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Prisoner Education Guide

Prison Legal News: March, 1993

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Volume 4, Number 3

In this issue:

  1. Supreme Court Strikes Blow Against Attorney Fees (p 1)
  2. Federal Judge Says Prisoners Denied Access to Courts (p 1)
  3. Okay to Steal Mail (p 2)
  4. Congress OKs Fed Cons to Pay Cost of Prison (p 2)
  5. Freezing Temperature Violates Eighth Amendment (p 2)
  6. Federal Prison Terms Increasing (p 2)
  7. Prisoners No Longer Entitled to Witness Fees (p 3)
  8. Death Threats and "Snitch Jacketing" by Guards Unlawful (p 3)
  9. Court Cannot Dismiss Suit if Partial Filing Fee Paid (p 3)
  10. Court Cannot Supply Elements of Complaint (p 3)
  11. Maxed Out Washington Cons Have Right to Earn Good Time (p 4)
  12. Dismissal of HIV+ Conditions Suit Reversed (p 4)
  13. Prison Bosses Liable for Rights Violation (p 4)
  14. Penn. Senate Warned of Possible Prison TB Epidemic (p 4)
  15. Right to Avoid Tobacco Smoke Exposure not Established (p 5)
  16. Washington Smoking Suit Dismissed (p 5)
  17. Exposure to Tobacco Smoke Violates Eighth Amendment (p 5)
  18. Vermont Ends Smoking Ban (p 5)
  19. Indiana DOC Must Allow Witnesses at Hearings (p 6)
  20. Prisoners Win Suit Over Circulating Petition (p 6)
  21. Prisoner Entitled to Religious Diet (p 6)
  22. Kentucky Cons Used as Scabs (p 6)
  23. What's Wrong With This Picture? (p 7)
  24. Editorial (p 7)
  25. Section 1983 Proper Remedy for Disiplinary Violations (p 8)
  26. Ex-Louisiana Officials Fined for Racial Segregation (p 8)
  27. Jury Must Be Asked If Prisoner Testimony Credible (p 8)
  28. Palestinians Sue Tear Gas Maker (p 9)
  29. Crisis in the French Gulag (p 9)
  30. Package Forwarding Service for Cons (p 10)
  31. Oregon Wants Prisoners to Pay for Incarceration (p 10)
  32. NIJ To Study Roots of Crime (p 10)
  33. Battered Women in Prison (p 10)
  34. 1990 U.S. Prison Population Stats (p 11)
  35. No Welcome for Princess Anne (p 11)
  36. Prisoners File Record Number of Suits (p 11)
  37. Clinton for Prisoners: More Bad News (p 12)
  38. Disabled Executed (p 12)
  39. Reviews and Correspondence (p 13)

Supreme Court Strikes Blow Against Attorney Fees

Since 1976, the Civil Rights Attorney Fees Award Act, 42 U.S.C. § 1988, has ensured that state officials would be forced to pay the attorney fees of the litigants who successfully sue state officials for violations of federal rights. This law has been especially important to prisoners for two reasons.

First, few prisoners have the resources to hire attorneys. The promise of an award of attorney fees from the state treasury is one of the few incentives attorneys have to become involved in prisoner litigation.

Second, judges and juries tend to place a low dollar value on the deprivation of prisoners' rights. Even when a court rules that prison officials have violated a convict's constitutional rights, the prisoner often obtains only a small monetary judgment. The amount of damages likely to be awarded to prisoners whose rights have been violated won't deter prison officials from future lawless conduct. But the possibility of an award of attorney fees ranging in the hundreds of thousands of dollars is far more likely to make the keepers respect prisoners' rights.

The U.S. Supreme Court has now struck a serious blow to the Attorney Fees Act as it applies to many ...

Federal Judge Says Prisoners Denied Access to Courts

Prisoners in Arizona have been denied adequate means to communicate with lawyers, perform legal research, and otherwise receive legal assistance, according to a recent decision by United States District Judge Carl Muecke in Phoenix, AZ.

Ruling in Casey v. Lewis, a class action lawsuit brought on behalf of all Arizona prisoners, Muecke wrote that the Department of Corrections' system for allowing prisoners access to the courts "fails to comply with constitutional standards."

"It's an important victory for the Constitution," said Stuart H. Adams, Jr., a lawyer with the National Prison Project of the American Civil Liberties Union in Washington, D.C., which represents the prisoners. "The right to petition the courts is in many ways the most basic and important right prisoners have." In a 36-page opinion, Muecke found that prison officials failed to provide adequate legal assistance to prisoners in segregated housing, and to those who are illiterate or do not speak English; failed to provide confidential photocopying services for prisoners' legal documents; and arbitrarily denied prisoners confidential telephone calls with their attorneys. Muecke added that he will appoint a Special Master to work with lawyers on both sides of the lawsuit in developing an order to remedy ...

