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Prisoner Education Guide

Prison Legal News: February, 1993

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Volume 4, Number 2

In this issue:

  1. Serial Litigators (p 1)
  2. The Prison Privatization Debate (p 2)
  3. BOP Agency for APA Purposes (p 3)
  4. Pre-Trial Detainees Don't Have to Work (p 3)
  5. Access to Courts Right Explained (p 4)
  6. Sundiata Acoli Needs Letters (p 4)
  7. Temp Workers Come to Prison (p 4)
  8. Publication Reviews: Nationalist Struggles (p 5)
  9. Criminal Justice Statistics (p 5)
  10. States Must Furnish Equivalent of Jailhouse Lawyers for Filing Prisoner Complaint (p 6)
  11. From The Editor (p 7)
  12. Freedom for Gerhard Bogelein (p 7)
  13. Letter from Exile (p 8)
  14. Religious Standards Applied (p 8)
  15. Damages Awarded in Beating Case (p 9)
  16. Retrial for Damages Alone Appropriate (p 9)
  17. Prison Journalist Punished (p 9)
  18. APA Partially Applicable to Arizona's DOC (p 9)

Serial Litigators

A recent Associated Press story reported that the state of Wisconsin is spending more than a million dollars a year defending lawsuits filed by prison inmates. The story identified two Waupun prisoners as "serial litigators," responsible for numerous legal actions. A state lawyer was quoted as saying the amount of money that prison lawsuits cost the taxpayer is "obscene."

As with all problems in our prison system, Department of Corrections officials place the blame on prisoners, and the mainstream press follows in lockstep. Not surprisingly, the fault actually lies with those who wield official power.

In 1989, Waupun administrators cut in half the size of the prison library, including the law library. This move reduced both the materials available in the library and the number of inmates allowed to use the library at a given time. Prison officials did this at a time when the prison's population was expanding. As a result, the number of inmate requests to use the library increased while the number of library passes issued each day decreased, creating a large backlog. Since 1989, Waupun prisoners have had to wait at least three weeks, and sometimes as long as nine weeks, to use the library ...

The Prison Privatization Debate

"Prisons are by their very nature coercive and oppressive institutions, designed to disempower and destroy the resistance of those confined within them, so any discussion of `reform' is largely meaningless and futile. Prisons, whether controlled and operated by the state or private companies, are weapons utilized by the powerful to keep the powerless in check, and to maintain an economic and social status quo beneficial to the former."

John Bowden
British Political Prisoner

When approaching any political question on the inside of the nation's prisons, it is important for us to start from a radical rather than a liberal or reformist perspective. This is just as true when considering the growing issue of prison privatization.

My starting point is that it is good and progressive to work to extend democracy, as the ultimate realization of that ideal will necessarily result in the complete abolition of prison slavery and the establishment of a social order in which economic justice is an integral element of what today's rulers cynically call freedom. In other words, struggling to extend democracy is a battle that will extend all the way to the gates of power.

The struggle to merely change prison conditions, on ...

BOP Agency for APA Purposes

Garvin White was a federal prisoner at Leavanworth who was accused of attempting to escape and was transferred to Marion. At Marion he was infracted for the attempted escape. The hearing officer did not render a verdict until 4 months after White's arrival at Marion. The hearing officer dismissed the charges because the delay violated Bureau of Prisons (BOP) regulations.

The BOP regional director rejected the hearing officer's dismissal and directed him to determine if the delay had prejudiced White. The hearing officer held a second hearing, concluded White was not prejudiced by the delay, found him guilty and withdrew 710 days of good time.

White filed a habeas corpus petition seeking return of his good time on the grounds that under the Administrative Procedure Act (APA) the BOP regional director lacks the authority to review the hearing officer's decision. White contends that because nothing in the BOP's published regulations authorizes such a review, that review is forbidden. The district court granted summary judgment to the BOP defendants and White appealed.

The court of appeals for the seventh circuit affirmed. The appeals court held that the BOP is an "agency" for APA purposes. This directly conflicts ...

Pre-Trial Detainees Don't Have to Work

Jorge Martinez is a federal pre-trial detainee. He filed suit claiming that while he was held at the US Medical Center for federal prisoners he was denied proper medical care for a dislocated shoulder, was force fed after seven days on hunger strike, and was placed in segregation for refusing a work assignment. The district court dismissed the complaint, before service on the defendants, as being frivolous.

