The three-strike initiative campaign was launched last year, but failed to gather enough signatures to get it on the ballot. This was not due to a lack of public support for the concept of the law, but rather because the signature gathering process had been started too late. This year the victims' rights lobby has hit the ground running. The official ballot summary states:
"This initiative requires persons convicted of `most serious ...
Their baaack! And this time with both barrels. Ida (now Republican state representative from Mercer Island) Ballasiotes and her fellow victims' rights cronies have reintroduced the so-called "three strikes and you're out" initiative. In addition to Citizens' Initiative 593, this group and a bunch of reactionary legislators have introduced House Bill 1139, a proposed new law that contains the exact same language as Initiative 593. If the legislators don't implement this draconian law, they hope the voters will. At this point, given the anti-crime hysteria whipped up in the public's mind by the bourgeois media, it is likely that one of these avenues of passage will be successful. Washington state prisoners and their families should be aware of the probable shape of things to come.
This case is Brown's federal habeas corpus petition contesting his criminal conviction. The district court found that jail guards beat Brown three to six times a day for five days, causing severe injuries and then denied Brown medical treatment for 75 days. Brown raised the beatings as a grounds for relief in his petition.
At pages 948-50 the court gives a detailed discussion of remedies available to protect prisoners from government abuse. The court ordered the district attorney to send copies of the court order to Governor Cuomo and the state officials responsible for operating the Rockland county jail for them to report to the court what investigative efforts and remedial measures have taken place since Brown's beating. The court held that the beatings and lack of treatment did violate the eighth amendment. But such violations are only grounds for money damages or injunctive relief, not release. The court said it would give further ...
Samuel Brown is a New York state prisoner. Brown was convicted of three counts of felony murder arising from an armored car robbery in upstate New York by the Revolutionary Armed Task Force. Brown became an FBI informant and was later tried and convicted.
In 1991, prison populations in the U.S. grew by more than 76,000 in the 49 systems reporting. For the same period there were 5,793 escapes. This is a decrease of 1,451 from 1990's figure of 7,244. The escape rate has continually decreased since 1984, when a reported 1.93 percent of the inmate population (7,903) escaped. In 1991, the escape rate decreased to .78 percent.
Thirty-two U.S. systems, including the federal Bureau of Prisons, reported a decrease in escapes, owing to better inmate classification procedures, increase in staffing and training and an advancement of technology in security equipment. An increase in escapes was reported in seven systems due to an increase in population, specifically community or open institutions which makes it easier for an inmate to "walk away."
Escapes by low-risk inmates ...
Incarceration rates in the United States and Canada are on the rise. Overcrowded conditions are being felt by more and more prisons. Despite all this, the number of prison escapes and homicides has decreased. Fifty state systems, the District of Columbia, and the federal Bureau of Prisons responded to a recent survey by Corrections Compendium regarding prison escapes and violence.
Firearms were the weapon most used in the slaying of officers, accounting for 19 of the 24 killings this year. One officer was killed by a bomb explosion, and four were intentionally struck by vehicles.
About half of the slain officers were killed during arrest situations. Of those, six were attempting to prevent robberies or apprehend burglary suspects. Four officers were killed while responding to disturbance calls; and two were slain while investigating suspicious persons or circumstances.
Nearly all of the slayings occurred in Southern (14 officers) or Western (six officers) states.
- Criminal Justice Newsletter
FBI Director William S. Sessions announced that 24 law enforcement officer were killed feloniously in the line of duty during the first six months of 1992, a sharp reduction from the 44 officer slain during the first half of 1991. Another 29 officers were killed by accidents that occurred during the performance of their duties, the FBI said.
A grand jury returned the indictments after prosecutors laid out the accusations in graphic detail. The indictments came more than eight months after the Georgia Bureau of Investigation (GBI) began probing allegations that officers had sexually abused inmates at the Georgia Women's Correctional Institution in Hardwick.
The GBI initiated its investigation after more than 100 inmates spoke out as part of a 1984 lawsuit filed against the prison. The suit claimed female inmates were subjected to rape, sodomy and other sexual assaults. Prison employees coerced inmates into prostituting themselves, trading sex for favors, and in some cases forced prisoners to have abortions, the suit said.
