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Prisoner Education Guide

Prison Legal News: October, 1995

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Volume 6, Number 10

In this issue:

  1. The Bottom Line: California's Prison Industry Authority (p 1)
  2. Editorial (p 3)
  3. AZ Chain Gangs Protested (p 4)
  4. 10,000 Kurdish POWs on Hungerstrike (p 5)
  5. Police Chiefs Scoff at Death Penalty (p 6)
  6. U.S. Supreme Court: Time on Bail Doesn't Count (p 6)
  7. Delay in Dental Care States Claim (p 7)
  8. WA Publisher Only Rule Challenged (p 7)
  9. Loompanics Unlimited (p 8)
  10. Jail Population Report (p 8)
  11. The Citebook (p 8)
  12. US Prison Population Report (p 8)
  13. Strangeways 1990: A Serious Disturbance (p 9)
  14. South Africa Bans Death Penalty (p 9)
  15. Detainees Entitled to Exercise and Law Library (p 10)
  16. No Immunity for Hearing Officers (p 10)
  17. 7th Cir. Clarifies "Deliberate Indifference" for Medical Cases (p 11)
  18. Translators Required for Medical Interviews (p 12)
  19. Retaliatory Discipline Violates Due Process (p 12)
  20. Cocaine Sentencing Disparities May Change (p 13)
  21. Disciplinary Segregation Bars Criminal Prosecution (p 13)
  22. Retaliatory Infraction Illegal (p 14)
  23. Death Row Prisoners Keep Right to Contact Visits with Counsel (p 15)
  24. All Writs Act Limited (p 16)
  25. Asbestos Exposure States Claim (p 16)
  26. Population Cap, Fines Affirmed (p 17)
  27. Article Clarification (p 18)
  28. CBCC EFV Stabbing Trial (p 18)
  29. Worked to Death: OH Work Release Programs (p 18)
  30. Gunslingers Dressed in Hot Pink (p 19)
  31. MN Passes Laws Against Prison Litigators (p 19)
  32. FL Enacts More Anti-Prisoner Laws (p 19)
  33. Madrid Published (p 20)
  34. AZ Court Affirms Food Packages (p 20)
  35. Reader Mail: PA Settlement Correction (p 21)
  36. AZ's War on the Federal Judiciary (p 21)
  37. News in Brief (p 22)

The Bottom Line: California's Prison Industry Authority

Imagine a half-billion dollar manufacturing company that uses slave labor, has little overhead, ignores state and federal laws regulating workplace safety, includes hazardous materials in the construction of its products, forces customers to buy those products under penalty of law, yet loses money. Now, imagine that this company is protected from bankruptcy and government interference. Protected because the government owns and operates the company. It's California's Prison Industry Authority. Why is this company still in business?

Some 41 other prison industry programs across the nation turned a profit in 1992-93. California's PIA lost $1.4 million on sales of $128.6 million. Florida, Texas, and North Carolina have the largest prison industries outside of California and compete with private businesses in the marketplace. Florida's PRIDE (Prison Rehabilitative Industries & Diversified Enterprises) program is a private, nonprofit corporation created by the Legislature in 1981. Unlike PIA, PRIDE doesn't employ civil servants.

PRIDE netted $4 million on gross sales of $77.6 million in 1994, and spent $635,000 assisting paroled prisoners. Just 18% of PRIDE alumni return to custody. PIA spends virtually nothing to help parolees, and the recidivism rate in California is over 75%.

Although the ...

Editorial

Welcome to another issue of PLN. Some of you may have noticed some changes in last month's issue of PLN. We have recently undergone some of the biggest transitions in PLN's history. First, if the format looked a little different that is because we have begun the transition to using a different type of desktop publishing software. For years we used Ventura and the volunteers doing the DTP have complained about problems with the program, so we have switched to Pagemaker which is proving to be a better program according to the folks who use it.

The other big changes have to do with Dan being moved to a different prison. On August 21, 1995, he was moved to Twin Rivers Corrections Center (TRCC), ostensibly because he has "minimum" custody. His address is listed on page two, please note that both the prison he is at and the one I am in are the same village but they are different.

When PLN first started Ed Mead, the former co-editor, and I were at different prisons and we had to do stuff through the mail. So we are back to that situation again. It will not have any serious ...

AZ Chain Gangs Protested

When Arizona became the second state to reinstate the use of prison chain gangs, Donna Hamm wasn't going to allow it to happen without her voice of protest being heard.

On June 12, 1995, Ms. Hamm, a long time prisoner rights activist, PLN supporter, former judge and organizer for the prisoner rights group Middle Ground, grabbed a bullhorn, jumped in her car and drove to the roadside where prisoners were being paraded in chains for an ogling contingent of media. The prisoners were working alongside Wilmot Road, not far from the Arizona State Prison Complex in Tucson. She parked her car legally along the shoulder of the road, beyond a parked DOC truck with an armed guard.

