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Prisoner Education Guide

Prison Legal News: March, 2019

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Volume 30, Number 3

In this issue:

  1. The Kill Line (p 1)
  2. Seventh Circuit Reverses Dismissal of Juvenile Prisoners’ Civil Rights Case (p 7)
  3. From the Editor (p 8)
  4. Texas Accounts for Over Ten Percent of Nation’s Jail Deaths (p 10)
  5. U.S. Marshals Report: Ohio County Jail “One of the Worst in the Country” (p 12)
  6. Without Interpreters, California’s Deaf Prisoners are Getting Stuck Behind Bars (p 14)
  7. Since 1996, U.S. Agriculture Department Gave Over $277 Million to Fund Local Jail Construction (p 16)
  8. Sixth Circuit Reverses Injunction Against Delousing and Group Strip Searches at Ohio Jail (p 19)
  9. Missouri Prisoner Awarded $111,000 in Second-Hand Smoke Case, DOC Bans Smoking (p 20)
  10. New Sheriff Ends Juvenile Solitary Confinement at North Carolina Jail (p 20)
  11. Eighth Circuit Finds Verified Complaint Defeats Summary Judgment Motion in Failure-to-Protect Case (p 22)
  12. Philadelphia Robbing the Poor Through Civil Forfeiture (p 22)
  13. County Detainees Protest Food Served at New Hampshire Jail (p 23)
  14. Fifth Circuit Holds Magistrate Judge Has No Authority to Deem Motion for Reconsideration Withdrawn (p 25)
  15. Washington County, School District Pay $265,000 for Holding Juveniles in Solitary (p 26)
  16. Report Shows 50 New York Prisoners Died from Inadequate Medical Care in Last Five Years (p 26)
  17. $100,000 Settlement for Preventable Suicide in Virginia Department of Corrections (p 28)
  18. In Memoriam: Jane Kahn (1954-2018) (p 28)
  19. Alabama Prison Warden Lacks Authority to Make End-of-Life Decisions for Prisoners (p 29)
  20. Eighteen Years After its Passage, Prisons and Jails Continue to Violate RLUIPA (p 30)
  21. Israeli Supreme Court Orders Increased Personal Space for Prisoners (p 31)
  22. JP Morgan Chase Bank Used Secretive Bonds to Finance Kansas Prison Construction (p 32)
  23. Idaho Supreme Court Vacates Conviction After D.A. Seizes Jailed Defendant’s Legal Notes (p 33)
  24. Illinois DOC Permanently Enjoined From Neglecting Prisoners’ Mental Health (p 34)
  25. Santa Clara County Settles Lawsuit, Makes Jails Handicapped Accessible (p 34)
  26. Connecticut Prisoner Survives DOC’s Summary Judgment Motion in Mental Health Suit (p 36)
  27. Seventh Circuit Excuses Exhaustion Requirement for Spanish-Speaking Prisoner (p 36)
  28. Free Phone Calls for Juvenile Offenders Jailed in Memphis, Tennessee (p 38)
  29. Indiana Prisoners Win Partial Summary Judgment in Jail Conditions Case (p 38)
  30. Report Released on Deaths in Utah Prisons and Jails (p 40)
  31. HRDC Settles Lawsuit Against Mississippi Jail that Only Allowed Religious Reading Materials (p 40)
  32. Ohio Governor Commutes Death Sentences, Grants Reprieves for Another (p 42)
  33. Two Transgender Prisoners Transferred to Women’s Prison (p 42)
  34. Counties Modify, Cancel Contracts for Privately Operated Immigration Detention Centers (p 44)
  35. Female Prisoner Wore Wire to Take Down Rikers Island Guards, Wins $425,000 Settlement (p 44)
  36. No Summary Judgment for Jail’s Denial of Mental Health Treatment; $150,000 Settlement (p 46)
  37. Closed Since 2013, Tamms Prison Now “Rampant” with Mold (p 46)
  38. Alaska Disciplinary Order Vacated for Violating Wolff’s Statement of Reasons Requirement (p 48)
  39. Tenth Circuit: Qualified Immunity Defeats 22-Year Solitary Confinement Claims (p 48)
  40. Federal Court Certifies Class in Ohio County Jail Debit Card Case (p 49)
  41. Seventh Circuit Vacates, Remands Punitive Damages Award Against Wexford (p 49)
  42. $150,000 Settlement after Michigan DOC Discriminates Against HIV Positive Prisoner (p 50)
  43. Wisconsin Federal Court Denies New Trial, Grants Attorney Fees in Sexual Abuse Case (p 51)
  44. Arkansas DOC Director’s Sole Discretion to Determine Competency for Execution Violates Due Process (p 51)
  45. LA County Jail Guards’ Conviction for Assaulting Visitor Upheld (p 52)
  46. Grandmother Arrested and Mocked by Federal Agents Awarded $55,000 Settlement (p 53)
  47. California Prison Psychologist Blows Whistle on LGBTQ Harassment, Settles Lawsuit for Retaliation (p 54)
  48. Voters Consider Criminal Justice-Related Issues in Midterm Elections (p 54)
  49. North Carolina Prison Guard Sues Over Religious Discrimination (p 55)
  50. Long-Term Illinois Prisoners Rarely Released by State Parole Board (p 56)
  51. Reports Cite Poor Leadership in U.S. Marshals Service (p 56)
  52. Prisoner Who Inspired First Step Act Is First Released (p 57)
  53. New York Criminal Defense Attorney Charged with Federal Crimes (p 58)
  54. Settlement in Lawsuit Against Missouri DOC’s Selection of Execution Witnesses (p 58)
  55. Colorado Voters Approve Constitutional Amendment Abolishing Prison Slavery (p 59)
  56. Maine Prisoner’s Challenge to Confiscation of Funds States Declaratory Judgment Claim (p 59)
  57. Kentucky Jailer Gets New Trial in Beating of Pretrial Detainee (p 60)
  58. CoreCivic Bilked Rural Oklahoma Town, Forced to Pay Back Money in Lawsuit (p 60)
  59. “Prisoner of Weed” Released, Sets Sights on Criminal Justice Reform (p 61)
  60. Hedge Fund Pumps More Money into Corizon Health (p 61)
  61. Fourth Circuit: BOP Must Consider State Court’s Designation to Serve Concurrent Federal Sentence (p 62)
  62. Executive Order Prompts BOP to Expand Prison Apprenticeship Programs (p 62)
  63. News in Brief (p 63)

The Kill Line

Should Prisons be in Business with One of the Most Dangerous Industries in America?

by Will Tucker, Southern Poverty Law Center

Frank Dwayne Ellington set out toward Ashland, Alabama on October 29, 2017, headed to the only place he could go: to work. He rode through a region bounded by the Talladega National Forest to the north and Lake Martin to the south. It’s an area like many others in rural Alabama, where a poultry plant is one of the largest employers for miles.

His destination was a spot near the Kill Line at Koch Foods of Ashland’s poultry plant, where machines slaughter thousands of chickens every day.

It was Sunday, which meant the plant was operating with a skeleton crew. Ellington and five others – all fellow prisoners in a work release program – arrived at the factory to join them. His job was to clean the plant on the sanitation shift. In the late afternoon, Ellington approached a machine called an Automatic Rehanger with his rag and bucket. On other shifts, the machine transfers chicken carcasses from one stage of processing to another.

The machine was running, but Ellington began to clean it anyway.

At 4 ...

Seventh Circuit Reverses Dismissal of Juvenile Prisoners’ Civil Rights Case

by Derek Gilna

The Seventh Circuit Court of Appeals has reversed the dismissal of a federal civil rights lawsuit filed by two Iowa girls who alleged they were mistreated at the Wisconsin Girls State Training School at Copper Lake. After their placement in that out-of-state facility in 2015, they said they were subjected to cruel and unusual punishment.

The federal appellate court noted that the district court had prematurely dismissed plaintiffs Laera D. Reed and Paige Ray-Cluney’s claims against Charles Palmer, director of the Iowa Department of Human Services, based upon the defense of qualified immunity. 

While at the Copper Lake facility, their complaint stated, “staff subjected them to prolonged periods of ‘isolation,’ which involved spending about 22 out of 24 hours each day in a 7-foot-by-10-foot concrete cell furnished with only a metal cot and a thin mattress. They allege these isolation cells had urine stains on the floor and wall, and only one window ‘covered by a thick cage reducing light that [could] pass through.’” Further, they said they received little to no educational services, were often not released from solitary for meals and were subjected to several incidents of excessive force, including the use ...

