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Prisoner Education Guide

Prison Legal News: November, 1995

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Volume 6, Number 11

In this issue:

  1. WA Civil Commitment Law Ruled Unconstitutional (p 1)
  2. From the Editor (p 4)
  3. IN Passes Excrement Law (p 4)
  4. Double Jeopardy in Prison Not Clear (p 5)
  5. WA Doctor Fit Only for Prisoners (p 6)
  6. Judge gets Insight on Jail Reform (p 6)
  7. CA Prisoners Riot (p 7)
  8. Lethal Gas Execution Cruel and Unusual (p 7)
  9. Billing Prisoners for Medical Care Blocks Access (p 8)
  10. AZ Guards Rob and Kill (p 10)
  11. World's Longest Held Political Prisoner Released (p 10)
  12. Surveys (p 11)
  13. WA DOC Gets $745,366,000 (p 11)
  14. WSR Prisoner Murdered by Neglect (p 12)
  15. Medical Evidence Required to Win Delay Claim (p 13)
  16. Alaska Prisoners in Exile (p 14)
  17. SC Takes Weights (p 14)
  18. TX Death Row Protest (p 15)
  19. Nevada DOC Psychologist Moonlights as Pimp (p 15)
  20. Feeding at the Trough (p 15)
  21. Old Friends Only (p 16)
  22. AL Adds Rock Breaking to its Repertoire (p 16)
  23. New Statewide Data Show Prison Rape a Widespread Problem (p 17)
  24. OH Visitor Search Illegal (p 18)
  25. Sexual Abuse in Vermont Prisons (p 18)
  26. New Mexico Blood Money (p 19)
  27. Qualified Immunity for Hearing Officers (p 19)
  28. Time Barred Dismissal Reversed (p 20)
  29. Standard for Gender Discrimination Clarified (p 20)
  30. Detainees Entitled to Hygiene Items (p 21)
  31. News in Brief (p 22)
  32. TX Abolishes Furloughs (p 22)
  33. Prisoners Entitled to Safe Jail (p 23)

WA Civil Commitment Law Ruled Unconstitutional

In a tersely worded decision, Fed eral District Court Judge John C. Coughenour drove a stake into the heart of Washington's controversial civil commitment law (Wash. Rev. Code § 71.09). He ruled the statute unconstitutional on its face, citing: "the violation of the substantive due process component of the Fourteenth Amendment; the violation of the Ex Post Facto Clause of Article 1, Section 10 of the [U.S.] Constitution; and the violation of the Double Jeopardy Clause of the Fifth Amendment."

The August 25th ruling was in the form of an Order on Cross-Motions for Summary Judgement in the habeas corpus petition of Andre Young. Coughenour granted the habeas writ. "The judge said it about as unequivocally as you can that it's a bad law," said federal public defender Peter Avenia, who represented Young in the habeas action.

As part of the ruling, Coughenour ordered counsel to submit briefs on the issue of releasing Young pending appeal. On September 11, 1995, Coughenour equivocated. He denied Young's motion for release, stating that "the balance of relevant interest tips in favor" of keeping Young (and the 30 other men presently detained under the statute) confined. "While the court agrees ...

From the Editor

Thanksgiving can be a tough holiday to celebrate inside a prison cage. This will be my fifteenth. The first few were mostly about self-pity. As I became more politically conscious, however, Thanksgiving took on a different meaning. It traditionally commemorates starving European conquerors giving thanks for the hospitality and life-saving bounty that Native Peoples freely shared.

By one estimate there were five to ten million Native People living in what is now the United States. They were socially, spiritually, morally and ethically superior to Europeans. The whites had two advantages, their guns, and their utter ruthlessness. Of the two; the Natives were most bewildered by the second. As Chief Black Hawk lamented upon his defeat and capture by white soldiers, "An Indian who is as bad as the white men could not live in our nation; he would be put to death and eaten up by the wolves.... The white men do not scalp the head; but they do worse - they poison the heart."

Thanksgiving is a time to appreciate the bounty of Autumn harvest. After white Europeans gained a foothold on this continent, Autumn became a time to hunt down Native Peoples and return their early hospitality by destroying ...

