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Prisoner Education Guide

Prison Legal News: May, 1994

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Issue PDF
Volume 5, Number 5

In this issue:

  1. Giving Cons and Ex-Cons the Vote (p 1)
  2. Drugging of Prisoners Upheld (p 2)
  3. Lifers Vote in General Election (p 2)
  4. Consent Decree Creates Right to Uninspected Legal Mail (p 3)
  5. OK State Courts Can Hear Prison Suits (p 3)
  6. Stay of Suit Not Appealable (p 4)
  7. Prison Officials Can't Prevent Jailhouse Lawyers From Assisting Other Prisoners (p 4)
  8. Witnesses May Be Subpoenaed at Government Expense (p 5)
  9. AZ DOC Denies Court Access (p 5)
  10. Evidence Required to Sustain Disciplinary Ruling (p 6)
  11. Prisoner Litigants Have Right to Out of State Citations (p 6)
  12. Phone Company State Actor for Section 1983 (p 7)
  13. Atheist Challenges AA Probation Requirement (p 7)
  14. Visitor Awarded Damages (p 7)
  15. ISRB Must Follow Own Rules (p 8)
  16. Improper Testimony Requires Reversal (p 8)
  17. Accessible Facilities Required for Disabled (p 8)
  18. VT Class Action Suit (p 9)
  19. FL Reforms Sentencing Law (p 9)
  20. Medical Claims Standards Discussed (p 9)
  21. WA Civil Commitment Challenged (p 10)
  22. Qualified Immunity Hinges on All Relevant Law (p 10)
  23. Hearing Required Before Denial of IFP (p 10)
  24. CDC Spreads Gangs (p 11)
  25. NJ Prison "Emergency" 12 Years Old (p 11)
  26. Prisoner Beating Filmed (p 11)
  27. Petty Drug Criminals Fill BOP (p 11)
  28. Prison Rape Survivors Sought (p 12)
  29. Justice Watch (p 12)
  30. Informants Must be Reliable (p 12)
  31. DOJ Orders MS Jails Closed (p 12)
  32. Guard's Attack for Smoking States Claim (p 12)
  33. Ask the Media if Crime pays, Then Who's Footing the Bill? (p 13)
  34. Prisoners Employed by PIA Seek Minimum Wages (p 13)
  35. Chelan County Jailer Jailed (p 13)
  36. Slaves of the State (p 14)
  37. Prisoners = Profit (p 15)
  38. News in Brief (p 16)
  39. From The Editor (p 17)
  40. Algerian Prison Break (p 18)
  41. Chilean Prisoners Resist Control Unit Move (p 18)
  42. Book Review: Subpoena George Bush - The Anatomy of a Cover Up (p 18)
  43. Marion Prisoners to be Moved Soon (p 20)

Giving Cons and Ex-Cons the Vote

By Andrew Shapiro

During Congress's annual open season on criminals, few lawmakers are eager to defend the rights of the accused, let alone the convicted. So it was particularly refreshing this year to see a proposal in an alternative crime bill submitted by Representative Craig Washington that would have guaranteed the right to vote in federal elections to ex-convicts and to convicts serving nonprison sentences.

Washington's measure didn't stand a chance of becoming law in this frenzied tough-on-crime climate. But it should prompt civil rights advocates to revisit one of our nation's most persistent yet little known injustices: the exclusion from the electorate of millions of citizens because of their status as former or current criminal offenders.

Only three states, Maine, Massachusetts and Vermont, allow inmates to vote. And in many places, a convict released from prison doesn't gain his most basic political right: thirty-five states deny suffrage to non-incarcerated offenders, such as those on probation or parole; fourteen states <%-2>disenfranchise offenders for life unless they are pardoned (which is rare). As a result, the right to vote is denied to at least 4 million Americans, a disproportionately large share of whom are black and ...

Drugging of Prisoners Upheld

Albert Sullivan is an Illinois state prisoner forcibly drugged against his will for the past five years. Sullivan filed suit under § 1983 claiming that he has a due process right to stop taking the drugs long enough to prove he does not need them. He also challenged the Illinois procedures used to administer the drugs. The district court ruled in favor of prison officials on all issues and the court of appeals for the seventh circuit affirmed.

The appeals court begins "while there is something disturbing about the prospect of a prisoner forever surrendering to prison doctors his right to be free of unwanted mind altering drugs, we conclude that Harper, (Washington v. Harper, 494 US 210, 110 S.Ct. 1028 (1990)) sanctioned this possibility, we therefore hold that Illinois may constitutionally force Sullivan to take psychotropic drugs without allowing him to become drug free to prove that he could do without them."

The court upheld the lower court ruling which upheld the constitutionality of Illinois' procedures to forcibly drug prisoners which were enacted shortly after the Harper decision.

In analyzing Sullivan's claims challenging the pre-Harper drugging policy, the court held that it did not violate the constitutional requirement ...

Lifers Vote in General Election

The Lifers' Group, Inc. of Massachusetts Correctional Institution at Norfolk, succeeded in providing all of the nearly 1,300 prisoners there the opportunity to register and vote in the 1993 November General Election. The group's leaders presented a petition to the Norfolk Town Clerk with the requisite number of certifiable signatures in compliance with state registration law, permitting the prisoners to be considered registered voters rather than absentee voters.

