blacks are almost six times as likely as their white counterparts to face jail for drug crimes, a new Florida State University (FSU) study says. The study by FSU criminology Professor Theodore Chiricos also found that young unemployed blacks serve jail time more often than older employed whites or blacks, even for the same crime.

"Being unemployed is more of an indicator than being black in terms of whether someone is incarcerated," said Chiricos. "But being both black and unemployed is more of an indicator that simply being unemployed."

Chiricos studied incarceration rates for 1,480 felons and 490 misdemeanats in two Florida counties in 1982, just prior to the implementation of state guidelines to standardize sentences. The study analyzed actual jail time served, both before trial and after conviction.

For all crimes combined, employed blacks were 1.5 time as likely as employed whites to serve jail time before trial. Unemployed blacks were five times as likely, while unemployed whites were only three times as likely, to spend time in jail than employed whites.

The study found that after conviction employed blacks found guilty of drug crimes ...

Interstate Compact Does Not Create Liberty Interest

Fred Pletka was an Iowa prisoner in disciplinary confinement at the Iowa State Penitentiary when he was transferred to Texas under the interstate corrections compact. Shortly after arriving in Texas Pletka was released into the general prison population. Later, when he was returned to Iowa, he was placed back into disciplinary segregation without a new hearing.

Pletka filed a federal civil rights suit claiming he was denied due process because he had "served" his disciplinary segregation time as soon as he was released into population in Texas. The district court agreed and issued an injunction releasing Pletka into the prison population and ordering prison officials to change their records to show he had completed his disciplinary time, but the court did not award money damages, finding prison officials were entitled to qualified immunity.

On appeal the U.S. Court of Appeals for the Eighth Circuit affirmed the injunction and reversed the qualified immunity ruling by holding the defendants were not protected against an award of money damages. This ruling was reported in 943 F.2d 916 ( PLN Vol. 3, Number 1).

The state applied for, and obtained, a rehearing en banc at which the full court of appeals vacated the ...

High AIDS Rate Behind Bars

People entering U.S. prisons have high HIV infection rates and transmission of the virus that causes AIDS continues among prisoners because of intravenous drug use and homosexual activity, Federal health officials said June 4 in Atlanta.

As of November 1990, there were 4,519 cases of AIDS reported among inmates in federal prisons and 45 state prisons, and another 2,466 cases in 25 city and county jail systems, the Center for Disease Control (CDC) reported. Those cases reflect the prevalence of HIV infection among the men and women entering the nation's prison, the agency said.

The CDC said a recent report indicated that among entrants to 10 selected U.S. jails and federal and state prisons, the HIV rate was between 2.1 and 7.6 percent for men and between 2.7 and 14.7 percent for women. That compares to a rate of just .04 for male blood donors and .02 percent for female donors in the general population.

After incarceration, transmission of the AIDS virus continues among the prisoners, said Gary West, assistant deputy director for the CDC's National Center for Prevention Services. "There is evidence that transmission does occur in prison," said ...

Study Finds Sentencing Bias in Washington State

Anew study has found that Hispanics in Yakima County are more likely to receive long prison sentences than whites. The study was performed by political scientist David Hood and sociologist Ruey-Lin Lin, both of Eastern Montana College in Billings. It was based on data from the Washington state Sentencing Guidelines Commission.

"Hispanic defendants continue to experience inequalities in Yakima County for certain categories of crime," said the report, which was released at the annual conference of the Western Social Science Association in Denver in April. Those crimes were burglary and drug and sexual offenses. Prosecutors say any disparity is minimal and results from logistics problems such as lack of interpreters. "I can firmly say that color does not enter into sentencing," Deputy Prosecutor John Monter said.

Among the findings were that sentences for Hispanics convicted of burglary were nearly one and a half times those for whites. Drug sentences for Hispanics averaged nearly twice as long as those for whites. And for some sex crimes, Hispanics went to prison about three and a half times longer than whites.

"It must be remembered that this situation occurs for defendants guilty of the same seriousness-level crime, similar criminal record and offense type ...

Prison Chief Gains Right to Counter-Sue Cons for Riot Damage

Prison Chief Gains Right to Counter-sue Cons for Riot Damage

Pennsylvania Corrections Commissioner Joseph D. Lehman has been granted standing by a federal district court to litigate against inmates for extensive property damages caused by rioting at the Camp Hill prison in October of 1989.