From the Editor

by Paul Wright

This month’s cover story reports on the long-familiar use of prison slave labor to perform dangerous, dirty work that few others in the U.S. are willing to do – and for slave wages at that. Ironically, with the current political attacks on undocumented immigrants who normally perform this kind of work, there is added pressure on employers unwilling to pay higher wages to encourage the use of prison slave labor instead.

Speaking of slavery, on February 14, 2019, I received a Frederick Douglass 200 award from the Frederick Douglass Family Initiatives and the Anti-Racist Research and Policy Center at American University. The awards ceremony was held at the Library of Congress in Washington, D.C., and 77 of the 200 people nominated for the awards showed up to receive them. To celebrate the bicentennial of Douglass’ birth, the awards recognize one person per year who has worked for equality and justice. My award was in the category of abolitionist. It is a sad commentary on American politics that 200 years after Frederick Douglass was born a slave, the U.S. Constitution still enshrines slavery in the Thirteenth Amendment for people convicted of a crime. 

The ...

Texas Accounts for Over Ten Percent of Nation’s Jail Deaths

by Matt Clarke

There are over 1,000 prisoner deaths each year in U.S. jails, according to the Bureau of Justice Statistics, and one of every ten occurs in Texas. Over the nine-month period between October 1, 2017 and July 1, 2018, some 80 prisoners died in Texas jails – a rate 22 percent above the national average over the previous 13 years. 

One reason for the state’s high death rate may be insufficient oversight. Despite the high number of jail deaths, only 7.5 percent of the state’s nearly 280 jails were ruled non-compliant by the Texas Commission on Jail Standards (TCJS), the agency that sets the standards local jails are supposed to follow.

The facilities overseen by the TCJS take in over a million prisoners each year, with an average daily population of around 65,000 spread across the sprawling state. According to Right on Crime, a project of the Texas Public Policy Foundation, most of the people jailed in Texas – 74 percent – are pretrial detainees.

The TCJS also inspects jails and investigates prisoner deaths, but it has just four inspectors to ensure that local jails are compliant with standards related to building ...

U.S. Marshals Report: Ohio County Jail “One of the Worst in the Country”

by Matt Clarke 

One week after the release of a report by the U.S. Marshals Service on November 21, 2018, which described Ohio’s Cuyahoga County jail system as “one of the worst in the country,” jail administrator Ken Mills resigned. Citing the report’s findings, seven prisoners at the facility filed a federal civil rights lawsuit on December 20, 2018. And after eight prisoners died within a six-month period in 2018, activists protested outside the home of County Executive Armond Budish in suburban Cleveland.

In January 2019, Cuyahoga County announced a new contract with private healthcare provider MetroHealth that will add much-needed medical staff at the jail. But all 34 Common Pleas judges in the county said they no longer trust assurances from Budish and Sheriff Clifford Pinkney that problems at the facility will be corrected.

Mills was indicted on January 19, 2019, accused of lying to the County Council at a May 2018 meeting about his “role in blocking the hiring of necessary nursing staff for jail facilities.” The indictment also accused him of lying to investigators with the U.S. Marshals Service about exchanges he had with an unnamed “high-level Cuyahoga County official.”

Mills ...

Without Interpreters, California’s Deaf Prisoners are Getting Stuck Behind Bars

“It’s the utmost violation of due process I can think of.”

by Samantha Michaels, Mother Jones

In 2016, a prisoner in Corcoran, California faced a dilemma. The parole board wanted to know whether he’d completed any self-help programs during his incarceration, a sign that he’d been rehabilitated and could be trusted to go home. The prisoner, whose name has been withheld for privacy reasons, said yes: At the Substance Abuse Treatment Facility (SATF), a state-run correctional center, he’d signed up for a group for people serving life sentences. The problem, he admitted, was that he was deaf, and his hearing impairment prevented him from understanding what went on during meetings. “I guess they’re waiting to get an interpreter for that group,” he explained to the board, referring to a sign language interpreter. “But I’ve been going,” he added. “I’m showing up.”

It wasn’t enough for the parole board, which denied him release. “I understand you have limitations,” one of the commissioners said, according to court documents. The commissioner scolded him for not participating in more programs. He would have to wait five years before applying for another hearing.

Under federal law, all prisons are ...

Since 1996, U.S. Agriculture Department Gave Over $277 Million to Fund Local Jail Construction

by Brian Sonenstein, Shadowproof

The United States Department of Agriculture provided over $277 million in funding for county jail construction since 1996, according to documents obtained by Shadowproof.

The funding came in the form of grants and long-term low-interest loans through the Community Facilities Direct Loan and Grant Program run by the USDA’s Rural Development agency.

Small rural communities are supposed to benefit from the CF program, which is designed to assist residents with the purchase, construction or renovation of essential buildings, such as hospitals, town halls, libraries and food pantries. It also funds “public safety” facilities for fire, law enforcement and corrections departments.

CF program loans typically have a thirty- to forty-year term with fixed interest rates set by the agency (usually around three-to-four percent). Grants are awarded primarily to small and impoverished counties and can only account for a maximum of 75 percent of the proposed project costs. Some counties received a mix of grants and loans.

North Carolina received the most money from the program over the last 20 years, with counties taking $66.7 million in loans since 2005. Their most recent loan was for nearly $20 million to renovate and expand the Bladen County Jail ...

Sixth Circuit Reverses Injunction Against Delousing and Group Strip Searches at Ohio Jail

by Derek Gilna

On November 2, 2018, the Sixth Circuit reversed a permanent injunction and summary judgment order entered by a federal district court in a 42 U.S.C. § 1983 action filed by former prisoner Tynisa Williams against the City of Cleveland, challenging group strip searches and mandatory delousing at the city’s House of Correction (HOC). 

The appellate court found that Williams lacked standing to proceed, and that the city’s policies did not violate the Fourth Amendment.

The case was initially heard by the Sixth Circuit in 2014, when it overturned the dismissal of Williams’ original lawsuit against the city, and on remand the district court issued a permanent injunction. That injunction, in the words of the Court of Appeals, “enjoined the City from reinstituting its previous delousing method and from conducting group strip searches without installation of privacy partitions to obstruct the view of other inmates.”

However, the Sixth Circuit took issue with the breadth of the injunction, stating, “The Fourth Amendment does not prohibit all invasive searches and seizures – only those that are ‘unreasonable,’” citing Bell v. Wolfish, 441 U.S. 520 (1979). “Whether a prison search is constitutionally reasonable depends on ...

Missouri Prisoner Awarded $111,000 in Second-Hand Smoke Case, DOC Bans Smoking

by Derek Gilna

Ecclesiastical Denzel Washington, a former death row prisoner who is now serving a life sentence, won a jury verdict against the Missouri Department of Corrections (DOC) and various prison officials totaling $111,000. Following the April 2017 verdict, Washington negotiated a settlement banning the sale and consumption of tobacco and tobacco products in state prisons.

His lawsuit alleged that Missouri DOC officials subjected him to cruel and unusual punishment in violation of the Eighth Amendment by ignoring his individual medical management plan, which “required that he be placed in [a] smoke-free environment.” Washington claimed that being housed with smokers exacerbated his asthma and bronchitis.

He attached to his pro se complaint an article from the St. Louis Post-Dispatch, which referenced a study by the U.S. Surgeon General entitled, “There is no safe level of secondhand smoke.” Washington meticulously recorded every time prison staff failed to provide him the living environment that his health and their own policies required, and informed DOC officials that the smoking policies at the Crossroads Correctional Center – which prohibited prisoners from smoking inside their housing units – were not being followed. His complaints were ignored and he was ...

New Sheriff Ends Juvenile Solitary Confinement at North Carolina Jail

by Kevin W. Bliss

Elected in May 2018 and sworn in seven months later, Mecklenburg County, North Carolina Sheriff Garry McFadden has already made good on campaign promises to restore in-person visits at the local jail and to withdraw the county from the 287(g) program, which included running prisoners’ names through a federal database to determine if they were in the country illegally. In January 2019, McFadden announced another reform: he ended solitary confinement for juvenile offenders at the county jail.

A December 2016 article in the Charlotte Observer documented the use of solitary confinement under former Sheriff Irwin Carmichael, who held juveniles aged 16 to 17 in the jail’s Disciplinary Detention Unit (DDU) for 23 hours a day in 70-square foot, windowless cells without access to visits, phones, televisions or any meaningful contact. They were not even allowed library books.