The defendants named in the indictments, 10 men and four women, were all arrested last November. Of the 14, six were fired, six quit, and two have been suspended. Additional indictments are likely, including some from the Milan Women's Center and the Washington Correctional Institution.
Robert Cullen, an attorney for the inmates, said he was "heartened" by the ...
Authorities in Georgia said they have intensified an investigation into alleged sexual abuse at a Georgia women's prison after 14 current and former state corrections employees were indicted on rape and sexual assault charges.
A projected 38 percent increase in the states prison population within the next five years has prompted Governor Douglas Wilder to propose a $111.7 million prison construction project. The proposal includes construction of a 1,046 bed women's prison, a 697 bed men's prison, a 100 bed maximum security juvenile facility, a 24 bed work release center and a day reporting center that would handle as many as 600 prisoners assigned for technical violations of probation or parole. DOC officials had asked for $305 million but Wilder included only what aides said were the most critical projects in his proposal.
William Jenkins, a former assistant corrections commissioner pleaded guilty in January to charges that he extorted money from a janitorial supplies company which served the city's jails. Jenkins, who was responsible for the Corrections Department's assets management, is scheduled to be sentenced March 19, 1993. Prosecutors said Jenkins received $24,000 in cash and hundreds of dollars worth of toilet paper in exchange for awarding $240,000 in contracts to the company. He was arrested and dismissed from his position last October.
On January 2, 1993, a gun smuggled into a jail's maximum security section accidentally discharged and wounded a jail guard. A prisoner is suspected in that shooting. Another jail guard has been arrested and charged with smuggling the gun in. City officials claim guards have been paid between $1,100 and $7,500 to smuggle in guns. Since 1987, 16 handguns have been found in city jails.
A city official states that investigations have shown a pattern to the shootings: in each case wounded prisoners could not identify their assailants ...
New York City commissioners claim that for the last several years prisoners have paid jail guards to smuggle guns in to them, whereupon they shoot themselves and then sue the city for failing to protect them. A city official claims "There are at least five lawsuits presently pending against the city involving incidents where we have evidence that the wound was either self-inflicted, or inflicted at the direction of the injured inmate. An inmate would pay a corrections officer to bring in a gun to shoot himself so that he could bring a lawsuit or get some favor from jail authorities, such as reduced bail or improved jail accommodations."
Prison officials moved for summary judgement which the district court granted in part and denied in part. The court notes that prisoners have a constitutional right to marry but do not have a right to visitation. The court lists extensive cases concerning visitation in general.
The court denied summary judgement to the defendants by noting that they had not identified any security risk in a brief, one time visit for the marriage ceremony at a time and place of the warden's choosing. The court notes that a valid reason to deny Ayres general visitation privileges does not justify the denial of Buehl's right to marry.
The court granted the defendants ...
Roger Buehl is a Pennsylvania state prisoner on death row. In 1990 Buehl requested permission for a special one time visit in order to marry his girlfriend, Deborah Ayres. Prison officials denied the request citing a 1985 incident where Ayres had been caught smuggling three balloons of marijuana to another death row prisoner. Previous requests by Buehl to add Ayres to his visiting list had been denied. After unsuccessfully administratively appealing the denial Buehl and Ayres filed suit under § 1983 claiming violation of their constitutional right to marry.
In February, 1990, several Iowa prisoners were placed outdoors without hats or gloves for an hour while guards searched their living unit. The temperature was about 30 degrees F. The prisoners did not suffer any long term injury from the experience. The prisoners filed suit and the district court ruled ...
Parker appealed and the court of appeals for the fifth circuit reversed and remanded.
The court of appeals begins by noting that district courts have a duty to closely examine pro se prisoner complaints to ensure they are not prematurely dismissed. Using the Supreme Court's test for "frivolousness" (set out in Nietzke v. Williams, 490 US 319, 323-25, 109 S.Ct. 1827, 1831 (1989)), the court held that Parker's suit was not frivolous.
The court notes that pretrial detainees may not be subjected to any treatment amounting to punishment because they have not been convicted of any crime. Pretrial detainees are entitled to protection from adverse conditions of confinement created by prison officials for punitive purposes. Thus, Parker ...