Ms. Hamm twice refused requests from DOC hacks to move her car, telling them that she was legally parked and as a free citizen had every right to be there. The guards reported the incident to warden Sam Sublett, who ordered the Pima County Sheriff's office called.

Donna spoke to the 20 prisoner chain gang through a bullhorn for about an hour with reporters present. After the media left, two Pima County deputies told her she was being placed into "administrative ...

10,000 Kurdish POWs on Hungerstrike

Since 1984 the Kurdish people in Turkey led by the Kurdish Workers Party (PKK) have been engaged in a war for an independent socialist homeland. The Turkish government has responded with a brutal military and political campaign of terror and genocide, similar to that waged against Kurds in neighboring Iraq and Iran. Despite the opposition, the PKK has steadily grown stronger politically and military. One of the results of this ongoing war has been that literally thousands of Kurds are political prisoners and prisoners of war in Turkish prisons, subject to harsh and brutal treatment. Despite their conditions the prisoners continue their struggle against the American backed Turkish regime. PLN has long supported the PKK, its prisoners and its struggle. We recently received the following statement from PKK supporters:

"Since July 14, 1995, more than 10,000 POWs from Kurdistan have started an indefinite hungerstrike in Turkish prisons, using the only weapon they have, their bodies, to fight against the barbaric colonialist war of the Turkish regime and to struggle for peace for the Turkish and Kurdish peoples so as to put an end to the suffering of millions of people as fast as possible."

The hungerstriking prisoners have sent ...

Police Chiefs Scoff at Death Penalty

A poll of randomly selected 386 police chiefs in the US found that most believed the death penalty does nothing to deter crime. The poll found that only one percent of the police chiefs believed the death penalty should be a primary focus to stop violent crime. Many of the chiefs stated they thought the death penalty was a symbolic means for politicians to show they are tough on crime. It also prevents any focus on other areas that might reduce or prevent crime.

Asked what they thought would reduce crime 31% said reducing drug abuse, 17% cited creating jobs and improving the economy, 15% cited longer prison sentences, and 10% cited putting more cops on the street. Of the police chiefs surveyed, over 80% said they did not think murderers consider the range of possible punishments before they kill and two thirds stated they did not think the death penalty significantly reduces murders.

U.S. Supreme Court: Time on Bail Doesn't Count

The US supreme court has held that the time a defendant spends "released" on bail doesn't count towards completion of his/her sentence even if the "release" is under highly restrictive conditions that are tantamount to jail. Ziya Koray was charged with money laundering and after pleading guilty to the charge he was "released" on bail, pending sentencing, to a pretrial services agency. The conditions of the release required that he remain "confined to the premises" of a Volunteers of America community treatment center without authorization to leave for any reason unless accompanied by a government agent. While at the center he was subject to random drug and alcohol tests as well. Koray remained at the center for approximately 150 days until he reported to prison to serve a 41 month sentence.

Koray asked the BOP to give him credit for time served at the halfway house. The BOP refused, the district court denied relief and the third circuit, at 21 F.3d 558 (3rd Cir. 1994), reversed. The appeals court held that 18 U.S.C. § 3585(b), the statute which determines when federal prisoners begin their term of imprisonment, included time spent on restrictive bail conditons after ...

Delay in Dental Care States Claim

The eighth circuit court of appeals has reaffirmed the long-standing principle that delaying dental care for prisoners violates the eighth amendment. Ronald Boyd, a Missouri state prisoner, began suffering pain to his jaw on June 1, 1991. He requested to see a dentist. After receiving no response he filed another request on June 16. Boyd was seen by a dental assistant on June 17 after a guard called the prison medical unit; Boyd was given some Tylenol. On June 25, after still more requests for treatment, Boyd was given anti-biotics and a pain killer. On June 27 Boyd was examined by Dr. Knox who diagnosed an impacted wisdom tooth and infection in his mouth. Knox told Boyd he would not remove the tooth for another four to six weeks.

Despite continued complaints of pain and discomfort, Boyd's tooth was not removed until October 8, 1991. Boyd filed suit under 42 U.S.C. § 1983 claiming that the numerous delays in having the tooth removed violated his eighth amendment right to receive medical treatment for his serious medical needs. Prison officials moved the lower court for summary judgment which that court denied. They then appealed claiming they were entitled to ...

WA Publisher Only Rule Challenged

In the February, 1995, issue of PLN we reported on Sindars v. Riveland, an unpublished ninth circuit ruling reversing dismissal of a Washington state prisoner's challenge to the Washington DOC's "publisher only" rule which mandates that all written materials be sent from the publisher. In a very similar ruling the ninth circuit has again, in an unpublished opinion, reversed the dismissal of a suit challenging the "publisher only" rule and a rule which requires all items received by prisoners to be paid for from their prison account.

