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Prisoner Education Guide

Prison Legal News: June, 1993

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Volume 4, Number 6

In this issue:

  1. The Evolution of Criminal Justice (p 1)
  2. How to Defend Against a Bill of Costs (p 3)
  3. No Liberty Interest in BOP Ad Seg Rules (p 4)
  4. WA Ad Seg Rules Create Liberty Interest (p 4)
  5. Initiative 595: Regulated Tolerance (p 5)
  6. Prison Litigation Report Issued (p 5)
  7. Computers and Rehabilitation (p 6)
  8. BOP Can Deny Halfway House Placement (p 8)
  9. DC Not Proper Venue for BOP Suits (p 8)
  10. BOP Liable for Overcrowding and Opening Detainees Mail (p 8)
  11. SOCF Chronology (p 9)
  12. Observe Prisoners' Justice Day (p 10)
  13. Adequate Notice of Disciplinary Charges Required (p 11)
  14. Judge Cannot Make Credibility Findings (p 11)
  15. PA Prison Expansion Fails to Cut Crime (p 11)
  16. From The Editor (p 12)
  17. White House Pot Baron (p 12)
  18. Notice of Appeal Filed When Given to Prison Officials (p 13)
  19. Basque Prisoners On Hunger Strike (p 14)
  20. GRAPO Prisoners Tortured (p 14)
  21. Arizona Court Access (p 15)
  22. Costa Rica Drops Extradition Treaty With US (p 15)
  23. Moorish Appeal for Your Support (p 15)

The Evolution of Criminal Justice

In twentieth century America, coerced confessions to criminal acts are not technically admissible as evidence in courts of law. Since the 1980's, however, a movement against the enforcement of such "technicalities" has developed within the federal courts. As more forms of questionable evidence become admissible, we must begin to ask ourselves if justice is being properly served. Although blatant physical torture is not yet regularly used, other techniques for obtaining confessions are common: promises of leniencey, threats, isolation, sleep and food deprivation, forced nudity and other practices which serve to demoralize the accused. The validity of these confessions is highly questionable.

Most people today would agree that confessions to acts of witchcraft are mostly false, as the confessed acts are impossible. Nonetheless, in seventeenth century Europe many witch hunters obtained very high rates of confession to such acts. Some, such as Matthew Hopkins in England, did so without using obvious forms of torture which would have left physical marks or deformities. This is because it is not the pain that makes the person confess, but the loss of hope that accompanies it. All methods of coercing witchcraft confessions during this period had the underlying, though often unconscious, goal of ...

How to Defend Against a Bill of Costs

I'm a prisoner at the Washington State Penitentiary. I've filed a few lawsuits over the years against prison officials, prison employees and prison conditions with some success.

Recently, I had a case dismissed on the state's motion for summary judgement. After the court granted the state's motion, Assistant Attorney General Carol Murphy filed a Bill of Costs against me for $284.10. In other words: I was being sued for my litigation. Federal Rules of Civil Procedure 54(d) covers cost of litigation for the prevailing party.

Recently, after my deposition was taken by AAG Douglas Carr in another lawsuit, Mr. Carr told me that "the Attorney General's Office is going to pursue costs in inmate lawsuits relentlessly." I believe that the Attorney Generals Office is on a campaign to deter prisoners from petitioning the courts by intimidating them into submission with a Bill of Costs. I've successfully defended against the bill of costs filed against me in my lawsuit, and here's how you can.

A bill of costs can be entered against you even though you were allowed to proceed In Forma Pauperis. See: Sales v. Marshall, 873 F.2d 115 (6th ...

No Liberty Interest in BOP Ad Seg Rules

Howard Awalt is a federal prisoner. He was placed in administrative segregation (ad seg) pursuant to 28 C.F.R. § 541.22 (a)(8) after prison officials received an anonymous note stating his life was in danger. He filed a Bivens action against prison officials claiming that his ad seg placement and denial of hearings under 28 C.F.R. § 541.22 (c) and 541.23(b) violated his right to due process of law.