While prisoners in Massachusetts have been able to vote in past elections, their votes were not cast as registered voters. Rather, the voters were treated as absentee votes from the cities or towns where the prisoners had lived before incarceration. Votes cast in this manner, it was discovered, were placed in escrow and not counted.

Through the Lifers' work, prisoners now are able to cast votes and have their votes count just as any registered voter on the outside. In the future, a representative of the Town Clerk's office will enter the prison and register every prisoner who wishes to exercise his right to vote.

[Taken from the Fall 1993 Life Lines, the newsletter of the Life-Long CURE]

Consent Decree Creates Right to Uninspected Legal Mail

In 1976 prisoners at the Indiana State Reformatory in Pendleton, IN filed suit challenging the conditions at the prison. In 1977 the parties entered into a consent decree settling the suit. With respect to legal mail the decree provided that it would not be opened, read, censored or copied and its delivery would not be interfered with. Upon reasonable suspicion legal mail could be opened for the limited purpose of physically inspecting it for contraband. In 1979 the Indiana legislature enacted a statute nearly identical to the language of the decree.

In 1982, Jack Duckworth, warden at the Indiana State prison, enacted a policy whereby all legal mail was opened by prison staff in the prisoner's presence and inspected for contraband. This policy withstood constitutional and statutory scrutiny. See: McChristian v. Duckworth, 610 F.Supp 791 (ND IN 1985), affirmed in part, reversed in part, 978 F.2d 1261, 1992 WL 311884.

In 1989 Duckworth became warden of the Reformatory at Pendleton. In 1992 he instituted a policy similar to the one at the State Prison whereby legal mail would be opened in the prisoner's presence by staff and inspected for contraband.

James Kindred, a Reformatory prisoner, responded ...

OK State Courts Can Hear Prison Suits

Dennis Waldon is an Oklahoma state prisoner. He was infracted and punished in a prison disciplinary hearing resulting in the loss of one hundred days of good time credits. Waldon filed a writ of habeas corpus and/or mandamus in the Alfalfa County district court claiming that prison officials had not followed DOC rules in his disciplinary hearing thus rendering the loss of good time unlawful. The district court declined jurisdiction based on it's belief that even if Waldon was correct, he would not be entitled to release from prison within 60 days. Waldon then appealed to the Oklahoma state supreme court which transferred the case to the Court of Criminal Appeals.

The appeals court held that Oklahoma state district courts have jurisdiction to hear challenges to prison disciplinary hearings by state prisoners. "...this Court has exclusive jurisdiction to determine issues relating to credit time for the reduction of a sentence , then concomitant with such jurisdiction comes the responsibility to fashion appropriate remedies when rights have been violated. This court finds that a writ of mandamus must lie against appropriate prison officials when a prisoner's minimum due process rights have been violated. The District Court's action is ...

Stay of Suit Not Appealable

Oscar Bean is a Missouri state prisoner. He filed suit claiming he was denied due process at a disciplinary hearing accusing him of assault. He sought declaratory relief, damages and attorneys fees.

The district court granted the defendants' motion to stay Bean's suit for 90 days pending the exhaustion of the certified grievance procedure under 42 U.S.C. § 1997e, stating that the grievance procedure may provide Bean with the relief he seeks and that case law suggests that the grievance procedure is part of the due process prisoners receive during the disciplinary process. The Missouri DOC grievance procedure has been certified by the district court. Bean appealed the stay of his suit.

The court of appeals for the eighth circuit affirmed and dismissed the appeal, holding that stay of an action is not a final appealable order. Because an order staying a civil rights action pending exhaustion of a certified grievance procedure does not have a collateral estoppel or res judicata effect on federal court action it is not subject to immediate appeals. The stay order does not conclusively determine his claim and Bean is not precluded from continuing with his suit after an adverse decision by the ...

Prison Officials Can't Prevent Jailhouse Lawyers From Assisting Other Prisoners

Paul Gibbs is a Michigan state prisoner and jailhouse lawyer. He was placed in segregation in late 1990 for possessing contraband. On April 2, 1991, he was reclassified back to the general population. Due to a lack of bed space he remained in segregation. On April 8, 1991, he allegedly threatened a nurse, was infracted and sentenced to more segregation time. That disciplinary sentence expired on May 12. Gibbs did not receive his mandatory classification during June; in July a classification committee recommended that Gibbs remain in segregation. In August the committee recommended Gibbs release from segregation, Gibbs was actually released on October 18, 1991.

Gibbs filed suit under § 1983 claiming that he was denied procedural due process when he was not reclassified to segregation after completing his 30 day sentence on May 12 and that such a reclassification was required, and that failure to do so deprived him of a liberty interest without due process. He also raised a substantive due process claim in that his prolonged stay in segregation was in retaliation for his activities as a jailhouse lawyer assisting other prisoners to sue prison officials for civil rights violations. The district court dismissed Gibbs' claims holding that ...

Witnesses May Be Subpoenaed at Government Expense

Larry Williams was a prisoner in the Poinsett County, AR, jail. He filed suit challenging various conditions at the jail as being unconstitutional and that the sheriff threatened him in an attempt to prevent him from pursuing the suit. After an evidentiary hearing, the district court ruled in favor of jail officials, dismissing the suit. The court of appeals for the eighth circuit reversed and remanded holding that the Magistrate Judge's decision not to appoint counsel for Williams, in combination with confusion over William's witness list, was an abuse of discretion. The appeals court did not reach the merits of the claims.