On appeal the court of appeals for the eighth circuit affirmed in part and reversed in part and remanded.

The court affirmed dismissal of the medical treatment claims because attachments to the complaint showed he did receive medical treatment. The court notes that prisoners' disagreement with the course of medical treatment does not give rise to a constitutional claim. Likewise, the claim that he was force fed after seven days of a hunger strike also failed to state a claim.

The court held that Martinez' claim that he was placed in ad seg for refusing to work does state a claim and should not have been dismissed prior to service.

The court notes that pre-trial detainees are presumed innocent and may not be punished. The determination of whether a particular restriction or condition ...

Access to Courts Right Explained

Leroy Jenkins is an Illinois state prisoner in Protective Custody (PC). He filed suit claiming the prison policy of denying PC prisoners law library access in person violated his right of access to the court. He also claimed prison law library clerks extorted payments from him in exchange for providing legal assistance to him. The district court granted summary judgment to the defendants.

On appeal the court of appeals for the seventh circuit affirmed the dismissal. The court of appeals gives an extensive discussion of the standard it employs in prisoners' access to the court's cases. It is a two prong test that requires prisoner litigants to show prison officials had failed to assist in preparing and filing meaningful legal papers by providing the prisoner with either adequate law libraries of adequate assistance from persons trained in the law. The second prong requires the prisoner to show some detriment caused by prison officials' conduct resulting in the interruption or delay of pending or contemplated litigation. An exception to the second prong is when a prisoner alleges a "direct, substantial and continuous, rather that a minor and indirect limit on legal materials."

The court defines a "substantial and continuous" limitation ...

Sundiata Acoli Needs Letters

In 1973 Black Panther members Sundiata Acoli and Assata Shakur were captured after a shootout with New Jersey state troopers. One of their comrades, Zayd Shakur, and a police officer were killed. Now, twenty years later, Sundiata is up for parole (Assata escaped from custody and currently resides in the safety of socialist Cuba). The board has hinted that it intends to give the already 56-year old Sundiata a ten year flop. For Sundiata, who is infected with tuberculosis, that amounts to a death sentence.

Outside readers are urged to write to the parole board demanding that Sundiata be released at his parole hearing. Prisoners should have family members write. The address is:

N.J. Parole Board
Trenton, NJ 08625

Send a copy of your letter or petition to: The Sundiata Acoli Freedom Campaign, P.O. Box 55388, Manhattanville Station, Harlem, NY 10027, so his attorney will be able to verify to the Board that the letters were sent. This man has suffered enough; he deserves to live out his remaining years with dignity.

Temp Workers Come to Prison

The warden at the John Lilly Correctional Center in Boley, Oklahoma, has initiated a program of using temporary workers (he calls them "Temp Cops") to save money. The temp cops are off-duty policemen used to supplement the guard staff.

The American labor movement has been hard hit by the use of temp workers in other sectors of the economy. Large businesses like using temp workers because they can get away with paying them less than regular employees and, more importantly, temp workers are subjected to all the hazards of employment with none of the traditional benefits such as pensions, health or medical coverage, insurance, unemployment benefits, etc. In other words, it's another means for capitalists to squeeze the maximum profit out of workers. Because of the workers' temporary nature, it makes collective bargaining by unions and such almost impossible.

The Oklahoma program is touted as a "success" because the temporary guards do not go through the six-week guard training program and cannot earn overtime. It is ironic that many rural communities in the U.S. actively seek prisons as a way to reduce unemployment (prisons have been called "welfare for poor, rural white communities") while the prison trend now ...

Publication Reviews: Nationalist Struggles

By Ed Mead

Nationalist Struggles

You will no more learn the truth about various nationalist struggles going on around the world by merely reading the bourgeois media than you will learn about the realities of this nation's criminal justice system by watching TV news. If you are really interested in knowing both sides of an issue, you must be exposed to both sides. This does not mean a "debate" between liberal and conservative factions of the CIA, which currently passes for objective reporting, but rather a reading of the writings of the oppressed people themselves. One must have more that the illusion of being informed. In order to obtain a better grasp of criminal justice issues in the U.S., for example, you would read not just Newsweek, the Times, etc., but material like PLN as well. Indeed, for a genuine democracy to exist there must first be an informed population.