Spencer Parker is a pretrial detainee in Texas. While awaiting trial in the jail's minimum security section he was moved to the violent offenders section in retaliation for arguing with a guard. As a result of the transfer he was assaulted and lost his right eye and was denied proper post-operative treatment. Parker filed suit under § 1983 and the district court dismissed the complaint as being frivolous under 28 U.S.C. § 1915 (d), before service on the defendants.
Nearly three years after filing the suit Murphy was placed in work release and had about $1,300 in savings. The defendants moved the court to dismiss the suit because Murphy had not promptly notified the court of the change in his financial status. As an alternative, they moved the court to reconsider Murphy's IFP status, require him to pay the full filing fee and/or discharge his appointed counsel.
The district court, in the first ruling on this subject in the eighth circuit, held that dismissal of a suit is not warranted due to a change in the indigent's finances. The court gives an extensive discussion, with numerous citations, of cases involving indigents' IFP status, changes in ...
Michael Murphy is a Missouri state prisoner who filed suit claiming his religious rights had been infringed by prison officials. At the time he filed suit he earned $30 a month at his prison job and had $53 in his prison account. To file his suit he sought, and was granted, In Forma Pauperis (IFP) status to proceed as an indigent. The court did require that he pay a partial $13 filing fee rather than the full $120 filing fee.
The defendants had sought qualified immunity from damages contending Bass did not have a clearly established right to a religious diet. The district court denied the qualified immunity motion and the court of appeals affirmed in the defendant's interlocutory appeal at Bass v. Coughlin, 976 F.2d 98 (2nd Cir. 1992), which PLN reported (PLN, vol. 4, no. 3)..
In this opinion the district court provides an extensive discussion of how courts should examine qualified immunity defenses by government officials.
At pages 1070-72 the court gives a detailed examination of cases that hold that prisoners are entitled to a diet consistent with their religious beliefs. Because there was a clear and controlling legal authority establishing this right as far back as 1969, and continuously affirmed up to the present, prison officials were clearly not entitled to qualified immunity for their ...
Warren Bass is a Jewish New York state prisoner. Despite the recommendation of the prison rabbi that Bass was sincere in his religious beliefs and should receive a kosher diet, prison officials refused to provide Bass with a kosher diet. Bass filed suit under § 1983 claiming the denial of a kosher diet violates his right to practice his religion.
The court held that Chavers had adequately alleged his indigence. Because Chavers did not claim that the confiscation of his legal materials affected his ability to litigate, however, the court held that this claim was legally frivolous and had no arguable basis in law.
The court went on to hold that Chavers could state a claim that prison officials had violated his due process rights by confiscating his law books.
While an intentional but unauthorized property deprivation cannot be challenged in federal court as long as adequate state remedies exist, an authorized and intentional confiscation may be challenged under § 1983 in federal court.
In this case the court relied on Wisconsin DOC rules which authorize only Bibles and Korans as permitted books. It thus held that Chavez may not have been afforded due process to challenge the DOC policy prohibiting prisoners from possessing their own law books and legal materials. These claims were authorized by the court ...
Tyrone Chavers is a Wisconsin state prisoner. He filed suit under § 1983 after prison officials confiscated his lawbooks. This case is the district court's ruling on Chavers' In Forma Pauperis (IFP) request. The defendants had not yet been served in the case.
Markham filed a petition of habeas corpus in federal court seeking return of his good time credits. The district court dismissed the petition holding that by failing to appeal the rulings administratively, Markham had waived his claims. The court of appeals for the seventh circuit affirmed.
The appeals court held that 28 U.S.C. § 2254, the federal habeas corpus statute which requires the exhaustion of state judicial remedies before allowing a petition in federal court, also requires exhaustion of state administrative remedies as well, even though the statute does not say any of this. The court interprets the word "courts" in § 2254 to "...embrace any tribunal that provides available and effectively corrective process." It is not the concern ...
L. Markham is an Indiana state prisoner. He lost 243 days of earned good time in a series of disciplinary proceedings. Under Indiana DOC regulations prisoners can appeal the loss of good time credits to prison officials within 10 days of the hearing, which Markham did not do. Indiana state law provides no judicial forum for prisoners to contest the decisions of prison disciplinary boards. Their only avenue of relief, when good time is at stake, is via federal habeas corpus.