Okay to Steal Mail

Two Missouri state prisoners wrote and telephoned US postal officials to complain that prison administrators were "stealing, holding, tampering with, censoring, delaying and destroying" their mail in violation of federal postal laws. The postal officials refused to investigate the prisoners' claims. The prisoners then filed suit against the officials claiming they had been discriminated against by the postal officials' refusal to investigate their complaints because they were prisoners. The district court dismissed the suit for failure to state a claim.

On appeal the Eighth Circuit Court of Appeals affirmed dismissal. It held that citizens in general have no right for law enforcement officials to investigate their complaints of wrongdoing or criminal activity.

The prisoners failed to state an equal protection claim because prisoners are not similarly situated to non-prisoners. Thus, the court held, postal officials do not need to handle their complaints like those of free citizens. In essence, this ruling gives prison officials a free hand in stealing, destroying, delaying, and tampering with prisoners' mail in the full knowledge they will not be investigated or held accountable by the postal employees charged with safeguarding the mails. See: Scher v. Chief Postal Inspector, 973 F.2d 682 (8th Cir. 1992).

Congress OKs Fed Cons to Pay Cost of Prison

Congress has approved legislation allowing the Federal Bureau of Prisons to collect "user fees" from federal inmates equal to the costs of a year's incarceration. The Justice Department, which sought the legislation, estimated that about 9 percent of the 30,000 new inmates who enter the prison system each year will be able to pay their cost of incarceration, at least for the first year. Thus, the department said, it may raise up to $48 million a year by forcing inmates to pay for their incarceration.

The provision was signed into law last October as part of the Justice Department's Fiscal Year 1993 appropriations bill. The bill provides that the Attorney General may assess a fee equal to the cost of one year of incarceration (currently estimated at $17,000 to $20,000 per inmate). If an inmate serves 11 months or less, the fee is to be reduced proportionally.

The attorney general was granted discretion to waive or reduce the fee for any inmate who is unable to pay, even under an installment schedule, or in cases where the fee "would unduly burden the defendant's dependents."

Congress specified that any money collected under the inmate user ...

Freezing Temperature Violates Eighth Amendment

Four prisoners at the Iowa State Reformatory segregation unit were sent outdoors to a recreation area while prison guards searched their living unit for weapons. The temperature was sub-freezing with a significant wind chill factor. The prisoners requested not to go outside. They were placed outdoors with only coats even ...

Federal Prison Terms Increasing

Offenders sentenced under the Federal Sentencing Guidelines are more likely to go to prison and to stay there longer than were offenders sentenced for crimes committed before the guidelines took effect in November, 1987,according to U.S. Justice Departments Bureau of Justice Statistics (BJS). BJS said that in 1990 about 74 percent of the defendants sentenced under the Sentencing Reform Act of 1984 were sent to prison, compared to about 52 percent of the pre-guideline defendants sentenced in 1986.

"The advent of Federal Sentencing Guidelines has accompanied a substantial increase in the probability of imprisonment for a large number of crimes," commented BJS Director Steven Dillingham. "In 1986 about 77 percent of those convicted of drug crimes received prison terms. By 1990 approximately 89 percent of drug offenders sentenced under the guidelines received prison terms."

Although the Sentencing Reform Act abolished release from prison by a parole board decision, the Sentencing Commission enabled judges to sentence offenders to prison terms followed by a specific period of post release supervision. During the first six months of 1990 about 69 percent of the offenders sentenced under the guidelines were given post release supervision terms averaging 42 months. Copies of the report ...

Prisoners No Longer Entitled to Witness Fees

In October of 1992 former President Bush signed bill HR-2324 into law which prohibits the payment to incarcerated persons of witness fee's in federal court. The law amends 28 U.S.C. § 1821 and overrules the US Supreme Courts decision in Demarest v. Manspeaker, 498 US 184 (1991), which had held that prisoners were entitled to witness fees under § 1821.

In the March, 1992, (Vol. 3, No. 3) issue of PLN Bill Dunne wrote an article titled "Protection of the Law". In his article Bill pointed out how clear the statute's language was that prisoners be paid witness fees; so clear that a unanimous Supreme Court affirmed it. Bill reported the details of the U.S. Attorneys and Marshalls charged with making the witness payments who had declined to do so despite the Supreme Court's ruling.

It appears that even after the Supreme Court ruling affirming that prisoners are indeed supposed to be paid witness fees no prisoner was ever actually paid the $30 he/she was entitled to. It is appropriate to quote Bill's article: "The rule of U.S. Law is once again shown to be the rule of the gun. Prisoners have no ...

Death Threats and "Snitch Jacketing" by Guards Unlawful

Craig Northington is a Colorado state prisoner assigned to community placement. While going to his work site plainclothes prison officials surprised him, put guns to his head without identifying themselves as prison guards, threatened to kill him and verbally and physically assaulted him while returning him to the local jail. Northington claims one of the guards told other prisoners he was a "snitch" and because of this he was severely beaten by a group of prisoners. Northington filed suit under § 1983 claiming violation of his civil rights and a conspiracy to deprive him of his civil rights. The district court dismissed the suit for failure to state a claim.