IN Passes Excrement Law

Senate Enrolled Act #56, which went into effect on July 1, 1995, added a new section to the Indiana Criminal Code which makes it a crime to "knowingly or intentionally in a rude, insolent, or angry manner place blood or another body fluid or waste on a Law Enforcement Officer or a Correctional Officer identified as such and while engaged in the performance of official duties." It also makes it a crime to coerce another person to commit such an act. This act is considered to be "battery by body waste."

The seriousness of the offense ranges from a Class D to Class A felony depending upon whether the person committing the act has a communicable disease and whether the disease was transmitted to the other person.

Indiana prisoners have been notified by DOC memo that "any offender who throws bodily fluids or waste on staff shall be considered to have committed this act." The memo also states that "this action may be referred to the local Prosecutor to file criminal charges."

It will be interesting to note if or how this law may be abused by law enforcement officials (and prison guards) who may use it as a tool ...

Double Jeopardy in Prison Not Clear

In the Oct. `95 issue of PLN we re ported Massachusetts v. Forte, an unpublished state court ruling dismissing a criminal indictment because the prisoner had previously been subjected to disciplinary action by prison officials. As a result, the trial court dismissed the criminal charges arising from the same conduct, holding they violated the double jeopardy provisions of the state and federal constitutions. Forte noted that courts have generally held that double jeopardy does not apply to administrative and criminal sanctions imposed against prisoners but it held that United States v. Halper, 490 US 435, 109 S.Ct. 1892 (1989) required a change in this approach because it applied the double jeopardy clause to administrative sanctions as well.

The second circuit has rejected application of Halper to prison claims. This area of the law is unsettled at the moment especially as the courts grapple with the double jeopardy clause as applied to civil forfeitures. This case comes to us as an appeal from a criminal conviction. Alberto Hernandez-Fundora was being held in a federal prison on an Immigration and Naturalization Service (INS) detainer when he hit another prisoner with a table leg. Prison officials infracted Hernandez, found him guilty and ...

WA Doctor Fit Only for Prisoners

In the July, 1995, issue of PLN we reported the disciplinary charges filed against Dr. James McGuire, the psychologist at the McNeil Island Corrections Center (MICC) in WA. While practicing as a psychiatrist in Alaska McGuire entered into a sexual relationship with one of his patients, Karma VanGelder, an Alaska state trooper suffering from multiple personality syndrome. The sexual relationship, which violated ethical and professional standards, lasted some 5 and a half years. As a result, McGuire lost his license to practice psychiatry in Alaska and moved to Washington where he was promptly hired by the DOC to work at MICC. The DOC acknowledged that it was aware of McGuire's record when he applied for the job but hired him anyway.

McGuire's duties at MICC include mental health unit counseling, including for prisoners with sex offenses, prescribing medication, diagnostic evaluations, referrals, and crisis intervention. In an interview with The Stranger, a Seattle alternative weekly, VanGelder stated that McGuire had submitted letters to Alaska officials that allowed her to keep her job despite the fact that both were suicidal at the time. VanGelder sued McGuire and settled the suit for $1.39 million and negotiated an agreement which limited ...

Judge gets Insight on Jail Reform

Sol Wachtler was the former chief judge of New York state's highest court until he was convicted in 1993 of terrorizing, stalking and harassing his ex-lover, socialite Joy Silverman, after she broke off their affair. At one point Wachtler threatened to kidnap Silverman's daughter. Wachtler was arrested after an extensive FBI investigation. While any ordinary mortal would have likely received a lengthy prison sentence, Wachtler got off with only a year in jail and halfway houses.

While serving as chief Judge Wachtler wrote several rulings which severely limited the right of criminal defendants in New York state to use a diminished capacity defense. He stated, from the bench, that people need to take responsibility for their actions and not hide behind excuses. So, guess what defense Wachtler presented when facing extensive criminal charges for his terroristic behavior? You got it: diminished capacity.

Wachtler, who now teaches at Pace Law School, had this to say about jail: "There is nothing more demeaning, more diminishing than being in prison. They treat you like garbage." Too bad he didn't have this insight when he was sitting on the bench. It's amazing what a little jail time does for judges ...