Prior to the evidentiary hearing Williams requested appointment of counsel. The court denied the request, finding that Williams appeared capable of presenting his case which was neither legally nor factually complex. On August 7, 1992, Williams filed a pleading requesting that the court subpoena various witnesses for the hearing. On August 12, 1992, the court set the matter for trial and sent Williams a pre-printed court form for listing witnesses. Williams filled out this form and returned it to the court, he did not list any of the witnesses on the August 7 list. Using only ...

AZ DOC Denies Court Access

This case deals with a class action suit filed by Arizona state prisoners. They claimed that Arizona prison officials denied them access to the courts by enacting policies that unduly abridged their ability to file and litigate court actions. The district court ruled in the prisoners' favor on all counts.  This is an excellent ruling for jailhouse lawyers, especially those in control units.

The court ruled that the "paging system" for legal materials, where prisoners denied access to the prison law library must submit a request for specific legal materials to be brought to their cells, was constitutionally deficient and did not provide adequate access to the courts.

Untrained prisoner legal assistants cannot provide constitutionally adequate access to the courts for prisoners denied physical access to a law library. This is especially true for illiterate or non-English speaking prisoners for whom law books alone cannot ensure access to the courts. In the absence of a program providing prisoners with lawyers or paralegals the ADOC must maintain a sufficient number of minimally trained prisoner legal assistants.

To be adequate a prison law library must be staffed by a person with adequate legal training. A law library staffed only by security officers ...

Evidence Required to Sustain Disciplinary Ruling

Robert Nicholson is a Rhode Island state prisoner. In 1988 he told prison officials and state police investigators that he had been assaulted by two prison guards. His complaint was later investigated by the FBI and Department of Justice (DOJ). The DOJ concluded that there was insufficient evidence upon which to prosecute the guards and that their actions did not constitute a prosecutable violation of federal criminal statutes based upon the available evidence.

Upon receipt of the DOJ correspondence the prison's deputy warden, Ronald Brule, instituted disciplinary proceedings against Nicholson for providing false information. This was done pursuant to an unwritten rule initiated by Brule whereby prisoners complaining of staff assaults were automatically infracted if no criminal charges were initiated against the guards or the prisoner failed to provide sufficient conclusive evidence to substantiate the allegation.

At the disciplinary hearing Nicholson was found guilty and sentenced to thirty days loss of good time and 30 days in segregation. The only evidence at the hearing was Nicholson's complaint and the DOJ correspondence concerning their investigation.

Nicholson filed suit claiming that the policy of filing disciplinary charges against prisoners who complain of assaults violated his first amendment right to petition ...

Prisoner Litigants Have Right to Out of State Citations

Rick Petrick is an Oklahoma state prisoner. The sentence he is serving in Oklahoma was enhanced as a result of prior convictions from Minnesota and North Dakota. While confined at the Oklahoma State Penitentiary (OSP) he sought to bring collateral attacks against the out of state convictions. The OSP law library did not have the relevant materials. The law librarian contacted both the Minnesota and North Dakota attorney general's office to obtain the materials but refused to authorize the expenditure of funds to obtain the needed materials. Petrick filed a grievance with the OSP warden and itemized the specific legal materials he needed to conduct his research. The warden denied the grievance which was affirmed on administrative appeal.

Petrick filed suit in district court claiming that the lack of out of state materials with which to challenge the out of state convictions violated his right of access to the courts. The court dismissed the suit finding that OSP officials had not violated Petrick's right of access to the courts. The court of appeals for the tenth circuit reversed and remanded.

The appeals court explains the standard under which it applies Bounds v. Smith, 430 US 817, 97 S ...

Phone Company State Actor for Section 1983

Milton Griffin-El is a Missouri state prisoner. He filed suit against MCI Telecommunications Corporation and state prison officials over the phone company's practice of announcing to persons called by prisoners that the calls originated from a prison. The court upheld MCI's practice of paying it's 25% commission to the Missouri state General Revenue Fund rather than to the DOC's Human Resources Canteen Fund. Because this a developing area of prison law this case should be studied by those contemplating litigation concerning prison phone systems.

The district court ruled that by entering into a contract with the Missouri DOC, MCI became a state actor suable under 42 U.S.C. § 1983. The legal test to determine if a private party is or has become a state actor for 1983 purposes is whether the private party has acted with, or obtained significant aid from state officials or otherwise done as the state commands. See: Lugar v. Edmondson Oil Co. Inc., 457 US 922, 102 S.Ct. 2744 (1982). In this case MCI and the Missouri DOC had a symbiotic relationship and both fiscally profited from it. See: Burton v. Wilmington Parking Authority, 365 US 715, 81 S.Ct ...

Atheist Challenges AA Probation Requirement

Robert Warner was convicted of drunk driving in New York state and sentenced to three years probation. One of the probation conditions was that he attend meetings of Alcoholics Anonymous (AA). Warner is an atheist and objects to compulsory attendance of AA meetings because of AA's emphasis on god and spirituality. He did not object to alcohol treatment as such. Warner filed suit under § 1983 claiming that state mandated attendance of AA meetings violates the establishment clause of the constitution.

The district court denied the defendants' motion to dismiss. The case has far reaching implications for parole, probation and prison imposed AA attendance.

The court notes that atheism falls within the protection of the first amendment because the government cannot impose religious requirements on non-believers anymore than it can favor one religion over another. The court held that the risk of being incarcerated if he did not attend AA meetings met the Supreme Court's definition of "obligatory." The court held that, based on the facts in this case, it could not conclude that AA did not have an objectional religious component.

