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Prisoner Education Guide

Prison Legal News: January, 1993

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Volume 4, Number 1

In this issue:

  1. Free Speech for Whom? (p 1)
  2. Lay Advisor Can't be Adverse Witness (p 2)
  3. A Nation in Chains (p 2)
  4. Must Inmate Detail Witness Testimony As Condition to Having Witness Called? (p 3)
  5. Generalized Written Statement of Hearing Committee Accepted, Where Evidence Clear (p 3)
  6. Hunger Strike Ends After 19 Days (p 3)
  7. Exposure to AIDS Contaminated Sewage Banned (p 4)
  8. Wisconsin Parolees Have Liberty Interest in Avoiding Forced Medication (p 4)
  9. Legal Mail May Not Be Read by Prison Guards (p 5)
  10. Prisoners Support Guzman Defense (p 5)
  11. Deliberate Indifference Standard in Medical Cases Explained (p 5)
  12. Editorial (p 6)
  13. Length of Work Day Increasing (p 6)
  14. Latin American Prisons (p 7)
  15. Military Police Massacre at Least 111 in Brazilian Prison (p 8)
  16. Aborigines Have High Jail Death Rate (p 8)
  17. Rampant Violence in Venezuelan Prisons (p 8)
  18. Pendleton News (p 9)
  19. McNeil Island News (p 9)
  20. On Taking DNA Samples (p 9)

Free Speech for Whom?

[EDITOR'S NOTE: In the Dec., 1992 issue of PLN we reported that supporters of Mumia Abu Jamal, the former Black Panther on death row in Pennsylvania accused of killing a cop, had shouted down Penn. Governor Casey at a forum in New York City. The forum had been sponsored by the Village Voice and other liberals and was about "Pro-Life Liberals", i.e. Democrats against abortion. One of the speakers was Gov. Casey who is strongly opposed to abortion rights for women and also strongly in favor of the death penalty. After being unable to speak at the forum several of the organizers, including Voice columnist Nat Hentoff, published long articles calling Mumia's supporters and the abortion rights protesters who shouted Casey down as "fascists", "brownshirts", "book burners", etc. Hentoff also claimed that Mumia was "saddened" by his supporters actions, etc.

After reading this I started to write a letter to the editor of the Village Voice to point out the absurdity of calling anti-death penalty and abortion rights protesters "censors" and "fascists." I was going to go into the whole thing about power relationships, media access, etc. It then occurred to me that it would be best ...

Lay Advisor Can't be Adverse Witness

On May 18, 1987, an inmate at the Arizona State Prison at Tucson was found stabbed to death. An investigation ensued, and Ruben Melendez was ultimately indicted for the killing. While the investigation was still in progress, DOC personnel formally notified Melendez that he was accused of a DOC administrative violation for intentionally causing the victim's death and that he was to face a hearing before the prison disciplinary committee.

Under DOC regulations, inmates accused of major violations, including homicide, are entitled to representation by, inter alia, a fellow inmate. An inmate was appointed to act as Melendez's lay advisor at the hearing, and Melendez consulted with him but was transferred before the disciplinary hearing actually took place.

As the prosecution prepared for Melendez's ensuing criminal trial, the lay advisor "came forward and agreed to give evidence against Melendez based on his conversations with him." Melendez moved to preclude the advisor from testifying at trial regarding information received from him in the course of representing him in the prison disciplinary proceeding, citing the attorney-client privilege and various constitutional principles. The trial court ordered the evidence suppressed. The state appealed and the Arizona Court of Appeals reversed, holding ...

A Nation in Chains

"Presidents Reagan and Bush have ensured that the federal courts will not be representative. Instead, they are a bastion of White America. They stand as a symbol of White Power." Can you guess who said these words?

I'll wager most folks missed the identity of the speaker. Stephen Reinhardt, Justice of the 9th Circuit US Court of Appeals, made those remarks during commencement for law school graduates at Golden Gate University, San Francisco, California, Spring 1992.