The Court of Appeals for the Tenth Circuit affirmed dismissal of the conspiracy claims but reversed and remanded the excessive force claims for trial.

The court held that prison guards putting a gun to Northington's head and threatening to kill him constitutes excessive use of force. The court notes prisoners "have a constitutional right to be free from the terror of instant and unexpected death at the hands of their keepers." Such threats constitute a psychological injury actionable under the eighth amendment.

The court also held that "snitch jacketing" by ...

Court Cannot Dismiss Suit if Partial Filing Fee Paid

Autry Clark is an Ohio state prisoner. He filed suit against Ocean Brand Tuna claiming he bought cans of cat food from the prison commissary that had been re-labelled as tuna fit for human consumption. Clark became ill after eating the tuna. He filed suit in federal court claiming the company had violated his eighth amendment rights, the Fair Packaging and Labelling Act (15 U.S.C. § 1451-1461), and various state laws.

The district court granted Clark In Forma Pauperis status but required him to pay a $55 partial filing fee. Clark paid the fee and three weeks later the court dismissed the suit Sua Sponte (on its own) as being frivolous. The court acknowledged jurisdiction under the diversity of citizenship rule. The court held that private parties can't violate the eighth amendment and that neither Ohio state laws nor the Fair Packaging Act provide a private cause of action. Summonses were never issued to the defendants.

Clark appealed and the Court of Appeals for the Sixth Circuit reversed and remanded.

The Court of Appeals joined four other circuit courts in holding that a district court can't dismiss a suit as being frivolous, sua sponte, after the plaintiff ...

Court Cannot Supply Elements of Complaint

Joseph Pena is a prisoner at the Washington State Penitentiary. He was subjected to a digital rectal search without probable cause and filed suit under § 1983. Prison officials sought dismissal of the complaint on grounds Pena had failed to state a claim and that they were entitled to qualified and eleventh amendment immunity. The district court stayed proceedings in this case pending the outcome of a related case, Tribble v. Gardner, 860 F.2d 321 (9th Cir. 1988). After the court in Tribble denied Washington prison officials qualified immunity on the subject of digital rectal searches, the court denied the official's motion to dismiss in this case. The defendants appealed.

The Court of Appeals for the Ninth Circuit vacated and remanded the case. The appeals court held that Pena's complaint, lacking the facts from the Tribble case, does not contain sufficient facts to state a claim under § 1983. Without sufficient facts to support the claim it is premature to consider questions of qualified and eleventh amendment immunity and how pendent state law claims should be treated. The appeals court remanded the case back to the lower court with instructions to dismiss it and allow Pena an opportunity to ...

Maxed Out Washington Cons Have Right to Earn Good Time

This is a case that will only be of interest to prisoners in Washington state, as our system of issuing good time credits is probably the strangest in the nation. This case deals with a Washington state prisoner who filed a personal restraint petition seeking review of a decision of the Indeterminate Sentencing Review Board ("ISRB" or "parole board") setting his new minimum term at his maximum expiration date. The prisoner contended that the board's action amounted to a determination of parolability and thus, under the applicable rules, he was entitled to advanced notice and an in-person hearing. Division One of the State Court of Appeals agreed with him and granted the petition.

The prisoner, Charles Cashaw, contended that the Board erred in extending his minimum term to the maximum expiration date, in that the decision effectively denied him the ability to earn good time credit while he serves his new minimum term in prison. Since he has a statutory right to earn good time credit under RCW 9.95.070, and the prison superintendent recommended that he receive such credit, the board's decision not to consider him for parole prior to the expiration of his maximum is ...

Dismissal of HIV+ Conditions Suit Reversed

Two HIV+ Mississippi state prisoners filed suit against Mississippi state officials challenging numerous aspects of the state DOC's policy regarding HIV+ prisoners. The policies they challenged include: placing HIV+ prisoners in administrative segregation and denying them all privileges; not providing adequate AIDS treatment (to include medication) and diagnosis; a lack of doctors trained to treat HIV+ medical problems; prison dentist's refusal to treat HIV+ prisoners; that HIV+ prisoners were denied privileges and were placed in housing substantially inferior to that of other prisoners which were vermin and insect infested, had defective plumbing and were deteriorating; that publishing their medical status violated their privacy rights, and that some HIV+ prisoners remained in the general population. The district court dismissed the entire suit as being frivolous.

On appeal the Court of Appeals for the Fifth Circuit reversed and remanded the case. The court provides a detailed discussion of the difference between legal and factual frivolousness and distinguishes between dismissals under Fed.R.Civ.P. 12 (b) (6) and 28 U.S.C. § 1915 (d).

The court affirmed dismissal of the claims concerning the identification and segregation of HIV+ prisoners. The court also states the claims on loss of privacy and ...