Thomas Richey, a PLN subscriber at the Washington State Penitentiary (WSP), filed suit claiming prison officials had violated his first amendment rights when they refused to allow him to receive a package of three books sent from a bookstore in Scotland. The defendants had rejected the package because it had not been purchased with money from his inmate account and had instead been paid for by Richey's aunt. Both parties moved for summary judgment and the lower court, magistrate Cynthia Imbrogno, dismissed the action holding the regulations in question were "reasonably related to legitimate penological interests."

The court of appeals for the ninth circuit reversed and remanded. "Richey raised a ...

Loompanics Unlimited

Loompanics modestly bills itself as "the best book catalog in the world." If it's not the best it is certainly the most diverse, having all the books you've heard about but probably haven't seen in the neighborhood bookstore. Loompanics is a publisher and vendor that pushes the first amendment to its limit. Their large book catalog, an entertaining and informative read in and of itself, has books on every topic imaginable, including: how to clear a criminal record, everything you wanted to know about prison, freelance writers handbook, how to make improvised explosives and weapons, lockpicking, drug manufacture, solar energy, self publishing, fake ID, atheism, survivalism, finding information, getting even, anarchy, smuggling, economics, sex, camouflage, military and paramilitary manuals, guns, weapons, privacy, mass media, guerrilla warfare, health and medicine and lots, lots more.

If you're interested in any offbeat, underground or unusual topics then Loompanics probably has it. Their catalog is available for $5.00 from: Loompanics Unlimited, P.O. Box 1197, Port Townsend, WA. 98368. 1-800-380-2230.

Jail Population Report

Like the prison population the nation's jail population has soared in recent years, overshadowed by prison crowding. According to a recent Department of Justice report, Jails and Jail Inmates 1993-94, the national jail population was at an all time record high of 490,442 detainees as of June 30, 1994. Jails operated by cities and counties house about one third of all prisoners in the US. In 1983 the nation's jails held 223,551 detainees. The number of jail prisoners per 100,000 adult US residents has increased from 130 in 1983 to 251 in 1994.

It is interesting to note that while the jail prisoner population increased by 106% the jail staff increased by 156%. The national jail population was at 97% of its rated capacity. Obviously this is misleading as some cities are massively overcrowded while small towns frequently have empty cells. Jails with a capacity of 1,000 or more prisoners were at 111% of capacity while those with less than a 50 prisoner capacity were at 67% of capacity. Whites made up 39% of the jail population; blacks made up 44%; Hispanics made up 15% and other groups made up the remaining 2%. For ...

The Citebook

Review by Paul Wright

The Citebook is a 275 page book written by Tony Darwin designed to help laypersons help themselves in researching their litigation. Now in its eleventh printing the book is organized by subject and gives a brief description of relevant cases. This book is in a category of its own. While the Prisoners' Self Help Litigation Manual describes prisoners' rights and tells you how to litigate your claims, this book only lists case law, hence the title.

Its main usefulness will be to litigants who need a quick starting point in their legal research. While it contains a great deal of criminal and prison related cases the book contains citations of case law relevant to citizens interested in knowing what their rights are in a variety of situations: consumer protection, bankruptcy, credit agencies, landlord tenant, insurance, IRS, workers compensation, real estate, etc. Prisoners will find useful the chapters dealing with habeas corpus, parole, prison regulations, sentencing, mail censorship, pro se complaints, cruel and unusual punishment, disciplinary hearings and much more.

While this book is not intended to replace more extensive case law digests it provides a handy reference source. It is also easy to read and gives ...

US Prison Population Report

According to the Department of Justice the American prison population has grown more than 2.5 times between 1980 and 1993. As of 1993, the latest year statistics are available, 2.6% of the US adult population, 4.9 million adults, were on parole, probation, in prison or jail. This represents an increase of 3 million people since 1980.

During this time period the percentage of black prisoners increased from 46 to 50%, the Hispanic prison population grew from 7.7 to 14.1% while the general population increase for these groups was 11.8 to 12.4% and 6.5 to 9.5%, respectively. As of 1992 there were 4,094 black male prisoners per 100,000 black adults in the population, versus 502 white male prisoners per 100,000 adult white males in population.

In 1992 almost one in three of state prison admissions were parole or probation violators, compared to 1 in 6 in 1980. This and much more information is contained in the DOJ's latest 180 page booklet on this topic. It also includes extensive information of death sentenced prisoners, trend data, state by state data and more. Copies are available for free from: BJSC ...

Strangeways 1990: A Serious Disturbance

Review by John Bowden

>On 1 April 1990, the British prison system was shaken to its very foundations by an uprising of prisoners at Strangeways in Manchester; an uprising so prolonged and visible that it acted as a catalyst for wider prisoner unrest throughout the system and a focus for probably the most intense and far-reaching discussion and inquiry ever into the nature of the prison system in Britain.