Because of the relatively large number of papers representing the various nationalist struggles, I will not have the space to list them all in one review. What I will do is break them down into regions, such as the Middle East, Asia, Africa, Latin America, and North America ...

Criminal Justice Statistics

By Ed Mead

You must have done something terribly wrong in a previous life (or maybe it was this one?), as I am now going to stick you with the task of reading a bunch of the government's criminal justice statistics. What I have for you is information from three recent studies; Drug Enforcement and Treatment in Prisons, 1990; the National Update from the Bureau of Justice Statistics; and the National Corrections reporting Program, 1989. It may not be too bad, though, as when I go through these documents I look at material that's interesting to me, and then share it with you. If you want more details about any of this you should order the study or report yourself. I'll give you the address to write to at the end of this piece.

Drug Use

For example, in the Drug Enforcement in Prisons, 1990, I was surprised to learn that in nearly every category, except for cocaine, the prison staff had higher positive rates in their drug tests than did the inmates. For amphetamines prisoners tested at a 1.4% rate, while the staff tested at 3.3% positive. In tests for cocaine convicts were 1 ...

States Must Furnish Equivalent of Jailhouse Lawyers for Filing Prisoner Complaint

On page one of the July 1992 issue of PLN (Vol. 3, No. 7) we printed a report on a new ruling that promised to have widespread implications for prison law libraries. That case was Gluth v. Kangas, 951 F.2d 1504 (9 Cir. 1992), which held that the constitution "does require that inmates be provided the legal assistance of persons with at least some training in the law." (ID. at 1511.) Now another case has just been handed down that extends the principles enunciated in Gluth from the Ninth to the Sixth Circuit. Today we will be talking about Knop v. Johnson, 977 F.2d 996 (6 Cir. 1992).

This latest access to the courts case by the U.S. Court of Appeals was filed by convicts as a class action suit pursuant to 42 U.S.C. § 1983. While the suit deals with a number of other issues, the substance of the case rests in the following language of the court: "To the extent that inmate writ-writers, or jailhouse lawyers, are not adequately filling the needs of prisoners who claim they are being held unconstitutionally, the state must furnish, at a minimum, the functional equivalent of jailhouse lawyers ...

From The Editor

From the Editor

Welcome to another issue of PLN. First off everyone at PLN would like to thank Steven Mitchell and the folks at Friends of the North Country for their generous donation of $655.00 to PLN. To date, this is the biggest lump sum donation we have ever received. We greatly appreciate the kindness and generosity of Steven and FONC. We have been able to continue publishing because of such financial support by our readers and supporters. This contribution will go toward the printing of our 1994 Prisoners' Calendar.

We are still working on the prisoners' calendar. The problem we keep running into is a lack of graphics to go with it (the calendar portion is already done). What we need from our artistically inclined readers out there are black and white, 8<$E1/2> by 11, horizontal (landscape) drawings, sketches, paintings, etc. that folks won't mind looking at for 30 days at a time. Send us a xerox copy for us to examine and determine if it's appropriate for the calendar; if it is we can then ask for a better copy. If you know of any artists inclined to having their work reproduced let them know ...

Freedom for Gerhard Bogelein

On May 18, 1992, the 22nd tribunal of the Provincial Court in Bamburg, Germany, condemned Gerhard Bögelein to life in prison without parole; he is 69 years old. The judge's reason: the murder, in 1947, of a former judge of the Nazi army.

This sentence is scandalous for various reasons:

Gerhard Bögelein was an active combatant and militant in the resistance against German fascism. He was a draft resistor, deserter and joined the Red Army where he continued fighting against fascism.

Between 1943 and 1945 the assassinated Nazi judge signed between 120 and 170 death sentences and even in 1947 was a committed Nazi.

Gerhard's trial was based on investigations and questioning of witnesses which were conducted in the early 1950's by a former judge of the Nazi Peoples' Tribunal.
Almost all of the prosecution's witnesses were unrepentant Nazis.
Gerhard denies committing the assassination.
Until the reunification of the two Germanies, Gerhard Bögelein was a citizen of the German Democratic Republic (East Germany); shortly after which he was arrested and forcibly transferred to a prison in Hamburg despite being very ill and not being in sufficient health to withstand imprisonment.

From the arrest and imprisonment of ...