A magistrate judge in the U.S. District Court for the Middle District of Pennsylvania granted Lehman's motion to intervene as a defendant/counter-claimant in a class-action lawsuit filed earlier by inmates seeking damages for alleged loss of personal property, abuse and general conditions during and after the 1989 disturbances.

The magistrate granted the motion to intervene under local rules of court after counsel for the plaintiff prisoners filed no opposition.

The action clears the way for Lehman to lodge a counterclaim against the suing inmates seeking compensation for damage to the Camp Hill facility during the three days of rioting that destroyed or extensively damaged half the prison's buildings.

Source: Pennsylvania Department of Corrections

Guards Need Not Disclose Identity Of HIV-Positive Cons

A prisoner in the medium security unit of a Nebraska state prison brought a federal civil rights lawsuit against the warden and other prison personnel, claiming that they subjected him to cruel and unusual punishment by: (1) conspiring to conceal the identity of prisoners testing positive for HIV, the virus which causes AIDS, and (2) failing to take precautions to protect healthy prisoners from exposure to the AIDS virus, such as segregating all HIV-positive prisoners.

The plaintiff prisoner alleged that he comes into contact with infected prisoners through his work as a prison barber, but did not claim that he was denied any safeguards that barbers regularly employ, or that his exposure to infectious and contagious disease was not substantially the same as the exposure of barbers (or anyone else) to infectious and contagious diseases outside the prison setting.

An appeals court has upheld the dismissal of the prisoner's lawsuit as frivolous. It noted that there could be no legal claim for conspiracy "unless the alleged object of the conspiracy is illegal." Since "prison officials who decline to reveal to the general population the identities of HIV-positive prisoners do not by so declining commit an illegal act," no conspiracy ...

Supreme Court Defines "Frivolous" Lawsuits

The U.S. Supreme Court further defined when federal judges can dismiss as "frivolous" certain lawsuits brought by convicts and others who cannot afford to pay normal court costs. The court, in a 7-2 ruling, said it is largely up to a federal judge to determine when an lawsuit is legally frivolous and thus need not be litigated.

The ruling reversed a decision of the Ninth Circuit Court of Appeals, which had said a federal judge could dismiss a lawsuit against the government as frivolous only if the allegations "conflicted with judicially noticeable facts." The Ninth Circuit said, in effect, a judge could invoke the frivolous standard only if he had factual evidence that an allegation could not be true.

"A court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations," justice Sandra O'Connor wrote for the court. While on this first glance, charges "must be weighted in favor of the plaintiff," judges are left largely to their common sense in deciding whether to dismiss a case, the court said. But O'Connor wrote such a complaint cannot be dismissed "simply ...

Three Strikes, You're Out

By Ed Mead

Those short sighted anti-crime proponents in Washington state are at it again. This time the conservatives are circulating a citizen's initiative, The Persistent Offender Accountability Act (Initiative 590) that would provide two major changes to punishment: mandatory life in prison without the possibility of parole for so-called persistent offenders; and no earned good time reductions for offenders convicted of murder one, assault one, assault of a child one, or rape one.

The offenders affected by the proposed changes would be those designated as a "persistent offender," someone convicted of a "most serious offense" who has at least two prior convictions on different occasions for a "most serious offense." Juvenile adjudications and offenses that have "washed out" are not considered. According to recent statistics by the Sentencing Guideline Commission (SGC), the most common categories of current conviction offense is robbery (34 percent) followed by sex offenses (26 percent) and assault (16 percent). Of the 16,554 adult felony offenders sentenced in Fiscal Year 1992, Dr. Fallen of the SGC estimated that 63 of them would have met the definition of "persistent offender." Seeing what the state did with the civil commitment law, the overly broad implementation of ...

ABA Says Use of Prisons Not Effective Way to Fight Crime

ABA Says Use Of Prisons Not Effective Way To Fight Crime

The increasing reliance in the U.S. on the use of incarceration as a criminal sanction is a costly and ineffective way to combat crime, according to a new report by the American Bar Association's (ABA) Criminal Justice Section. The report, authored by Professor Lynn S. Branham for the ABA Criminal Justice Section's Corrections and Sentencing Committee, examines what it calls the "astronomical" rise in prison population in the U.S. in recent years, and current criminal sentencing practices and makes a number of specific recommendations to change present policies.