Of interest to prison readers is that the court addressed the defendants' claim that AA attendance was ...

Visitor Awarded Damages

A man visiting his brother in jail was awarded damages both for battery and for violation of his civil rights, based on a guard's attack on him and making of racially derogatory remarks. On appeal, the Minnesota state appeals court ruled that because the racial slurs were coupled with ...

ISRB Must Follow Own Rules

Charles Cashaw was a Washington state prisoner. He filed a Personal Restraint Petition (PRP, a state habeas petition) challenging the actions of the Indeterminate Sentence Review Board (ISRB) in setting a minimum prison term to coincide with his court imposed maximum sentence. The court of appeals had granted Cashaw's PRP at 68 Wn.App 112 (reported earlier in PLN). The state supreme court affirmed the lower court but on different grounds.

In this case the state supreme court held that the ISRB's procedural guidelines concerning the parole of prisoners do not create a due process liberty interest. "...Passage of the SRA [Sentencing Reform Act] does not in any significant way channel the board's discretion in determining rehabilitation. This determination cannot be reduced to a simple equation under which predictable outcome would flow from specific factual predicates. Accordingly, the Board's regulations as to the procedures to be followed in reaching this decision, even if important, do not create a liberty interest."

Despite this, Cashaw was still entitled to PRP relief. "Regardless of any due process implications, an inmate filing a PRP may be entitled to relief merely by showing that the Board failed to follow it's ...

Improper Testimony Requires Reversal

Ronald Davidson is a New York state prisoner. He filed suit claiming that a prison guard had destroyed his legal materials after they had an altercation. The case went to trial. The guard's attorney, from the state's Attorney General's office, sought to admit evidence to the jury that Davidson had been in a mental hospital. The district court denied the request holding that it was irrelevant to the case and unduly prejudicial.

At trial the attorney general asked the last witness if he had ever known Davidson. The witness said he had, and upon further prompting by the AG, said he had known Davidson when he escaped from the Mattaeawan Facility for the Criminally Insane. Davidson sought a mistrial which the court denied. The judge instructed the jury to "obliterate the testimony" from their minds. The jury ruled in favor of the prison guards.

The court of appeals for the second circuit reversed and remanded. The court held that, weighing the merit of the case, Davidson had a strong case where the witness's credibility was crucial to the jury verdict and it could not be said that the improperly elicited testimony did not tip the credibility ...

Accessible Facilities Required for Disabled

In a class action suit, Arizona state prisoners challenged the lack of access for mobility impaired prisoners to bathrooms, showers and cells, delays in receiving medical devices and hearing aids and violations of the Rehabilitation Act.

The court found that the Arizona DOC houses 68 prisoners confined to wheelchairs or who are partially paralyzed or have artificial limbs. Most of them were denied access to bathrooms, showers and cells because of their disabilities. The court held this situation violated the eighth amendment. It approved a plan whereby the defendants agreed to make at least one unit for each security level accessible to disabled prisoners and to then concentrate the disabled prisoners in these units. This would eliminate the eighth amendment violation. Because many of the agreed upon renovations had been delayed due to funding problems the court ordered continued monitoring of the situation.

The court did not find any harm caused by delays in obtaining medical equipment, thus no claim was stated. Delays associated with obtaining hearing aids were resolved by a new policy. The plaintiffs also failed to prove any constitutional violations regarding blind prisoners.

The court gave an extensive discussion of the Rehabilitation Act of 1973, 29 U ...

VT Class Action Suit

On December 13, 1993, lawyers from the National Prison Project of the American Civil Liberties Union, together with Vermont attorneyMitchell Pearl of Langrock, Sperry and Wool, filed a class action lawsuit against the State of Vermont on behalf of all Vermont prisoners. Filed in federal district court in Burlington, the suit, Goldsmith v. Dean, seeks an end to the unconstitutional deprivation of such basic human needs as medical and mental health treatment and safe environmental conditions. The case also challenges two behavior modification programs as sadistic and pseudo-therapeutic.

"Medical and mental health care in the prisons are dangerously deficient," reported National Prison Project attorney Marjorie Rifkin. "Prisoners and prison staff in Vermont's overcrowded facilities are exposed to infectious diseases including tuberculosis. Those with chronic illnesses like diabetes and heart disease get sicker due to inadequate medical treatment. We hope that our legal action now will prevent prison conditions from getting worse as the population expands. Ultimately, the Department's failure to treat prisoners' medical and mental health problems increases the costs and risks to the community when prisoners are released," according to Rifkin.

Among the behavior modification programs challenged in the law suit is the Vermont Treatment Program for ...

FL Reforms Sentencing Law

Florida has built 10,729 new prison beds in the past five years yet has been unable to keep up with its growing prison population. In May of 1993 the Florida legislature passed the Safe Streets Initiative which has the goal of reducing prison overcrowding to ensure that violent and repeat offenders are not released early. The new law went into effect on January 1, 1994. The new sentencing guidelines will help state judges determine who will or will not go to prison.

The primary effect is that there will be fewer convicted felons going to state prisons as opposed to county jails. The FL DOC expects 208 fewer new admissions this year as a result of the law. The effort to increase time that violent criminals stay in prison means that criminals classified as nonviolent, such as thieves and drug traffickers, won't reach the threshold to be sent to prison. This leaves counties with the choice of housing the nonviolent felons in local jails or releasing them.

