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Prisoner Education Guide

Prison Legal News: September, 1992

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Volume 3, Number 9

In this issue:

  1. The Proposed Prison in Florence, CO: A "New and Improved" Marion (p 1)
  2. New Jersey Prisoners Support Network (p 2)
  3. Just Us - Ohio Style (p 2)
  4. Drug War Patronage (p 2)
  5. Testimonies that Palestinian Prisoners Are Tortured (p 3)
  6. Freedom Sought for Spanish Political Prisoner (p 3)
  7. Behind the Walls: Prison Radio Show to Start (p 3)
  8. Exhaustion of State Remedies Not Required to Challenge Parole Board Procedures (p 4)
  9. D.C. Changes Jail Condom Policy (p 4)
  10. Editorial (p 4)
  11. Bill Clinton's Blood Sacrifice (p 5)
  12. On the Upcoming Presidential Elections (p 5)
  13. Taking of DNA Samples Violates Ex Post Facto Clause (p 6)
  14. Jury Trial Required for Ad-Seg Claim (p 6)
  15. 23% of NY Prisoners Test Positive for TB (p 6)
  16. Inhumane Conditions Suit Requires Trial (p 6)
  17. Prisons Cost More Than Harvard (p 7)
  18. Washington Feces Watch and Visiting Policy Create Liberty Interest (p 7)
  19. Preliminary Injunction Issued Against Grooming Code (p 7)
  20. Federal Public Defenders Broke (p 8)
  21. Peruvian Prisoners Massacred (p 9)

The Proposed Prison in Florence, CO: A "New and Improved" Marion

The Proposed Prison in Florence, CO: A "New and Improved" Marion

The United States Penitentiary at Marion, located in Southern Illinois, opened in 1963 to replace Alcatraz, which closed that same year. Marion is the most maximum security prison in the country, the only one with a "level 6" security rating. Marion is also the only U.S. prison that has ever been condemned by Amnesty International for violating the United Nations Standard Minimum Rules for the Treatment of Prisoners. Despite this international condemnation, Marion has become an experimental laboratory and trendsetter for the entire federal prison system.

Since 1983, Marion prison has been in a state of permanent "lockdown." Prisoners are locked in their cells for 22.5 hours a day, and all standard vocational, educational and recreational activities are virtually nonexistent. The cells are 8' x 10' and contain a tv, bed, sink and toilet. Prisoners are forced to eat, sleep and defecate in their cells. They are also forbidden to socialize with each other or to participate in group religious services. Those who misbehave in their cells (an arbitrary determination made by the guard on duty) may be tied spread eagle and naked, on their concrete slab ...

New Jersey Prisoners Support Network

Prisoners, ex prisoners, friends and family members of prisoners and community activists in New Jersey have begun forming a Prisoner Support Network. So far two meetings have been held to discuss ways to end various forms of repression and discrimination in the New Jersey DOC (such as harsh isolation conditions in control units, banning of afro centric materials, beatings, etc.). Members recently held a vigil outside the New Jersey State Prison at Trenton to protest conditions in the control unit there.

Among efforts being used and discussed to focus public attention on prison conditions in New Jersey are petitions and a video titled Prison Conditions in New Jersey.

The network seeks members and support from interested people in New Jersey in order to grow and expand. It has regular meetings as well. Any PLN readers in New Jersey or who have contact with prisoners and activists in New Jersey are encouraged to pass this information along. For more information write: Prisoner Support Network, 972 Broad St. 6th Floor, Newark, NJ. 07102 or call (201) 643-3192 (no collect calls, please).

Just Us - Ohio Style

By John Perotti

Three days before former Ohio Governor Dick Celeste left office he commuted the death sentences of Donald Maur, Leonard Jenkins, Willie Jester, Crazy Horse Seiber, Debra Brown, Rose Grant and Elizabeth Green to life in prison. Celeste also commuted the prison sentences of Saram Bellinger and Ralph Deleo to time served and issued full and unconditional pardons to Freddie Moore and John Salim. Celeste, who opposes the death penalty, commuted the death penalties of those male prisoners closest to execution and all female death row prisoners.