Former President Barack Obama ended the use of solitary confinement for juveniles in federal custody in 2016, citing segregation’s “devastating, lasting psychological consequences.” North Carolina’s Department of Public Safety followed suit the same year, banning solitary for juveniles in state prisons. The state was one of just two – along with New York – that automatically prosecuted ...

Eighth Circuit Finds Verified Complaint Defeats Summary Judgment Motion in Failure-to-Protect Case

by Matt Clarke

On August 20, 2018, the Eighth Circuit Court of Appeals rejected an appeal filed by officials at the Northeast Arkansas Community Corrections Center (NEACCC) in a lawsuit alleging they had failed to protect a prisoner from being physically and sexually harassed, threatened and assaulted, and instead punished him for reporting the abuse. 

While Willard Eugene Berry was incarcerated at NEACCC, he reported to Therapeutic Community Supervisor Brian Doss, Substance Abuse Counselor Carol McFarlin and Treatment Supervisor Karen Hardesty that he was being sexually and physically harassed, threatened and attacked by other prisoners. Not only did they fail to protect him from harm, allowing another prisoner to hurt him, Doss allegedly removed Berry’s writing materials for two weeks so he could not submit written complaints, and placed one of the abusive prisoners in the same cell with him. Ultimately, that prisoner hurt Berry. 

Berry filed a pro se verified complaint in federal district court under 42 U.S.C. § 1983 against Doss, McFarlin, Hardesty and other defendants. Later, in response to the district court’s order to provide greater specificity, he filed an unverified amended complaint. The defendants moved for summary judgment seeking qualified immunity, but ...

Philadelphia Robbing the Poor Through Civil Forfeiture

by Ed Lyon 

In just the four zip codes of Philadelphia’s Kensington neighborhood, whose mainly black and Hispanic residents suffer high rates of poverty, civil asset forfeiture (CAF) proceedings netted 1,682 properties that were seized and sold by the District Attorney’s office between 1993 and 2018 ...

County Detainees Protest Food Served at New Hampshire Jail

by Kevin W. Bliss

In mid-2018, prisoners at the Bristol County House of Correction (HOC) in Massachusetts participated in a hunger strike to protest inadequate food and medical care. Sheriff Thomas M. Hodgson said those were the same complaints prisoners have always made, which were without merit. He blamed outside groups for inciting the protest, which he opined “could set off a riot in a matter of a minute.” 

“They are exposing my officers, my staff, and the inmates that we have care and custody of to either being seriously hurt or killed as a result of their stirring up these inmates inside our facilities,” Hodgson added.

No riot or injuries occurred, though.

Val Ribeiro, an immigration attorney, said the lack of sufficient medical treatment has been “a consistent problem” for her clients, who are ICE detainees held at the jail.

“We kind of have to move mountains to get [Bristol County] to acknowledge it, number one, and to provide them with the proper medication and treatment if necessary,” Ribeiro noted.

“We have a nurse in that facility everyday, almost the entire day,” Hodgson countered. “We have doctors if somebody needs a doctor.”

The ...

Fifth Circuit Holds Magistrate Judge Has No Authority to Deem Motion for Reconsideration Withdrawn

by Matt Clarke

On August 21, 2018, the Fifth Circuit Court of Appeals held that a federal magistrate judge had no authority to sua sponte deem a motion for reconsideration withdrawn in a pro se civil rights complaint. 

Former Texas state prisoner Eric Lawson filed suit pursuant to 42 U.S.C. § 1983, alleging that prison officials “denied him access to programs and services, including sex offender treatment.” After the district court dismissed the case without prejudice, Lawson filed a motion “requesting reconsideration based on circumstances beyond plaintiff’s control.” A magistrate judge withdrew the motion sua sponte almost seven months later. Lawson then filed a notice of appeal.

The Fifth Circuit liberally construed the motion for reconsideration as a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). A Rule 59(e) motion tolls the deadline for filing a notice of appeal until an order is entered disposing of the motion. However, the motion was not disposed of because “the magistrate judge’s decision to withdraw Lawson’s Rule 59(e) motion was not a legally binding disposition.” 

The appellate court held that in cases where the parties have ...

Washington County, School District Pay $265,000 for Holding Juveniles in Solitary

by Dale Chappell

In August 2018, King County, Washington agreed to pay $240,000 to settle a lawsuit filed by four juveniles who were placed in solitary confinement at the county’s Regional Justice Center (RJC) in Kent. The settlement includes policy changes to ensure juvenile offenders are not held in ...

Report Shows 50 New York Prisoners Died from Inadequate Medical Care in Last Five Years

by Dale Chappell

A 2018 report by a New York State medical review board charged with reviewing prisoner deaths determined that at least 50 state prisoners had died within the past five years due to insufficient medical care. The board concluded that the deaths could have been prevented with simple medical or mental health treatment; however, the report is not posted online nor is it readily available even to family members of the prisoners who died.

Todd Heatley was one of those prisoners. When his mother, Maureen, visited him at the Wende Correctional Facility in 2014, the 33-year-old was so distraught that he didn’t recognize her. She cut the visit short and asked staff to get him medical help. 

“He was totally disoriented,” she stated. 

Before she left, Maureen said a correction sergeant promised he would take care of her son, who was serving a 25-year sentence for murder. The guard didn’t keep his promise, though. Instead, he determined Heatley was not experiencing an emergency and could be handled by medical staff within the next two weeks. Three days later, Heatley was found hanging from a bed sheet in his cell. 

The medical review board determined ...

$100,000 Settlement for Preventable Suicide in Virginia Department of Corrections

by Kevin W. Bliss

Dai’yaan Qamar Longmire, a 19-year-old from Virginia Beach, was serving a four-year sentence at the Indian Creek Correctional Center (ICCC) in 2014 when he committed suicide in his cell using a sheet tied to a ceiling vent.

Represented by Michael Hill, Longmire’s mother filed ...

In Memoriam: Jane Kahn (1954-2018)

by Paul Wright

For the past 15 years, the San Francisco law firm of Rosen Bien Galvan & Grunfeld LLP has represented Prison Legal News and its parent organization, the Human Rights Defense Center, in censorship and public records cases in California, Nevada and Arizona, and co-counseled other cases with us. Over the years I have gotten to know many of the fine attorneys at RBGG, and have appreciated not only their skill and legal acumen but also the deep personal commitment they bring to issues involving human rights in general and prisoners’ rights in particular.

Jane Kahn worked at RBGG from 1997 until her retirement in 2018. She was born in 1954 in St. Louis, Missouri and died in her sleep of brain cancer, at home with her family, on December 26, 2018. Jane graduated from the UC Berkeley School of Law in 1983 and worked for the Legal Aid Society of Marin County and the Prison Law Office in the 1990s before joining RBGG. Her husband, Michael Bien, and one of her three sons, Ben Bien-Kahn, also work at the law firm. 

Jane’s greatest legal contributions in terms of impact on prisoners’ rights were in Armstrong v ...

Alabama Prison Warden Lacks Authority to Make End-of-Life Decisions for Prisoners

The Eleventh Circuit Court of Appeals held on October 2, 2018 that an Alabama prison warden was not entitled to qualified immunity because his actions of requesting a do-not-resuscitate (DNR) order and decision to remove a prisoner from life support did not fall within the scope of his discretionary authority.

St. Clair Correctional Facility prisoner Marquette F. Cummings, Jr. was stabbed in the eye with a shank on January 6, 2014. He was life-flighted to the University of Alabama at Birmingham Hospital, where he was found to be in “critical condition.”

Warden Carter Davenport included an instruction with Cummings’ paperwork that “‘no heroic measures’ would be taken to save his life.” That resulted in hospital staff entering a DNR order.

Sometime later, Davenport ordered that Cummings be removed from life support, which resulted in his death at the hospital on January 7, 2014.

Cummings’ estate filed suit against Davenport, the Alabama Department of Corrections and hospital staff. The district court dismissed all claims except a deliberate indifference claim against Davenport, and held he was not entitled to qualified immunity because he could not show that his actions were within his “discretionary authority” as a state official.

On ...

Eighteen Years After its Passage, Prisons and Jails Continue to Violate RLUIPA

by Derek Gilna

After decades of complaints by prisoners that corrections officials frequently denied them the right to practice their religion, Congress took action and passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), codified at 42 U.S.C. § 2000cc.