CA Prisoners Riot

On July 7, 1995, more than 250 prisoners at the Sierra Conservation Center (SCC), near Jamestown, CA, engaged in a brawl and riot at the 5,900 bed minimum security prison. The fight took place in the yard and housing units between white and Latino prisoners and left many injured with head injuries, cuts and bruises. None required hospitalization. No prison staff were reported injured. California Department of Corrections (CDC) spokespeople said the prisoners mainly used their fists and no weapons were used beyond crutches and a guitar. Guards fired several shots but didn't strike any prisoners. No reason or cause was cited as to why the incident took place. After the brawl some 240 prisoners were transferred to other prisons across the state, most notably to control units at Pelican Bay and Corcoran. SCC was placed on lockdown after the brawl; how a dormitory style prison is locked down we don't know.

The CDC remains massively overcrowded, at more than 176% of its rated capacity. Violence within the CDC is on the upswing according to CDC officials. On June 3, 1995, a prisoner at Folsom State Prison was critically injured in what the corporate media called a ...

Lethal Gas Execution Cruel and Unusual

Derek Humphry, President of the Hemlock Society, and Judge Marilyn Hall Patel have differing views on the virtues of inhaling lethal gas. Humphry, in his how-to-suicide-it manual Final Exit, recommends the use of potassium cyanide as a quick and "humane", although not entirely peaceful, way of dying with dignity, which he euphemizes as "Self-Deliverance."

Judge Patel of the U.S. District Court for the Northern District of CA has recently (April 14, 1995) disagreed. The court decided that "the pain experienced by those executed" by the lethal gas from potassium cyanide "is unconstitutionally cruel and unusual." Consequently she declared the California system for the execution of condemned murderers by lethal gas to be in violation of the U.S. Constitution's 8th and 14th Amendments.

Judge Patel was presented with a petition from prisoners at California's San Quintin state prison who had been sentenced to death. Their class action suit sought to have the lethal gas method of execution in CA declared unconstitutional. The trial lasted eight days and saw the presentation of evidence by five experts for the prisoner plaintiffs and two for the state. For the plaintiffs the only expert known to be a forensic scientist was ...

Billing Prisoners for Medical Care Blocks Access

by Mark Lopez and Kara Chayriques

In 1976, the Supreme Court established in Estelle v. Gamble, 429 U.S. 97 (1976), that the government has an obligation to provide medical care for prisoners. This fundamental premise has been upheld in subsequent cases and establishes a prison's obligation to provide for prisoners' basic needs, which include medical care and treatment

"When the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself; and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause." DeShaney v. Winnebago County DSS, 489 U.S. 189, 199-200 (1989).

A Money-Saver or an Obstruction to Medical Care?

However, a recent and disturbing trend in correctional health care threatens to undermine this fundamental constitutional principle. More and more prison officials across the country are beginning to charge prisoners for basic medical care. Payment is typically exacted by two methods: first, in several states, Nevada most notably, prisoners are charged $4 for attending sick ...

AZ Guards Rob and Kill

On February 16, 1995, police ar rested a retired cop and three Arizona prison guards in the robbery of an armored car and the killing of a Wells Fargo driver. On November 28, 1994, an armored car was hijacked and robbed with between $200,000 and $900,000 taken. The armored car's driver was found shot to death inside the vehicle.

Those arrested and charged in the robbery murder were William Ferguson, a former Phoenix policeman, James Greenham, who had worked as a prison guard at numerous Arizona DOC facilities, Timothy Ring and his wife Elvia Sotelo-Ring who both worked as guards at the Perryville prison complex west of Phoenix. FBI agents were quoted saying they had wiretap recordings where the defendants made incriminating statements implicating them in the robbery. They described the robbery as being "very professional." We wonder what Greenham and the Rings' opinions on prison reform and the death penalty are.

Source: Arizona Republic, February 17, 1995.

World's Longest Held Political Prisoner Released

On August 15, 1995, Kim Sun Myung was released from a South Korean prison after spending more than 43 years in captivity. Kim had the unhappy distinction of being the world's longest held political prisoner. Kim was captured 43 years and ten months ago in 1951 by American military forces fighting to prevent Korean unification. Kim was initially sentenced to death for espionage by the South Korean government, a charge he denies. The sentence was later commuted to life imprisonment. A steadfast communist, Kim could have been released decades earlier had he renounced his political beliefs and denounced North Korea and communism. The South Korean government kept Kim in solitary confinement for decades, with no news, losing his vocabulary from having nothing to read and no one to talk to and going blind from cataracts prison doctors refused to treat. He received no visits throughout his incarceration. Over the years Kim was beaten, starved, tortured, threatened with execution and watched his fellow prisoners die at the hands of South Korean government agents yet he did not capitulate.