State lawmakers also decided to virtually eliminate public corruption as a crime, requiring over 60 convictions before a public official could be sent to prison. A prosecutor who specializes in public ...

Medical Claims Standards Discussed

Ronald Brewer is an Iowa state prisoner. He suffers from coronary artery disease. Employees of Correctional Medical Services (CMS), a contractor with the Iowa DOC, prescribed medicine for Brewer's illness but the treating doctor made an error in the dosage. Brewer filed suit claiming that he was denied the correct dosage of medication in an effort by CMS to minimize it's costs. The district court dismissed the suit, holding that Brewer had failed to state a claim.

The district court gave an extensive overview of the history of the eighth amendment, the legal standards applying it to prison conditions in general and deliberate indifference to prisoner's serious medical needs in particular. It explains the subjective and objective components that a prisoner must prove in order to prevail on an eighth amendment claim. The court cited numerous cases from all circuits discussing all these aspects. This case should be read by anyone litigating an eighth amendment claim as it provides useful reference and a good starting point for further research.

In this case Brewer failed to state a claim because the error in prescription dosage was due to a misunderstanding by the treating physician rather than deliberate indifference ...

WA Civil Commitment Challenged

As reported in the December, 1993, issue of PLN the Washington state supreme court upheld the provisions of the Community Protection Act which mandates indefinite confinement of persons deemed to be "sexual predators" until such time as they are "cured." On January 25, 1994, nine prisoners confined under this law ...

Qualified Immunity Hinges on All Relevant Law

While this is not a prison case we are reporting it because it is a Supreme Court ruling affecting qualified immunity defenses. Qualified immunity allows government officials to escape liability for money damages, even when they violate constitutional rights, as long as the right violated was not "clearly established" at the time. This defense is commonly asserted by prison officials and should be studied and researched by civil rights litigants prior to filing suit.

The case involves an Idaho citizen arrested after police surrounded his home and demanded he emerge to surrender. Police did not have a warrant for his arrest. He filed suit under 42 U.S.C. § 1983 claiming that the arrest without a warrant was unconstitutional. The district court held that while the law was clear that a warrant was required before an arrest could take place within a home, the law was unclear as to whether a warrant was required when police surround a house and demand an individual to come outside and surrender. Finding no controlling precedent, the district court dismissed the suit holding the police officers were entitled to qualified immunity.

On appeal the ninth circuit appellate court found a case that neither of ...

Hearing Required Before Denial of IFP

Khalid Alexander is a Nevada state prisoner. He tried to file suit and requested in forma pauperis status in order to proceed without paying the normally required filing fees. The Nevada district court has a policy of requiring prisoners to pay a partial filing fee based on either the value of their assets or their average income, whichever is greater.

Alexander had 29¢ on his account when he filed suit but had an average income of $27.67 over the preceding six months. The district court required him to pay a five dollar filing fee based on it's chart. Alexander filed a motion asking the court to reconsider it's order stating that he had no assets, had lost his prison job and no longer had an income. The district court denied the motion but gave Alexander an additional 60 days in which to pay the partial filing fee. The court of appeals for the ninth circuit reversed and remanded.

The appeals court noted that a district court may consider a plaintiff's cash flow in the recent past and may also require a plaintiff to justify the depletion of a previously adequate account.

The appellate court held "Before ...

CDC Spreads Gangs

According to the Intelligence Operations Bulletin, published by the California Attorney General's office, the California DOC's policy of trying to remove prisoners from their "negative" (i.e. city) environment is contributing to the spread of gang membership in rural areas.

Cited as an example was the Los Angeles Court policy which, as a term of probation, requires gang members to "move at least 100 miles southeast of Los Angeles. As a result, cities in western Coachella Valley area, located about 100 miles from Los Angeles, are experiencing an increase in crimes perpetrated by individuals associated with Los Angeles-based criminal street gangs."

Another "carrier" of this problem was seen to be the proliferation of gang members in rural area group homes. Intended to relocate gang members to non-gang surroundings, this action, instead, "does nothing more than transplant gangs to a new area and expedite the expansion of the gang problem throughout California."

NJ Prison "Emergency" 12 Years Old

On January 20, 1994, New Jersey governor Christie Whitman renewed a 12 year old "emergency" declaration that forces counties to keep more than 3,600 state prisoners in their jails and accept the state's payment rate. As earlier reported in PLN the New Jersey state supreme court had imposed an April 22, 1994, deadline to end the "emergency". The court ruled that given the continuing problem the state had to stop using emergency powers granted under the Disaster Control Act.  The court did not tell the governor what she should do but noted that the legislature could pass a law declaring a continuing emergency and give the state the power to continue the current system.

Starting in January, 1994, the state increased from $45 to $58.50 the amount it pays the county per day per prisoner. The increase will cost $7.1 million through June 30, when the current budget expires.

This spring the state will break ground on a $200 million, 3,500 bed prison in Bridgeton, the largest state prison ever built. The first 500 beds should come on line by the Spring of 1995, with the remainder becoming available in 500 bed increments after that ...

Prisoner Beating Filmed

The January 5, 1994, issue of the New York Times reported that two New York state DOC guards, Korey Gordon and Edward Sharrow, had been fired after they were caught on video tape brutally beating prisoner Jason McDade. McDade was handcuffed and not resisting when the guards struck him on the head and legs with their batons. The attack occurred at the Great Meadow State Prison in Comstock.