According to the U.S. Department of Justice (DOJ), RLUIPA “is a civil rights law that protects the religious freedom of persons confined to prisons, jails, and certain other institutions in which the government exerts a degree of control far greater than that which is found in civilian society.” 

As noted by the DOJ, “[a]fter hearings in which Congress found that persons residing in institutions are sometimes subject to discriminatory or arbitrary denial of the ability to practice their faiths beyond what is needed for the security and proper functioning of the institution, Congress passed RLUIPA unanimously in 2000. President Clinton signed RLUIPA into law on September 22, 2000.”

During debate on the legislation, U.S. Senator Ted Kennedy acknowledged what criminal justice experts had been saying for years: “[s]incere faith and worship can be an indispensable part of rehabilitation.” 

The DOJ has issued guidance on the parameters ...

Israeli Supreme Court Orders Increased Personal Space for Prisoners

by Monte McCoin 

Researcher Lila Margalit, with the Israel Democracy Institute’s Amnon Lipkin-Shahak Center for Security and Democracy, published a blog entry on June 7, 2018 that detailed a landmark 2017 judgment entered by the Israeli Supreme Court. The decision established a minimum area of personal space for both detainees and convicted prisoners in Israel’s penal system.

Margalit wrote that the average space allocated to each prisoner was only 3.16 square meters (just over 34 square feet) at the time of the high court’s ruling. The decision set an 18-month deadline for Israeli prison officials to ensure that each prisoner receive at least four square meters of personal space; an additional square half-meter of space was required for cells with an integrated toilet and shower.

Israeli jurisprudence has long relied on a prisoner’s right to dignity as a core principle in determining acceptable conditions of confinement. Margalit wrote about past judicial decisions that included the right of prisoners to receive private medical care from physicians not associated with the prison system. The dignity principle also led the court to uphold voting rights for prisoners, as well as the right to write and publish newspaper articles.

The European ...

JP Morgan Chase Bank Used Secretive Bonds to Finance Kansas Prison Construction

by Matt Clarke

Recently discovered evidence in a Thomson Reuters database revealed that, in June 2018, JP Morgan Chase Bank (JPMC) underwrote a $159.5 million bond to finance private prison operator CoreCivic’s construction of a 2,432-bed facility in Kansas. JPMC was already the largest debt holder for private prison firms CoreCivic and GEO Group. 

Make the Road New York, a nonprofit dedicated to improving the lives of immigrants and working-class Americans, teamed up with Educators for Migrant Justice and two other organizations to establish a campaign that publicizes businesses it labels “Corporate Backers of Hate.” The group discovered the Kansas prison bond details in the Reuters database, which were confirmed by Bloomberg Business News.

The Kansas bond was issued via an unusual financing method known as “private placement,” which allowed JPMC to keep the names of the investors and financial partners secret. As the Sole Placement Agent for the bond, the bank marketed it to a group of potential investors without the need for a rating or prospectus – typical requirements for a public bond offering. 

The prison construction project also represented a departure from the way CoreCivic usually does business – either ...

Idaho Supreme Court Vacates Conviction After D.A. Seizes Jailed Defendant’s Legal Notes

by Matt Clarke 

On November 30, 2018, in a substitute opinion, the Supreme Court of Idaho held that a trial court erred when it required a defendant to show he was prejudiced when the prosecution introduced evidence obtained from the seizure of notes from the defendant’s jail cell that were made at the direction of his attorney and in anticipation of an attorney-client meeting. The Court also held that the entirety of an incriminating letter from a co-defendant could not be introduced into evidence. 

While Anthony J. Robins, Jr. was held at the Ada County jail awaiting trial for aiding and abetting two first-degree murders and an attempted murder, his co-defendant, John Douglas, sent him a letter seeking to coordinate their stories in order to absolve Robins of guilt. The correspondence was intercepted by another prisoner, who provided it to his attorney and told him to use it to get a good plea deal. The prosecutor’s reaction, when informed of the letter’s existence, was to instruct the sheriff to search the cells of Douglas, Robins and the other prisoner, with the intent of finding it. During the search, deputies seized six pages of handwritten notes made by Robins ...

Illinois DOC Permanently Enjoined From Neglecting Prisoners’ Mental Health

by Derek Gilna

On October 30, 2018, a federal judge entered a permanent injunction that enjoined the Illinois Department of Corrections (IDOC) from violating the Eighth Amendment and Americans with Disabilities Act (ADA) with respect to mental health care.

In issuing the injunction, the district court found the IDOC had ...

Santa Clara County Settles Lawsuit, Makes Jails Handicapped Accessible

by Steve Horn

In November 2018, the parties in a class-action lawsuit in the U.S. District Court for the Northern District of California agreed to settle the case in the form of a consent decree. The suit centered around issues of accessibility for handicapped prisoners in Santa Clara County’s jail system, specifically those with mobility disabilities. 

The class-action suit was filed in 2016, alleging the county’s jails had an utter lack of accommodations for disabled prisoners.

“Due to the lack of accessible cells, showers, and living units in the County Jails, many individuals with mobility disabilities are segregated in restrictive medical units despite the fact they do not require ongoing medical care, and/or are held in higher security and more restrictive settings than they otherwise would be but for their disabilities,” the complaint stated. “They are further denied access to educational, religious, and rehabilitative programs due to physical and programmatic barriers, and cannot even use the toilet and shower safely due to a lack of accessible features. Inmates are not informed of their rights, are not provided with a method for requesting reasonable modifications to policies and practices, and are denied access to a functioning and ...

Connecticut Prisoner Survives DOC’s Summary Judgment Motion in Mental Health Suit

by Ed Lyon 

Raudell Mercado initially entered the Connecticut Department of Correction (DOC) in 2013 as a youthful offender at the Manson Youth Institution. In March 2015, he was formally admitted to the DOC as a pre-trial detainee; soon afterward he was transferred to the Cheshire Correctional Institution due to his assaultive behavior. After two days, he was sent to the Garner Correctional Institution for a psychiatric evaluation, then finally moved to the Northern Correctional Institution for management of his mental health issues.

Initially diagnosed as suffering from bipolar and attention deficit hyperactivity disorder (ADHD), Mercado was treated in part with drug therapy that included lithium and trazodone. After extensive interviews, defendant doctors Frayne and Gagne decided Mercado suffered from antisocial personality disorder and narcissistic disorder rather than the earlier bipolar and ADHD diagnosis; they discontinued his prescribed medications and instead ordered a behavior modification program.

Mercado sued the two doctors and other prison officials in federal court, raising claims under 42 U.S.C. § 1983, 42 U.S.C. § 12132 and the Americans with Disabilities Act (ADA). The defendants moved for summary judgment, claiming Mercado had not exhausted administrative remedies, relief was not available on ...

Seventh Circuit Excuses Exhaustion Requirement for Spanish-Speaking Prisoner

by Derek Gilna

The Seventh Circuit Court of Appeals has reversed the dismissal of an Illinois state prisoner’s 42 U.S.C. § 1983 suit for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA), based on the fact that as a Spanish-speaker he did not understand the grievance procedure.

Darwin Ramirez alleged that he was unable to file complaints at the Western Illinois Correctional Center, and in its October 9, 2018 opinion the Seventh Circuit agreed that prison officials did not give him an opportunity to file his grievances; therefore, his failure to exhaust was excused. 

According to the appellate ruling, “In 2011, Ramirez’s cellmate threatened him with a shank. Ramirez tried to tell a correctional officer about the incident, but the language barrier prevented him from describing what had occurred. As a result, the officer directed Ramirez to return to his cell. When Ramirez refused to do so, he was placed in segregation.” 

Ramirez complained that prison staff failed to take his cellmate’s threat and other threats against him seriously, and that he was unable to communicate with prison medical staff about his health issues due to his lack of ...

Free Phone Calls for Juvenile Offenders Jailed in Memphis, Tennessee

by Kevin Bliss

In November 2018, Shelby County, Tennessee – which includes the City of Memphis – renegotiated its contract with Global Tel*Link (GTL), the phone service provider for around 5,000 prisoners at the county’s four detention facilities. The new contract eliminates charges for all calls between juvenile offenders and their families or guardians. 

The contract change fulfilled a campaign promise by newly elected Mayor Lee Harris not to support government fleecing of the public. County Commissioner Tami Sawyer, chair of the Law Enforcement, Fire, Corrections and Courts Committee, said she was also reviewing the county’s contracts with companies that provide food services and goods sold to prisoners, to find ways to improve them and make them more affordable.