Letter from Exile

Remember Eugene Debs? One of the first Socialists I ever read, before I moved on to the hard-core. I used to quote him in letters - "where there is a lower class I am of it, where there is a criminal element, I am in it, while there is a soul in prison, I am not free." I don't know if he wrote this before or after his stint in Atlanta, but it always impressed me. Enough so I named a cat after him.

I don't think prisoners and their struggle need to be romanticized, but what phase have we entered when the liberals/left, including that highly suspect group "progressives", make no mention of prisons? They write enough about police and police repression - check that - not enough, but more than about prisons, and then let it die on the vine as if humanity ceases to exist after booking.

I don't think this lack of consciousness problem is so much that predominantly white, middle class leftist/liberals have never experienced prison. It's more a case of their not being personally or politically threatened by it.

They go on and on about Big Brother, civil rights violations, suppression ...

Religious Standards Applied

Gary Bear is an Iowa state prisoner. He is part Native American and sought to participate in Native American Religion (NAR) ceremonies at the Iowa Penitentiary, but was prohibited from doing so by the prison's NAR consultant because he did not have a Bureau of Indian Affairs (BIA) enrollment number. (The BIA requires people to be at least <$E1/4> Native American in order to be enrolled.) Bear filed suit that his banning from NAR ceremonies deprived him of his right to practice his religion, which prison officials had previously allowed him to practice without incident. The district court ordered the defendants to determine Bear's status under a standard set forth in a settlement between Native American prisoners and the Iowa DOC concerning NAR practices. Both sides appealed this ruling and the appeals court initially remanded the case for a determination of mootness. The district court certified the case was not moot. The court of appeals for the eighth circuit vacated and remanded the case.

The court held that the courts are limited from reviewing religious decisions by recognized spiritual leaders. In this type of case (not just prison suits) it was barred from second guessing the doctrinal merits of ...

Damages Awarded in Beating Case

Rickke Greene is an Oklahoma state prisoner. While in a segregation unit Greene was scalded by another prisoner and received second degree burns. After not being treated at the prison infirmary he was returned to his cell, knocked to the floor, kicked and beaten by guards while still handcuffed. At ...

Retrial for Damages Alone Appropriate

Tommy Williams is a Missouri state prisoner who was stabbed several times by two other prisoners. Williams filed suit against a guard and several other officials claiming they were deliberately indifferent and acted with reckless disregard to his safety when they knew the prisoners were his enemies and allowed them ...

Prison Journalist Punished

Letters from Readers

[One of the objectives of the PLN is to become a forum through which readers can express opinions on what they've read, or to point out issues we should be addressing. Paul and I feel it is important for there to be a dialogue with our readers, especially around matters of disagreement. We are not above criticism, nor do we claim to have all the answers. So give us your feedback and we will print as much of it as there's space for in our letters section.]

[Editor's Note: Adrian Lomax is a Wisconsin prisoner who frequently contributes articles to PLN. He also has a regular column in The Madison Edge, an alternative newspaper in Wisconsin. Adrian focuses on exposing injustice in prison and is an excellent writer. His story below is not unusual; it is typical of the prisoncrats' behavior toward prisoners who write about prison conditions. Adrian's latest misfortunes came about after he wrote about an abusive guard at a prison in Wisconsin for The Edge. The infraction report Adrian sent with his letter states: "Inmate Lomax was placed into TLU under DOC 303.11 (4b) due to a newspaper article ...

APA Partially Applicable to Arizona's DOC

Arizona's Administrative Procedures Act (APA) exempts the Department of Corrections in the formulation of policies that concern only inmates. Brad Wilkinson, a convict at the Tucson Prison Echo Unit, was denied a visit with a religious leader. This was done pursuant to a newly enacted policy on religious visits that the DOC had promulgated without regard for Arizona's APA. Mr. Wilkinson filed suit in state court contending that the new religious visitations policy was void in that it wasn't implemented in accordance with the APA.

The DOC contended that the new religious visitation rule was exempt from the APA pursuant to a statute exempting them from any rule "concerning only inmates of a correctional or detention facility." The court, however, decided "...the DOC's religious visitation rules concern not just the inmates," the court said, "but also the religious leaders who visit them. Accordingly, the rules are not exempt from the formal rule making process of the APA, and until similar rules affecting religious visitation are promulgated lawfully, they are invalid."

Accordingly, it would appear from this case that any challenge to Arizona's regulations for failure to comply with the APA will have to be based ...


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