Prison Bosses Liable for Rights Violation

Willie Horne is a retarded New York state prisoner who was infracted, not provided with a counsel substitute at a disciplinary hearing, and was punished. Horne filed suit claiming that prison officials violated his due process rights by subjecting him to a disciplinary hearing without a counsel substitute when they knew he has an IQ of 58 and is functionally illiterate. The New York DOC Commissioner and prison warden moved for summary judgement claiming they were entitled to dismissal from the suit based on their lack of personal involvement. The district court denied their motion.

The court ruled that because New York state statutes require the DOC commissioner to promulgate disciplinary regulations, he was sufficiently involved in the case to be held liable under § 1983.

The court held the warden could be liable under § 1983 because he was aware of Horne's retarded condition, knew of the disciplinary hearing, and took no steps to correct the constitutional problem. See: Horne v. Coughlin, 795 F. Supp. 72 (ND NY 1991).

Penn. Senate Warned of Possible Prison TB Epidemic

Tuberculosis may spread from state prisons and become Pennsylvania's number one health concern if officials fail to implement proper controls, a witness told a state Senate committee last November in Harrisburg.

ACLU lawyer Stephan Presser said the recent discovery that nearly one-quarter of the inmates at Graterford Prison in Philadelphia tested positive for TB is a serious threat to public safety. There are 4,100 men at Graterford. Some 966 prisoners, or 23 percent of the population, tested positive on PPD skin tests during three days of testing. "No other prison has ever turned up such a rate of TB," he said.

A corrections Department spokesman Ben Livingood called Presser's comments "inflammatory rhetoric," and that there was no cause for alarm. Another prison spokesperson, Alan LeFebvre, said information from the Centers for Disease Control Prevention in Atlanta shows that on average, between 18 and 23 percent of prison inmates in the country will test positive in skin tests for TB. "The bottom line," LeFebvre said, is that "we haven't come up with anyone with tuberculosis."
Corrections Digest

Right to Avoid Tobacco Smoke Exposure not Established

In part of the continuing split among the circuits on this issue, some circuits have held exposing prisoners to Environmental Tobacco Smoke (ETS) violates the eighth amendment, see: Hunt v. Reynolds, above. Other Circuits have held it does not. See: Wilson v. Lynaugh, 878 F.2d 846 (5th Cir. 1989). The Eighth Circuit has taken a middle course.

In this case, a Missouri prisoner filed suit claiming his eighth amendment rights had been violated when he was involuntarily exposed to ETS and "an audio assault of degrading filth and violence that promotes murder, suicide and satanic practices" from TV's and radios played by other prisoners. The district court dismissed the ETS claim by holding the prison warden was entitled to qualified immunity because there was no clearly established right for prisoners to be free from ETS exposure in 1989 when the incident occurred. The court dismissed the noise claim by holding prisoners have no clearly established right not to be exposed to speech that is offensive to them.

The Court of Appeals for the Eighth Circuit affirmed the lower court. It found the noise claim to be meritless.They assumed, without deciding, that involuntary ETS exposure can state a ...

Washington Smoking Suit Dismissed

Ronald Guilmet is a Washington state prisoner at Walla Walla. Guilmet does not smoke and a smoker was placed in his cell. Five days later Guilmet complained to the unit sergeant that cigarette smoke bothered him. About five days after this Guilmet was assigned a non-smoking cellmate. Guilmet filed suit claiming that his eighth amendment rights had been violated by his exposure to Environmental Tobacco Smoke (ETS). District Judge Van Sickle granted the defendant's motion for summary judgement and dismissed the suit.

The court held that because Guilmet was moved in with a non-smoker within ten days of complaining about his cellmate's smoking, no eighth amendment violation had occured, as a short delay does not show deliberate indifference to a prisoner's medical needs. The court implies that had prison officials delayed moving Guilmet longer the outcome of this case would have been different. See: Guilmet v. Knight, 792 F. Supp. 93 (ED WA 1992).

Exposure to Tobacco Smoke Violates Eighth Amendment

Two non-smoking Tennessee prisoners suffering from various medical problems were forcibly celled with prisoners who smoked. They claim the Environmental Tobacco Smoke (ETS) of their cellmates aggravated their existing medical conditions. They filed suit in district court under § 1983 claiming prison officials had violated their eighth amendment rights by double celling them with smokers. The district court dismissed the suit.

On appeal, the Sixth Circuit Court of Appeals reversed and remanded. The court agreed with the four other circuit courts who have held that compelling non-smokers with serious medical needs to share a cell with a smoker violates the eighth amendment.

The Supreme Court has held that denial of adequate medical care to prisoners violate the eighth amendment. The court of appeals held: "Medical consequences of tobacco smoke do not differ from other medical problems. Prisoners allergic to the components of tobacco smoke, or who can attribute their serious medical conditions to smoke are entitled to appropriate medical treatment. Which may include removal from places where smoke hovers."