The 70 year old Kim was released as a "gesture of reconciliation" by the South Korean government, along with over 1,800 ...


- Prisoners Convicted by Drugging is conducting a survey to determine the number of criminal defendants who have gone to trial or been tried while they were under the influence of psychotropic drugs. Anyone desiring a questionnaire should write: B. Buechler, 825 Battery St. 1st Fl. San Francisco, CA. 94111.

- I am seeking input from other prisoners dealing with their conditions of confinement by means of a questionnaire. Once I've compiled the answers I will produce a pamphlet which will be available to prisoners and which will give ideas on how to improve their surroundings. Anyone interested can get a copy of the questionnaire from: Peter Wermuth/David Sheldon, C/O Prisoners Pamphlet, 59 East Van Buren, Rm. 707, Chicago, IL. 60605.

WA DOC Gets $745,366,000

In the August, 1995, issue of PLN we discussed the myriad anti-prisoner and -defendant legislation passed by the Washington State legislature in its 1995 session. The 1995 session was the longest in state history, running several months past its scheduled closing. Because the legislature squandered its time and resources on such pressing issues as prison weight lifting it did not pass a budget until the end of the session. The Indeterminate Sentence Review Board (ISRB) received $2,285,000 for the 1995-97 biennium. So rumors to the contrary, the ISRB will be with us for at least another two years.

In 1993-95 the WA DOC received $680 million in operating funds. For 1995-97 the DOC received its largest budget in history, getting $745,366,000, which constitutes 4.5% of the state's total budget. This is despite all the talk about budget cutting and cost saving in the prison system on the backs of prisoners. Barely addressed by the budget or any legislation is the fact that 72% of the DOC's budget goes to pay staff salaries/benefits and that the Washington DOC has the second highest staff to prisoner ratio, 1 staff to 1.8 prisoners, in ...

WSR Prisoner Murdered by Neglect

On December 12, 1994, Stanley Watson died of a heart attack at the Washington State Reformatory (WSR) in Monroe, WA. While heart attacks do happen and can be fatal Watson's death could have been easily prevented, so easily that his death amounts to negligent homicide. On December 11, 1994, Watson went to the WSR hospital on two separate occasions complaining of chest and back pains. The first time he was given no treatment whatsoever by Dr.Meloche. Watson was given an appointment to see a physician's assistant the next day, but he would be dead by then. He was told to return to the clinic if his symptoms got worse.

The second time he returned that day he was seen by nurse M. Yeager. He complained of continued chest pain, and classical heart attack symptoms. He was given nitroglycerin and Nifedipine and sent back to his cell. The next time Watson was seen by WSR medical staff it was in response to Watson's collapse at his work place, the kitchen, from where his lifeless body was transported to Valley General Hospital. Efforts to resuscitate him were unsuccessful and he was pronounced dead at 8:11 AM on ...

Medical Evidence Required to Win Delay Claim

The court of appeals for the eighth circuit has held that in order to prevail on an eighth amendment deliberate indifference to serious medical needs claim, the prisoner plaintiff must submit verifying medical evidence at the summary judgment stage. Larry Beyerbach, a Missouri state prisoner, caught his hand in a cell door as it was closing. About three hours later a nurse examined his hand, directed him to apply ice, gave him Tylenol for pain and recommended an x-ray. The next day Beyerbach's hand was x-rayed, which disclosed a broken bone. His hand was put in a cast and he received follow up treatment.

Beyerbach filed suit contending that the three hour delay before he saw the nurse, the two hour delay before he received the ice she ordered and the 17 hour delay between the time the x-rays were ordered and taken all constituted separate instances of cruel and unusual punishment. The defendants moved for summary judgment on qualified immunity grounds, which the district court denied. They appealed and the appeals court reversed.

To state a claim for a violation of the eighth amendment a prisoner must allege the deprivation of an objectively serious medical need and he ...

Alaska Prisoners in Exile

I would like to respond to a News in Brief segment of your February 1995 issue of PLN concerning the shipment of Alaska state prisoners to the Penal Detention Center [a private prison operated by the Corrections Corporation of America] in Florence, AZ, supposedly to ease overcrowding and avoid fines levied by the court for violating population caps.