Reinhardt told the throng of potential attorneys, "What the African-American community perceived from the Supreme Court's decisions was that the federal judiciary is no longer interested in protecting the rights of minorities, that federal judges are far more concerned with...protecting the interests of white males."

Reinhardt pointed to the recent McClesky decision, where the US Supreme Court rejected overwhelming evidence of racial disparity in death sentences, the dismissal of a civil suit filed by a Black man injured by the infamous Los Angeles police choke hold, and a host of rulings narrowing civil and voting rights laws, to support his argument.

And that ain't all.

Across the US, an astonishing number of people in the "land of the free" are ...

Must Inmate Detail Witness Testimony As Condition to Having Witness Called?

"We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses...when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." This principle was stated by the Supreme Court in its landmark disciplinary hearings case, Wolff v. McDonnell, 418 U.S. 539 (1974).

There is a catch to even this limited right which is creeping into the caselaw: failure of the inmate to clearly advise the hearing officer of the substance of the testimony the requested witness would give may justify the hearing officer refusing to allow the witness to testify, without the need to provide any further justification for the refusal.

The most recent court to reach this conclusion is the Second Circuit, Scott v. Kelly, 962 F.2d 145 (2d Cir., 1992). In Scott, a 2-1 decision, the inmate refused to testify at his hearing, but asked the hearing officer to call two named inmates as witnesses. The hearing officer refused, indicating that "there's no point in my calling (the) witnesses if I do not have questions to ask them (on) Scott's behalf."

The majority reasoned that since the inmate hadn't ...

Generalized Written Statement of Hearing Committee Accepted, Where Evidence Clear

A disciplinary hearing committee's written decision saying it based its finding of guilt on "written reports and testimonies presented at the hearing" was constitutionally acceptable where that information could be interpreted only as either showing the charges (of verbal harassment) were true (the written report) or false (the inmate's testimony). Where there could be no ambiguity about the evidence the committee relied upon (the officer's report, which was quite detailed), the content of the written decision was acceptable, Mujahid v. Apao, 795 F.Supp. 1020 (D. Hawaii, 1992).

Other courts have set more exacting requirements for the written statement of the hearing committee, which is required by Wolff v. McDonnell, 418 U.S. 539 (1974). See Redding v. Fairman, 717 F.2d 1105 (1983), cert denied, 465 U.S. 1025 (1984).

Under the facts of Mujahid, the written statement, as general as it was, still pointed clearly at the evidence relied on by the Committee, and that was all that the court felt was necessary. Had the question of guilt not been so open and shut, a reference only to "written reports and testimonies" probably would have been insufficient.

Hunger Strike Ends After 19 Days

By Muna Muhaisen

Palestinian political prisoners ended their hunger strike last week after the Israeli Prison Authority entered negotiations with prisoner representatives and agreed to establish an investigative committee to look into the prisoners' demands.

The strike, which began Sept. 27, was called off in the northern prisons - led by Jneid Prison - Oct. 11, and in the southern prisons - led by Nafha Prison - Oct. 15.

A one-day partial hunger strike was observed in all prisons following the death of one of the striking prisoners, Hussein Ibeiday, Oct. 14.

Representatives of the Arab Lawyers Association outlined the prisoners' demands in a meeting Oct. 13 with Israeli Police Minister Moshe Shahal and Prison Commissioner Gabi Amir. To date, Israeli authorities have refused to meet most of the demands, agreeing only to "look into humanitarian issues the police ministry had, in any case, for some time planned to investigate."

Prison Commissioner Amir said the demands that will be met include more educational opportunities; longer family visits; installation of ventilators in the cells; and building a taller TV antenna to pick up Jordanian and Syrian television, instead of only Israeli TV.

But negotiators are still facing a deadlock on more crucial demands. These include ...

Exposure to AIDS Contaminated Sewage Banned

Prisoners at a Missouri county jail were involved in the large scale cleanup of raw sewage at the jail hospital. The sewage was contaminated with the AIDS virus from AIDS patients in the jail hospital. Prisoners were not provided with protective clothing during the cleanup nor informed of the risks of such contact.