On January 14, 1991, George Vainovitch became Ohio's Governor. Vainovitch joined the clamor of well publicized outrage by Ohio's law enforcement officials and prosecutors at these commutations and vowed to put these prisoners back on death row. Vainovitch, now joined by Reginald Williamson, Director of the Department of Rehabilitation and Corrections, filed a civil action in the Court of Common Pleas for Franklin County. The lives of these prisoners were now in the hands of Judge Sherwood who was asked to issue a declaratory judgement whether or not Celeste had authority to issue commutations without following administrative procedure by waiting for the Adult Parole Authority (APA) to investigate and ...

Drug War Patronage

According to an investigation by the General Accounting Office, the investigative arm of Congress, the Office of National Drug Control Policy which is supposed to lead the nations war on drugs has a higher percentage of political patronage jobs than any other government agency.

The agency has 109 employees and more than 40% got their jobs through a spoils system that places the highest premium on political connections and loyalty to the Republican party rather than any type of expertise. This starts with the agency head, Bob Martinez, who was appointed by Bush after losing the election for Florida Governor, down to typists and secretaries. The patronage payroll adds up to $2.6 million dollars and includes 49 people.

The high level of patronage jobs may help explain why the office is not taken seriously among the law enforcement and drug treatment agencies it is supposed to coordinate and lead. Terrence Burke, former head of the DEA called it a dumping ground.

This tends to reinforce the opinion that the war on drugs is a political sham designed more to better oppress and control the poor and minorities in this country rather than to seriously address any of the problems ...

Testimonies that Palestinian Prisoners Are Tortured

A human rights group confirmed on April 1, 1992, that the Israelis have allowed security services to routinely practice torture against Palestinian prisoners. The group, called the "Israeli Center for Human Rights in the Occupied Arab Territories" known as B'tselem, said violence and ill treatment have become an expected part of interrogations.

The group issued a report about the inhuman situations of Palestinian prisoners in the occupied territories. The report estimated at least 5,000 prisoners out of 25,000 jailed last year, have been tortured. The percentage is certainly higher.

Professor Stanley Cohen, of Hebrew University, admitted that: "Nothing has been done to suggest that there is a commitment to end these practices." Professor Cohen confirmed that official investigations into torture made by B'tselem group last year did not produce any changes in the interrogation methods, which violate international human rights agreements.

He asserted the Israeli authorities use the language of legality and democracy to anaesthetize the people into thinking that something is being done. He said mistreatment during interrogations have become routine and expected.

Cohen reiterated B'tselem was most concerned that nothing shows commitment to put an end to these practices. He cited the case ...

Freedom Sought for Spanish Political Prisoner

Juan Manuel Perez Hernandez is a 40 year old telecommunications engineer serving a 30 year sentence for his militancy in GRAPO (Anti Fascist Resistance Group, First of October, a communist organization). He is married and has a daughter. He has been in prison since October of 1979.

As reported in previous issues of PLN , GRAPO prisoners were on a hungerstrike for more than 435 days seeking the reunification of all GRAPO prisoners in one prison and an end to the isolation, beatings, censorship and other human rights abuses they were subjected to. One prisoner died during the strike. Others, including Juan have suffered irreversible physical and mental damage as a result of the strike and the inhumane conditions of confinement. During the strike Juan suffered several cardiac arrests which led to brain damage so that he is suffering from irreversible dementia.

Because of his brain damaged condition Juan is housed in the infirmary at the prison in Meco, Spain. He does not communicate with anyone and has not spoken or written any letters nor does he exercise or move around. He repeatedly bathes throughout the day and night and prison doctors have told another political prisoner in the infirmary that ...

Behind the Walls: Prison Radio Show to Start

Behind The Walls: Prison Radio Show To Start

To bring prison news to millions of potential listeners every week, MIM (Maoist International Movement) is starting a weekly radio program called Behind the Walls . The program will include some of the same material they now use in their newspaper, but will also give them a chance to use music, interviews and sound recordings. Non profit community and student radio programs across the country will air the program beginning this fall.

They are looking for stories, music, interviews or other sources of audio information to draw attention to the realities of life in Amerika's gulags. Anything you can suggest will be really helpful, and if you or someone you know has access to tape recorders, please send tapes. They'll use them and try to return them to you. Urge family and friends to get Behind the Walls for their community stations.