The district court dismissed Awalt's complaint on several grounds. It held that the complaint did not state any constitutional violations nor did it allege that any established rights had been violated by prison officials.

The court held that none of the BOP rules cited created a right to be returned to general population. "The language of 28 C.F.R., Sections 541.22 and 541.23 merely directs a procedure that staff are to follow within certain time frames when a prisoner does not wish to be confined in administrative detention. They do not create a liberty interest in release from detention which a hearing would protect."

The court also ruled that federal prisoners have no right or constitutionally protected interest in UNICOR job ...

WA Ad Seg Rules Create Liberty Interest

Tillman Farr was a prisoner at the Washington State Penitentiary (WSP) at Walla Walla. Prison officials placed Farr in Administrative Segregation (ad seg) based on information from confidential informants which claimed Farr and others were going to assault a guard. Based on this information Farr spent several months in the Intensive Management Unit (IMU). Farr filed suit under § 1983 claiming his ad seg placement was in violation of his due process rights and done in retaliation for his having filed grievances and complaints against prison officials. The district court, magistrate Hovis, granted summary judgement to the defendants. While Farr lost his case the language of the ruling is very good, and will definitely be of assistance to Washington state prisoners.

The court began by noting that while prisoners have no constitutional right to use of a grievance system, they do have a constitutional right to petition the government for the redress of grievances. It is well established that prison officials may not retaliate against prisoners for exercising their constitutional rights. Thus, any act in retaliation for a prisoner's exercise of his protected rights would violate the constitution.

The court provided an extensive discussion of the relevant law governing the ...

Initiative 595: Regulated Tolerance

The citizens of Washington state will have a chance to make real progress in the area of drug law reform if the Washington Citizen's for Drug Policy Reform (WCDPR) is successful in getting Initiative 595 on the state General Election ballot this fall. It will be necessary to gather more than 181,000 signatures by July 2, 1993, to guarantee a spot on the November 3rd ballot.

Initiative 595 would allow adults to use marijuana in the privacy of their homes while providing strict controls to keep it out of the hands of those under the age of 21. Unlike legalization or decriminalization, this concept of "regulated tolerance" would prohibit any advertising, public use, or promotion of marijuana which is so common with "legal" drugs such as alcohol and tobacco. It is not the intent of WCDPR to encourage or condone the use of any substance.

The concept of regulated tolerance proposes a workable solution to the problem without the staggering costs of prohibition (it is estimated that this approach would generate approximately $250,000,000 for Washington state). It will also free up limited police resources to be better applied to the problem of serious violent crime. No ...

Prison Litigation Report Issued

The winter, 1993, issue of the ACLU's National Prison Project contains a status report of nationwide prison litigation for 1992. Forty states plus the District of Columbia, Puerto Rico and the Virgin Islands are under court order or consent decree to limit population and/or improve conditions in either the entire state system or its major facilities. Thirty two jurisdictions are under court order for overcrowding or conditions in at least one of their major facilities, while 11 jurisdictions are under court order covering their entire prison system. Only four states have never been involved in major litigation challenging overcrowding or conditions in their prisons. The four states are Minnesota, New Jersey, North Dakota and Vermont.

The 11 states where the entire prison system is under court order or consent decree are: Alaska, Delaware, Florida, Mississippi, New Mexico, Rhode Island, South Carolina, Tennessee, Texas, Puerto Rico and the Virgin Islands. Of these, eight states have been cited for contempt for disobeying court orders. Six states which had been under court order or consent decree but are no longer under active court supervision are: Alabama, Arkansas, Georgia, Oklahoma, Oregon and Wyoming.

The article gives a state by state breakdown of ...

Computers and Rehabilitation

Taking Responsibility for the Future

By Ed Mead

For many years I have railed against the approach taken by the Department of Corrections (DOC) in connection with its role vis-a-vis the public's interest in being free from current levels of criminal victimization. It has been my position that the Department's real objective lies in maintaining a smooth running prison system, not in serving the community's need for public safety. In addition to operating quiet prisons, DOC seeks to project a public image that reflects the currently popular viewpoint on criminal justice issues. Today that outlook is one of being tough on criminals.