NY DOC spokesperson James Flateau stated that the NY DOC does not tolerate excessive use of force against prisoners and will immediately discipline guards involved in abusing prisoners. Two other guards involved in the incident, who did not beat McDade but lied about the incident and tried to cover it up, were suspended without pay for six and nine months, respectively.

A PLN reader at Comstock who wishes to remain anonymous, had this to say: "Such brutality is routine in this `end of the line' prison, but it is rare that it is caught on videotape and even rarer that such a tape is released. Once the film was out there, they had to dismiss the two guards. The commissioner made a ringing statement about not tolerating abuse."

"What none of the ...

Petty Drug Criminals Fill BOP

Attorney General Janet Reno ordered a study to determine if the growing use of mandatory minimum sentences was causing overcrowding in the federal prison system. The study, produced by former Deputy Attorney General Philip Heyman, the BOP and selected U.S. Attorneys, found that 16,316 or 21.5% of federal prisoners have no violence in their records, no involvement in sophisticated criminal activity and no previous prison time.

These prisoner's average sentence was 81.5 months which meant they would serve about 69 months. Their average sentences were about 2.5 times longer than before sentencing guidelines and the 1986 Anti-Drug Abuse Act imposed mandatory minimum sentences for drug and weapons crimes. Two out of three received mandatory minimum sentences. 42.3% were couriers or played peripheral roles in drug trafficking. The length of the sentence had no effect on whether they returned to crime. Many defendants are receiving prison time who would have previously received probation. Despite the study the congress and senate are continuing the expanded use of mandatory minimums and increasing the penalties for an ever wider variety of crimes.

Prison Rape Survivors Sought

Stop Prisoner Rape (SPR) is a non-profit organization dedicated to stopping the all too common practice of sexual assaults within prisons and jails. SPR has recently received numerous media requests where television programs, magazines and journalists are seeking prison rape survivors to interview for news stories. If you are a prison/jail rape survivor and interested in speaking publicly about it please contact: SPR, 3149 Broadway # 4, New York, NY. 10027. (212) 666-0344.

Justice Watch

By Dan Cahill

Justice Watch (J.W.) is a grass roots organization that supports prisoners, their families, and all who work for humane conditions until such time as prisons no longer mirror a society based on classism and racism.

J.W. organizes trips to Ohio and Kentucky prisons to help maintain ties between prisoners, their families and friends. They have also taken an active seat on the Ohio Council of Churches Task Force on Criminal Justice and the American Friends Service Committee's Community Action Board. They have organized three public forums to dialogue on urgently felt prison issues in the community. J.W. has taken the first step to help organize a home for people coming out of prison, and has been granted funds to put a "people's library" inside this group's home. They maintain an office, meeting place, phone, one paid staff and a large circle of volunteer workers. They publish a newsletter that is free to prisoners that deals mostly with prison issues.

They are working hard to educate the public about the issues and problems in the prison system, and they are helping to raise the social consciousness of prisoners.

J.W. has helped ...

Informants Must be Reliable

John Brewer is an Ohio state prisoner. While held at the Southern Ohio Correctional Facility (SOCF) in Lucasville he was infracted for stabbing another prisoner. At his disciplinary hearing he was found guilty of aggravated assault based on statements by confidential informants. The finding was upheld on appeal by the warden but reversed by the Ohio DOC Director. By that time Brewer had spent nearly eight months in segregation.

Brewer filed suit claiming that his due process rights were violated when the disciplinary board did not independently find that the informants were reliable. The district court agreed. The court held that in this case the disciplinary board did not provide a written basis from which to conclude that the confidential informants were reliable. They did not produce any circumstantial evidence supporting the testimony of the informants nor did they state that the informants had been reliable in the past.

The court ruled that while this violated Brewer's due process rights the defendants were entitled to qualified immunity because prisoner's right for informants to be independently evaluated was not established in the sixth circuit until 1988. The events in this case arose in 1986. See: Brewer v. Seiter, 838 ...

DOJ Orders MS Jails Closed

The U.S. Department of Justice (DOJ), citing conditions such as maggot-infested cells, racially segregated holding cells, fire hazards and a high number of jail suicides, has ordered the closing of jails in four Mississippi counties, Neshoba County, Sunflower County, Lauderdale and Jones County.

The DOJ also cited more than a dozen other jails throughout the state as having routinely substandard or dangerous conditions which violate prisoners' constitutional rights. Jails not ordered to close must improve conditions or face federal suit. New jails are planned for the four counties forced to close their facilities.

The 1993 investigation was held in response to an unusually high number of suicides, 47 since 1987, in Mississippi jails. The DOJ is still investigating some of those incidents because of accusations that the suicides were preventable or were actually murders. State officials deny the allegations.

The DOJ found serious problems in staffing, medical care, training and sanitation. In some cases, basic suicide prevention techniques such as removing detainee's shoe laces, were not followed.

Source: Corrections Today

Guard's Attack for Smoking States Claim

Allain Norman was a detainee in the Norfolk County jail in Virginia. While being processed into custody he asked a trusty for a drag off his cigarette. As soon as he began to smoke, jail deputy Otis Taylor ran down the hallway and swung a heavy set of brass keys at his face. After two misses the keys struck Norman's right hand and injured it. Taylor also threatened Norman. Norman filed suit claiming that his right to be free of cruel and unusual punishment had been violated. Taylor denied ever striking or threatening Norman and claimed Norman was not only smoking but also creating a disturbance. The district court granted summary judgment in Taylor's favor holding that Norman did not adequately refute Taylor's statement that he was causing a disturbance, thus, force was justified. The court of appeals for the fourth circuit reversed and remanded.