We think the radio program will help make the prison movement take off and fly. As the state moves against revolutionary and progressive prisoners, the people need support from the outside as well. It is hoped that Behind the Walls will take that effort to new heights. Send submissions ...

Exhaustion of State Remedies Not Required to Challenge Parole Board Procedures

Exhaustion of State Remedies Not Required to Challenge Parole Board Procedures in Federal Court

The U.S. Court of Appeals for the 7th Circuit has held that a prisoner who is dissatisfied with the procedures used to consider his or her application for parole is not required to exhaust available state remedies in state courts before filing a habeas corpus petition in federal court. The Appeals Court reasoned that since challenges to procedures a state uses in considering applications for parole do not draw into question the basis of confinement, and therefore it can be brought under 42 U.S.C. § 1983 and exhaustion of state remedies is not necessary.

The interesting aspect of this case is the manner in which the court seeks to straddle the contradiction between Wolff v. McDonnell and Preiser v. Rodriguez , which struggle to define the limits of the federal habeas corpus statute (28 U.S.C. § 2254) in relation to the federal civil rights remedy (42 U.S.C. § 1983). Preiser held that challenges to the fact or duration of confinement belong on the § 2254 side of the line. Wolff says a prisoner may obtain money damages under § 1983 for constitutional errors in a ...

D.C. Changes Jail Condom Policy

Washington, D.C., Mayor Sharon Pratt Kelly recently unveiled a plan to combat AIDS that includes distributing condoms to the city's inmates. The plan, which was scheduled to take effect in July, will combine condom distribution with educational AIDS programming. A voluntary course for inmates is being replaced by six mandatory 90-minute classes that will cover how AIDS is transmitted, sexual attitudes among men and women and self-esteem issues. Inmates also will be encouraged to get confidential AIDS tests and counseling.

Sex between inmates remains against the rules. In the District, inmates having consensual sex may lose privileges and be segregated in their cells for up to two weeks. Washington joins three other cities--New York, Philadelphia and San Francisco--and two states, Vermont and Mississippi, that provide condoms to inmates.

Editorial

Editorial Comments

By Ed Mead

First of all, readers should have noticed that we printed fourteen pages of the PLN last month, four more than our usual number. The reason for this bonus was due to an unexpected increase in contributions from prisoners and family members. I have no idea why donations are up some months and down others. If there was some way I could figure it out we would have "high donation" issues every month. Anyway, we did well in July and so were able to give you a little bonus with the August issue. When we do well on the financial front we'll pass the benefits on to you. Our income for the month of July was $378.63, and the cost of producing and mailing 916 copies of the July issue was $369.72, leaving us with a whopping surplus of $8.91 left over.

On the negative side, the August issue looked like a piece of trash. That was because we have a new person doing the computer work, and he's still learning how to do it. We should be looking better this month.

While I have not formally mentioned this for several ...

Bill Clinton's Blood Sacrifice

By Paul Wright

Recently the media has been awash in allegations by Gennifer Flowers, a nightclub singer, that she had carried on a 12 year love affair with Democratic Party presidential candidate Bill Clinton. Clinton and his wife have both appeared on TV and numerous press conferences to deny Flowers' allegation, and at the same time refuse to answer questions about their personal lives. Cynics have dismissed their denials as those of a pair of yuppies that will do anything to get elected.

The mainstream media has given heavy coverage to the "story" (which was originally bought by supermarket tabloid The Star ) by giving the appearance of trying to discuss whether or not to discuss the story while giving it saturation coverage. While a number of media personalities say that Clinton's fidelity is not relevant to whether or not he is qualified to be president, it does speak of his character and voters should be aware of this.

What voters should also be aware of in Clinton's "character" is his cynical and callous manipulation of the death penalty to try and get elected. On January 31, 1992, Rickey Ray Rector was executed by lethal injection in Arkansas. Clinton ...

On the Upcoming Presidential Elections

During the next several months the mass media will be pulling the wool over the eyes of working people in America. They will be doing this by using Gulf War type saturation coverage of the elections. In many ways it is all part of the same ongoing campaign: to spread the myth that we live in a democracy and to promote the idea that U.S. imperialism is a force for freedom and progress.