“It goes towards how we’re humanizing criminal justice in Memphis, so that kids can not succumb to depression or isolation and continue to stay in touch with their families – which is a big part of reducing recidivism,” Sawyer said.

Shelby County and New York City are now the only two jurisdictions in the United States that provide free phone calls to some of their jail prisoners; New York made all jail phone calls free last year ...

Indiana Prisoners Win Partial Summary Judgment in Jail Conditions Case

by Ed Lyon 

The Vigo County jail in Terre Haute, Indiana has a well-documented history of constitutional violations. In 2002, the county entered into a consent decree to cap the jail’s population at no more than 268 prisoners, among other relief resulting from a federal class-action lawsuit.  ...

Report Released on Deaths in Utah Prisons and Jails

by Ed Lyon 

A new law in Utah requires information about deaths in both the state’s prisons and local jails to be reported annually. The first death in custody report, released last November, revealed that around half of all prisoner deaths are suicides and that most jail deaths occur within the first week of incarceration. 

“What’s striking in the report is the amount of suicides and when they occur,” said Kim Cordova, executive director of the state’s Commission on Criminal and Juvenile Justice (CCJJ), which compiled the review of prisoner deaths.

Of 71 deaths reported in Utah county jails over a five-year period, 38 were suicides and 31 occurred within the first week after the prisoner was booked into jail. Six of the deaths occurred on the first day in custody.

Deaths in state prisons were less predominated by suicides, and the prisoners had usually been incarcerated far longer than one week. Of the 20 prison deaths reported in 2017, just two were suicides. Two others resulted from drug or alcohol intoxication and 15 from “illness,” while the last was listed as “other/unknown.” 

The majority of the state prisoners had served one to ...

HRDC Settles Lawsuit Against Mississippi Jail that Only Allowed Religious Reading Materials

On October 24, 2018, the Human Rights Defense Center – the parent organization of Prison Legal News – and the Mississippi Center for Justice filed suit on behalf of HRDC in federal court against Forrest County, Sheriff Billy McGee and employees at the Forrest County jail. The complaint noted that “most books and most publications are banned” at the facility, adding, “For the most part, prisoners are allowed to read only the Bible and sometimes other Christian publications.”

Due to the jail’s policies and practices, mail sent by HRDC to prisoners, including books, copies of PLN and court rulings, were rejected by jail officials and returned undelivered. The complaint argued that the jail’s policies resulted in unreasonable censorship in violation of the First Amendment, and that allowing prisoners to only read religious materials violated the Establishment Clause. Further, the jail failed to provide due process notice of the censorship or an opportunity to appeal in violation of the Fourteenth Amendment.

Beginning in August 2018, HRDC mailed dozens of publications to prisoners at the Forrest County jail, including issues of Prison Legal News and Criminal Legal News; several books, including the Prisoners’ Guerilla Handbook: A Guide to Correspondence Programs in ...

Ohio Governor Commutes Death Sentences, Grants Reprieves for Another

by Ed Lyon

As a child, Raymond Tibbetts lived a life straight out of a movie – a horror movie. He and his brothers were bounced from one foster home to another. Along their journey to adulthood, they found themselves being tied to their beds, burned, beaten, thrown down flights of stairs and starved. One of his brothers is homeless, another in prison and a third has been successful so far. 

As for Raymond, 61, until recently he was a resident on Ohio’s death row. 

During his trial for murdering his wife and the man with whom they were living, none of his childhood was made known to the jury as mitigating evidence. As is a usual occurrence in cases like this, through prosecutorial misconduct combined with an ineffective defense attorney, no meaningful information about Tibbett’s early life was revealed during his trial. He was found guilty and sentenced to die. 

His case went through the usual post-conviction route of appeals. Eventually it reached the clemency stage, where the Ohio parole board also denied relief – even after hearing from a juror from Tibbett’s trial who later discovered the excluded mitigating evidence. 

That juror, Ross Geiger ...

Two Transgender Prisoners Transferred to Women’s Prison

by Matt Clarke  

In a rare move, in December 2018 the Illinois Department of Corrections (IDOC) transferred a pre-operative male-to-female transgender prisoner from a men’s prison to a women’s facility in order to conform with the prisoner’s gender identity. A similar, equally rare move was made by Massachusetts prison officials in early 2019.

Deon “Strawberry” Hampton, 27, an Illinois state prisoner, has served about two years of a 10-year sentence for committing a residential burglary in Cook County. During that time, she was housed at four different men’s prisons. Born a male, Hampton has identified as female since age five and began hormone therapy over two years ago. 

In late 2018, the MacArthur Justice Center and Uptown People’s Law Center said the IDOC had “quietly moved Ms. Hampton from Dixon, one of four men’s prisons where she has been incarcerated and subjected to abuse, to Logan prison, in Lincoln.”

The two organizations helped Hampton file a pair of lawsuits in January 2018 over allegations of repeated abuse and sexual assault at all four of the men’s prisons, committed chiefly by staff members. In November 2018, U.S. District Court Judge Nancy Rosenstengel ruled that Hampton was likely ...

Counties Modify, Cancel Contracts for Privately Operated Immigration Detention Centers

by Matt Clarke 

Using a type of contract known as an Intergovernmental Service Agreement (ISA), Immigration and Customs Enforcement (ICE) has partnered with local governments to place immigrant detainees in unused jail beds or detention centers built specifically for that purpose, creating a network of facilities that are often run by private prison companies. [See: PLN, June 2018, p.44]. However, the legal liability and public criticism faced by counties and cities that participate in such arrangements has some of them saying “no” to ICE.

The small, farming-centered town of Eloy, Arizona hosts a 1,550-bed ICE detention center run by private prison operator CoreCivic, formerly known as Corrections Corporation of America (CCA). Opened in 1994, it is one of four facilities the company manages in or near Eloy. In the summer of 2018, about 300 immigrant women were detained there after being separated from their children by ICE.

Now those women will be sent over 900 miles away to Dilley, Texas, where ICE and CoreCivic run a facility that can house up to 2,400 immigrant detainees. The South Texas Family Residential Center (STFRC), the largest immigration detention center in the U.S., opened in 2014 in a ...

Female Prisoner Wore Wire to Take Down Rikers Island Guards, Wins $425,000 Settlement

by Rick Anderson

A female prisoner in New York who wore a wire to help bust three Rikers Island jailers who sexually abused her has received a $425,000 settlement from the city. 

The trio of guards – David Johnson, Steven Santiago and Nana Osei – reportedly abused prisoner ...

No Summary Judgment for Jail’s Denial of Mental Health Treatment; $150,000 Settlement

by Mark Wilson

On June 8, 2018, an Oregon fed-eral district court denied a summary judgment motion filed by jail officials, concluding that a reasonable jury could find a psychotic detainee’s 16-day confinement without treatment constituted deliberate indifference to his serious medical condition. 

The Lane County Sheriff’s ...

Closed Since 2013, Tamms Prison Now “Rampant” with Mold

by Matt Clarke

As previously reported in PLN, the Illinois Department of Corrections (DOC) closed the Tamms Correctional Center as part of a cost-cutting consolidation of state prisons pushed by then-Governor Pat Quinn in 2013. [See: PLN, June 2013, p.1].

Since then the supermax facility has remained vacant, unventilated and unheated – ideal conditions for unchecked mold growth. On December 5, 2018, DOC spokeswoman Lindsey Hess confirmed that both the prison and its associated work camp were “rampant” with mold. 

Three years earlier, ExecuClean Restoration issued a report on Tamms that listed high mold content in the medical office hallway, courtroom, library, operations center, mental health hallway, MSU office and dietary area. The report said the mold infestation was caused by a combination of abundant roof leaks and lack of heating or ventilation. Test results indicated “clear fungal amplification of fungal spores of Aspergillus/Penicillin,” which causes “more human health issues worldwide than any other group of fungi.” 

Conditions at Tamms when the prison was operational were inhumane. Prisoners were held a minimum of 23 hours a day in 7-by-12 foot concrete solitary cells. They were permitted one hour a day of recreation in another ...

Alaska Disciplinary Order Vacated for Violating Wolff’s Statement of Reasons Requirement

by Mark Wilson

In an August 31, 2018 ruling, the Alaska Supreme Court held that a prison disciplinary order stating only that the prisoner was “guilty” violated his due process rights. 