The appeals court held that the relevant issue in this case was whether the force used was necessary. In this case, whether or not Norman was causing a disturbance was a material issue of fact. While Norman failed to expressly deny creating a disturbance, the court never directly asked him this nor ...

Ask the Media if Crime pays, Then Who's Footing the Bill?

Ask The Media if Crime Pays, Then Who's Footing the Bill?

By Dan Pens

A recent survey by the Center for Media and Public Affairs shows that the three major networks aired more than twice as many crime stories last year as in 1992--even though the crime rate remained virtually unchanged. The networks are cashing in on crime, it seerns, in response to the popularity of the crime-crazed TV tabloid shows.

The average American's main exposure to crime is not what they witness first hand. Our perception of crime in America is largely spoon-fed to us by the media. Double the amount of air time for crime. In one year. Is it any wonder, then, why the public's fear of crime is now at record highs? Is it a coincidence that fear-driven reactionary legislation of the three-strikes variety is sweeping the country? What better way for politicians to ensure the continuation of their careers than to demonstrate the get-tough-on-crime attitude that voters demand?

California recently passed a three-strikes bill, close on the heals of Washington State's new law passed by voter initiative. It didn't take the California State legislature long to realize that even though ...

Prisoners Employed by PIA Seek Minimum Wages

By Mark Merin

Prisoners who have worked for the California Prison Industries Authority ("PIA") have filed a lawsuit in the United States District Court in Sacramento to obtain minimum wage for their work (now $4.25 per hour) instead of the pittance they now receive. If this case is successful and the provisions of the Fair Labor Standards Act which require employers to pay minimum wage are applied to California prisoners employed by PIA, prisoners may be entitled to back wages, and the PIA may be ordered to pay minimum wage to all employees in the future.

The State of California opposes the extension of the federal minimum wage laws to California prisoners, arguing that the prisoners are not "employees", but rather are receiving training and rehabilitation opportunities. Furthermore, the State has maintained that the PIA employment serves a penalogical purpose.

Unions have traditionally opposed the introduction of prisoner-made goods into commerce because they compete with union-made goods and undermine the wage levels of union labor. Presumably, they should support an increase in prisoner wages.

More than 1,000 past and present employees of the California PIA have already joined the lawsuit by filing their consents and by signing retainer ...

Chelan County Jailer Jailed

Bob Conklin, the chief of corrections for Chelan County, WA. was arrested on child molestation charges in January, 1994. Since January 13, 1994, he has been held in protective custody in the King County jail, unable to post bond. Prosecutors claim that the 50 year old Conklin molested five teenage boys and an 11 year old boy by pretending to conduct medical exams during which he fondled the boys. Conklin is not a doctor and has no medical training.

Conklin is a former FBI agent, army military intelligence agent, King County and Kitsap County deputy prosecutor. After entering private practice in 1981 he experienced financial difficulties resulting in the loss of his home due to liens filed against it by other attorneys. Bankrupt, suspended by the state bar association he became Chelan's chief of corrections for $36,000 a year. It appears Conklin's jail and, presumably prison, experience will round out his law enforcement career.

Slaves of the State

By Paul Wright

Many people have the mistaken impression that slavery was outlawed or abolished in the United States after the civil war by the passage of the 13th amendment. Unfortunately, that was not the case. The 13th amendment reads: "Neither slavery nor involuntary servitude, except as punishment for crimes whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." The effect of the 13th amendment was not to abolish slavery but to limit it to those who had been convicted of a crime.

The reality was made apparent in the aftermath of the civil war when large numbers of newly freed black slaves found themselves "duly convicted" of crimes and in state prisons where, once again, they labored without pay. Until within the last 20 years it was common practice for state prisons to "rent" prison labor out to private contractors in a modern form of chattel slavery. This situation led the Virginia Supreme Court to remark in an 1871 case, Ruffin v. Commonwealth, that prisoners were "slaves of the state." All that has changed since then is that the state is less honest about its slave holding ...

Prisoners = Profit

By Anthony Sciarrino

With all the attention that the media has lavished on our national "drug problem," and the painfully slow growth of our economy, it is surprising that so little attention has been paid to one of the fastest growing industries in the U.S., Federal Prison Industries, Inc. (FPI).

In 1974 there were 35 federal prisons, with a total population of only 23,500. Over the next four years that number grew to 30,000. Then, in 1979, the federal prison population declined by more than 10 percent to 26,300. While to the average citizen this trend might seem to reflect a decrease in federal crimes, and therefore be a good thing, to Federal Prison Industries it was a trend that could have seriously affected their plans for the future.

Federal Prison Industries, started in 1934 by an Act of Congress and Executive Order, was originally intended to alleviate the debilitating idleness prisoners suffered in federal penitentiaries. In the beginning FPI barely produced a surplus of goods after serving their own institutional needs. What started out as prison reform eventually turned into profit seeking enterprise. Today Federal Prison Industries is a half billion dollar industry, manufacturing everything ...

News in Brief

UK The British government began a pilot study to set up a genetic DNA database of convicted criminals. Legislation pending in Parliament would expand police powers to take DNA samples from saliva and hair samples. A UK official was quoted as saying: "We will bring the full force of modern science to bear on the modern criminal."

