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Prison Legal News: December, 1994

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Volume 5, Number 12

In this issue:

  1. Federal Crime Bill Passes (p 1)
  2. Altered Disciplinary Evidence Violates Due Process (p 7)
  3. Prisoners Lose Pell Grants (p 7)
  4. No Help for Disciplinary Hearings (p 8)
  5. BOP Can't Punish Detainees (p 8)
  6. MI DOC Creates Liberty Interest in Seg Release (p 9)
  7. Attorney Fee Awards Analyzed (p 9)
  8. Pro Se Litigants Subject to Rule 11 Sanctions (p 10)
  9. Obtaining Prisoner Witnesses (p 10)
  10. Court Orders Return of Disks (p 11)
  11. Women Prisoners Entitled to Equal Education (p 11)
  12. Women Prisoners Lose Equal Protection Suit (p 12)
  13. S.Ct. Grants Review in Prison Disciplinary Case (p 13)
  14. VA Repressive Sentencing Law Results in Uprisings (p 13)
  15. Fast Food Style Death Penalty Defense (p 14)
  16. Houston - Death Penalty Capital of USA (p 15)
  17. From the Editor (p 16)
  18. Death Penalty Deterrents? (p 16)
  19. One and Two Strike Laws Passed (p 17)
  20. PI Issued for Prisoner Transfer (p 18)
  21. News in Brief (p 18)
  22. Russian Jails in Crisis (p 19)
  23. Kurdish Prisoners Resist (p 19)
  24. Ex-Prison Boss Assassinated in Turkey (p 19)

Federal Crime Bill Passes

By Paul Wright

In the October and November, 1993, issues of PLN, I wrote articles about the "anti-crime" proposals that had been submitted in the US Congress by democrats and republicans, respectively. I predicted then the most repressive aspects of both proposals would likely wind up in the final version of the law that was approved. Unfortunately, I was right. On September 13, 1994, Bill Clinton signed the final version of the crime bill into law.

While the crime bill as a whole is pretty outrageous the worst part about it is that they stole Mayday! May 1 has historically been celebrated by class conscious workers around the world as the day of unity and solidarity amongst working class people. It was originally started as a protest against the state murder of the anarchists convicted of the Haymarket bombings in Chicago in the 1880's. That makes what has happened all the more repulsive. The crime bill establishes May 1 as "Law Day USA." The law states: "It is the sense of the Senate that in celebration of `Law Day USA' May 1, 1995, the grateful people of this Nation should give special emphasis to all law enforcement personnel of ...

Altered Disciplinary Evidence Violates Due Process

John Grillo is a New York state prisoner. He was infracted after a urinalysis allegedly showed he was positive for the use of opiates. He was found guilty at the disciplinary hearing and sentenced to 360 days in segregation and the loss of privileges. Prior to the hearing Grillo was given copies of the urinalysis test forms that were to be used at the hearing. The form that Grillo was given stated that the test had been performed at 9:15 AM. The form submitted to the hearing officer for use as evidence stated that the test had been performed at 10:10 AM. The hearing officer made no inquiry to determine how or why the copy used at the hearing was altered after being separated from Grillo's copy.

The urinalysis testing form has a box asking whether the reagent was discolored when tested, if it is, this indicates the test is unreliable and should not be used. The copy of the form given Grillo has this area left blank, however the copy used by the hearing officer was marked "no." At his hearing Grillo attempted to argue, on the basis of the copy he was given, that the ...

Prisoners Lose Pell Grants

A provision of the $30.2 federal anti-crime bill was the elimination of prisoners from eligibility for federal Pell Grants. Much attention was given to this portion of the debate by the mainstream media. Senators and Congressional Representatives know a good sound bite when they see one. Junk-food journalism shows like ABC's Prime Time, and NBC's Dateline hyped the "shocking" idea that criminals were milking the taxpayers for Pell Grants while needy recipients in the community did without. But, as usual, there was another side to the story that got lost in the political posturing and media hype.