"Studies have repeatedly shown that the problems plaguing our nation's corrections system, such as jail overcrowding and cost overruns, are not being alleviated by using current sentencing practices," explains Committee Chairman Barry Mahoney. "We must move past relying solely on traditional sentencing and look for more effective ways of handling convicted persons."

According to the report, the U.S. has the highest incarceration rate of any country in the world. In the last 10 years alone, the number of people confined in the nation's prisons has more than doubled. In fact, it reveals, in 1990 ...

NCCHC Asks Congress to Improve Prison Health Care

NCCHC Asks Congress To Improve Prison Health Care

Carl C. Bell, M.D., chairman of the National Commission on Correctional Health Care's (NCCHC) Board of Directors, in testifying to a congressional subcommittee, stated that "...the Federal Government must act to improve health care provided to the incarcerated in order to protect the health of the nation's communities.

"Over one million Americans are incarcerated in the jails and prisons in America and 10 times that number will pass through the correctional institutions in a year's time," Bell said.

Bell's testimony, titled "Correctional and Community Health Care: A prescription for a Healthier America," was given on April 28 before the Subcommittee on Labor, Health and Human Services, Education, and Related Agencies of the Appropriations Committee at the House of Representatives.

Bell cited numerous statistics indicating that those behind bars suffer from a number of maladies--mental illness, homelessness, substance abuse, violent behavior in the community, Human Immunodeficiency Virus (HIV), tuberculosis--at a rate higher than that reported in the general population. He went on to say that these illnesses often-times contribute to the arrest and incarceration of people.

Further, Bell explained that most of these people will be released back ...

Infracting Cop Cannot Hear Own Infraction

John Diercks is a prison informant in protective custody (PC) in Jefferson City, MO. While in PC Diercks approached a prison official and asked him to make the urine samples of two prisoners "disappear" in exchange for which Diercks would supply the names of several other prisoners whose urine samples ...

High Court to Decide if Convict Group is "Person" for IFP Status

High Court To Decide If Convict Group Is "Person" For IFP Status

A prisoners' association, elected by the general prison population, filed a federal civil rights suit under 42 U.S.C. § 1983 against prison authorities, alleging violations of the eighth and fourteenth amendment rights of prisoners based on a Department of Correction's directive discontinuing a long-standing program of providing free tobacco to inmates who are unable to afford it. The association filed a motion, under 28 U.S.C. § 1915(a) to proceed in forma pauperis in the suit.

This statute allows "a person" to proceed with a lawsuit in federal court without pre-payment of fees and costs when he submits an affidavit "that he is unable to pay such costs or give security therefore." The trial court denied the association's motion. The U.S. Court of Appeals for the Ninth Circuit reversed, holding that an association was a "person" within the meaning of the statute, and that this inmate association was entitled to proceed in forma pauperis on the basis of its' submitted affidavit showing that it was prohibited by prison regulation from maintaining any assets.

Other federal courts have held that Congress intended that only ...

Supreme Court To Define "Prevailing Party" for Purposes of Attorney Fees

Supreme Court To Define "Prevailing Party" For Purposes Of Attorney Fees

Under 42 U.S.C. § 1983, a "prevailing party" in a federal civil rights suit may be awarded attorneys' fees. In civil rights cases such attorneys' fees may, in some instances, be much higher than the dollar value of the damages awarded. some courts have even made awards of attorneys' fees to plaintiffs who are only awarded "nominal damages," such as one dollar. In a recent case, however, a federal appeals court found that plaintiffs who had obtained a favorable jury verdict and a "nominal damages" award of one dollar on their civil rights suit were not "prevailing parties" who would be entitled to attorneys' fees.

The suit in question did not seek injunctive relief, but rather solely sought damages in the amount of several million dollars. The appeals court reasoned that the award of nominal damages, if it was a "victory" at all, was a "technical" victory insufficient to support an attorney's fee award. The U.S. Supreme Court has granted review of the case to decide the question. See, Farrar v. Hobby , 941 F.2d 1311 (5 Cir. 1991), cert. granted , 112 S.Ct. 1159.

Criticism of Peru Articles

Iam a Native American transsexual incarcerated in Pelican Bay SMU. I am a jailhouse lawyer and paralegal student, and learned of PLN through fellow jailhouse lawyers here. Thank you for your free subscription as a control unit prisoner. I myself pass the newsletter around to those who are interested. I hope to be able to make a contribution soon.