The court remanded the case back to the lower court for a factual determination of whether the impact of tobacco smoke on the plaintiffs was serious enough to cause an eighth amendment ...

Vermont Ends Smoking Ban

The Nov. 26, 1992, edition of the Seattle Times reports that the Vermont DOC has ended its ban on prisoner smoking. The Vermont DOC had banned smoking, in July 92, to counter indoor air pollution problems and avoid lawsuits by non smoking prisoners.

The reason given by prison officials for ending the ban was that it had created a thriving black market with a pack of cigarettes costing $40 and individual cigarettes going for $3. Those without money to buy them allegedly use "threats and violence to get them, while others reportedly traded sexual favors or prescription drugs for a smoke."

Prison guards, also forbidden to smoke inside the prisons, were allegedly the primary source of contraband. Dave Eaton, a Vermont prisoner, said the ban had increased the stress factor in prison and reported some smokers were so desperate for a smoke they were smoking coffee and tang. Vermont prisoners will now be able to smoke outdoors in designated areas.

Indiana DOC Must Allow Witnesses at Hearings

Jerry Forbes is an Indiana state prisoner who refused to take a urine test because the prison did not publish its testing procedures. He was infracted and requested prison officials as witnesses at his hearing and they refused to appear. He was found guilty, lost good time credits and was placed in segregation. He filed a writ of habeas corpus in federal court which was denied.

Forbes appealed and the Court of Appeals for the Seventh Circuit affirmed denial of the writ of habeas corpus, but held that the Indiana DOC rule that permits witnesses requested at disciplinary hearings not to appear violates both Indiana statutes and the fourteenth amendment to the US Constitution.

An interesting fact in this case is that Forbes filed a writ of habeas corpus directly in federal court. He did so because the Indiana Supreme Court has held that Indiana state courts lack jurisdiction to review decisions by prison disciplinary boards. Thus, Forbes had no state remedies to exhaust. Forbes argued that the fourteenth amendment requires the states to provide a judicial forum for prisoners' constitutional claims. The court notes the Supreme Court has never ruled on this issue and Seventh Circuit precedent does not ...

Prisoners Win Suit Over Circulating Petition

Dennis Wolfel and three other Ohio state prisoners, including longtime PLN supporter John Perotti, were infracted and disciplined for circulating a petition complaining of brutal prison conditions. The petition was going to be sent to Amnesty International, the international human rights group, to request an investigation of prison conditions in Ohio. The prisoners filed suit under § 1983 claiming prison officials had violated their right to due process by not providing them advance notice of what constituted prohibited activity and for abridging their right to seek redress of grievances. The district court ruled that the prisoners' rights had been violated but that they were not entitled to money damages. The court ordered expungement of the infraction records and awarded enhanced attorney fees to the prisoners' lawyer.

Both sides appealed and the Sixth Circuit Court of Appeals affirmed the district court in all respects except the ruling providing enhanced attorney fees, which they reversed and remanded for recomputation.

The court of appeals held that prison officials may constitutionally prohibit prisoners from circulating petitions. However, in this case the fact that no prison rule specifically banned petitions and that such activity had been tolerated in the past resulted in the court finding the ...

Prisoner Entitled to Religious Diet

Warren Bass is a New York state prisoner who filed suit under § 1983 after being denied a diet of meals prepared in accordance with his religious beliefs. The defendant prison officials moved for summary judgement on the basis of qualified immunity from money damages. The district court denied their motion and they appealed. In a very brief opinion the Court of Appeals for the Second Circuit affirmed the lower court ruling.

The appeals court notes that prison officials must provide prisoners with diets consistent with their religious beliefs. This right was established in the Second Circuit in Kahane v. Carlson, 527 F.2d 492 (2nd Cir. 1975) and has never been overruled and remains the law.

Prison officials tried to argue that US Supreme Court decisions in O'Lone v. Estate of Shabazz, 482 US 342, 107 S.Ct 2400 (1987), and Turner v. Safely, 482 US 78, 107 S.Ct 2254 (1987), had placed doubt on the Kahane ruling. The appeals court quickly dismissed that theory. See: Bass v. Coughlin, 976 F.2d 98 (2nd Cir. 1992).

Kentucky Cons Used as Scabs

Prisoners from a privately-run jail in Louisville, Kentucky have been used as scabs in the three-month-old strike by UFCW Local 227 against Fischer Packing Company. The prisoners were brought into the plant after the strikers rejected the company's "best and final offer" by a margin of 402 to 2. Fischer is demanding large concessions.

According to the Louisville Courier-Journal, "a private jailhas been supplying county work-release inmates to a temporary employment agency that has used them as strikebreakers at Fischer Packing." The union has objected to the county government, but so far the inmates are still working in the plant.