WA The State legislature approved it's budget for the 1995 biennium. Following a 30% increase in the previous biennium's DOC budget this budget contained the following "cuts": $2.6 million from closing the Monroe Honor Farm and Indian Ridge Corrections Center; $7.2 million by delaying the opening of the 1,000 bed Airway Heights medium security prison near Spokane; $7.5 million through savings in equipment, medical costs and staffing in state prisons.

GER Kurt Franz, the last commandant of the Nazi Treblinka death camp was paroled recently by the German government. An estimated 300,000 Jews were killed at Treblinka during his tenure (no information was provided as to the number of Poles, Russians, Communists and others murdered at the camp during the same time). Franz had served 27 years of his life sentence. His release received virtually no ...

From The Editor

From the Editor

by Paul Wright

Welcome to another issue of PLN. This issue is kind of special. It marks the 4th anniversary of PLN, that's right, 48 consecutive issues! Our first issue appeared in May of 1990. For the first couple of issues it was kind of hit and miss as to whether or not we would survive. We've come a long way from the first issues which Ed and I typed in our respective prisons at Monroe and Clallam Bay with the 75 people on the mailing list and the xeroxed copies. In that same period of time we've seen a number of other prison publications come and go. We owe our longevity to the fantastic outside volunteers we've had over the years: Scott who helped with the printing when we needed it, Judy who desktop published us for almost two years, the two Carries who helped with the printing and mailings, Jim who has dutifully helped mail PLN for what seems like ages, Rollin who has handled our mail and banking almost from the start, Sandy who's done a fantastic job with the printing, Janie who helped with the mailings and our ...

Algerian Prison Break

On March 10, 1994, guerrilla fighters of the Islamic front attacked the Tazult prison in the rugged Aures mountains of Algeria. Four guards were wounded and seven kidnapped during the attack which lead to at least 400 prisoners escaping. During the attack one guard and five guerrillas were killed.

Government forces using troops and helicopters recaptured 39 of the escapees in the days after the escape. Prison officials stated that about 280 of the escapees were members of the Islamic Front, many of whom were under sentence of death for terrorism.

The attack occurred in the early evening as prisoners broke the daily fast that marks the Muslim holy month of Ramadan. The prisoners had help from at least two guards according to the government.

Since 1992 the Islamic Front has waged a rebellion against the military government of Algeria after they were prevented from taking office when they won elections. Aside from several thousand dead, this has resulted in thousands of real or suspected Islamic Front supporters being imprisoned.

Chilean Prisoners Resist Control Unit Move

On February 20, 1994, Chilean prison officials transferred 48 political prisoners, members of the anarchist Lautaro movement and the Marxist Frente Patriotico Manuel Rodriguez (FPMR), to a recently completed control unit (CU) built within the old penitentiary of Santiago. A total of 200 political prisoners who have been arrested during the current government are scheduled to be transferred to the new control unit. In the CU prisoners will only be allowed 2 non-contact visits a month from an approved list of four visitors. Prior to this prisoners were allowed twice weekly visits with unlimited numbers of friends and relatives in the prison gym. Prisoners will also have little contact with each other and will be subject to CU conditions similar to those used in the United States, Spain, Germany, etc. The prison was built by Spanish and German companies.

Rafael Escorza, a political prisoner said "we will resist this move even at the cost of our lives." The prisoners resisted the transfer with firearms leaving six people injured in the ensuing shoot out. To protest the prison transfer the FPMR and Lautaro revolutionaries bombed a police station on Feb. 21: on Feb. 22 they bombed a police academy: on Feb ...

Book Review: Subpoena George Bush - The Anatomy of a Cover Up

by John Perrotti

Subpoena George Bush, by Aaron Caleb with Douglas Slaton, is the story of former Lucasville 14 member Richard Armstrong. For those unfamiliar with the Lucasville 14, they were fourteen prisoners confined at the Southern Ohio Correctional Facility in Lucasville, who, relying upon the Helsinki Agreement accord, renounced their United States citizenship and sought asylum in the former Soviet Union. Richard, along with other members, cut off his pinky finger to demonstrate the sincerity of his convictions and to protest their inhumane treatment. The prisoners sent the fingers to U.S. officials and the Soviet mission. During this time period the U.S. was focusing on Soviet dissidents and the Lucasville 14 sought to illustrate the fact that the American gulag also contains its own dissidents. It was at this time that Richard's political savvy became known to the U.S. Justice Department. (As PLN readers know, Lucasville was the scene of the bloody Easter siege and rebellion in 1993.)

The book takes us into the world of US espionage and covert actions. Upon Richard's release from prison, he engages in government-sponsored "counter-terrorism" with the Contra drug network until he is arrested in Portsmouth, Ohio. It ...

Marion Prisoners to be Moved Soon

I received a Denver Post article last week with the latest on Florence. The BOP says that the high security prison will open in February. The administrative Maximum prison (AKA "supermax") will open in the "spring or summer." The only Marion prisoners we expect to be sent to High Security are holdovers, a very small number. Like most Marion prisoners I appear destined for ad. max. The article also noted that the high security prison, originally planned for 550 single bunk cells, has been converted to double bunking and will now hold 1,100 prisoners. As far as I know the ad max will still be single celled.

Ray Levasseur, Marion, IL.

 

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