Despite an unprecedented prison building binge and the systematic overcrowding of prisoners, not just in Washington state but nationally, the crime rate continues to climb. The state refuses to look at the social roots of this problem, such as high unemployment, widespread poverty, the growing gap between rich and poor, racism, etc., and instead they focus all their attention on the errant individual. "So what," they say, "if capitalism is incapable of providing enough jobs for everyone; the fact that you don't have work is proof that you are scum." In short, you are ...

BOP Can Deny Halfway House Placement

William Lyle is a Bureau of Prisons (BOP) prisoner serving a sentence for firearms and explosives violations. At his pre-release classification review his unit team recommended Lyle be placed in a halfway house for 60 days to ease his reentry into the community. The prison warden rejected the recommendation and denied the halfway house placement saying to do otherwise would depreciate the seriousness of Lyle's crimes. Lyle filed a petition for habeas corpus seeking a federal court order to place him in an appropriate pre-release program for the remainder of his sentence.

The court notes that BOP prisoners must exhaust their administrative remedies before seeking a court review of BOP actions. In this case the parties disputed whether Lyle had exhausted his administrative remedies. Rather than hold an evidentiary hearing and delay the proceedings the court excused the failure and went on to decide the case on its merits.

The court held that congress has barred judicial review of BOP decisions under the Administrative Procedure Act (APA). The court gives a detailed review of the legislative history barring judicial review of BOP decisions. The court held this bar applied retroactively to Lyle's claims.

Thus, the only judicial review ...

DC Not Proper Venue for BOP Suits

James Cameron is a federal prisoner. While at the penitentiary at Terre Haute he suffered a massive heart attack. Prison doctors stated he should receive a low sodium diet. The prison at Terre Haute could not provide a special diet and the warden requested that Cameron be transferred to a prison that could provide it, the BOP regional director denied the transfer request. BOP doctors at Terre Haute again prescribed a low sodium diet and recommended Cameron be transferred to a prison that could provide the diet.

Cameron filed suit in the District of Columbia under Bivens claiming that the denial of the low sodium diet violated his right to adequate medical care under the eighth amendment. After the suit was filed Cameron was transferred to the penitentiary at Leavanworth which could provide a low sodium diet, thus mooting his claim for injunctive relief. The district court dismissed Cameron's complaint holding that the BOP defendants were entitled to qualified immunity in their personal capacities and that Cameron had not exhausted his Federal Tort Claims Act remedies in order to state a claim against them, in their official capacities.

The court of appeals for the District of Columbia Circuit vacated ...

BOP Liable for Overcrowding and Opening Detainees Mail

Richard Young is a federal pretrial detainee. While awaiting trial he was housed at the US Penitentiary in Lewisburg, PA. He filed suit claiming that the conditions of confinement violated his right to be free from punishment. The conditions included being confined 23 hours a day, with ten other men, in a converted gym 11 x 31 feet which had no toilets, sink, tables, chairs or drinking fountain. Prison officials also opened his outgoing legal and general mail. The defendants moved for summary judgement on qualified immunity grounds and on the merits. The district court denied their motion in part and granted it in part.

The court noted that pretrial detainees have a right not to be punished. It gave an extensive discussion, with numerous citations, of the rights of pretrial detainees and what conditions, especially in terms of crowding, are lawful. The court denied the defendants qualified immunity by holding Young was kept in far more repressive conditions than convicted prisoners at the same prison. The conditions he was confined under were unconstitutional. The court held all these rights were well established and the defendants were not entitled to qualified immunity because they knew or should have known that ...

SOCF Chronology

[Editor's Note: (May 1, 1993) What follows is a chronology of events as they unfolded at Lucasville, Ohio, during the April uprising at that facility. It was written by a Lucasville segregation prisoner who wasn't an actual part of the riot, but who was close enough to witness many of the events as they unfolded. This is an on-the-scene and under-the-gun report by a prisoner who is denied access to newspapers, magazines, radio or television.]