I am writing concerning a commentary which appeared in the March '92 issue, "Peoples' War in Peru."

As a Native American I do not recognize the U.S. government or its authority. I consider myself neither legally nor morally bound to obey its laws. Though I do not recognize its validity or authority over me, it is practical to oppose it, under the circumstances, by any and all means necessary, including, but not limited to, within the arena of its judicial apparatus.

Accordingly, as a transsexual in prison I have been very active in the legal struggle for medical treatment of transsexualism in prison, which sprouts from an animosity based on ignorance and makes us common prey in penal environs.

Naturally my concern also extends to our social plight, both here and in other lands. I have spoken to transsexuals from ...

Federal Prisoner Must Exhaust BOP Remedies Before Seeking Habeas Corpus Relief

Federal prisoner Ivan Gonzalez was convicted of possession with intent to distribute three kilograms of cocaine. He was sentenced to five years of imprisonment. The U.S. Parole Commission calculated a presumptive parole date of May 30, 1990. When that date came and went the Bureau of Prisons (BOP) did not release Gonzalez, and he remained incarcerated. In February of 1991 Gonzalez filed for a writ of habeas corpus in federal court. He claimed that because his release date had passed he did not have to exhaust administrative remedies before seeking judicial relief. The district court denied the petition.

The U.S. Court of Appeals for the Eleventh Circuit affirmed the dismissal of the writ. The appeals court held that while the courts have original jurisdiction in imposing sentences, the BOP is responsible for computing that sentence and applying the appropriate good time credits.

Because the BOP has established regulations that set forth procedures for prisoners to follow before seeking relief from a district court, the administrative remedies must be exhausted before a federal court has jurisdiction to hear a petition for writ of habeas corpus. See, Gonzalez v. United States , 959 F.2d 211 (11 Cir. 1992).

Prison Costs More than Harvard

Prison Costs More Than Harvard

By Ralph 'Hakim' Walker

An April 4, 1992 William Raspberry article on alternatives to imprisonment pointed out the folly of continuing to waste tax dollars on a system (imprisonment) that is ineffective, does not deter crime, and could inadvertently provide impetus to a problem that is already epidemic.

Raspberry's position is that increased imprisonment will inevitably do more to exacerbate this nation's crime problem than to provide solutions with long term remedial value. Paraphrasing Andrew Rutherford, a noted British criminologist, Raspberry points to the experience of Europe, "...particularly Germany and England, where the prison population has declined with no discernible increase in criminality." West Germany's prison population peaked in 1983, with 62,300 inmates and steadily declined thereafter. Today their prison population numbers about 51,000. The same phenomenon has taken place in Great Britain which has had an eight percent decrease in prison population since 1988.

The Great Britain criminologist Rutherford says the European decrease has taken place in both countries without the invention of new alternatives. He emphasizes that prosecutors and courts in Europe have begun to view imprisonment as more of a problem than a solution. "They have concluded ...

Adverse Change in Board Rules is Ex Post Facto

Adverse Change In Board Rules Is Ex Post Facto

The Oregon Court of Appeals has reaffirmed its holding that application of parole board rules not in effect when a prison committed his crime, and which had the effect of potentially extending his or her prison term, violated the ex post facto clauses of the state and federal constitutions. An issue of the case was whether board rules that govern the setting of parole release dates are "laws" within the meaning of the ex post facto clause. The court relied on Ross v. Oregon , 227, 162-63, U.S. 150, 33 S.Ct. 220, 57 L.Ed. 458 (1913), which held that rules made pursuant to delegated legislative authority are subject to ex post facto analysis.

The ruling in this case is a good one to study for those interested in challenging the applicability of newly adopted parole board rules to their situations. Since nearly all of these new rules are more harsh, they would fall under the court's reasoning here. The analysis is done using cases from the U.S. Supreme Court, so it can be applied to any state or federal parole authority. See, Williams v. Board of Parole ...

Detroit's Former Chief Guilty of Embezzling

Detroit's Former Chief Guilty Of Embezzling

Former Detroit Police Chief William Hart has been found guilty of stealing nearly $2.6 million from a special "Secret Service Fund" that was meant to fund undercover operations. A federal jury convicted the former chief of two counts of embezzlement and two counts of tax evasion.