Local 227 has called for a boycott of Fischer products. The union asks that Kentucky-area supporters buy Ocar Mayer or Wilson products instead. The local has set up a community support coalition of churches, unions, and other organizations to solicit boycott pledge cards from consumers. In addition, unions in the area have `adopted' supermarkets, taking responsibility for leafletting the different stores about the boycott.

What's Wrong With This Picture?

By Paul Wright

A judge in Maryland recently sentenced a university student to six months in jail after the student was discovered to have cheated on his Scholastic Aptitude Test (SAT), which is the test used for college admissions. The student cheated by paying another student to take the test for him. The judge stated this was necessary to safeguard the integrity of the college testing program and to teach him responsibility.

We can contrast the judicial and political system's concern with "integrity" and "responsibility" in this country by the treatment of high-ranking government officials accused and convicted for their roles in the Iran-Contra affair. In the mid 80's the U.S. congress passed a law called the Boland amendment, which prohibited the US from providing funds to its mercenary forces in Central America, which were seeking to overthrow the Sandinista government of Nicaragua. Since about 1980 the US had created, armed, trained and supplied the contras. The US's involvement in the war against Nicaragua included the mining of Nicaraguan ports, bombings, and a civil war that left over 30,000 dead and many more wounded and crippled. When Congress cut off funding for the contras the ...

Editorial

Why do you think Paul and I go through all the trouble to put out this paper each month? Why do our outside volunteers so consistently work to produce and mail every issue? It certainly isn't because we or our volunteers have nothing better to do with our time. The fact of the matter is that we have a collective message we are trying to get across to the public.

The message is that the current punishment approach to crime does not work, and actually makes things worse; that the public is being ripped off by the state, at the expense of the community's safety. Some who have read our "message" ask why we don't try to raise money for a full-page advertisement in a major newspaper, so we can reach more people? Our response is that we aren't out to reach a lot of people, but rather to reach those most likely involved in the process of moving things forward. To put it another way, we are after quality rather than quantity. That has been until now, and will continue to be, our approach with this paper. Yet the results we had hoped for over ...

Section 1983 Proper Remedy for Disiplinary Violations

Two Arizona state prisoners were found guilty of drug use at a disciplinary hearing and lost 2 years of good time credits, did 15 days in isolation, lost privileges, were moved to higher security levels, and placed on a more restrictive parole status. They filed suit under § 1983 claiming that disciplinary procedures used in Arizona violated their federal rights to due process and equal protection. The district court construed the complaint as a habeas corpus petition and stayed the action until they had exhausted their state remedies.

The Court of Appeals for the Ninth Circuit reversed and remanded. The court notes it has jurisdiction to review an order staying a civil rights action as an exception to the "final order" rule in which only orders disposing of a case are reviewed on appeal.

The court notes that state prisoners challenging the fact or duration of their confinement can only use the writ of habeas corpus, which requires prior exhaustion of state remedies. However, habeas corpus is not the appropriate, or available, remedy for damages claim. Section 1983 authorizes recovery of money damages for constitutional violations and does not require exhaustion of state remedies.

The Ninth Circuit held that "simply because ...

Ex-Louisiana Officials Fined for Racial Segregation

Two former Louisiana corrections officials must pay $4,000 in fines for segregating inmates by race, a federal judge said. In his ruling October 27th in Baton rouge, a U.S. District judge lowered the judgment from $10,000 recommended by a federal magistrate earlier in the year.

Fined were ...

Jury Must Be Asked If Prisoner Testimony Credible

Jeffrey Rainey was a North Carolina pretrial detainee. He claimed that in the course of a dispute with a jail guard the guard used excessive force against him by slamming him into a wall three times, injuring his back. He filed suit under § 1983 and at trial a jury ruled against him.

Both parties appealed and the Court of Appeals for the Fourth Circuit reversed and remanded the case. The Court held that the lower court was correct in denying qualified immunity summary judgement to the guard. Because the liability issue was a matter of credibility, i.e. who the jury believed in the excessive force issue, summary judgement was not appropriate. The court noted that the guard's testimony was contradictory and characterized it as "post ad hoc rationalization" requiring resolution by a jury.

The court of appeals reversed the verdict against Rainey because the trial court refused to question the jury panel on whether "they would tend to credit the testimony of a law enforcement official over that of a prisoner simply because of their respective positions." The appeals court found this to be a reversible error directly controlled by United States v. Evans, 917 F.2d 800 ...

Palestinians Sue Tear Gas Maker

According to Al Fair of Nov. 23, 1992, in December, 1991, the New York based Center for Constitutional Rights filed suit on behalf of nine families of Palestinians killed by tear gas in Israeli occupied Palestine. The suit, Abu Zeinah v. Federal Laboratories, was filed in U.S. District Court in Pittsburgh, PA. The plaintiffs claim the manufacturer is liable for knowing its product was being used dangerously by Israel and continued its sales anyway. The judge has already ruled that U.S. companies are liable for damages caused by their products abroad if they know their product is unreasonably dangerous or likely to be misused. Tear gas is banned by the United Nations as part of its ban on chemical warfare.