"There is not a single penal institution or reformatory in the United States where men are not tortured `to be made good,` by means of the black-jack, the club, the strait-jacket, the water-cure, the 'humming bird' (an electrical contrivance run along the human body), the solitary, the bull ring, and starvation diet."

Emma Goldman wrote the above quote 80 years ago. While some of the methods have changed, it's obvious that the behavior modification techniques have only gotten worse. Guard-on-prisoner brutality, murdering prisoners, denying adequate medical care, pitting prisoner against prisoner, trickology, deprivations of this or that, new policies every day (you can have this today but tomorrow it's contraband and next week it isn't), insults, lies and so on ...

Observe Prisoners' Justice Day

Traditionally, August 10th has been commemorated by prisoners in Canada as Prisoners' Justice Day (PJD). During the twenty-four hours of August 10th prisoners fast and refuse to work as a show of solidarity in memory of those who have died unnatural deaths in prisons; victims of murder, neglect and suicide. At the same time, community organizations have increasingly held demonstrations, services and vigils in support of prisoners' common resistance against oppressive prison conditions and systems. PJD is also a day when prisoners and their support organizations emphasize their attempts to raise awareness of the brutal and inhuman conditions inside prisons that are responsible for the many unnatural deaths. August 10th is also the day to remember that while many people are sentenced to serve time in prisons, they have not been sent there to die.

PJD was originally to be a one-time concentrated effort by prisoners at Millhaven Penitentiary to show their solidarity on the one-year anniversary of the death of Eddie Nalon. He had bled to death on August 10th, 1975, after the `panic' button in his segregation cell failed to alert custodial staff as it should have. His desperate bid to bring attention to the unwarranted extension to ...

Adequate Notice of Disciplinary Charges Required

Henry Benitez is a New York state prisoner. He was infracted in a four page disciplinary report for allegedly violating eight different rules. A few hours later he was given another infraction report consisting of an additional four charges. A few hours later Benitez was placed in segregation and not allowed to bring the infraction reports with him. At his disciplinary hearing he objected to the lack of written notice saying he was unable to prepare his defense. The hearing officer rejected this and found Benitez guilty of 11 of the 12 charges. Benitez was sentenced to six months segregation, loss of good time and loss of telephone privileges.

Benitez filed suit claiming that the lack of advance written notice violated his right to due process. The district court ruled that it did not, but, even if it did the defendants were entitled to qualified immunity for their actions. The court of appeals for the second circuit affirmed the dismissal on qualified immunity grounds but held that the lack of notice did indeed violate due process.

The court gave a detailed explanation of the minimal due process required in a prison disciplinary hearing, especially as it pertains to advance notice ...

Judge Cannot Make Credibility Findings

Roland Pettengill is an Arkansas state prisoner. While in segregation he went to yard. Before entering the yard he alerted sergeant George Veasey that an enemy of his was in the yard. Veasey gave Pettengill the choice of going to yard with his enemy or refusing. Pettengill went to yard and was attacked, kicked and beaten. Veasey then refused to take Pettengill to the prison infirmary to receive treatment for his injuries. Pettengill filed suit under § 1983 claiming these events violated the eighth amendment.

At an evidentiary hearing a magistrate heard vastly conflicting stories. The guards testified that Pettengill had not told them his enemy was in the yard, that he was the aggressor, received no injuries and did not request to go to the infirmary. Pettengill and his witnesses testified to the contrary. The magistrate judge ruled in favor of the guards, accepting their version of the facts, and recommended dismissal of the suit. The district court agreed and dismissed the suit.

The court of appeals for the eighth circuit reversed and remanded. The appeals court held that because Pettengill had requested a jury trial the magistrate had "erroneously made credibility determinations resolving direct factual conflicts in favor of ...

PA Prison Expansion Fails to Cut Crime

A recent report prepared for the Pennsylvania State Commission on Sentencing found that a dramatic increase in the state's prison population has not reduced violent crime.