Hart, who had been allowed to remain on the city's payroll pending the outcome of his trial, resigned one day after his conviction. He is to be sentenced on August 4. U.S. Attorney Stephen Markman said Hart probably faces a prison term of about five years.

The case also included testimony by three women who said Hart gave them thousands of dollars and expensive gifts, as well as testimony about a bundle of cash falling from the ceiling of Hart's kitchen when the room was being renovated.
Criminal Justice Newsletter

Washington's DOC Boss Talks That Talk. Can He Walk That Walk?

Amonth or so ago Chase Riveland, the Washington state's chief corrections officer, went to Washington, D.C. for what he thought would be a dialogue, an exchange of ideas about crime and punishment. Instead he got a U.S. Justice Department monologue, a sermon on how to lock up more people.

Riveland believes the national monologue on corrections has gone on long enough. He wants to help start a debate. Few dare to challenge the get-tough talk, despite mounting evidence that existing policies are not working and that we cannot afford them--in either human or dollar terms.

After years of law-and-order policies at all levels of government, a so-called war on drugs, sentencing reforms and construction of thousands of new prison cells, crime rates continue to rise.

Offended by the Justice Department sham conference, Riveland said, "It's time to ask if we're getting what we're paying for."

Here's what we're getting: Violent crimes in Washington were up 7.1 percent last year over the previous year, mirroring the national trend. According to the latest figures from the Association of Sheriffs and Police Chiefs, over the decade, 1981-1991, violent crimes rose 40.9 percent while ...

Virginia Sets Guidelines for Terminally-Ill Prisoners

Virginia Sets Guidelines For Terminally-Ill Prisoners

The state of Virginia has released a policy to handle requests by terminally-ill prisoners for early release. The policy was developed in response to a request by Alex Velazquez, a prisoner at Powhatan Correctional Center, to be allowed to go home to Brooklyn, N.Y., to die. Velazquez, who is serving a 23-year sentence for selling cocaine in Virginia Beach, had AIDS.

Under the new policy, a four-member committee will review the request and the inmate's record and make a recommendation to the Virginia Parole Board, which will consider the case and report to the governor. The governor will make the final decision.

The committee members will be Corrections Department employees and will include a doctor, counselor, warden or assistant warden, and a deputy director.

About 60 prisoners in Virginia prisons have been diagnosed with AIDS.
Corrections Compendium

Lompoc Prison Strike

Immediately following the Los Angeles uprising, prisoners at FCI (Federal Correctional Institution) Lompoc, North of LA, joined in a prison wide general strike for 3 days. Prison officials were greatly threatened by the unity of the prisoners: hundreds of men were put in the hole and teargassed, five hundred men were immediately transferred out.

New Afrikan political prisoner Dr. Mutulu Shakur, convicted of conspiracy in the liberation of imprisoned New Afrikan freedom fighter Assata Shakur, faces transfer to the US Penitentiary at Marion, IL. He is charged with "encouraging a disturbance". We will keep readers posted of new developments in this story.

Source: Out of Time, 3543 18th St. Box # 30, San Francisco, CA. 94110

From The Editor

Welcome to another issue of PLN. Please check your mailing label. If it says "Aug. 92" this means this is your next to last issue and unless we receive a donation you will be dropped from the mailing list. When your label says "final issue" that is the last issue of PLN you will receive unless we receive a donation from you. If you are in a control unit or on death row and unable to afford a donation you need to write and let us know, otherwise we have no way of knowing if you are receiving PLN or if you still wish to receive it. We have a new mailing list system that will automatically send "final issue" notices when previous donations no longer cover the cost of sending you PLN. We also need to know if you are moved or transferred because the post office will not forward PLN and it costs us .40 for every issue returned.

A number of readers have written and asked us about receiving back issues of PLN. Unfortunetly we do not have any back issues available. We really do have a shoestring budget, what this means is that we can only ...

Court Bans Double Celling

Since 1986 Utah state prison officials have planned to double cell the Wasatch unit of the Utah State Prison in Draper, Utah. In the 1970's Utah prison officials entered into a consent decree with prisoners obligating them to avoid double celling. The prisoners had sought, and received, injunctions forbidding double celling. The DOC now seeks to dissolve the injunctions.

The district court gives a detailed statement of facts concerning the physical conditions of the prison and identifies those areas that would significantly deteriorate if double celling took place.