The federal Pell Grant was created in 1965 by Senator Claiborne Pell, D-Rhode Island, to aid low income students for college. The 1965 bill stated that no qualifying low income persons would be excluded. Prisoners were specifically mentioned in the bill and were intended to be included in the grant program. Media hypsters insinuated that prisoners were taking advantage of the opportunity for Pell Grants because of an oversight in the original Pell Grant Bill that failed to specifically exclude them.

The $6.3 billion program is considered a quasi-entitlement says the U. S. Department of Education, and receives whatever ...

No Help for Disciplinary Hearings

Ronald Kulow is an Iowa state prisoner. Kulow suffers from brain damage, has an IQ between 70 and 74 and borderline intellectual functioning. After having an altercation with another prisoner he was placed in involuntary protective custody where he received numerous disciplinary infractions. At the disciplinary hearings he requested assistance from counsel or a counsel substitute in order to prepare his defense. He also sought assistance at his periodic classification hearings. His requests were consistently denied by prison officials. Kulow filed suit claiming that the denial of counsel or other assistance at the hearings violated his rights to due process. The district court dismissed the suit. The dismissal was affirmed by the court of appeals for the eighth circuit.

In Wolff v. McDonnell, 418 US 539, 94 S Ct. 2963 (1974), the supreme court held that the constitution does not require that prisoners receive counsel at prison disciplinary hearings. However, the supreme court noted that some prisoners, i.e. illiterates or where complex issues are presented, will require assistance from a designated staff member or prisoner as a counsel substitute.

Kulow argued that his borderline intellectual functioning, poor comprehension and limited ability to communicate place him in the category of ...

BOP Can't Punish Detainees

Vladimir Collazo-Leon is a pretrial detainee in Puerto Rico, held by the federal Bureau of Prisons (BOP). While going to a visit he allegedly offered a jail guard a bribe if the guard would help him escape. The guard infracted Collazo and at a disciplinary hearing Collazo was found guilty and sentenced to 90 days in disciplinary isolation and loss of phone and visiting privileges for 6 months. Collazo filed a writ of habeas corpus claiming that the disciplinary hearing violated his right to substantive due process of law because, as a pretrial detainee not convicted of any crime, he cannot be punished. The district court agreed and granted the writ.

The district court noted that in Bell v. Wolfish, 441 US 520, 99 S Ct. 1861 (1979) the supreme court had held that "under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt." Thus, a court examining a detainee's claim that he was punished without being convicted of a crime must inquire as to whether the restrictions placed on the detainee amount to punishment. The court gave a detailed examination of detainees' historical right to be free from punishment.

The BOP ...

MI DOC Creates Liberty Interest in Seg Release

Wendell Mackey is a Michigan state prisoner. He was found guilty of possessing contraband and assaulting another prisoner and placed in administrative segregation. After spending nearly one year in segregation, he was reclassified and scheduled to be released to general population. Citing a shortage of bed space, prison officials kept Mackey in segregation another 117 days before releasing him to population. Mackey filed suit under 42 U.S.C. § 1983 claiming that being kept in segregation after he had been approved for release violated his right to due process under the federal constitution.

The district court dismissed the suit holding that Michigan prison rules do not create a due process liberty interest for prisoners to be released from segregation. The court also held that Mackey had an adequate post deprivation remedy in Michigan state courts, remedies which would satisfy federal due process under Parratt v. Taylor, 451 US 527, 101 S. Ct. 1908 (1981). The court of appeals for the sixth circuit reversed and remanded, holding that Michigan DOC rules create a due process liberty interest for prisoners to be released from segregation.

The appeals court notes that prisoners have no federal due process right to either remain out of ...

Attorney Fee Awards Analyzed

Larry Jones is an Arkansas state prisoner. He filed suit against various state prison officials claiming deliberate indifference to his serious medical needs, use of excessive force by guards and inadequate staff supervision. The case went to trial and a jury found in favor of Jones but awarded him only ...