The defendants sought to dismiss Smith's complaint on the grounds that it failed to state a claim for which relief could be granted. The defendants claimed they could not be sued in federal court because even if Smith had been deprived of his due process rights to remain out of segregation without a constitutionally adequate hearing, he had an adequate remedy for relief under Wisconsin state law.
The district court gives a detailed examination of the U.S. Supreme Court cases concerning prisoners' rights to sue for due process violations. The district court ruled that Zinermon v. Burch, 494 US 113, 110 S.Ct. 975 (1990), does not allow state officials to escape liability for failing to provide constitutionally required due process safeguards merely by pointing to state remedies.
In this case the district court specifically examines the Wisconsin state remedy available to prisoners wrongfully placed ...
Varees Smith is a Wisconsin state prisoner. He was infracted for allegedly charging another prisoner to do legal work. He filed suit under § 1983 claiming his due process rights were violated when a disciplinary hearing was held without notice and he was not allowed to present witnesses or evidence on his own behalf.
Four Missouri state prisoners were repeatedly raped by other prisoners. Before and after the rapes they were unable to check into Protective Custody (PC). They filed suit against prison officials claiming the rapes violated their eighth amendment rights. After a trial, the jury awarded the plaintiff's nominal damages of ...
The defendants appealed and the court of appeals for the fifth circuit affirmed the lower court rulings.
The appeals court notes that the states do not enjoy qualified immunity protection. The court upheld the liability finding against the state by holding that the state's refusal to accept convicted prisoners for transfer to state prisons was the cause of the jail's overcrowding. The court rejected the state's defense that a lack of funding for the state's prisons, which are seriously overcrowded, had caused it to not accept the jail's convicted prisoners. The court notes that if the state expands its prison facilities the early release of prisoners will not be needed to relieve overcrowding.
The court also upheld the finding of deliberate indifference by, and liability of, the county defendants.
The defendants claimed that the district court's imposition of a population cap on the jail was an overly ...
Jail prisoners in the Harris County Jail, Texas, filed suit against county and state officials claiming that overcrowding at the jail violated the eighth amendment. The district court found that it did and that both state and county officials had acted with deliberate indifference towards jail prisoners.
Louise Nolley is an HIV+ prisoner held in the Erie County Jail in New York. She filed suit under § 1983 contending that various jail practices violated her rights. The objectionable practices included: automatically segregating HIV+ prisoners; denying HIV+ prisoners law library and religious service access; and placing red stickers on ...
The defendants moved for dismissal on grounds Harris had failed to state a claim and that he failed to properly serve some of the defendants with the complaint. The district court granted their motion in part and denied it in part.
Finding one of the defendants had not been properly served within 120 days of the complaint being filed the court dismissed the defendant from the suit without prejudice, giving Harris an opportunity to properly serve him.
The court begins by noting that pretrial detainees are protected from mistreatment by the due process clause of the constitution, not the eighth amendment. The court gives a good discussion of the elements that must be plead ...
Anthony Harris was a pretrial detainee in the Cook county jail (Chicago). He is legally blind. While at the jail he repeatedly requested medical treatment for his blindness and frequent eye infections. He also requested special handicapped housing to prevent dangerous situations. Jail officials ignored his requests. As a result he was never provided with any medical treatment and suffered from eye infections. Being unable to protect himself he was beaten by jail staff and prisoners. Harris filed suit claiming violation of his eighth amendment rights.
The contract covers two types of LEC public telephones. One is services for prisoners who can only make collect calls. The others are public phones for use by staff and visitors which can make collect and pay calls.
The subcontractors and the facilities they service are: GTE for the Washington State Reformatory, Twin Rivers, Indian Ridge and the Special Offender Center. PTI does Clallam Bay, Purdy, Olympic CC, Pine Lodge Pre Release and Coyote Ridge. USWC does Shelton, Walla Walla, McNeil Island, Airway Heights, Tacoma Pre Release, Cedar Creek and Larch.