Briefly, some history... Prior to 1988, Alaska had no facilities for housing long-term felons, and the DOC routinely shipped prisoners with ten years or more to serve on their sentences to prisons outside of Alaska. Most, like myself, were designated to federal prisons, although some went to other state's facilities in accordance with the Western Interstate Compact Agreement.

This policy of exile for long-term prisoners ended in 1988, with the completion of the Spring Creek Correctional Center in Seward. Spring Creek, Alaska's only maximum security prison, was built in response to a 1986 Partial Settlement Agreement (Cleary, et al. v. Smith, et al., 3AN-81-5274 Civ.) in which the DOC agreed to return all Alaska state prisoners in federal custody who desired to return. This was the same agreement containing population caps that the DOC was found to be violating and ...

SC Takes Weights

Joining Wisconsin, Mississippi and Arizona the South Carolina DOC banned weight lifting in its prisons in early July, 1995. All weight lifting equipment was removed from that state's prisons and will be made available to prison guards and students at the state Criminal Justice Academy. Prior to this South Carolina had banned personal clothes for its prisoners and mandated short haircuts and no facial hair, abolished furloughs and imposed other regressive measures. Prisoner protest has already included the stabbing of several guards, a hostage taking and litigation [See PLN, July, 1995.]

Other states and Congress are currently considering imposing similar bans on prison weight lifting. As a result of legislative measures (SB X22) which forbid prisoners from lifting weights in order to gain muscular bulk or strength, the California DOC has enacted administrative measures that prevent prisoners from lifting more than 165 lbs. on bars or dumbbells with more than 75 lbs. Prisoners will be limited to one hour of weight lifting a day and be required to pass a medical "exam" every 90 days. [Editor's Note: The March, 1995, issue of PLN had an article exposing the politics behind efforts to ban weight lifting, copies are still ...

TX Death Row Protest

On June 28, 1995, two wings of Texas death row prisoners demonstrated for an hour against a scheduled execution. The prisoners shouted, set fires and banged on the bars. The execution was stayed by a court order. One hundred prisoners have been executed in Texas since 1982, by far more than any other state. Some 400 prisoners sit on death row in Texas. In late June the prisoners announced they would embark on a "chain" hunger strike to protest the death penalty. Their demands include a moratorium on all U. S. executions and an investigation into the racist and anti-poor application of the death penalty. In the strike pairs of prisoners fast for three days each. They join the indefinite liquid-only fast begun by death row activist Gary Graham on June 21, 1995, and joined by four other death row prisoners on July 21, 1995. So far the corporate media has ignored the protest.

Organizing under the name of the "Death Penalty Revolution," death row prisoners, 63 as of August 17, 1995, have signed a "pledge of revolutionary resistance" to refuse to walk obediently to the death chamber should all their appeals fail. One recently executed prisoner carried out his ...

Nevada DOC Psychologist Moonlights as Pimp

In the July, 1994, issue of PLN we reported the saga of William Knapp, the chief psychologist of the Nevada DOC whose ambition was to open up a Western theme brothel. We mentioned the case, Knapp v. Miller, 843 F. Supp. 633 (DC NV 1993), as a somewhat humorous aside to our generally dry legal coverage. Knapp was suing because he was fired from his DOC job after his brothel business was reported in the local media. Dr. Knapp is quite the litigator with at least three published rulings to date on the matter.

The latest ruling, from the Nevada Supreme Court, is of interest to prison activists beyond the rather amusing nature of the litigation. It turns out that Knapp was using prisoner slave labor to promote his brothel business. The Nevada DOC has a hobby program where businesses and, apparently, staff members, can hire prisoners at token wages to perform various tasks. In this case, Knapp hired prisoners to stuff envelopes, type labels and do mailings promoting his brothel (which would also include a bar and casino as well). The mailings also contained discount coupons for prospective customers. Knapp claimed that his DOC superiors knew of his brothel ...