Five years on much of the enlightened debate surrounding the causes of the Strangeways revolt, and virtually all of the recommendations to emerge from Lord Justice Woolf's inquiry into it, have now evaporated in a social and political climate of increased repression and the scapegoating of marginalised groups, including prisoners. Within five brief years the emphasis has radically changed from one favoring a genuine improvement in prison conditions and prisoners' rights to one favoring instead a total eradication of those rights and a return to almost medieval conditions of confinement. The ideological pendulum is now swinging dangerously to the far right on the question of prisons and the lessons of Strangeways are fading quickly.

The recent publication of Strangeways 1990: A Serious Disturbance by Nicki Jameson and Eric Allison is ...

South Africa Bans Death Penalty

On June 6, 1995, the Constitu tional Court of South Africa issued a ruling banning capital punishment in that country. The court was established earlier this year to interpret South Africa's new constitution, the first to guarantee equal rights for all citizens. During the negotiations that led to the apartheid regime surrendering political power while being allowed to keep its economic wealth, the issue of capital punishment could not be resolved. So instead of being mentioned in the new constitution it was left up to the courts to decide. The African National Congress Party, led by Nelson Mandela, was opposed to the death penalty because in the past it had been used almost solely against blacks and was frequently used against ANC members and other political activists during the long struggle against the apartheid regime.

Chief Justice Arthur Chaskalson delivered the ruling for the eleven member court which held that the death penalty was inconsistent with the constitutional right to life. The ruling will benefit a total of 453 prisoners currently sentenced to death. Their sentences will be commuted to life in prison. Since the ANC took office South Africa has been faced with a crime wave in large ...

Detainees Entitled to Exercise and Law Library

Pretrial detainees, like convicted prisoners, retain a right of access to the courts and to outdoor exercise. Jim Housley was a pretrial detainee in the Custer County jail in Oklahoma. He filed suit under 42 U.S.C. § 1983 claiming that his constitutional rights were violated when he was denied all access to legal resources during his six month confinement and only allowed 30 minutes of out of cell exercise during a three month period. The district court dismissed the case for failing to state a claim under Fed.R.Civ.P. 12(b)(6). The court of appeals for the tenth circuit reversed and remanded.

The appeals court noted that prisoners have a constitutional right of access to the courts. This applies to pretrial detainees in county jails as well. "We recognize that there may be cases where a prisoner is denied access for such a short time that prejudice would have to be shown, otherwise dismissal would be appropriate. However, this alleged six month denial of all access is not so de minimis as to require an exception to the general rule. `A prisoners' constitutional right of access to legal resources is not conditioned on a showing of ...

No Immunity for Hearing Officers

Prison officials who hear and decide prisoners' administrative appeals from disciplinary hearings are only entitled to qualified immunity for their actions. Jerry Young is a New York state prisoner. He was found guilty of misconduct at five separate prison disciplinary hearings and sentenced to segregation as a result. He administratively appealed each guilty finding to Donald Selsky, the Director of the Office of Special Housing and Inmate Disciplinary Programs for the New York DOC. Selsky denied each appeal. Young filed suit in federal court claiming that his due process rights had been violated at the five hearings when the hearing officers refused to allow him to call witnesses on his behalf. He named only Selsky as a defendant. The district court dismissed the suit holding that Selsky was entitled to absolute immunity from suit.


The court of appeals reversed and remanded. This ruling is very important for New York readers because until now the district courts in the second circuit were divided on the issue of whether or not Selsky, who hears all serious infraction disciplinary appeals in the New York state DOC, was entitled to absolute immunity. The appeals court held that Selsky was not entitled to absolute immunity ...

7th Cir. Clarifies "Deliberate Indifference" for Medical Cases

To state an eighth amendment violation, prisoners must do more than claim mere negligence by prison medical staff. Willie Sellers was a federal prisoner held at the infamous penitentiary at Marion. He is also a diabetic. He filed suit claiming that prison officials violated his eighth amendment rights by showing deliberate indifference to his serious medical needs when they placed him in a small cell, denied him an extra mattress, and wrongly administered his insulin. He also claimed that he was taken off of a special diabetic diet in retaliation for his complaints and the diet he was then given was too high in saturated fats and too low in calories to be healthy for him because diabetics are prone to coronary artery disease, and Sellers had already had a heart attack and by-pass surgery. The district court dismissed his claims and Sellers appealed.

The court of appeals, in a ruling by judge Posner, affirmed in part, vacated in part and remanded the case for trial. The court affirmed dismissal of the claims pertaining to the small cell, mattress and insulin, holding they had no merit in light of both previous court rulings and the "realities of prison administration."

When ...