The DOC does not own the telephone monitoring and recording equipment it has installed. Rather, as part of the contract each telephone company is being contracted to provide and maintain: public telephone sets, all associated equipment, lines, dictaphone recording/monitoring equipment, call timing and call blocking software. Title to all the phones, recording equipment, etc., remains with the contractor. The DOC has agreed to defend against any and all litigation challenging the contractor's provision of call recording and call monitoring equipment. That provision will extend beyond the actual life of the contract, which is for five years.
Each contractor provides the superintendent of each prison with a monthly report that details, by institution, the date, time, payphone number, called number and length of each call made from a prison telephone. Using this information prison officials can target specific phone numbers called or dates and times to choose which calls to listen to after they have been recorded. The Washington DOC policy on phone recording, DOC Policy 450.200, states that the tapes of all phone calls will be maintained for at least a one year period.
With regards to the kickback that the DOC receives from prisoner phone calls the contract states: "7.A In return for the right to provide Inmate and Public Telephone Service under this agreement, Contractor GTE, PTI and USWC shall each pay to the department on a monthly basis the commissions set forth in attachment 1 to this agreement. Each carrier's monthly commission checks shall be sent to the superintendent of each covered correctional institution or work release program, made payable to the Inmate Welfare Fund, unless and until the Department shall specify a different payee for the carriers commission checks."
The commission rates that the contract specifies is 24% of billed revenues from calls carried by ATT, 27% for those calls carried by GTE and PTI, and a whopping 35% for all calls carried by USWC. Needless to say, the telephone companies aren't giving the DOC these commissions out of their profit margin, rather they are adding this on as a surcharge to what they bill the people we call.
The contract states that it is the responsibility of the contractor to abide by the rates established by the FCC (Federal Communications Commission). I've done some preliminary research into this matter and it seems that 47 U.S.C. § 202-207, which prohibits telephone carriers from discriminating among their clients and charging them more, would provide a means by which to challenge this. 18 U.S.C. § 2510 and 2511, limit the conditions in which phones can be tapped or recorded by the government. The law applies to prisons, See: Kimberlin v. Quinlan, 774 F. Supp 1 (DC DC 1991); United States v. Amen, 831 F.2d 373 (2nd Cir. 1987); but has been held not to apply to prisoners' calls because prison officials are considered law enforcement personnel. See: United States v. Noriega, 917 F.2d 1543 (11th Cir. 1990); Lee v. Carlson, 645 F. Supp 1430 (SD NY 1986).
My thinking is that a challenge to both the extortionate surcharge and the monitoring would have to be brought by the outside person receiving the phone call. As a matter of standing the prisoner making the call is not affected because they don't pay the phone bill and are not being provided with the service. Thus the prisoner does not have standing to challenge the practices. There are other issues as well such as the outside person's right to choose the carrier that carries the call, etc. The outside people can challenge the fact that their right not be charged discriminatory prices under 47 U.S.C. § 202-207 is being violated by this practice. They can also assert their right to privacy under the fourth amendment concerning the telephone recording/monitoring. All the published cases ...
On March 16, 1992, the Washington DOC signed a contract with AT&T (American Telephone and Telegraph) for the latter to provide telephone services to all the prisons in the Washington prison system. AT&T in turn has subcontracted with three Local Exchange Companies (LEC's) to provide local telephone service.
Welcome to another issue of PLN. We are still working on our 1994 prison calendar and we still need graphics and drawings. Any prison artists interested in participating should send us a copy of their work for us to check out, if we want to use it we will then contact you about getting an original or a better copy. The calendar will be in black and white and the graphics will be in a landscape format, horizontal 11 by 8. To have it available in time for the new year we need to have it at the printer by September. Anyone interested in participating should contact Ed or myself.
Recently we went through our mailing list to find out how many were supporting subscribers. This is the first time we'd done this and the results kind of surprised us. A little more than 38% of our readers are getting free subscriptions and another 12% have donated less than $5.00. So all told, slightly more than half our readers have donated less than $5.00 (see accompanying graph). Most of the non-donors are prisoners.
We don't expect prisoners in control units or on death ...