Feeding at the Trough

The highest paid state employee in California isn't the governor, it is Darryl Andrade, a DOC lieutenant at the Avenal State Prison who earned gross wages of $108,989 in 1994. Andrade was one of 702 California prison guards, sergeants and lieutenants who made more than $75,000 in 1994. The DOC had 1,282 employees making more than $75,000 a year, more than any other state agency. The DOC spent more than $146 million on overtime in fiscal year 1993-94, $52 million more than was budgeted. Prison guards can, and do, double their wages. Andrade's regular salary was $57,658 in 1994 but he earned another $38,123 in overtime and the rest in yet more overtime compensation. Leonard Sims, a guard in the DOC transportation unit, earned $44,152 in regular salary and boosted his wages with another $52,164 in overtime pay.

While many state programs have been slated for budget cuts, prison budgets, driven in large part by high base salaries and excessive overtime, have virtually exploded. In 1980 the CDC budget was $300 million; by 1995 the proposed budget was $3.7 billion, a 1,141% increase. The CDC had 7,570 ...

Old Friends Only

The public pays $25,000 a year to keep each of Wisconsin's 9,500 adult prisoners locked away. Part of what society expects to get for that considerable investment is prisoners who are changed for the better by the time they get out.

One of the changes I've undergone during my stay in prison is that I have an entirely different circle of friends now. Over the course of fourteen years, I've lost touch with almost everyone I knew, other than family members, before I got locked up. My current acquaintances are an entirely new group, people from the outside who've taken an interest in my activities and ended up developing friendships with me. Given the sort of friends I associated with before coming to prison, the change is certainly a positive development.

That process of exchanging new friends for old is common to people who serve long prison sentences. But Gary McCaughtry, the warden at Waupun, has decided he no longer wants that process to work its course. Early this year, McCaughtry imposed a new rule saying that prisoners could receive visits only from people they knew before coming to prison.

For prisoners who mixed ...

AL Adds Rock Breaking to its Repertoire

Recent issues of PLN have re ported on plans by the Alabama Department of Corrections to dress alleged exhibitionist prisoners in hot pink outfits, to reinstitute chain gangs and to chain those prisoners who refuse to work on the chain gangs to steel rails outdoors. Apparently these measures aren't enough to project Alabama's "tough on prisoners" image. On July 29, 1995, Ron Jones the commissioner of state prisons, announced plans for Alabama prisoners to begin breaking large rocks into pea sized pellets. The rocks will be trucked into at least three prisons so that 160 chained prisoners can break them up just outside the prison gates. The plan calls for the prisoners to work ten hours a day, five days a week.

The sole purpose of the program is to increase the punishment for prisoners. State highway officials say they have no use for the crushed rock. So its good to see that the state of Alabama has so much money to spend that it can afford to pay to have big rocks trucked into its prisons to be broken up into little ones by prisoners with sledgehammers. The rock-breaking was scheduled to begin in early August.

New Statewide Data Show Prison Rape a Widespread Problem

Over a fifth of male prisoners are sexually victimized behind bars according to a newly released survey of an entire state's prison system. A summary of results from the spring, 1994 survey, which covered all four Nebraska prisons and was conducted by University of South Dakota psychology professor Cindy Struckman-Johnson, was obtained from inside the prison by the Nebraska Civil Liberties Union and released by the Stop Prisoner Rape, Inc, a national group, after verification.

According to the 5-page summary of the survey results, 22.3% of the males indicated they had been "pressured or forced to have sexual contact against your will." The figure for the woman's prison was 7.7%. Most of the victims provided written accounts of the incidents.

This was the first comprehensive survey on sexual assault in a prison since 1980 and the first ever to look at an entire state, said Stephen Donaldson, president of Stop Prisoner Rape. Donaldson said that extrapolating the Nebraska results indicated an annual sexual victimization of 200,000 adults in the nation's prisons, including 120,000 completed rapes of adult males. Adding a separate extrapolation for the nation's local jails and an estimate for juvenile ...

OH Visitor Search Illegal

The Franklin County Court of Appeals in Ohio has held that an anonymous letter alleging drug smuggling by a prison visitor is insufficient to constitute "reasonable suspicion" which would authorize a strip search of the visitor. Terry Morris, the warden of the Chillicothe Correctional Institution, received an anonymous letter from the wife of a prisoner. The letter claimed that the author had seen Christine Wise give drugs to her husband in the prison visiting room. Based on this letter Morris ordered that Wise be strip searched the next time she came to the prison to visit her husband.