Translators Required for Medical Interviews

Pretrial detainees and convicted prisoners held in the Kern County, CA jail filed a class action suit challenging the jail's use of padded safety cells for violent and suicidal prisoners and other jail conditions. The district court held that the "safety cells," consisting of bare cells with no furniture and only a grate covered pit toilet, violate no constitutional guarantees. The court issued an injunction requiring prison officials to develop a policy allowing prisoners in administrative segregation to exercise and have day room access together; and it requires jail officials to provide non-inmate translators for Spanish speaking prisoners seeking medical care. Both parties appealed and the court of appeals for the ninth circuit affirmed in part, reversed and remanded in part.

The appeals court affirmed the lower court ruling with regard to the "safety cells." The court held that use of the cells for short periods of time to protect suicidal prisoners was acceptable and did not violate the eighth amendment.

The court reversed the injunction regarding exercise for prisoners in administrative segregation (ad seg). Prisoners in ad seg retain all jail privileges such as visitation, phone access and exercise. However, they are held alone and have no contact ...

Retaliatory Discipline Violates Due Process

A federal district court in New York has held that retaliatory infractions violate due process and that housing an asthmatic prisoner on an upper tier may violate the eighth amendment. Prison officials and detectives are also liable when they interrogate prisoners concerning crimes and do not provide counsel when requested. Cyrus McCorkle filed suit pursuant to 42 U.S.C. § 1983 claiming that New York state prison officials violated his eighth amendment rights by denying him a change of underwear for fifteen days; housed him on an upper tier despite a medical order stating he should be housed on ground floors due to asthma; denied a transfer to another prison despite a Mental Health Office order stating a transfer would reduce his stress and that he was exposed to TB while working in the prison hospital. He also claimed prison officials violated his due process rights by filing false disciplinary charges against him in retaliation for complaining about misconduct by guards. The defendants moved for summary judgment which the court granted in part and denied in part.

The court held that the denial of a transfer and clean underwear did not state constitutional claims even if true. Likewise, there was ...

Cocaine Sentencing Disparities May Change

The Sentencing Guidelines Com mission (SGC) is an independent body created by Congress in 1984 to reduce sentencing disparities in the federal court system. This has included creating sentencing guidelines which greatly restrict the discretion of judges in imposing sentences. In 1986 and 1988 congress passed laws mandating mandatory minimum sentences for defendants convicted of possessing or selling cocaine. However, in passing these laws Congress created a distinction between the powder form of cocaine and its crystalline form (AKA crack). Under the law, someone convicted of possessing five grams of crack receives a mandatory minimum sentence of five years. To qualify for that same sentence a defendant must be convicted of possessing at least 500 grams of powdered cocaine, this is known as the 100-1 ratio.

Numerous defendants have challenged the law for racial bias because statistical studies have shown that nearly 92% of all defendants convicted of crack possession are black or Hispanic but the bulk of those convicted of possessing powdered cocaine are white, which is leading to essentially race based disparities in sentencing. The 1994 federal crime bill directed the SGC to study the 100-1 disparity and make recommendations to congress.

On April 10, 1995, the SGC ...

Disciplinary Segregation Bars Criminal Prosecution

PLN rarely reports unpublished court rulings but we do so occasionally when such rulings have a news value to readers or state a novel legal theory. This is such a case. A superior court in Norfolk County Massachusetts has held that filing criminal charges against a prisoner confined to disciplinary segregation for the same offenses violates the state and federal constitutions' ban on double jeopardy. Recently the federal courts have been enlarging the scope of the double jeopardy clause. This has been most notable in the area of forfeitures where courts have held that criminal conviction and civil forfeiture of property constitute double jeopardy. See: PLN, Vol. 6, No. 4.

Caspar Forte was infracted by the Massachusetts DOC and accused of blocking a guard from exiting a unit and assaulting two other guards who were attempting to restrain another prisoner. Forte was found guilty at a prison disciplinary hearing and sentenced to 28 months in the Department Disciplinary Unit (DDU) and 30 days of isolation. Forte was later indicted by the state on two counts of assault and battery on a prison guard. The indictment was based on the same incident as the disciplinary hearing. Forte filed a motion to ...

Retaliatory Infraction Illegal

The court of appeals for the second circuit reaffirmed that infractions in retaliation for prisoners' exercise of constitutionally protected rights are unlawful. The court also noted that administrative dismissal of such charges do not bar § 1983 actions for damages resulting from punishment imposed at the defective hearing. Darnell Jones, a New York state prisoner, filed an administrative complaint against a prison guard for confiscating and destroying his property. The guard's supervisor threatened to retaliate against Jones. Jones's cell and that of a neighbor were searched and a shank was found in the other prisoner's cell. Jones's complaint alleges that the guards conspired to lie and state that they found the shank in his cell.

Jones was infracted for the weapons possession. At the ensuing disciplinary hearing Jones asked that the prisoners in the neighboring cell be called as witnesses to confirm that the shank was theirs and not his. The hearing officer refused this request and found him guilty of weapons possession and sentenced him to 120 days of segregation and the loss of four months good time. Jones administratively appealed the matter and the appeal was denied. After Jones had served the sanction imposed a ...