Tear gas is a potentially lethal chemical substance. Only its concentration determines whether it will be lethal or not.

The reason we are reporting this suit in PLN is because U.S. prison officials routinely use chemical agents, be it mace, tear gas, Capstun, etc., against prisoners, often resulting in serious injury. While the prison officials can, and often are, sued for excessive force in such situations it appears that whole separate cause of action can be filed ...

Crisis in the French Gulag

As you may know, the French prison system is one of the worst in Western Europe; its conditions and facilities of confinement are the same as those of bloody Turkey!

In the 1980's things only worsened. Each year there are more prisoners and they are always serving heavier sentences. The number and proportion of prisoners serving life sentences has increased enormously. The new sentencing system also has "security sentences" of 18 to 30 years. This means serving the entire sentence in a maximum security prison with no change of conditions, no good time reduction, no parole, no furloughs, nothing.

These judicial conditions are imposed by courts and tribunals that are always easier about revealing their fascist and anti-proletarian positions. They condemn children and the poor to very severe penalties but at the same time they acquit people like the former chief of police during the Vichy government [Ed. Note: this was the puppet regime set up by the Nazis during WW II to administer France] and the chief of the anti-Jewish section of that Nazi government. They also acquit cops or people accused of killing Arabs, Gypsies, and youth of the outer ghettos.

The body of judges represents the ...

Package Forwarding Service for Cons

Looking for someone to mail a gift for you? Thanks to a service called Mail-A-Gift, fathers who have never had the chance to select and independently send their child a birthday present can do so now, and husbands can send their wives gifts such as candy or flowers. Mail-A-Gift is a program especially designed for prisoners. It is a small business operated by a prisoner's wife, named Anita Moore, who takes pleasure in being able to bring some joy to the people her small business serves.

Got nobody out there to shop for you, to send you a food package? You can send yourself a package of clothing or other goodies using the Mail-A-Gift service. This is a reasonable and reliable service, not a rip-off, or you would not be reading about it here. You can obtain a price list of the food and other items Mrs. Moore has available, as well as additional information about the service she provides by writing to:

A. Moore Packaging Service
P.O. Box 7516
Citrus Heights, CA 95621-7516

Oregon Wants Prisoners to Pay for Incarceration

The Oregon DOC has introduced a bill into the Oregon Legislature that would allow the state to charge prisoners for their costs, which include transportation, room, board, clothing, security, medical and other living expenses. According to the DOC, the average cost of care for an Oregon prisoner is $47.85 per day.

Identical bills died in the 1989 and 1991 sessions of the legislature. The state house subcommittee that approved the bill expanded it to allow the DOC to go after not only prisoners' income but also any assets belonging to or due a prisoner.
Seattle Times, Jan. 21, 1993.

NIJ To Study Roots of Crime

The National Institute of Justice (NIJ) has announced its support for a vast study of the ways in which criminal offenders differ from law-abiding people, and what leads certain people into criminal behavior. Directors of the "Roots of Crime" project said it will be "the most sophisticated, broad-based, and ambitious study ever undertaken of the factors that lead to crime, delinquency, and antisocial behavior."

The study, which also is being sponsored by the John D. and Catherine T. McArthur Foundation, will follow 11,000 randomly selected individuals in approximately 60 communities over a period of eight years, searching for the "roots and natural history of criminal behavior." The researchers said they will focus on a variety of factors that might be related to criminal behavior, including: prenatal drug exposure, adolescent growth patterns, temperament and self-image, poor parenting, school influences, peer influences, differences between girls and boys who begin a criminal career, predictions of dangerousness, and community influences.

Because of the breadth and depth of the project, a small army of researchers will be needed. The subjects will be interviewed and given physical examinations; parents, school teachers, and others with information about the subjects will also be interviewed. The study will ...

Battered Women in Prison

Every fifteen seconds a woman in the U.S. is beaten. One California state prison study found that 93 percent of women who had killed their mates had been battered by them. There are approximately 650 women in California state prisons for killing their abusers.

The California Coalition for Battered Women in Prison was formed in August of 1991 by progressive legal and community groups. Volunteer lawyers, community organizations, prison reform activists and others participate in reaching the goals of the Coalition. As part of a growing national movement aimed at bringing justice to battered women, the Coalition commits itself to assisting women in California who have been convicted of fighting back against their abusive partners, and whose claims of self defense have been largely ignored. The Coalition has filed 21 clemency petitions so far on behalf of women who believe their killings were in self defense or were the only way they could have escaped from a long-term abusive relationship. In one case, a woman was beaten by her spouse for 48 years.

Many battered women in California were convicted before courts recognized the relevance of Battered Women's Syndrome evidence. It was not until January 1st, 1992, that ...