In 1974, the U.S. Supreme Court held that due process requires prison disciplinary factfinders to produce “a ‘written statement ... as to the evidence relied on and reasons’ for the disciplinary action.” See: Wolff v. McDonnell, 418 U.S. 539 (1974). 

One year later, the Alaska Supreme Court decided that state prisoners are entitled “to all due process rights enunciated in Wolff,” and that the Alaska Constitution provides greater due process protections than the U.S. Constitution. Accordingly, rather than the mere written summary statement of evidence required by Wolff, Alaska prisoners are entitled to “have the entire hearing recorded for purposes of administrative appeal and potential further appeal to the superior court.”

Former Alaska prisoner Bob Huber received a misconduct report for creating a disturbance in the prison dining room on October 11, 2014. A guard claimed that Huber stared at him “in an intimidating manner, dropped food on the floor, yelled profanity at the officer, and refused to provide his inmate number ...

Tenth Circuit: Qualified Immunity Defeats 22-Year Solitary Confinement Claims

by Mark Wilson

The U.S. Court of Appeals for the Tenth Circuit held on August 29, 2018 that prison officials were entitled to qualified immunity in a lawsuit challenging a prisoner’s 22 years in solitary confinement. 

Kansas prisoner Richard Grissom was placed in solitary on August 4, 1996, due to allegations of drug trafficking. He has remained there ever since after accruing additional serious rule violations.

Grissom filed suit challenging his continued placement in solitary confinement, but a federal district court granted summary judgment to prison officials in 2012 and the Tenth Circuit affirmed. See: Grissom v. Werholtz, U.S.D.C. (D. Kan.), Case No. 5:07-cv-03302-SAC (D. Kan.) (Grissom I), aff’d, Grissom v. Werholtz, 524 Fed. Appx. 467 (10th Cir. 2013) (Grissom II).

Nevertheless, Grissom brought a second federal suit in 2015, alleging due process, equal protection and Eighth Amendment violations. The district court granted the defendants’ motion for summary judgment in July 2017. See: Grissom v. Roberts, U.S.D.C. (D. Kan.), Case No. 5:15-cv-03221-JTM (Grissom III).

The Tenth Circuit affirmed, again holding the defendants were entitled to qualified immunity. It first declared that Grissom’s previous lawsuit was “a great hurdle in his ...

Federal Court Certifies Class in Ohio County Jail Debit Card Case

by Chad Marks

On November 16, 2018, a federal judge in the Northern District of Ohio granted a motion for class certification in a case where jail staff were accused of issuing unsolicited fee-laden debit cards to prisoners upon their release.

Amber Humphrey was arrested in September 2017. At the time of her arrest, upon being booked into the Lorain County jail, she had approximately $50 in cash. Those funds were placed in a jail trust account. When she was released, she had $30 left in the account after using some of the money to purchase products from the commissary. However, rather than returning her cash, jail staff gave her a debit card issued by Stored Bank Cards d/b/a Numi Financial, sponsored by Republic Bank & Trust Company. According to Humphrey, her funds were put into a Republic account without her permission. Within days of her release she was charged service fees, decline fees and transaction fees. She said she never agreed to the debit card fees.

Humphrey moved to certify three classes. The first was a nationwide class under the Electronic Funds Transfer Act (EFTA), for all persons in the United States who were taken into custody ...

Seventh Circuit Vacates, Remands Punitive Damages Award Against Wexford

by Derek Gilna

The Seventh Circuit Court of Appeals has remanded a prisoner’s lawsuit against Wexford Health Sources, Inc., the healthcare provider for Illinois’ Department of Corrections, for either a reduced punitive damages award or a new trial on the issue of damages. 

After experiencing ankle pain in 2010, prisoner Donald E. Beard, Jr. filed suit claiming that he was denied proper treatment from Wexford and its staff. 

Beard’s pro se complaint alleged “that members of the prison’s medical staff and administrative team were deliberately indifferent to his serious medical need in violation of the Eighth Amendment (applied to the states through the Fourteenth), and he sought damages plus injunctive relief. The district court recruited counsel, who added Wexford as a defendant and stipulated to the dismissal of the individual defendants.” 

The case went to trial and the jury awarded Beard $10,000 in compensatory damages plus $500,000 in punitive damages. However, the district court reduced the punitive award to $50,000, finding it was excessive and arbitrary, contrary to the Fourteenth Amendment. Beard appealed.

Although the U.S. Supreme Court has ruled that “few awards exceeding a single-digit ratio between punitive and compensatory damages ...

$150,000 Settlement after Michigan DOC Discriminates Against HIV Positive Prisoner

by Kevin Bliss

John Dorn sued the Michigan Department of Corrections (MDOC) for subjecting him to harsher disciplinary penalties than other prisoners simply because he was HIV positive. 

Represented by attorneys Chris E. Davis and Mark A. Cody from Michigan Protection and Advocacy Service, Inc. and Kyle A. Palazzolo ...

Wisconsin Federal Court Denies New Trial, Grants Attorney Fees in Sexual Abuse Case

In addition to ruling on a motion for judgment as a matter of law filed by the defendants, a Wisconsin federal district court granted attorney fees and costs totaling $539,822.62. The ruling followed a jury verdict against jailer Darryl L. Christensen and Polk County that involved two prisoners ...

Arkansas DOC Director’s Sole Discretion to Determine Competency for Execution Violates Due Process

by Mark Wilson

The Arkansas Supreme Court held that a state law granting the corrections director sole discretion to determine if a prisoner is competent to be executed violates state and federal due process protections.

Only the governor, the Department of Correction’s director and the clerk of the state Supreme Court may suspend a death sentence. See: Ark Code Ann. § 16-90-506(c). The DOC director’s authority to suspend an execution is contingent upon reasonable grounds to believe the prisoner “is not competent, due to mental illness, to understand the nature and reasons for that punishment.” See: Ark Code Ann. § 16-90-506(d). 

In 1992, Jack Gordon Greene was convicted of capital murder in Arkansas and sentenced to death. He also had killed his brother in North Carolina. 

After his appeals were exhausted, Arkansas Governor Asa Hutchinson scheduled Greene’s execution for November 9, 2017. However, on September 20, Greene’s attorneys asked DOC Director Wendy Kelley to suspend his execution, claiming he was incompetent. 

They also filed an action in circuit court, alleging that Greene was not competent to be executed, requesting a competency hearing and seeking a declaratory judgment that his execution would constitute cruel and ...

LA County Jail Guards’ Conviction for Assaulting Visitor Upheld

by David Reutter

The Ninth Circuit Court of Appeals has affirmed the convictions of three guards who assaulted a handcuffed visitor at the Los Angeles County Men’s Central Jail in February 2011.

Gabriel Moses Carrillo and his girlfriend, Griselda Torres, were visiting Carrillo’s brother at the facility. Deputy Pantamir Zunggeemoge brought Torres into an employee break room to see if she had brought a cell phone into the visitation area. After it was determined she had done so, Torres told the guards that Carrillo also had a cell phone.

Sergeant Eric Gonzalez ordered Zunggeemoge to get Carrillo and bring him to the break room. Carrillo was handcuffed and searched; when he questioned the reason for the search, Zunggeemoge, who later cooperated with prosecutors, lifted Carrillo’s handcuffed arms “all the way up so he could feel some pain.”

Carrillo’s comment that things would be different if he were not handcuffed irritated Deputy Susie Ayala. She “instigated [a] beating by summoning other officers to the break room,” the Ninth Circuit wrote. Carrillo was assaulted and pepper-sprayed so severely that “he suffered bone fractures, trauma to the head and face, a broken nose, and multiple lacerations.”

Led by Gonzalez ...

Grandmother Arrested and Mocked by Federal Agents Awarded $55,000 Settlement

by Chad Marks

Guadalupe Robles Plascencia became a naturalized U.S. citizen in May 1998, and San Bernardino, California has been her home for nearly 40 years. It’s where she raised her five children. It also is the place where she and one of her daughters opened their own business ...

California Prison Psychologist Blows Whistle on LGBTQ Harassment, Settles Lawsuit for Retaliation

by Dale Chappell

A prison psychologist who filed a complaint under the California Whistleblower Protection Act alleging blatant abuse by state prison guards against LGBTQ prisoners has agreed to settle her lawsuit and resign.

Dr. Lori Jespersen, who had worked for the California Department of Corrections and Rehabilitation (CDCR) since ...