Death Row Prisoners Keep Right to Contact Visits with Counsel

The court of appeals for the tenth circuit has held that condemned and maximum security prisoners held in an Oklahoma control unit are entitled to contact visits with their attorneys. The court also held that all violations of prisoners' constitutional rights require a full judicial review pursuant to Turner v. Safley. Death row and maximum security prisoners held in the Oklahoma State Penitentiary's (OSP) H unit filed a class action suit contending that the prison's ban on contact visits with counsel violated their right of access to the courts and their right to counsel. Attorneys also challenged an OSP policy which prohibited barrier free or contact visits, between these prisoners and examining psychologists and other medical professionals and legal counsel. The district court held that OSP policy violated prisoners' constitutional rights but determined that changes made during the litigation (installing a clear Plexiglas window to allow eye to eye contact and drilling a two inch hole to allow the exchange of papers) passed constitutional muster. See: Mann v. Reynolds, 828 F. Supp. 894 (WD OK 1993). [PLN, Vol. 5, No. 1] The court also discussed the plaintiff's request for attorney fees. [Editor's Note: Amnesty International has ...

All Writs Act Limited

The seventh circuit court of appeals has given a narrow interpretation to the All Writs Act, 28 U.S.C. § 1651, by holding that a district court lacked the authority to order the Illinois DOC to transport a prisoner to a medical expert witness's office for an examination when the DOC was not a defendant. The case arose when Bobby Ivey slipped and fell in an Illinois county jail. He filed suit for the injury and lack of care he received thereafter. He was subsequently convicted and confined in the Illinois DOC. As his litigation progressed, his court appointed counsel requested an order that the DOC transport Ivey to the offices of a doctor retained to conduct a medical examination for the purpose of testifying as an expert witness at trial. The DOC objected to having to transport Ivey and appealed the order.

The appeals court gave an extensive discussion of the power of district courts to issue writs of habeas corpus for the purposes of bringing prisoners to court. The purpose of the All Writs Act is "a residual source of authority to issue writs that are otherwise not covered by statute. Where a statute specifically addresses the ...

Asbestos Exposure States Claim

A district court in Massachusetts has held that a suit claiming exposure to asbestos states a claim for violation of the eighth amendment. County jail prisoners filed suit claiming they were exposed to "raw, open and dry asbestos fibers" on exposed pipes within the jail. The plaintiffs stated they had received copies of numerous Department of Health and Public Safety reports listing health code violations at the jail related to the asbestos covered pipes. They also claimed that despite the reports jail officials took no steps to protect jail prisoners from asbestos exposure. The defendants filed a motion to dismiss for failure to state a claim.

The district court noted that prisoners may bring an eighth amendment claim that environmental hazards in prison, such as exposed asbestos, pose an unreasonable risk of serious damage to future health. See: Helling v. McKinney, 113 S.Ct. 2475 (1993); Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990); and Smith v. Fiedler, 867 F. Supp. 832 (ED WI 1994). "A well plead complaint of this variety should allege an objective component (was the deprivation sufficiently serious?) and a subjective component (did the official/s act with a sufficiently culpable state of mind ...

Population Cap, Fines Affirmed

The court of appeals for the fifth circuit has affirmed a district court ruling which set population caps on the population of a county jail and imposed fines for each prisoner over the cap held at the jail. The court also affirmed the lower court ruling that the state was liable for the overcrowding by refusing to accept convicted prisoners into the state prison system. In 1975 prisoners at the Harris county (Houston) jail in Texas filed a class action suit challenging inhumane conditions of confinement. Since then the case has gone to trial and been up and down the federal court system several times with numerous published opinions along the way. A major institutional reform case, it will be of little use for individual litigants but extremely useful for those litigating class action suits involving jail conditions. It well illustrates the failures of the executive and legislative branches to resolve the problems of jail and prison crowding.

The appeals court gave an extensive factual background to the case. The litigation initially began in 1975 because the county jail was massively overcrowded resulting in inhumane living conditions for the detainees. Since then two additional jails were built which still didn ...

Article Clarification

In the August, 1995, PLN our ar ticle WA Passes Record Anti-Prisoner/Defendant Legislation commented at length on House Bill 2010. We were somewhat skeptical of provisions within the bill that designated efforts to explore establishing a kosher kitchen at the Airway Heights prison near Spokane, WA for the purpose of supplying kosher meals to prisons across the US.

We were recently contacted by Gary Friedman, the PLN supporter who heads the International Coalition for Jewish Prisoner Services in Seattle. He informed us that he was among those who had lobbied for passing this law. The purpose of this is to be able to provide religious diets not only to Jewish prisoners but to Muslims, Seventh Day Adventists and others whose religions require special diets. We apologize for any misunderstanding this may have caused. Readers desiring more information on this subject can contact Gary at: Gary Friedman, ICJPS, P.O. Box 85840, Seattle, WA 98145. (206) 524-3813. Gary emphasizes that his organization supports the religious rights of all prisoners, not just Jewish prisoners.