The Court outlines the legal standards under which double celling must be evaluated. Double celling in and of itself is not unconstitutional but the totality of circumstances may rise to a violation of the constitution. The court found prison officials had the requisite intent and state of mind to show liability based on their deliberate indifference to prisoners needs by their double celling plans. The court banned double celling in some areas of the prison and allowed it in others. See: Baker Vs. Holden , 787 F. Supp 1008 (D. Utah, 1992).

Censoring Mail From Courts Violates Due Process

John Stone-El is an Illinois state prisoner whose mail to and from the courts and government officials was opened and read outside his presence. Stone-El filed suit seeking money damages and injunctive relief for the violation of his constitutional rights. He then moved for summary judgement which the court denied. The Court then dismissed the complaint.

The Court held that because mail from the courts to litigants are public documents which can be inspected by prison officials there is no reason to treat such mail as privileged communication. The Court also held that letters from Stone-El to the Illinois secretary of state and the national archives were not privileged.

The court found that prison officials did violate Stone-El's rights when they opened and read his mail to the federal courts. The court notes that prisoners fear retaliation and delay when their mail to the courts is opened and read by prison officials.

Despite finding a violation of Stone-El's constitutional rights the court went on to grant qualified immunity to the defendants by holding the rights violated were not "clearly established" at the time they occurred. The Court cites two cases from other circuits but because they were not ...

DOC Must Provide Involuntarily Committed With Treatment

Robert Cameron was convicted of rape in Massachusetts and because of prior sex offenses was found to be a "sexually dangerous" person and involuntarily committed to a treatment center operated by the Massachusetts DOC and Dept. of Mental Health. Cameron filed suit seeking equitable relief claiming that by denying him minimally adequate treatment his federal constitutional rights were violated. After a 6 day bench trial the court ruled in Camerons favor.

The court held that both the 8th and 14th amendment require that both the involuntarily committed and mentally ill prisoners receive minimally adequate treatment for mental health needs based upon the exercise of professional judgement.

Several medical experts testified that due to his disorder Cameron needed to be treated in a non confrontational manner impossible to achieve in a prison setting. The evidence showed the "treatment" Cameron was receiving was harmful to his mental and physical health. The court said that by withholding the medical treatment prescribed by Camerons physicians the defendants showed deliberate indifference to his medical needs. This was heightened because decision making officials did not exercise their professional judgement.

The court also held that transporting Cameron to a hospital in shackles under armed guard violated his ...

Rectal Search Upheld

James Terrovona is a Washington state prisoner who was transferred from IMU (Intensive Management Unit) in Walla Walla to IMU in Shelton. Upon arrival at Shelton and before being put in the IMU there Terrovona was subjected to a digital rectal search by DOC officials. He then filed suit under § 1983 claiming the search violated his rights under the 4th, 8th and 14th amendments and was conducted in unsanitary conditions and caused him pain. The district court, Judge Bryan and Magistrate Burgess granted summary judgement to the defendants.

The court specifically found that DOC Policy 420.110 (effective 1 October, 1985) on rectal searches to be constitutional under the Turner reasonableness standard.

The court held that Terrovona did not specifically state how the search was unhygienic and the court did not discuss the issue of pain caused by the search. See: Terrovona Vs. Brown, 783 F. Supp 1281 (WD WA, 1991)

This appears to directly conflict with Wetmore Vs. Gardner , 735 F.Supp 974 (ED WA 1990) which held the DOC rectal search policy was unconstitutional because it did not rely on individualized suspicion but was instead an intrusive blanket search policy of all IMU prisoners. Wetmore is currently under ...

Wisconsin Lockdown

In the middle of May, 1992, the Wisconsin DOC distributed a new set of property rules to all prisoners. It contained a lot of new restrictions but the most significant is that the total amount of property a prisoner may possess must fit into a footlocker measuring 32" x 16" x 16". Of course, TV's are exempted from the rules since no prison official would ever discourage an inmate from becoming addicted to TV. The rules are aimed directly at jailhouse lawyers and inmate writ writers because they accumulate all the books and paperwork.

Three years ago the Waupun prison tried to confiscate everyone's legal papers saying they created a fire hazard. That didn't fly so now this. Their justification? Inmate possession of property leads to theft and inmate property is used for gambling.