Pro Se Litigants Subject to Rule 11 Sanctions

Lee Warren is a former Washington state prisoner. While confined at the McNeil Island Corrections Center (MICC) he claims he was assaulted by a staff cook. He filed suit under 42 U.S.C. § 1983 in US district court in Seattle in 1992. In his complaint, when asked by the court if he had "begun other lawsuits in state or federal court dealing with the same facts involved in this action or otherwise related to [his] imprisonment," he answered "no." The district court approved his in forma pauperis application and ordered service on the defendants.

The Washington attorney general's office, Daniel Judge, responded, seeking dismissal of the suit because Warren had initiated an identical suit against the same defendants in 1989. That action was dismissed and Warren did not appeal. The defendants sought summary judgment on res judicata grounds and also sought sanctions against Warren under Fed.R.Civ.P.11. Warren did not respond to either motion.

Fed. R. Civ.P. 11 provides for the imposition of sanctions when a motion is frivolous, legally unreasonable or without legal foundation. It requires that all papers submitted to the court be signed by at least one attorney of record in ...

Obtaining Prisoner Witnesses

This case involves an effort by state government defendants in a civil rights suit to obtain the presence of a witness to testify on their behalf. The case provides a useful discussion of writs of habeas corpus ad testificandum, whereby parties to civil or criminal actions can ask the court to produce a prisoner to testify in court. The case will be useful for pro se litigants seeking to obtain the presence of prisoner witnesses on their behalf.

28 U.S.C.§ 2241(c)(5) and 28 U.S.C. § 1651(a) permit federal courts to issue writs of habeas corpus ad testificandum. The purpose of such writs is to direct the prisoner's custodian to produce the prisoner for appearance in court. The decision to issue such writs resides in the sound discretion of the court. The factors a court must consider are: (1 ) whether the prisoner's presence will substantially further the resolution of the case, (2) the security risks presented by the prisoner's transportation and safekeeping, and (3) whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted. Courts should also consider any jurisdictional limitations arising from the prisoner ...

Court Orders Return of Disks

Charles Oropallo is a New Hampshire state prisoner. Pursuant to prison regulations, in 1991 Oropallo ordered a Smith Corona word processor with disk storage capacity. In 1992, prison rules changed, prohibiting the possession of "computers" with a memory storage capacity. As a result, his disks were confiscated by prison officials. In 1994 the New Hampshire state supreme court accepted Oropallo's petition for a writ of habeas corpus. Oropallo filed suit in federal court pursuant to 42 U. S.C. § 1983 claiming that the confiscation of his disks violated his right of access to the courts because the disks contained his pleadings, notes and other information needed to litigate his habeas corpus petition in the state supreme court. Oropallo sought a Preliminary Injunction (PI) seeking the return of some 60 disks.

The court noted that prisoners retain a constitutional right of meaningful access to the courts. Under the standard used in weighing petitions for PIs the court notes that a moving plaintiff must prove: 1) that they will suffer irreparable injury if the injunction is not granted; 2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; 3) the plaintiff has shown a likelihood ...

Women Prisoners Entitled to Equal Education

This is a precedent setting case that should be read and studied by women prisoners who are denied educational opportunities comparable to those offered to male prisoners. This ruling applies to state prisons who receive federal funding and who provide educational programs. Since virtually all state prison systems do both, this ruling has a wide ranging significance and impact. In 1984 women prisoners at the Oregon Women's Correctional Center (OWCC) filed a class action suit claiming sex discrimination in educational and vocational training programs in the Oregon prison system: prison industries, a forest camp, a farm annex, apprenticeships, vocational programs and college courses. They filed suit under Title IX and its regulations, 20 U.S.C. § 1681, 45 C.F.R. § 86.1 and the equal protection clause of the fourteenth amendment. After a bench trial the district court ruled against the prisoners on all but one claim. <%-2>They appealed and the court of appeals for the ninth circuit reversed and remanded. Addressing the merits of the case, the appeals court held that Title IX applies to prisons, which is the first ruling of its type from an appeals court<%0>

Title IX holds that "No person in the United ...

Women Prisoners Lose Equal Protection Suit

In the December, 1993, issue of PLN, we reported on Klinger v. Nebraska Department of Corrections, 824 F. Supp. 1374 (D Neb. 1993) which had resulted in a significant victory for Nebraska's female prisoners who had filed a class action suit claiming they were denied equal protection of the law with regards to the services they were provided when compared to those provided to male prisoners. The court of appeals for the eighth circuit has reversed the lower court ruling.