Wise arrived at CCI on March 10, 1991, to visit her husband. Prison guards told her that she would have to submit to a strip search in order to visit, if she refused the search her visiting privileges would be suspended for 90 days. Two female prison guards observed Wise undress, searched her clothes, inspected her mouth, underarms and asked her to bend over in order to inspect her vagina and anus. Wise was also forced to cough and squat three times. No contraband was found. Wise initiated a civil suit for money damages in the Franklin County Court of Claims against ...

Sexual Abuse in Vermont Prisons

Lawyers from the ACLU's National Prison Project filed a motion in federal court on August 25, 1995, asking the judge to issue a preliminary injunction to end physical and sexual abuse of prisoners in Vermont's sex offender behavior modification program. Affidavits filed by several prisoners allege that a treatment provider forces prisoners onto all fours and physically restrains them, simulates raping them anally, and screams obscenities at them.

Vermont's behavior modification program for sex offenders allegedly includes other techniques which the NPP is challenging as unconstitutional. According to the complaint filed in the case, these include forcing prisoners to masturbate while tape-recording their "deviant" fantasies, and playing the masturbation audiotapes in group sessions of other prisoners and staff.

Margaret Winter, a Prison Project lawyer, says that, "The plaintiffs will present evidence that there is no scientific support for such treatment as a means of reducing recidivism." According to Dr. Fred Berlin, an international expert on the treatment of sexual disorders and founder of the Sexual Disorders Clinic at John Hopkins, "If therapy is to be successful, it must teach the participants to respect others by, in turn, respecting them as human beings, this will not be achieved ...

New Mexico Blood Money

For two days in February, 1980, New Mexico prisoners seized control of the state penitentiary in Santa Fe. When it was over, 33 prisoners were dead, hundreds more were hurt, the gym was burned to a shell and the cell blocks, offices and other areas were extensively damaged. Elected and appointed officials responded by appropriating millions of dollars for prison construction and reconstruction, settling a 3-year-old lawsuit on prison conditions with a consent decree affecting virtually every aspect of prison life, and starting to plan the defense against civil lawsuits for the prisoners' deaths and injuries.

About 540 prisoners and their survivors (of 1,157 prisoners at the time of the uprising) filed notices that they intended to sue. One-hundred-twenty-four cases were eventually filed over the years, and 77 of those were dismissed.

The state's risk managers and attorneys gave an early estimate that compensating damages to prisoners and their families could reach about $4 million. So they schemed to limit this "potential liability" and eventually succeeded so well that $2.1 million was left over from the fund set up to pay for prisoners' claims. The statute of limitations for such lawsuits has expired and the leftover millions ...

Qualified Immunity for Hearing Officers

The second circuit court of appeals has reaffirmed that prison disciplinary hearing officers are only entitled to qualified immunity, not absolute immunity from suit. As part of a pilot project the New York Department of Corrections in 1986 instituted the Inmate Hearing Officer program whereby the DOC hires private lawyers to serve as hearing officers at prison disciplinary hearings. The objective of the program appears to be to give the hearing officers independence from prison authorities.

Based on this appearance of independence the DOC has argued that hearing officers under this program are entitled to absolute immunity from suit. In a series of unpublished opinions, the federal district court has granted these hearing officers absolute immunity from suit. The court of appeals for the second circuit has reversed, holding that these hearing officers should receive only qualified immunity.

As a general rule only judges, prosecutors, witnesses in trials and legislators receive absolute immunity from suit. In Cleavinger v. Saxner, 474 US 193, 106 S.Ct. 496 (1985) the supreme court held that Bureau of Prisons hearing officers should receive only qualified immunity for their actions because they did not perform judicial functions nor were they independent decision makers. The second ...

Time Barred Dismissal Reversed

The court of appeals for the tenth circuit has held that a district court erred when it dismissed a prisoner's suit as being time barred when it was not clear from the face of the complaint if the applicable time limits had been tolled. David Fratus, a Utah state prisoner, filed suit in 1994 claiming that he was overcharged by a prison restitution order after he had broken and damaged various items of prison property in 1988. In 1989 Utah prison officials assessed Fratus with a restitution order for $8,412.00 to pay for damaged windows and a TV set. For a year after the incident Fratus was confined in segregation where he had little verbal contact with other prisoners. He was later sent to the Utah state hospital for psychological treatment and spent approximately five months there.