CBCC EFV Stabbing Trial

In the March, 1995, issue of PLN we reported that Todd Hiivala, a prisoner at the Clallam Bay Correction Center (CBCC) in Washington, stabbed his wife Heather several times during an Extended Family Visit (EFV) on January 7, 1995. Hiivala was shot by tower guard Doug Campbell during the stabbing after refusing orders to drop the knife. As a result of Hiivala's incident Governor Mike Lowry ordered a review of the state's EFV program and EFVs were ended for all close custody prisoners and several other categories of prisoners. All metal utensils were removed from EFV facilities. Hiivala decided to stab his wife two days before the legislature opened its 1995 session and after legislation to abolish the EFV program had already been filed.

Hiivala was charged with attempted first degree murder. The trial began in Clallam County Superior Court on August 1, 1995. Heather was attacked when she disclosed she had been unfaithful (probably a good reason these things are best done over the phone or by letter). Heather refused to attend the trial despite prosecutors offering to pay her expenses. Hiivala was acquitted of the first degree attempted murder charge and convicted of second degree attempted ...

Worked to Death: OH Work Release Programs

By Dan Cahill

Many of us have been concerned about the possibility of abuse and tragedy in the unprotected use of prison labor. Over the past several years Ohio legislators have made it legal to market prison labor to private companies.

One of the mot recent tragedies involved the trash burning power plant in Columbus, OH. The Franklin County Workhouse on Jackson Pike, directly across the road from the trash burning power plant, supplied prisoners in a work release program to a private company, Shaneway. These work release prisoners were paid about $5.00 an hour to separate metal from the ash stream with their hands, without any protective clothing or equipment. Work release prisoners were actually working right in the largest known source of deadly dioxin in the United States: the ash stream from the power plant.

Prisoners worked in toxic ash which contained arsenic levels 22 times those allowed by OSHA standards; cadmium levels at 5 times; lead at 138 times; and dioxin at levels 770 times the ambient air in the community. All the work release prisoners working in the ash stream had visible skin problems consistent with symptoms of chloracne caused by dioxin exposure.

With the ...

Gunslingers Dressed in Hot Pink

Alabama has been in the forefront of new, not necessarily good, ideas lately. The state that brought back chain gangs has announced, in May, 1995, that it will begin dressing male prisoners who habitually expose themselves to female guards in hot pink pants and shirts. The DOC has ordered 50 of the outfits, hoping to shame the prisoners into not exposing themselves. The outfits are being made by prisoners working in a DOC garment shop. The first set of outfits was returned to be recolored because one prison official said they were not "pink enough." Charlie Bodiford, spokesman at the Holman prison, said nothing else has worked. "We've even taken disposable cameras and taken a picture of them and told them we were going to send it to their mothers. They don't care," he said.

Alabama deputy DOC commissioner J.D. White told the media that "The heckling from the other inmates is the thing they are not going to like." Referring to the exhibitionists as "gunslingers," no details were disclosed as to what criteria would be used before the prisoners were dressed in these outfits. Bodiford characterized some 20 to 30 Holman prisoners as "habitual gunslingers."

Apparently ...

MN Passes Laws Against Prison Litigators

The 1995 session of the Minnesota state legislature passed laws aimed directly at jailhouse layers. MN Statute § 243.241 titled "Civil Action Money Damages" was created. It states: "Money damages recovered in a civil action by an inmate confined in a state correctional facility or released from a state correctional facility under section 244.065 or 244.07 shall be deposited in the inmate's inmate account and disbursed according to the priorities in section 243.23, subdivision 3."

Minnesota readers should note that any attempts by the DOC to seize damage awards from federal civil rights actions are unconstitutional. A similar Missouri law was struck down by the eighth circuit three years ago. In Hankins v. Finnel, 964 F.2d 853 (8th Cir. 1992) the circuit court struck down Missouri's "Incarceration Reimbursement Act" which required that 90% of a prisoner's assets be seized to pay for the costs of his incarceration. At 861: "We thus conclude that Section 1983 preempts the Missouri Incarceration Reimbursement Act as it is applied in this case. To the extent that the Act permits the state to recoup the very moneys it has paid to satisfy a section 1983 judgment against one ...

FL Enacts More Anti-Prisoner Laws

On June 14, 1995, several laws affecting prisoners were passed into law without the signature of Governor Lawton Chiles. Under this legislation prisoners convicted after October 1, 1995, must serve at least 85% of their sentences in prison. Other laws will expand the prison system's "legal" population capacity and impose mandatory minimum terms for repeat offenders convicted of a fourth violent crime. The measures are expected to cost more than $2 billion and double the prison system's current 60,000 prisoners within the next five years.