After extensively ruling in the plaintiff's favor, the court allowed the defendants to file an interlocutory appeal after a trial in which the court found the defendant prison officials had violated the female prisoners' equal protection rights in over a dozen different areas. The appeal involved three controlling questions of law for the appeals court to decide: (1) were female prisoners at the Nebraska Center for Women (NCW) similarly situated to male prisoners at the Nebraska State Penitentiary (NSP) for purposes of the equal protection clause regarding the programs and services challenged by the plaintiffs? (2) Did the lower court correctly determine that "heightened scrutiny" as opposed to a "rational basis" scrutiny level of review was appropriate to ...

S.Ct. Grants Review in Prison Disciplinary Case

On October 7, 1994, the US Supreme Court announced that it had granted certiori in Sandin v. Conner, Case No. 93-1911. The case involves a Hawaii state prisoner who was infracted and found guilty of praying in Arabic. The district court dismissed the case and the court of appeals affirmed in part, reversed in part at 994 F.2d 1408 (9th Cir. 1993), See: PLN, Vol 4, No. 12. The ninth circuit reheard the case and concluded that Hawaii prison rules create a liberty interest for prisoners to remain free from disciplinary segregation. The rules also require "substantial evidence" before a prisoner can be found guilty of an offense. It then held that prison officials had violated Conner's rights by denying his requests for witnesses at the disciplinary hearing. It also held prison officials were not entitled to qualified immunity for their actions. See: Conner v. Sakai, 15 F.3d 1463 (9th Cir. 1994); PLN, Vol 5, No. 7.

The prison official defendants in the case appealed to the supreme court. The question which the supreme court will rule on is: "Does maximum security state prison inmate who is not subject to loss of good time credit or to ...

VA Repressive Sentencing Law Results in Uprisings

The feature attraction in this summer's media/political crime-hype circus in Virginia was the coverage of "Proposal X," Republican Gov. George Allen's repressive new sentencing bill. The bill, signed into law by Allen on October 17th, 1994, calls for tougher sentencing, the abolition of parole, and the construction of 22 - 25 new prisons to warehouse the expected tripling of Virginia's current prisoner population (20,000) over the next ten years.

The new sentencing law, which will take effect January 1, 1995, increases sentences by 100% for violent first-time offenders and 300%--700% for repeat offenders. Citizens convicted under the new law will serve a minimum of 85% of their sentences. In order to qualify for even a 15% time cut, prisoners will be required to participate in "rehabilitation" programs, though legislators failed to earmark any money to fund such programs. In fact, the 140 member state legislature approved only $36 million to fund the bill.

Gov. Allen, when asked by reporters at the signing ceremony, was unable to explain where the money will come from to finance the estimated $2.2 billion required to implement the bill's provisions. When pressed, Allen said he can generate some ...

Fast Food Style Death Penalty Defense

Harris County, Texas, which encompasses Houston, is the death-penalty capital of the U.S. [See: Houston, Death Penalty Capital of USA on page 15 of this issue]. What better place for a lawyer to develop and market the same techniques that made fast food a commercial success in this country?

Joe Frank Cannon, acting as a court-appointed attorney, has "defended" eight men who currently await execution in Texas, two other former clients have already been put to death. His strategy for those capital punishment cases is simple: work fast.

"Juries don't like a lot of questioning, all of these jack-in-the-box objections, going into every little detail, so I've never done it," explains the veteran lawyer. He openly boasts of hurrying through trials like "greased lightening."

Harris County judges are elected by popular vote, rather than being appointed to the bench. The judges have complete control over appointing and supervising attorneys in death penalty cases. Some judges, concerned about budgets and docket backlogs, appoint attorneys who are known for trying cases rapidly rather than zealously. District Judge Miron Love has said, "The number of death penalty cases currently pending could cost taxpayers a minimum of $60 million."

Mr. Cannon ...