The new rules went into effect on June 1st for people entering the system after that date. Those of us already here have to be in compliance by June 1, l993, or upon transfer to another prison, whichever happens first.

Needless to say, everyone is pissed. The Wisconsin chapter of CURE (Citizens United to Rehabilitate Errants) staged a demonstration at the state capitol ...

Indiana Control Unit Prisoners File Suit and Strike

On May 4, 1992, the Indiana Civil Liberties Union filed a class action suit in the Marion County, Indiana, Superior Court. The action is Taifa Vs. Bayh, and challenges numerous conditions of confinement at the Westville, IN, Maximum Control Center. It is interesting to note the action is being filed in state court. Because the suit claims prison officials have violated several state statutes only a state court can rule on the state law claims. It may also be that the Indiana state constitution provides more protection than the federal constitution. In recent years the US Supreme Court has steadily narrowed the scope of 8th amendment protection available to prisoners from the federal courts.

The suit directly challenges the philosophy behind the "supermax" control unit prison, both at Westville and another "supermax" under construction in Sullivan, IN. The plaintiff class is currently over 80 men housed at the MCC. The suit claims that Indiana prison officials have violated state law by administratively housing prisoners in MCC for long periods of time when Indiana statutes limit the conditions where prisoners can be segregated. The criteria for MCC placement is vague, subjective and discretionary allowing prisoners to be placed in MCC in ...

Transfer Violates Access Rights

Stanton Story is a Pennsylvania state prisoner who was transferred to the federal Bureau of Prisons (BOP) to serve his sentence. Story filed suit under § 1983 claiming Pennsylvania DOC officials had violated his right of access to the courts because the BOP prison in Terre Haute, IN. did not have any Pennsylvania lawbooks which Story needed in order to prosecute cases he had pending in Pennsylvania state courts. The court granted Story In Forma Pauperis status to pursue his complaint.

The Court held that while story had no federal due process right to remain in the Pennsylvania state prison system he may be able to establish a state created due process right to remain in Pennsylvania, thus entitling him to relief.

The court held that it is clearly established that a transferring state must provide it's prisoners with either the state law materials they need or legal representation by counsel and make this available at the out of state facility. Otherwise, the transferred prisoners would be denied their right of access to the courts.

At this early stage of the suit the court did not decide the case on it's merits, only that Story had stated a cause ...

Prisoner Entitled to Protection and Toilet Access

Kenneth Young is an HIV positive federal prisoner who was transferred to the US Penitentiary at Lewisburg, PA. While in the transfer segregation unit at Lewisburg Young was sexually assaulted by his cellmates several times. He repeatedly requested protective custody from a number of prison officials who repeatedly ignored his pleas and taunted him for seeking protection. After one prisoner had raped him and ordered him out of the cell, Young flooded the cell by stopping up the toilet in order to be removed from the cell. Prison officials placed Young in a "dry cell" with no toilet or running water. Young was allowed to use the toilet once in a three day period. He was provided with a plastic urinal 29 hours after being in the dry cell, he was not provided with toilet paper, drinking water nor allowed to wash his hands before meals nor to bathe. Young was forced to urinate and defecate on the floor of his cell which the orderly refused to clean. Young filed suit against prison officials under Bivens claiming violation of his 8th amendment rights. The district court dismissed the case for failure to state a claim.

The 3rd Circuit Court of ...

Court Rules on Service and Venue

Arnold Huskey is a BOP (Bureau of Prisons) prisoner confined at the US Penitentiary in Marion, Illinois. He filed suit in the District of Columbia claiming BOP officials had violated his constitutional rights by misclassifying him under 28 C.F.R. § 524.72 (h) resulting in his indefinite segregation and that the defendants had conspired to establish a pattern of discriminatory treatment against the group of prisoners he is a member of.

The defendants moved to dismiss the lawsuit and judge Richey granted it in part and denied it in part.

The Court dismissed the claims against the defendants in their individual capacities because Huskey did not have the US Marshall's Service serve the defendants with a summons and copy of the complaint in accordance with Fed.R.Civ.P. 4 (D)(1). Thus the court lacked personal jurisdiction over the defendants in their individual capacities.

The Court did not dismiss the claims against the defendants in their official capacities even though they were not properly served according to Fed.R.Civ.P. 4 (d)(5) because the government received copies of the summons and complaint and was able to defend against the suit, thus suffering no prejudice. The ...


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