These laws had initially been proposed as an amendment to the Florida constitution but failed to make the ballot last year after the state Supreme Court threw it out as being misleading to voters. The ballot initiative was sponsored by a group called Stop Turning Out Prisoners, lead by Kathleen Finnegan, a former prosecutor. [Editor's Note: the name of STOP is quite ironic in that "turning out" in prison slang generally refers to the act of sexually assaulting and effeminizing a prisoner. So in that spirit, we too think the state should stop "turning out" prisoners.] Despite the electoral setback the STOP plan soon gained momentum among state legislators who passed ...

Madrid Published

In the August, 1995, issue of  PLN we reported Madrid v. Gomez, the class action suit challenging conditions at Pelican bay State Prison in California. We noted that as we went to press the ruling had not been published despite having been issued on January 10, 1995. The ruling was published at: Madrid v. Gomez, 889 F. Supp. 1146 (ND CA 1995).

AZ Court Affirms Food Packages

In an Order dated April 7, 1995, United States District Judge C.A. Muecke ruled in Hook v. Arizona, No. CIV 73-97 PHX CAM, that Arizona inmates will continue to receive three 25 pound food packages at Christmas. Arizona inmates will also be allowed once again to have hot pots in which to prepare such foods. Inmate hot pots had been banned in a memo by ADOC Director Sam Lewis on January 31, 1994, although those inmates who already had hot pots were allowed to keep them. Regarding the hot pots, Judge Muecke ruled, "No orders, memorandums, instructions or regulations, or any directive to that effect, shall be issued by the ADOC in conflict with the prisoner's obtaining hot pots. This includes the Director's memorandum of January 31, 1994."

Arizona Department of Corrections Director Sam Lewis has complained in the media that inmates do not have a constitutional right to receive Christmas food packages. Answering this complaint in his Order, Judge Muecke stated, "ADOC entirely misses the point. As the Ninth Circuit pointed out, the ADOC consented to the Christmas package provision in the Consent Decree, so the `fault lies with the Department for including the provision as ...

Reader Mail: PA Settlement Correction

Regarding your article in the July issue of Prison Legal News on page 11 about the Pennsylvania Department of Corrections, you state "attorneys representing all PA state prisoners had reached a settlement...." Two Pennsylvania prisons were not part of that litigation. SCI Pittsburgh was involved in ongoing litigation, Tillery v. Owens, 799 F.Supp. 1256 (W.D. Pa. 1989), aff'd 907 F.2d 418 (3d Cir. 1990), cert. denied, Mikesell v. Morgan 112 S.Ct. 343 (199l). SCI Muncy (women's prison is covered by the consent decree in Beehler v Jeffes, 664 F. Supp. 931 (M.D. Pa. 1986) aff'd without op., Beehler v. Lehman, 989 F2d 486 (3rd Cir 1993).

Scott Rudnick
Lewisburg Prison Project

AZ's War on the Federal Judiciary

In large class action suits when courts find constitutional violations they sometimes order large-scale changes. This is especially the case in institutional reform litigation that typically involves prisons. To ensure that court orders are being carried out and to measure progress, which sometimes takes years and often encounters resistance and hostility from prisoncrats, the courts appoint special masters to oversee the changes and offer independent progress reports and findings of fact to the court. 42 U.S.C. § 1988 is a federal statute which authorizes federal courts to shift the costs of attorney fees and litigation expenses to the losing party, i.e. the government. The fees for special masters are typically paid by the defendants under § 1988.

The Arizona DOC has been embroiled in several major class action suits challenging various aspects of the prison system, including court access, medical care and more. Likewise, current Arizona prison director Sam Lewis has also been challenging past consent decrees on various issues previously litigated and won by prisoners. To monitor DOC compliance with previous court orders federal courts have appointed several special masters. The special masters are typically people with experience in prisons.

This is the background for Arizona governor Fife ...

News in Brief

Vietnam: During the American attack on Vietnam the South Vietnamese government took over a prison originally built by the French on Con Son island and turned it into a notorious torture and murder camp. Communists and other opponents of the puppet regimes were held for years in notorious "tiger cages" on the island. PMC Jinwon, a South Korean company, recently announced plans to build a $298 million tourist resort on the island. The resort will have several hotels, golf courses, shopping centers and be able to accept cruise ships. No mention is made of whether the prison will be part of the island "tours."

NJ: On June 22, 1995, governor Christine Whitman signed a "3 strikes" law into effect. The NJ version of the law mandates imprisonment for 35 years for any felon convicted of a first degree felony for the third time. Prisoners will be held until they are at least 70 years old and can convince the entire state parole board they no longer pose a threat to society. The bill also extends the sentences imposed on numerous categories of those convicted for the third time of committing less serious crimes.

PA: On August 14, 1995, several dozen ...

 

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