Voters Consider Criminal Justice-Related Issues in Midterm Elections

by Steve Horn

The November 6, 2018 midterm elections saw a slew of criminal justice-related issues on the ballot in jurisdictions across the country. 

In states ranging from Florida, Ohio and Colorado to Louisiana and Michigan, various criminal justice-oriented measures went up for a vote. The most prominent of those was an effort in Florida to expand voting rights for former prisoners.

That particular ballot initiative, Amendment 4, will expand the right to vote to an estimated 1.4 million Florida residents who have felony convictions. There is a caveat, though, which led PLN’s parent organization, the Human Rights Defense Center (HRDC), to oppose the measure: It does not apply to former prisoners convicted of murder or felony sex offenses. And since the initiative amended the state constitution, it is unlikely those excluded ex-offenders will ever be afforded equal voting rights.

“No one involved in the campaign for Amendment 4 has said anything along the lines of ‘this is just the first step.’ They’ve all been pretty clear that this is it and that they’re done if the amendment passes,” HRDC executive director and PLN editor Paul Wright told The Crime Report last year. “No ...

North Carolina Prison Guard Sues Over Religious Discrimination

by Monte McCoin

As PLN has reported numerous times, before the Supreme Court’s ruling in Holt v. Hobbs, 135 S.Ct. 853 (2015) [PLN, Aug. 2015, p.50], Muslim prisoners were routinely denied their right to grow a beard as required by the tenets of their faith. [See, e.g.: PLN, June 2006, p.33; June 2005, p.30; Oct. 1996, p.19].

On June 25, 2018, prison guard Keith Hyman, employed at the Polk Correctional Institution, filed federal and state discrimination complaints against the North Carolina Department of Public Safety (NCDPS) in an attempt to exercise that same basic right. Hyman, a Muslim, was told he had to shave his beard.

According to the complaints, “Polk is selectively enforcing its Facial Hair Grooming Policy to target Mr. Hyman because of his faith. Specifically, Mr. Hyman is aware of at least another Polk employee with a beard at least if not longer than his. The other Polk employee is not being forced to shave.” 

The complaints detailed an investigation triggered by Hyman’s requests for religious accommodation. Hyman said he was told that unless he shaved his beard, he would be written up “until they fired him for insubordination ...

Long-Term Illinois Prisoners Rarely Released by State Parole Board

by Rick Anderson

The more a certain group of Illinois prisoners age behind bars, the less likely they are to be released, according to a study released last year by the non-partisan, not-for-profit group Injustice Watch.

The study, using Prisoner Review Board records and other documents, revealed that several board members – who receive annual salaries of at least $85,900 – are highly unlikely to grant parole for the roughly 120 prisoners who remain incarcerated for crimes they committed more than four decades ago.

That was before Illinois law was amended in 1978 to essentially abolish parole. Still, parole exists even if the board is unusually stingy about granting it.

There are two types of parole, discretionary and mandatory, which differ in how release is granted. Discretionary systems leave the decision to a parole board while a mandatory system requires automatic early release under pre-established conditions.

Illinois and 15 other states, along with the District of Columbia, have discontinued parole in most cases. The debate continues over whether the discretionary or mandatory system works better, and factors differ from state to state.

According to a review by Restore Justice Illinois, there is wide variation in how the systems operate ...

Reports Cite Poor Leadership in U.S. Marshals Service

by Ed Lyon

For aficionados of “U.S. Marshals” and “The Fugitive,” movies staring Tommy Lee Jones, it may come as a shock that art comes nowhere near to a true imitation of life. That was painfully evident in a 20-page memorandum released by the U.S. Senate Judiciary Committee on December 21, 2018 – just in time to ensure a not-very-merry Christmas for many senior staff in the U.S. Marshals Service (USMS) and the agency’s former director, Stacia A. Hylton. 

A three-year-long investigation by the Judiciary Committee, guided by whistleblowers within the USMS who were vigorously pursued and subjected to retaliation, revealed a culture of misconduct, waste, sexual harassment, favoritism and total unconcern for the safety of deputies involved in high-risk law enforcement operations, according to a comprehensive 430-page report issued by the Committee in January 2019.

The memo and subsequent report found that Director Hylton had Deputy Assistant Director Kimberly Beal hire a friend of Hylton’s in the Asset Forfeiture Division (AFD). When her friend failed to qualify for that position, Beal created one for him. Beal, in turn, was promoted to a full assistant directorship, but only after having a subordinate prepare her Executive ...

Prisoner Who Inspired First Step Act Is First Released

by Kevin W. Bliss

Federal prisoner Matthew Charles, 52, was released in January 2019 after serving over 21 years of his 35-year sentence for selling crack cocaine in 1996. He was one of the catalysts for, and the first beneficiary of, the First Step Act which was recently signed into law by President Trump. [See: PLN, Feb. 2019, p.18; Jan. 2019, p.34].

Charles was convicted before the Fair Sentencing Act of 2010, which was passed to rectify the disparate sentencing between federal defendants convicted of powder cocaine vs. crack cocaine offenses – which led to egregious racial disparities.

Yet the Act did not apply retroactively in all cases; Charles’ prior convictions classified him as a “career criminal,” which made him ineligible for a reduced sentence.

Still, he was initially released early in 2016 after serving 21 years. Charles seemed to adjust well: He obtained a job, volunteered at a food pantry, and made positive connections with family and friends. Regardless, federal prosecutors appealed his release and Charles was forced to return to prison in May 2018.

Georgetown associate law professor Shon Hopwood – himself a former prisoner – heard about Charles’ case and used it to push ...

New York Criminal Defense Attorney Charged with Federal Crimes

by Chad Marks

Scott Brettschneider, 61, a criminal defense attorney from Queens, New York known by many as “Mighty Whitey,” was arrested on March 26, 2018 in connection with accusations that he falsified documents to get one of his clients an early release from prison. He and three other defendants were charged in a two-count indictment with conspiracy to make false statements and making false statements.

Brettschneider was implicated in a plot that involved submitting false information to the federal Bureau of Prisons (BOP). The documents contended that Brettschneider’s client Richard Marshal had a history of substance abuse and attempts at rehabilitation for his drug addiction. The BOP allows prisoners to earn one year off their sentences for completing a Residential Drug Abuse Program (RDAP). In order to be eligible for that program, prisoners must have a documented history of drug abuse, and Brettschneider and the others who were charged allegedly attempted to provide that documentation to the BOP on Marshal’s behalf. However, Marshal was a drug dealer – not a drug user with a substance abuse problem.

This was not Brettschneider’s only brush with the feds. In May 2018, Brooklyn federal prosecutors said the defense attorney ...

Settlement in Lawsuit Against Missouri DOC’s Selection of Execution Witnesses

by Kevin Bliss

Christopher McDaniel, an investigative journalist for BuzzFeed News, sued the director of the Missouri Department of Corrections (DOC) for maintaining a policy of selecting witnesses for executions that constructively denied applicants based on their viewpoints. 

Represented by ACLU of Missouri legal director Anthony Rothert, McDaniel sought injunctive relief from the director’s policy of exercising unbridled discretion over the selection of execution witnesses. The case eventually settled, with the DOC agreeing to policy changes.

McDaniel was working for St. Louis Public Radio in January 2014 when he submitted a request to the DOC director to be an observer at an execution. He wrote in his application that he wanted “To ensure that this solemn task is carried out constitutionally.” Since that time, Missouri has carried out 17 executions while McDaniel has still not received a response to his request.

In his lawsuit, McDaniel said he had reported unfavorably about Missouri prison officials several times in the past. He reported on pharmacies selling execution drugs to the DOC without a license; the illegal, mandatory use of sedatives on prisoners prior to their execution; cash-stuffed envelopes changing hands between pharmacies and DOC officials; and execution drug ...

Colorado Voters Approve Constitutional Amendment Abolishing Prison Slavery

by Matt Clarke 

The second time was the charm. On November 6, 2018, Colorado voters overwhelmingly approved an amendment to the state’s constitution that abolished all forms of slavery and involuntary servitude, after rejecting a similar ballot measure in 2016. [See: PLN, Dec. 2018, p.48; Nov. 2017, p.40]. Previously, Article II, Section 26 of Colorado’s constitution prohibited slavery “except as a punishment for crime, whereof the party shall have been duly convicted.”

The anti-slavery Amendment A was approved by 65 percent of Colorado voters. A similar measure, Amendment T, had been narrowly defeated two years earlier – a difference attributed to the language used in the prior ballot measure. 