The report, Incarceration and Crime: Facing Fiscal Realities in Pennsylvania, by Penn State University Professor Darrell Steffensmeier, found that between 1980 and 1991 the prison incarceration rate rose 171 percent and the violent crime rate increased nearly 25 percent. During this period, the state Department of Corrections Budget rose 263 percent.

Steffesnmeir concluded: "Using incarceration as the primary sanction for the bulk of offenders does not appear to be justified given what we do know."

Corrections Today, April, 1993

From The Editor

From the Editor

Welcome to another issue of PLN. As you will have noticed, PLN has a new look. We are trying out this new, expanded format because we had pretty much exhausted the newsletter format and had a backlog of material. This new magazine format costs us about the same as photocopying for the first thousand copies but we can now print 16 pages a month with no problem. It also lessens the work for our volunteers as there is less folding or stapling involved.

The drawback is that this has doubled our printing costs compared to what we had been spending due to the extra pages. Because there is a minimum print run of 1,000 copies and we only have about 650 US subscribers, we have quite a few excess copies left over. That's the bad news, the good news is that once we go over a thousand copies the printing gets a lot cheaper and we can start saving money on printing costs. We will be disposing of the excess copies by sending them out as samples to potential subscribers.

We also ask that you, our readers, encourage any friends, family members or other interested ...

White House Pot Baron

By Paul Wright

The March 9, 1993, edition of the Seattle Times reports that Arizona businessman Walter McCay made his fortune growing massive amounts of marijuana. What was interesting about McCay is that he is a prominent Republican businessman and banker who worked for several years as Ronald Reagan's advance man (smoothing travel, security and related things) when Reagan traveled.

In 1990 police in Yuma, Arizona, raided a pot growing operation in a house, seizing 450 pounds of pot. The grower confessed that McCay was the ownerof that and many other pot growing operations.

When confronted by police at one of his pot farms during a raid McCay confessed to a long list of drug crimes. This included growing large amounts of pot in Arizona and California, storing pot in his house, using chauffeured US embassy cars in Germany to go to Amsterdam to buy high quality pot seeds to bring back to his growing operations, laundering drug money through banks he was a director of and setting up front businesses to launder drug profits. During this period McCay was also a Maricopa County Sheriff's deputy.

To quote the Seattle Times: "McCay was never arrested. He faces no ...

Notice of Appeal Filed When Given to Prison Officials

Samuel Hamm is a Missouri state prisoner. While employed as a prison law clerk he claims prison officials threatened and harassed him in retaliation for the performance of his duties. The defendants' conduct included threatening him with administrative segregation, infracting him for fictitious conduct, violating his due process rights at disciplinary hearings, not protecting him from attack by HIV+ prisoners, and knowingly allowing him to be exposed to prisoners with tuberculosis. He was not, however, fired from his job. Hamm filed suit under § 1983 claiming that this conduct violated the right of other prisoners to receive his assistance in their legal actions. The district court granted summary judgement to the defendants and dismissed the suit.

Hamm had until November 1, 1991, to file his notice of appeal to appeal the suit's dismissal. He had the appeal notice notarized on October 31, 1991, and gave it to prison officials on that day to mail to the court. It was received and filed by the district court clerk on November 4, 1991.

The court of appeals for the eighth circuit held that a pro se litigant's notice of appeal is considered timely filed as long as a prisoner gives it ...

Basque Prisoners On Hunger Strike

On January 31, 1993, five Basque political prisoners in the Spanish prison of Caceres-2 began a hunger strike protesting their abysmal conditions of confinement. They have presented prison officials with a list of 22 demands, all of them relating to their living conditions. After the first ten days, the prisoners had already lost between 14 and 18 pounds and had begun to suffer minor health problems.

The prisoners have denounced the hostile and contemptuous attitude of the prison administration. An attitude which translates into a total abdication of responsibilities on the part of the prison's medical staff. Among other things they criticized the fact that on the first day of the strike medical staff did not conduct a physical exam, which is necessary to measure the effects of the strike on each prisoner. Yet on that same day prison officials forced one of the prisoners to remain in his cell together with a tray of food.