From the Editor
What do the AT&T subcontractors pay prisoners for telephone work? Try $2 per day. For that, the prisoners -- essentially slave laborers -- have to call area businesses, identify themselves as AT&T representatives and try to sell AT&T products and services. The prison systems in Colorado, Oregon, Arizona, New Mexico, Ohio, New Jersey and Florida sell the right to exploit prisoners to a firm called Unibase, which in turn sells the service to AT&T.
The phone company has found a way to dump union workers, save big money and exploit the labor of prisoners, all at once. According to reports from the Communications Workers, AT&T is contracting out telemarketing jobs to firms that provide labor practically free through the prison system. The company is planning to lay off thousands of telephone operators -- all union members who could perform the telemarketing work. Prisoners, of course, have no option about performing work they are assigned.
Recent reports from Peru indicate that on November 26, 1992, several truckloads of troops entered the Santa Monica prison in Lima and attacked the prisoners. The number of dead or wounded is unknown because the government refuses to allow lawyers, human rights groups, the red cross or family members to enter the prison.
On November 22, 1992, two guards and two prisoners were reported killed in unknown circumstances at the prison in Puno. The prisoners at Puno are being subjected to especially barbaric treatment. Members of the delegation sent to Peru by the International Emergency Committee to Defend the Life of Chairman Gonzalo denounced how the military dictatorship has initiated ...
In past issues of PLN we have reported on events in Peru affecting the political prisoners of the Communist Party of Peru (PCP). In May of 1992 the Peruvian government stormed the Canto Grande maximum security prison killing and wounding dozens of PCP prisoners; many were killed after surrendering to government forces (See Sep. 1992, PLN). After the prison massacre the government transferred the POWs to prisons and military bases across the country. Since the massacre (which was only the latest of several) the POWs living conditions have deteriorated dramatically.
According to Radio Caracas, at least 180 of the 240 people tried in relation to the Nov. 27 coup attempt were sentenced and the rest absolved. 180 rebels got sentences of 18 to 20 years. The maximum sentence in Venezuela is 30 years.
Weekly News Update
On January 12, 1993, Venezuelan police used tear gas to quell a riot in Fort Tiuna of about a hundred soldiers and civilians, who were tried for rebellion for their participation in a November 27, 1992, coup attempt. The riot was crushed with tear gas by police and Virginia Contreras, defense lawyer to some 20 of the imprisoned soldiers, said she also hear shots. All journalists were ejected from the scene.
A 60 minute video has just been produced that covers the various events surrounding the Tribunal. It is called USA On Trial. To order copies of the video send $20.00, which includes postage and handling, to Mission Creek Video, P.O. Box 411271, San Francisco, CA 94141-1271. The published verdict of the Tribunal is also available from the American Indian Movement in English or Spanish. Please send $4 ...
Last October over a thousand people attended the International Tribunal of Indigenous Peoples and Oppressed Nations in the USA. The event, sponsored and organized by a coalition of 30 organizations, was part of the counter-Columbus quincentennial activities throughout the country. The Tribunal put the U.S. Government on trial for internationally recognized crimes such as genocide, colonialism, and the holding of political prisoners. The aims of the Tribunal were to destroy the myth of Columbus as the embodiment of the European Spirit of Adventure and rugged individualism; to provide a forum for a broader understanding of the right of self-determination for Native Americans, Puerto Ricans, New Afrikans (Blacks) and Mexicans; and the immediate, unconditional release of the Political Prisoners and Prisoners of War presently in the U.S. prisons and jails.
In response to J.D., Lompoc CA, "Article Clarification" Vol. 3 #12, December 1992:
I understand J.D. being pissed off about 80% of the population not taking part in the strike. But when I think back to all the strikes I took part in since the '60s, I was in Lompoc then F.C.I., at the best of times 40% would be involved in a strike, and I took part in all of them. Even so convicts brought about change in the prison system. The trend towards more or total control of prisoners has made change all the more difficult to achieve by prisoners. The new breed of wannabes that J.D. made reference to has created a more serious problem that probably has no cure. They have no idea of convict values. So what do us convicts who give a shit about our rights do. We do whatever we can even if it's only 20% of us. The times they are a changing and we have to make adjustments to the changes. There is more than one way to skin a cat. We are already using some of them with ...
by R.K., McNeil Island, WA