Houston - Death Penalty Capital of USA

In one week this September, six separate capital murder cases were being tried in Harris County, Texas, of which Houston is the main city. Some legal observers consider this to be a national record.

"They may have done this in the Old West, but there's been nothing like this in modern times," said a law professor at the University of Houston. The six capital murder cases being tried in one week in Houston are more than any other Texas county tries in one year. Dallas County, which encompasses Dallas-Fort Worth, has only tried one capital murder case so far in 1994. In Harris County the number will be 22 or 23.

District attorney, John B. Holmes, Jr., who has been referred to as the "killingest man" in America, vows to continue his killing ways. "I am not about to alter my rigid views on capital justice, and if the public doesn't like it, they know what they can do about it."

As of September, 1994, there have been a total of 251 state sponsored murders [executions] in the U.S. since the United States Supreme Court reinstated the death penalty in 1976. Since then the State of Texas ...

From the Editor

By Paul Wright

Welcome to another issue of PLN. Everyone at PLN would like to extend our thanks to the Peradam Foundation for their generous grant to PLN of $3,900 which will enable us to buy computer equipment necessary for the magazine' s production. As everyone knows, computer equipment is expensive and until now we have relied on our volunteers who own their own computers. By being able to purchase a computer this allows us to expand the number of people involved in PLN's production; this spreads the work around and also helps ensure we aren't reliant on just one set of equipment should there be an equipment failure or such. How we came to receive the grant from Peradam is a long story. They contacted us to see how they could help after learning that Resist had turned us down for a grant because of our political content.

At this point PLN is the only national prisoner produced magazine in the US. As the political climate goes further towards the right prison struggle is not a very popular topic, especially for funding purposes. Besides the Peradam Foundation's grant PLN has only received two other grants ...

Death Penalty Deterrents?

Former California Governor Edmund "Pat" Brown, in his book, Public Justice, Private Mercy, recounts how a plumber convicted of robbery was among the prisoners who built California's gas chamber at San Quentin. He helped to install it and watched test pigs die as the chamber's effectiveness was tested.

That experience did not seem to have much of a deterrent effect. Within a year after being paroled the plumber committed murder, was sentenced to die and in a rather ironic twist, met his death in the gas chamber he helped build.

One and Two Strike Laws Passed

By Paul Wright

In the June, 1994, issue of PLN, my article "Three Strikes Racks 'em Up" made reference to then pending proposals to pass a "Two Strikes" law in Georgia and a "One Strike" law in California for sex offenders. I am sad to say that both laws passed. (The federal government recently passed a "three strikes" law of its own in Clinton's vaunted "crime bill" but that piece of legislation is the subject of the cover article of this issue.)

On September 1, 1994, the Califomia legislature passed its "One Strike Rape Bill." As originally drafted by Republican state senator Marian Bergeson the law required that nearly all sex offenders be sentenced to life in prison without the possibility of parole. Critics immediately attacked the law as so harsh that it might prompt rapists to kill their victims. The version finally approved, which was signed into law by Republican Governor Pete Wilson who made this law a major part of his re-election campaign, calls for a penalty of 25 years to life for sexual assaults involving torture, kidnapping or burglary with intent to commit rape. Lesser sex offenses would have sentences of fifteen years to life.

Under ...

PI Issued for Prisoner Transfer

Elmer Geronimo Pratt is a political prisoner in the California state prison system. A former Black Panther imprisoned since 1972, Pratt has achieved prominence by vigorously claiming his innocence and that he was framed by the FBI for a murder he did not commit as part of the agency's notorious COINTELPRO (Counter-Intelligence Program). In the past, Pratt has successfully sued California DOC (CDC) officials for retaliating against him for exercising his first amendment rights in prison.

In 1991 the federal court issued an injunction prohibiting prison officials from retaliating against Pratt or taking other reprisals against him for exercising his first amendment rights, his right to seek legal redress in the courts, his politicalbeliefs or his media attention.