This media saturation is part of the illusion that we live in an information society, when, in fact, we live in a media society. An information society, one with unrestricted access to information, is a threat to the existing order. The free flow of information would make visible the suffering of the people of Iraq. It would juxtapose U.S. self-righteousness in relation to Libya, on the one hand, with the CIA's terrorist car bomb it planted in Beirut that killed 80 people, or this country's use of murder as an instrument of foreign policy (e.g., the CIA killing of Patrice Lumamba in the Congo, etc.).

The Big Lie that has to be starkly exposed once and for all is the idea that ...

Taking of DNA Samples Violates Ex Post Facto Clause

Virginia state prisoners filed suit challenging Virginia legislation which directs the DOC to take and store blood from prisoners for Deoxyribonucleic acid (DNA) analysis and storage. (DNA is the basic component of living organisms, every human has a DNA blueprint which contains individual characteristics and is different for everyone except identical twins. DNA analysis has recently been used in criminal trials where DNA samples, usually recovered from blood or semen samples, have been matched to specific suspects. Some state courts have accepted DNA identifications, others have not on grounds it is not a scientifically accepted practice.) The prisoners claimed the practice was an illegal search and seizure in violation of the 4th amendment and that it violated the ex post facto clause because it was being enforced to modify the mandatory release date of prisoners convicted before the statutes effective date. The district court upheld the statute under both attacks.

On appeal the 4th Circuit Court of Appeals affirmed in part and reversed in part.

The court upheld the statute requiring mandatory blood samples from all convicted prisoners. It held that convicted felons have no privacy right in preventing such seizures, even if the seizure lacks any type of individualized ...

Jury Trial Required for Ad-Seg Claim

John Dell-Orfano was arrested and held in administrative segregation (ad seg) in the Suffolk County jail in New York. Before being placed in ad seg he did not receive any type of hearing, notice or opportunity to dispute the placement. He filed suit in US District Court claiming violation of his right to due process as well as challenging the conditions of his ad seg confinement, i.e., denial of law library access, inadequate living and exercise facilities, cell lights being on 24 hours a day, etc. He specifically requested a jury trial which the court denied. After a bench trial the district court ruled in favor of the defendants.

On appeal the 2nd Circuit Court of Appeals vacated and remanded. The court found that Dell-Orfano was entitled to a jury trial and could rely on the defendants jury demand to preserve his right to a jury trial. Because the right to a jury trial is so fundamental it's waiver is not lightly inferred. His participation in the bench trial did not constitute a waiver of that right for appeal purposes.

The Court also held that the lower court used an improper analysis on the ad seg claim by ...

23% of NY Prisoners Test Positive for TB

Twenty-three percent of New York's prisoners and six percent of the prison employees have tested positive for tuberculosis infection, according to the most thorough study to date.

Thomas A. Coughlin, the Commissioner of Correctional Services, released the data. The tests included nearly all prison personnel and prisoners. Of the 55,000 prisoners tested, 12,530 showed positive results, meaning that they had been exposed to the bacteria that cause TB.

Of the 20,000 employees tested, 1,736 had positive results.
New York Times

Inhumane Conditions Suit Requires Trial

Marshal Jackson, an Indiana state prisoner filed suit on the subhuman prison conditions he was subjected to in the Indiana penal system. He claimed he was forced to live with filth, inadequate plumbing, roaches, rodents, poor lighting, inadequate heating, rusted out toilets, drinking water with small black worms in it, dirty bedding and broken windows, among other things, which taken together violated the eighth amendment.

The defendants moved for summary judgment, claiming the conditions described in Jackson's suit did not exist. Jackson responded with a sworn affidavit detailing the conditions. The district court dismissed the case ruling there was no evidence that the complained of conditions violated the eighth amendment.

On appeal the Seventh Circuit Court of Appeals reversed and remanded. The Court of Appeals held that Jackson's sworn affidavit about his conditions was sufficient to show a genuine issue of material fact was in dispute and thus withstood summary judgment.

The court held that such conditions, if true, are barbarous enough to violate the eighth amendment in their objective component. The court also held that prison officials had a subjective intent to violate Jackson's eighth amendment rights when they were aware of these conditions yet took ...

Prisons Cost More Than Harvard

A recent 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 problems 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 British 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," he says, "that the criminal justice process can have damaging and self-defeating ...