They have reported threats and insults by prison officials. Medical staff have taken their pulses without instruments and ignored their complaints.

The list of demands include: a monthly phone call with the right to speak in Basque; monthly visits; a daily 10 minute ...

GRAPO Prisoners Tortured

All too often we hear about the physical mistreatment and abuse of prisoners, political and social. The impression we are given by the mainstream media and the governments of the western industrialized countries is that such abuses only occur in places like the Middle East, South America, etc., and that such things are unheard of in the western countries that call themselves "democracies." As readers of PLN know, physical abuse and mistreatment at one level or another is the norm in the US.

The level of mistreatment and abuse of prisoners and social activists proportionally increases depending on the strength of the movements that are confronting or challenging the established political and economic order. The bigger the challenge the harsher the methods that will be used to crush it.

Spain has been a nominal "democracy" since 1975 when fascist dictator and loyal US ally, Francisco Franco, died. Spain has a large and active communist and anarchist left and labor movement. It also has several nationalities struggling for independence from the central government. The result of these struggles is that Spain has over 700 political prisoners (PPs). The majority, over 600, are affiliated with the Basque independence struggle. The next largest ...

Arizona Court Access

I am in receipt of your March issue of PLN, and find that the info is/will be very useful.

In regards to Access to the Courts (Casey v. Lewis), I feel I should inform you of some facts about the above. This thing, access to the courts, all started with Gluth v. Arizona DOC, et al. Gluth only covered the central unit. The rest of the prisons in Arizona were still at the mercy of the DOC. Now that Casey is in effect, all of Arizona is covered.

On paper all looks good, but in reality let me tell you what the real deal is:

In the central unit, and in all max/super max units, prisoners do not have direct access to books/policies. They have to ask a library clerk for the books they want, and in most cases, if they don't know which book they need, they're SOL.

According to Gluth and Casey, if you are placed on deadlock you are still supposed to have access to the law library unless you're dangerous, etc. Then, they (the prison) are supposed to bring you any material (books, policies, supplies) that you may need. But ...

Costa Rica Drops Extradition Treaty With US

On January 13, 1993, the Costa Rican Constitutional Court issued a ruling suspending application of its 1982 extradition treaty with the US because of a June, 1992, US Supreme Court ruling which authorizes the US to kidnap individuals in other countries in order to bring them to trial. Since extradition is defined as the only valid procedure in Costa Rica for bringing suspects to trial in another country, the judges said the US ruling constitutes a violation of Costa Rican law and national sovereignty.

Costa Rica's constitution also guarantees foreigners the same rights and protections as citizens. The controversial decision came in conjunction with the court's favorable ruling on a writ of habeas corpus presented on December 18, 1992, by James Karls, a US citizen wanted in Wisconsin on homicide charges. The US has requested that Costa Rica extradite Karls.

In January 14, 1993, comments to reporters, Costa Rican foreign minister Bernard Niehaus confirmed that the San Jose court's ruling, which makes application of the extradition treaty illegal, could have serious repercussions on relations with the US. However, he said it was possible that the existing extradition treaty could be modified.
Weekly News Update

Moorish Appeal for Your Support

Members of The Moorish Science Temple of America, who are incarcerated in the penal institutions in the state of Indiana, have received much opposition and are being continuously denied the right to practice our religious beliefs, to hold religious services by the Indiana Department of Corrections as Moslems and followers of Prophet Mohammed. The Indiana Department of Corrections officials have expressed themselves as being opposed to our propagation of the Islamic religion as taught by Prophet Noble Drew Ali.

Whatever the reason may be for their discrimination against the members of The Moorish Science Temple of America, which has Temples and Branch Temples throughout the United States and Branch Temples in both federal and state institutions, except the state of Indiana.

The Indiana Department of Corrections does not have the legal right to deny members of The Moorish Science Temple of America equal protection of the law as afforded to other religious organizations within the Indiana Department of Corrections. We appeal to each of you to support us in a positive effort to stop this discrimination and grave injustice, because the first amendment, equal protection of laws, and the American constitution swings open the door to religious freedom to all ...


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