On December 17, 1993, a Los Angeles television station requested to interview Pratt at the Donovan Correctional Facility. Pratt declined but a few days later changed his mind. On December 24, 1993, the Director of Corrections, James Gomez, personally ordered Pratt transferred to the Mule Creek State Prison. On December 27, Pratt was interviewed by the LA TV station. That program, discussing his case, was aired in three parts January 3, 4 and 5, 1994. On January 7, Pratt was transferred ...

News in Brief

France: A French prison worker's union said it was suing 100 prisoners and detainees as a symbolic protest of under staffing in France's crowded jails. The unions said its members wouldn't be overworked if prisoners had respected the law and stayed out of jail.

Jamaica: Three prisoners convicted of robbing Italian tourists were sentenced to a flogging and 18 months in prison. Floggings are administered with a kerosene soaked switch in Jamaica. The punishment is seen as an effort by the Jamaican government to deal with a rising crime rate, after the highly publicized killing of a Florida tourist last year. That incident led to a dramatic drop off in Jamaica's billion dollar tourist industry.

Indiana: The Hendricks County probation office has installed a special sensor into the telephone mouthpiece of probationers convicted of alcohol convicted crimes. If the probationer answers the phone after drinking alcohol the sensor sends a signal to the probation officer's computer which alerts a probation officer who goes to the residence and conducts an alcohol test. The device is used in conjunction with electronic monitoring devices and the probationer is not told about the sensor in the phone. Participants pay ...

Russian Jails in Crisis

For decades the United States government used its propaganda machine to rail about the former Soviet Union's prison system. That the American government is silent about the new Russian prison system is more an indication of the fact that Russia has formally restored capitalism and reached an accommodation with foreign capital rather than any improvements in its prison system. As capitalism takes hold in Russia, with the massive impoverishment of the population, the new Russian state increasingly relies on imprisonment to keep the population and "crime" in check. Recent reports indicate jails are in the worst state they have been in for nearly a century.

Valery Abramkin, the director of the Moscow Center for Prison Reform, recently visited Moscow's Butyrka prison, which houses pre trial detainees. The prison was built over 200 years ago by Catherine the Great to hold 3,000 prisoners. It now holds over 6,000. He stated that cells built for 28 prisoners now hold up to 110. When parliament members went to the prison to investigate conditions he said they had to push their way through the crowd like a bus at rush hour. "Some of us fainted after five minutes. In daytime ...

Kurdish Prisoners Resist

Kurdish political prisoners at the Diyarbakir maximum security prison in Turkey battled soldiers on October 4, 1994, in an attempt to block the torture and interrogation of another prisoner. Turkish soldiers fired shots into the air and tear gassed the prisoners, who responded by throwing broken glass and rocks. About 157 prisoners were involved in the struggle. An undisclosed number of prisoners were injured and soldiers soon regained control of the prison but did not immediately storm cell blocks occupied by protesting prisoners.

The prisoners were all members of the PKK, Kurdish Worker's Party, an armed communist party seeking the independence of Kurdistan. Since 1984 the PKK has fought a bitter war against the Turkish government and army. The war has been characterized by massive human rights abuses against the Kurdish civilian population and captured combatants. Those desiring more information about the PKK and its struggle should write: Kurdistan Information Center, 11 Portland Gardens, P.O. Box 1922, London, N4 1DL, England.

Ex-Prison Boss Assassinated in Turkey

Mehmet Topac was a former minister of justice from 1988-89 in Turkey as a member of the right wing Motherland Party. While he held that position, which controls the Turkish prison system, he instituted rules requiring leftist political prisoners to wear uniforms and limiting visits from attorneys and relatives. Hundreds of leftist political prisoners went on hunger strikes to protest the rules and two died before the rules were revoked.

On September 29, 1994, four guerrillas of Devrimci Sol, an armed communist party which means Revolutionary Left in English, shot Topac twice in the head in his Ankara law office. Topac died at the scene. Devrimci Sol left leaflets at the scene claiming responsibility for the attack. Since initiating its armed struggle for seizing state power in 1978, Devrimci Sol has assassinated dozens of military and political officials in Turkey as part of its guerrilla campaign. Hundreds of its members languish under harsh conditions in Turkish prisons as political prisoners.

 

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