Washington Feces Watch and Visiting Policy Create Liberty Interest

Rogaciano Mendoza was a prisoner at the Washington State Penitentiary (WSP) at Walla Walla in 1989 when prison officials discovered a broken balloon containing a white substance in the visiting room bathroom being used by Mendozas 6 children. Mendoza was placed in a dry cell under a "feces watch." He was only allowed his underwear with no clothing or property of any type. No contraband was found in his feces. He was infracted and charged with attempting to smuggle contraband into the prison. He was found guilty at the hearing but on appeal the warden, Jim Blodgett, dismissed the infraction for lack of evidence. However, Mendozas visiting privileges with his wife and children were suspended for 90 days. Mendoza then filed suit under § 1983 claiming his right to due process of law had been violated. Magistrate Hovis found Mendozas rights had in fact been violated but because the rights involved were not "clearly established" at the time the defendants were entitled to qualified immunity from money damages.

On appeal the 9th Circuit Court of Appeals affirmed the lower court ruling. The court affirmed that WSP Policy 09.053, the feces watch policy in effect at the time, did create a ...

Preliminary Injunction Issued Against Grooming Code

Three Oklahoma state prisoners filed suit challenging the Oklahoma DOC's policy of banning any facial hair or hair longer than 3 inches in length. The prisoners claimed their religious beliefs forbid the cutting of their hair. In two cases requests for preliminary injunctions were denied by separate district courts and in the third case summary judgement was granted to the DOC.

In a consolidated appeal the Court of Appeals for the 10th Circuit reversed all three lower court rulings.

The court held that substantial and serious questions are raised by a prison policy which impacts prisoners religious beliefs and practices. Thus, the prisoners were entitled to preliminary injunctions enjoining enforcement of the grooming policy.

The court reversed summary judgement against one prisoner because the lower court relied on alleged factual findings by prison officials rather than making it's own factual findings. The prisoners affidavit conflicted with prison officials version on several material issues of fact thus requiring a trial to resolve the dispute. See: Longstreth Vs. Maynard , 961 F.2d 895 (10th Cir. 1992).

Before anyone gets too optimistic they should also compare this case with Scott Vs. Mississippi DOC , 961 F.2d 77 (5th Cir. 1992) which ...

Federal Public Defenders Broke

The Administrative Office of the U.S. Courts has announced that court appointed lawyers, investigators, psychologists and other experts used by the defense will not be paid after June 17, 1992, until the new fiscal year begins on October 1, 1992, because the government "ran out of money" to pay these fees.

As many as 40,000 lawyers and defense experts could be affected by the shortfall. Lawyers in several cities have threatened to quit amid major trials or appeal to higher courts that the lack of timely payments makes such trials fundamentally unfair.

The reason for the shortfall is that officials badly underestimated the amount of money needed to pay court appointed lawyers and Congress refused to appropriate $25 million in emergency aid.

David Lewis, an official with the National Association of Criminal Defense Lawyers said: "This tilts the whole system even more toward the prosecutor. The prosecutors are being paid. The FBI people are being paid. And so are the DEA investigators. But the defense lawyer isn't being paid, and he can't retain an investigator or a pathologist or accountant to help out in a complex case."

Major trials have already been delayed in several states ...

Peruvian Prisoners Massacred

On May 5, 1992, Peruvian President Alberto Fujimori staged a coup with backing from the Peruvian military which suspended that countries parliament, constitution, writ of habeas corpus and other legal provisions. The reasons he gave for the coup were that he needed greater freedom to implement the economic reforms demanded by Peru's creditors and to better carry out the war against the Communist Party of Peru (PCP), also known in the media as Sendero Luminoso. In past issues of PLN we have reported the persecution and attacks against PCP political prisoners and Prisoners of War (POW's). As the POW's themselves suspected ( PLN , April, 1992), the feared massacre finally happened.

At 2:30 AM on May 6, 1992, over 500 soldiers and policemen surrounded the Canto Grande prison in Lima, Peru, where about 650 POW's were being held. They claimed they were going to transfer the women POW's to another prison. The prisoners feared that once separated they would be tortured, raped and killed individually and thus resisted the incursion. Initially the prisoners killed two policemen and took 2 submachineguns and a rifle from the attackers, using this they were able to drive the security forces ...

 

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