“I don’t think this was a pushback at all by individuals saying they wanted slavery in the Constitution,” said state Rep. Joseph Salazar, one of Amendment T’s sponsors, referring to its defeat in 2016. “I just think the language was too confusing.” 

Rep. Salazar’s position was supported by the fact that almost 300,000 of the 2016 voters failed to vote on Amendment T. Afterwards, supporters of the effort to abolish all slavery and involuntary servitude worked to clarify the language, resulting ...

Maine Prisoner’s Challenge to Confiscation of Funds States Declaratory Judgment Claim

by David Reutter

The Maine Supreme Judicial Court held on October 16, 2018 that a trial court erred by dismissing a petition challenging a prison rule that requires any prisoner who earns money for work to have 10 percent of his wages, up to $1,000, deposited into a “personal escrow account” to be returned upon his or her release. Rather than dismiss the case as an untimely review of an agency action proceeding, the trial court should have treated the petition as a declaratory judgment action.

Gary Sweeney, incarcerated at the Maine State Prison, filed a complaint in April 2017 that sought to have the rule rescinded and the Commissioner of the Maine Department of Corrections to “return all funds” collected pursuant to the policy.

The petition was filed under M.R.Civ.P. 80C(b), which governs cases for “review of final agency action.” The trial court dismissed the petition for lack of jurisdiction because it was filed beyond Rule 80’s time limitation that requires an action be filed within 30 days after denial of a grievance challenging the agency action.

The Supreme Judicial Court noted its precedents held that persons challenging an agency rule may do ...

Kentucky Jailer Gets New Trial in Beating of Pretrial Detainee

In a December 12, 2018 ruling, the Sixth Circuit Court of Appeals ordered a new trial for a former guard at the Kentucky River Regional Jail. The appellate court found the admission into evidence of the guard’s prior beating of a prisoner was unfairly prejudicial.

Kevin Eugene Asher was charged with depriving Gary Hill, a pretrial detainee, of his civil rights under color of law and falsifying a record to impede a federal investigation. It was alleged that in November 2012, Asher and fellow jailer Damon Hickman reported to Hill’s detox cell after Hill had flooded it because he was denied the opportunity to make a phone call following his arrest.

“Hickman punched Hill in the face, knocking him to the floor and severely injuring his jaw. Hickman and Asher then viciously kicked and stomped Hill while he laid curled up in the fetal position on the floor,” the Sixth Circuit wrote. The beating was so severe that Hill defecated on himself.

In response to Hill’s statement that the guards would not get away with the brutal assault, Asher and Hickman flashed the embroidered badge on their uniforms and said, “We’re the law, dawg. We can do what we ...

CoreCivic Bilked Rural Oklahoma Town, Forced to Pay Back Money in Lawsuit

by Steve Horn

Located in heartland America in an area historically dominated by the oil and gas industry, the small town of Sayre, Oklahoma recently found itself in the middle of a lawsuit against private prison operator CoreCivic, formerly known as Corrections Corporation of America. And the township prevailed, obtaining ...

“Prisoner of Weed” Released, Sets Sights on Criminal Justice Reform

by Dale Chappell

The man dubbed a POW (“prisoner of weed”) by his supporters was finally released from a Louisiana prison in February 2018 following public outcry over his harsh 13-year sentence for possession of about two joint’s worth of marijuana. He served around eight years and now wants to fight for criminal justice reform, starting with the prosecutor in his case.

When Bernard Noble was arrested in 2010 for possession of three grams of marijuana – barely enough to make two joints – he had no idea he would be thrown in prison, especially not for a 13-year sentence. After all, he’d had several minor drug possession convictions in the past and never did any “hard time.” But Noble wasn’t aware of Louisiana’s draconian habitual offender laws and the prosecutor who led the state in winning harsh sentences for non-violent drug crimes: Orleans Parish D.A. Leon Cannizzaro.

By the time Cannizzaro was done, he had appealed Noble’s original five-year sentence three times as being too lenient, finally convincing the Louisiana Supreme Court that Noble deserved more than 13 years in prison due to his past drug convictions.

Louisiana has one of the nation’s strictest habitual offender laws ...

Hedge Fund Pumps More Money into Corizon Health

Private prison medical care provider Corizon Health has received an injection of capital from shareholder BlueMountain Capital Management, a global hedge fund.

The infusion of cash allowed Corizon to pay down its debt and “accelerate business development and investment opportunities.” In other words, the company plans to obtain more contracts to provide medical services at prisons and jails. Corizon reportedly operates in 21 states and is responsible for the care of prisoners at 273 facilities. 

BlueMountain manages more than $21 billion. As a result of an initial recapitalization led by the hedge fund in April 2017, Corizon “significantly reduced” its $300 million debt load. While details of the deal were not fully disclosed at the time, the investment reduced the stake of former main Corizon shareholder Beecken Petty O’Keefe & Company.

Then, in November 2018, BlueMountain invested another $100 million in Corizon in a debt-for-equity deal, lowering its debt to $90 million. Corizon has been investing in electronic health records, telemedicine, data analytics and other services. It has submitted bids in several states to privatize or take over currently privatized prison medical services, though it has faced numerous lawsuits as well as fines for contract violations, and recently ...

Fourth Circuit: BOP Must Consider State Court’s Designation to Serve Concurrent Federal Sentence

The Fourth Circuit Court of Appeals held on December 12, 2018 that the federal Bureau of Prisons (BOP) had violated the Court’s earlier mandate when considering a prisoner’s request for nunc pro tunc designation of an Oklahoma state prison as the place to serve his federal sentence.

Anthony W. Mangum was in custody in Oklahoma when federal authorities took him into custody to prosecute him in a North Carolina federal court on a count of conspiracy to distribute cocaine base. He ultimately pleaded guilty and was sentenced to 262 months in prison plus five years of supervised release.
Mangum was then returned to Oklahoma to face prosecution on unrelated state felony and misdemeanor charges. He also pleaded guilty to those charges. The state court sentenced him to concurrent terms of 10 years, seven years and one year each on two counts; it also ordered the sentences to be served concurrently with his federal sentence.

Mangum remained in Oklahoma custody while serving his state sentences and was paroled to a federal detainer on January 13, 2011, which was the date the BOP considered to be the start date for his federal sentence.

Pursuant to 18 U.S.C. § 3621(b ...

Executive Order Prompts BOP to Expand Prison Apprenticeship Programs

by Dale Chappell

An executive order issued by President Donald Trump has prompted the federal Bureau of Prisons (BOP) and U.S. Department of Labor (DOL) to develop “National Standards of Apprenticeship” to expand apprenticeship programs for federal prisoners, according to an April 10, 2018 post on the BOP’s website.

While the federal prison system has always offered some apprenticeship programs, adoption of the new standards to expand such programs within the BOP will give prisoners industry-recognized certification they can take with them to the job market on the outside. This, the BOP said, will help them “secure meaningful employment following release.”

The push to increase apprenticeship programs began in 2014 when President Barack Obama established a goal to double the number of apprenticeships within five years. In 2016, more than 200,000 people participated in Registered Apprenticeship programs nationwide, with around 16,000 of those being incarcerated. 

While most prison work programs fail to provide prisoners with transferable skills they can use once they get out, apprenticeships offer more meaningful job training. Given how successful apprenticeships have been for participants in general, they may help prisoners in a more realistic way than existing prison work and vocational ...

News in Brief

Alabama: Anthony Cortez Oliver, 22, was sentenced to 15 years with three to serve, followed by five years of probation, after pleading guilty on April 24, 2018 to two counts of robbery for trying to take food from another Dallas County Jail prisoner in December 2016. At the time he was in jail facing unrelated charges of burglary and arson. Oliver and four others approached a prisoner and demanded his food tray. When he refused, they attacked him and a second prisoner intervened. Both received minor injuries – one ended up with a swollen and bloody nose and the other had bruising along his left shoulder and upper back. The cases of Oliver’s four co-defendants are still pending. “We take robbery cases very seriously, even when the victims are inmates,” said Dallas County District Attorney Michael Jackson. “The food must have been delicious that day.”

California: To avoid yet another prisoner death on his watch, on June 1, 2018, San Luis Obispo County Sheriff Ian Parkinson sought a “compassionate medical release” for Bruce Allen McKnight, 65, “to see his family and focus on his health and well-being.” Judge Ginger Garrett declined the request, since no medical records ...


 

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