The prisoners filed suit claiming their eighth and fourteenth amendment rights had been violated. The district court granted a directed verdict in favor of the jail officials but issued an injunction requiring them to provide adequate protective clothing and warnings to prisoners about the potential dangers of working in contaminated sewage.

Both parties appealed and the Court of Appeals for the Eighth Circuit affirmed.

The appeals court notes that district courts have broad discretionary power to order injunctive relief. Because jail officials had never warned prisoners or civilians at the jail that they would be working with dangerous waste from AIDS patients, the injunction was necessary to prevent potential health hazards violative of prisoners' constitutional rights. It's interesting to wonder at the officials and attorneys for the county who argued against this injunction. Why do they want to prevent people from knowing they face potential infection ...

Wisconsin Parolees Have Liberty Interest in Avoiding Forced Medication

Jeffrey Felce is a Wisconsin parolee released on mandatory parole. While in prison Felce threatened prison and parole officials. They tried to commit him but were unable to do so because he was found to have mental problems but not to be incompetent. A condition of his parole was that he receive injections of Prolixin, a mind altering drug; under protest, he agreed. He filed suit against three Wisconsin parole agents for violating his right to due process in forcing him to take the drug. The district court dismissed the suit holding Felce had no liberty interest in parole without such a condition.

The court of appeals for the Seventh Circuit reversed and remanded.

The appeals court notes that there is no right to parole and the state can impose significant restrictions before granting it. The court goes on to hold that Wisconsin mandatory parole release statues mandate a prisoner's release when they have completed two thirds of their sentence, unless the sentence is extended because of bad conduct.

Wisconsin statues also create a protectible due process liberty interest for prisoners and parolees not to be forced to take mind altering drugs unless they are formally committed to a ...

Legal Mail May Not Be Read by Prison Guards

John Reneer is a Kentucky state prisoner. He filed suit claiming violation of his first amendment rights when prison officials read his incoming legal mail in front of him. The prison warden claims he ordered a search of Reneer's incoming legal mail based on a suspicion he was responsible for the disappearance of mail logs from the prison mail room. The defendants claimed this was necessary to safeguard prison security. The district court granted summary judgment to the defendants.

The Court of Appeals for the Sixth Circuit reversed and remanded the case.

Kentucky prison regulations prohibit the reading of Reneer's legal mail. Reneer claimed the reading of his legal mail was done to chill his free speech and retaliate against him for exercising his right to seek legal redress of his complaints against prison officials. The court of appeals notes that the arbitrary opening and reading of prisoners' mail for harassment purposes violates the first amendment. The court rejected prison officials' claim that it was necessary to read Reneer's mail legal mail to search for missing mail logs. See: Reneer v. Sewell, 975 F.2d 258 (6th Cir. 1992).

Prisoners Support Guzman Defense

After the capture of Abimael Guzman, some friends of the Peruvian revolution contacted us and informed us of the worldwide effort to protect his life. A few revolutionaries here in Leavanworth federal penitentiary then got together to figure out what we could do. We felt we could raise some awareness of the struggle in Peru and the importance of Chairman Guzman as the principled leader of the revolution there. While money is short and hard to come by for most men here, we none the less felt we should and could be able to raise some funds too.

A petition was drafted that provided information on Peru and why it was important for us here to support that struggle, especially the effort to keep A. Guzman alive. Address slips were also made up listing where donations could be sent and information acquired on what was going on with the international campaign to protect and support Chairman Guzman.

A handful of trusted brothers quietly circulated these petitions. Over 150 men in Leavanworth signed the petition. In addition, I'm pretty sure that between $200 and $300 will be donated to the International Emergency Committee. Those who donated and signed the petition ...

Deliberate Indifference Standard in Medical Cases Explained

John McGuckin is an Arizona state prisoner. In 1986 he was injured while in a prison camp. He did not receive medical treatment for his injuries, which by now included massive herniation of his back and upper torso, until 1989, three and a half years later. He filed suit claiming various prison and medical staff were deliberately indifferent to his medical needs.