1990 U.S. Prison Population Stats

By Ed Mead

The U.S. Bureau of Justice Statistics has just come out with two more books containing figures on the nation's prison population. The first is a 32-page pamphlet entitled Census of State and Federal Correctional Facilities-1990, and the second one is a 189-page book named Correctional Populations in the United States, 1990. These materials were not what I would call interesting reading. And I doubt I can make the digestion of this kind of stuff anything close to fun. But here goes

First off, what states do you think had the most adults under some form of correctional supervision (on probation, in jail, in prison, or on parole) during 1990? If you guessed Texas you were correct. A total of 4.14 percent of all adult Texans are directly under the state's thumb. A surprising second was Maryland, with 3.31 percent of its adults under its correctional authority. And right behind Maryland comes Washington state, with 3.03 percent of its adult citizens either behind bars or under some form of direct supervision. The national average is 2.35 percent.

When we take the actual number of the U.S. resident adult population who ...

No Welcome for Princess Anne

No Welcome For Princess Anne

Princess Anne of British royal family fame, did not receive a friendly welcome from some her less fortunate subjects when she paid a visit to Horfield Prison in Bristol.

Prisoners threw food and rubbish in a protest over conditions before the visit, and among the whistles and catcalls when she did arrive was one loud cry of "Up the IRA!"

Prisoners File Record Number of Suits

By Paul Wright

We often hear prison officials, the various attorney generals, and the courts complain about what they call a "flood" of prisoner litigation. I, for one, became curious as to how many lawsuits constitute a "flood." I have been in several prisons over the last few years and the one thing they all have in common is the arbitrary manner in which they are run with little regard for either state or federal laws or even their own rules and policies. In many cases this situation continues because prisoners aren't challenging these practices in court.

The Administrative offices of the U.S. Courts has provided me with the statistics for the total number of civil suits commenced in the U.S. District and Appeals Courts from 1987 through and including June of 1992.

There has been a decrease in the total number of suits filed. In 1987 238,982 civil suits were filed, 72,022 by the U.S. government and 22,972 prisoner civil rights cases and 9,542 habeas corpus petitions were filed.

By 1992 the total number of civil suits filed had declined to 226,895; the U.S. government had only filed 63 ...

Clinton for Prisoners: More Bad News

With Clinton's election many prisoners are optimistic that there will be some changes for the better after 12 years of jackboot politics by the Republicans. In past issues of PLN I've mentioned Clinton's despicable record on the death penalty. That record includes 4 executions, dozens of death warrants signed, never commuting a death sentence and executing a brain damaged black man in the middle of his campaign and using the execution to brag to the media about how "tough on crime" he is. During his tenure as governor of Arkansas that state has had the distinction of spending less money on its prisoners than any other state, and being notorious for the harsh conditions of its prisons.

But maybe Clinton is going to turn a new leaf now that he's President, right? During his campaign Clinton made the following promises of what he would do when he was elected, all of which affect prisoners.

One of the centerpieces of his national service plan is to put 100,000 new police on the streets. The U.S. currently has about 500,000 law enforcement people. A 20 percent increase is quite significant. What no one has mentioned ...

Disabled Executed

On January 19, 1993, the state of Virginia executed Charles Stamper. Stamper had been confined to a wheelchair since his spinal cord was injured in a prison brawl. Stamper was denied permission to walk to the electric chair in leg braces and a walker. Instead, prison guards shuffled him into the electric chair.

Death penalty foes claimed the execution was not necessary because Stamper was no longer a danger due to his handicap. Some advocates for the disabled [Ed. Note: some advocates!] argued he was entitled to no special considerations because he was handicapped.

The United States is one of the few countries in the world that executes its juveniles and mentally retarded. To that dubious distinction we can add the execution of the handicapped as well.

Reviews and Correspondence

Crossroad: A New Afrikan Captured Combatant Newsletter is a quarterly publication which specializes in coverage of political prisoners and prisoners of war in the U.S. from a New Afrikan perspective. Recent issues have included an excellent interview with Assata Shakur, peer advocacy in AIDS education in prison, control units, and more. An excellent publication for the politically inclined. Subscriptions are $1.50 per issue for prisoners, $3.00 per issue for free people. Contact: Spear and Shield Publications, 1340 West Irving Park, Suite 108, Chicago IL 60613.

Prison Life is a slick, well produced bi-monthly magazine that covers, as its title implies, prison life. Its premier issue published in December of 1992 includes articles on parole, drug abuse, prisoners selling their body organs, mothers behind bars, a TV station run by prisoners in Missouri, and more. It contains columns of book reviews, interviews, pen pal ads, in-cell cooking, profiles on ex-prisoners, letters and more. It is 100 pages long, with extensive color photos, ads, etc. Subscriptions costs are $19.95 per year. Contact: Prison Life Magazine, 111 S. 9th St. Suite 3, Columbia, MO 65201.

Gray Areas is a new, well-produced magazine that is aiming to replace the old ...

 

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Disciplinary Self-Help Litigation Manual