The district court dismissed a defendant because he was not properly served with the complaint and granted summary judgment to the remaining defendants, dismissing the complaint.

McGuckin appealed and the Court of Appeals for the Ninth Circuit affirmed in part, reversed and remanded in part.

The appeals court held the district court had committed reversible error by dismissing the defendant from the suit by not notifying McGuckin of the deficiencies in his complaint and giving him an opportunity to correct the problem. Because prisoners representing themselves are more likely to commit errors of pleading they must be given greater latitude in the treatment of their pleading.

The district court dismissed the defendant not served with the complaint within 120 days after the suit was initiated. The problem arose when the defendant's name was misspelled on the complaint ...

Editorial

Editorial Comments

My, how time's fun when you're having flies. Here we are opening the new year with the start of our fourth volume of the PLN. It doesn't seem that long. Publishing the newsletter has been a good experience for Paul and me. We've already learned a great deal, and we have lots of good ideas for improving our looks of the paper. With luck you will be seeing some of these changes in the coming months. I say with `luck' because we are supposed to be getting our computers back shortly, and so will not have to rely on outside volunteers to do this aspect of the production process. And we can spend lots of time toying around with the paper, to make it look just right.

As I write this my fellow prisoners and I have just completed a two-meal boycott of the mess hall in protest of the poor quality of the food. The action was about 97 percent effective. It feels good to see such peaceful actions take place; it generates an empowering sense of solidarity. It's at times like these I feel best about my comrades in here; when ...

Length of Work Day Increasing

One of the most ancient ways to increase returns from the exploitation of labor, Karl Marx noted in Volume I of Capital, is to lengthen the working day. Slave owners, feudal lords, and capitalists had that device in common. In a recent book, The Overworked American: The Unexpected Decline of Leisure Time, Harvard economist Juliet Schor notes that in 1987 the average U.S. worker labored for wages 163 hours longer per year than in 1969. Somewhere in less than two decades a full month of labor per year had been added and the same amount of leisure deducted from our lives. During the 1980s alone, the book says, we lost three and a half days of vacation, holiday and other paid leaves from work.
Monthly Review

Latin American Prisons

[PLN readers have read as we have regularly reported on the state of the U.S. prison system and its many abuses and faults. You may wonder, "how are things in prisons elsewhere?", well we wondered about this too. In future issues of PLN we hope to bring you articles on the prison systems of other countries, especially the capitalist countries who rely on prison as a means of social control. In most cases we find the similarities to the U.S. model are greater than the differences. The following was edited for length and translated by myself from Brecha, an Uruguayan weekly newspaper. Paul Wright.]

On paper at least, Latin American countries acknowledge that prisons are not to torment and that prisons should seek the re-education of the convicted and assure their aptitude for work and deter them from crime. Reality does not conform to these good intentions. A report by Dario Brenman for Brecha - from Argentina - and materials compiled by the editorial staff allow an approximation of a sub-world that is neither foreign nor far.

In Latin American prisons there is a readily proven common denominator: close to 90% of the prisoners come from sectors of critical poverty ...

Military Police Massacre at Least 111 in Brazilian Prison

On the night of Oct. 2, just hours before nationwide municipal elections, the Military Police swept into Sao Paulo's Carandirú Prison, Latin America's largest, and killed a still unknown number of inmates. Officials originally put the death toll at 111; on Oct. 7 the federal Justice Ministry said about 200 had died; based on prisoner lists for the cell block, a surviving prisoner calculates that a total of 284 inmates are missing and should be presumed dead.

Prisoners and official sources agree that the incident started with a knife fight among inmates during the afternoon; the official version is that there was also a plan for a mass jailbreak. Sao Paulo State Security Secretary Pedro Franco de Campos says that guards attempted negotiations but gave up "because it was getting dark. We couldn't have a mass escape from that prison the day before elections." The Military Police claim the prisoners attacked them as they entered the cell block, but a prisoner reports that "[t]he soldiers shot each other [in the dark] and they became furious when they saw their companions wounded." Prisoners, lawyers, and religious human rights workers all describe a brutal massacre in which guards ...

Aborigines Have High Jail Death Rate

Nineteen Australian Aborigines died in police cells and prisons in 1990 and 1991 despite a multimillion dollar inquiry aimed at stopping aboriginal deaths in custody, according to a recent report. The continued over-representation of Aborigines in Australian prisons was a major contributing factor, the report by the Australian Institute of Criminology said. The 19 aboriginal deaths represent 16.7 percent of the 114 deaths in custody over the two-year period. Aborigines account for only 1.5 percent of the Australian prison population.

Rampant Violence in Venezuelan Prisons

by María Dubayle, Venezuelan journalist

The situation inside Venezuela's prisons reflects the serious deficiencies in the country's protection of human rights.

According to figures from the Public Ministry's Human Rights Office, so far this year more than 160 prisoners have been killed inside Venezuelan jails.

Fighting between rival gangs to control drug trafficking, failure to separate criminals based on the severity of crime, corruption among prison authorities, serious overcrowding and lack of basic services, failure to grant promised benefits and an extremely slow legal process are the main causes of the prison crisis.

For a majority of inmates, their prison stay is a constant struggle for survival. It is a daily fight for a patch of ground to sleep on, for a piece of bread to eat, even for use of the bathrooms. Inmates also compete to have their cases brought to a court - for which they pay huge bribes to the prison guards - to receive written proof of their detentions.

The most serious charge, however, is that inmates also pay off guards to control the flow of drugs within the jails. In addition to being a leading cause of the violence among prisoners, drug trafficking within ...

Pendleton News

I am writing to you from inside the walls of Pendleton, the Indiana State Reformatory. Since November of 1991 we have gone through a systematic deprogramming. All programs have been abolished. Vocations, education, spiritual, and psychiatric for 80 percent of our population. Very few in the cellhouses remain employed in any capacity at all. We have dorms which are used as "launch pads" to propel offenders into over-crowded level 3 facilities. The absolutely worst part is that they have blocked access to every rehabilitative means available, even if purchased at personal expense (with the exception of two very expensive schools, which few can afford to pay). We earn absolutely no wages, and so on.

The administration has gone so far as to eliminate direct access to the law library, instead giving us offenders trained (what a joke) as law clerks. We can't even call our attorneys without a request in writing 14 days in advance for us to do so.

We are left with an unending drone of television. The only reading materials we can have are those mailed in by family members, while the 10,000-book reading library is completely beyond our access. We are confined in our ...

McNeil Island News

They plan to open 1,000 new beds in January, and have added no new room to the hospital or kitchen. It already takes five months to get any dental work done, and I'm thinking of preparing a § 1983 on the whole hospital as it is. Being at this place gives me an idea of how deep the cancer runs in the system. When I see some of the crap that goes on [here] it affirms my politics, like nothing else I have experienced.

R.P., McNeil Island, WA

On Taking DNA Samples

[The following letter was written in response to our article "Taking DNA Samples Violates Ex Post Facto Clause" in the September 1992 issue of the newsletter.]

My name is Dale Gardner. I am currently incarcerated in the State Correctional Institution; Huntingdon, PA. I am writing in response to your article on D.N.A. testing. Before I begin on my personal feedback of the article, let me explain my education background; I graduated from Stanford University earning my doctorate in biochemistry genetics. After completing my internship at Roach Biomedical Laboratory in Pennsylvania (a state contracted company of D.O.C. to research and analyze drug urine samples from prisoners), I went into private practice conducting behavior modification research. In 1990, I was arrested for manufacturing controlled substances.

While incarcerated I contracted a serious lung infection, which was neglected by medical personnel. Therefore I filed a complaint pursuant to § 1983 for lack of proper medical treatment. I represented myself, and requested a federal court to review my medical records for errors. I was granted this request. During review of those medical records, I came across what is called a karyotype chart. If you are familiar with the context of the stated ...

 

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