It was not until December of 1990, while speaking to another prisoner, that Fratus discovered he may have been arbitrarily overcharged for the damaged items. Fratus collected restitution orders from other prisoners showing a wide divergence in charges for broken windows, ranging from $44.64 to $326,521. He alleges the windows he broke were identical in all respects to ...

Standard for Gender Discrimination Clarified

The court of appeals for the eighth circuit has held that heightened judicial scrutiny may be appropriate in equal protection claims brought by female prisoners. This ruling will be of special interest to female prisoners. Women prisoners in Iowa filed a class action suit contending their right to equal protection under the law was violated because the services they received were substantially inferior to those provided male prisoners in Iowa. After a bench trial, the district court dismissed the suit by holding that male and female prisoners are not "similarly situated" for equal protection purposes. It also held that the plaintiffs had failed to establish any basis of intentional discrimination by prison officials. The plaintiffs appealed and the court of appeals for the eighth circuit vacated and remanded.

The district court in this case held that it was bound by Klinger v. Department of Corrections, 31 F.3d 727 (8th Cir. 1994) [PLN, Vol. 5. No. 12], a class action suit filed by women prisoners in Nebraska contending they received inferior programs and services compared to male prisoners in that state. After winning in the lower court, the eighth circuit court of appeals reversed by holding that there was no ...

Detainees Entitled to Hygiene Items

A district court in Illinois has held that pretrial detainees are entitled to clean linen and clothes on a regular basis as well as adequate ventilation, medical treatment and food. The court begins its ruling with a quote by Dr. Karl Menninger who described American jails, including he Cook County (Chicago) jail where this suit arose, as "miserable, overcrowded, crime and disease breeding." That was in 1966, despite numerous suits, the passage of time and increased jail size the problems affecting the Cook county jail have actually worsened. Due to a consent decree Cook county jail detainees can only bring suit for money damages, claims for equitable relief must be brought as contempt actions in the consent suit.

Fred Wilson was a detainee in the jail for a two year period. He filed suit against the Cook County Board of Commissioners alleging numerous violations of his federal rights, including insufficient toilets, showers and sinks due to overcrowding in the jail, denial of clean sheets, soap, toilet paper, uniforms and underwear. He also stated he tested positive for tuberculosis but was given no treatment. The jail is a closed environment with no open windows and an inadequate ventilation system where he ...

News in Brief

PA: On August 2, 1995, SCI Graterford prison guards Keith Robertson and Martin Williams were arrested for drug possession with intent to deliver. Both guards were seen, during an investigation, dumping drugs behind vending machines and trash bins within the prison.

FL: Israel Martinez was charged with breaking into the Glades Correctional Institution while intoxicated. He was arrested and charged.

OH: In August, 1995, the Hamilton County (Cincinnati) sheriff released 49 prisoners serving sentences for nonviolent offenses early in an effort to ease overcrowding at the jail. The jail was over its 1,240 capacity by 17 prisoners. The releases were made to make room for weekend arrests.

WA: On August 11, 1995, the Department of Justice announced it had awarded the DOC a $1.8 million grant to fund a 200 bed "work ethic" camp on McNeil Island. The camp is expected to take 2 years to finish. The grant will allow construction of separate facilities in which to house the work ethic prisoners. The grant requires the state to match the grant with 25% of funds.

Russia: On September 2, 1995, two prisoners suffocated and a third was hospitalized in critical condition at the pre trial detention facility ...

TX Abolishes Furloughs

The Texas Department of Criminal Justice (TDCJ) administratively abolished furloughs for prisoners on July 1, 1995. In doing so it acted three months before a recently enacted state law eliminated all the furloughs, effective September 1, 1995. Under the state law only emergency furloughs are allowed.

The furloughs being abolished were known as "appropriate reason" leaves and included allowing prisoners out for seven days for non-emergency reasons. TDCJ officials had 4,319 leave requests in 1994 and granted 1,613 of them. Of the furloughs granted only 30 violated the furlough terms. Emergency furloughs, such as the death of a family member, will still be allowed but the prisoner must remain under guard at all times.

Corrections Today, July, 1995.

Prisoners Entitled to Safe Jail

The eleventh circuit court of appeals has reaffirmed that county officials can be held liable for failing to protect jail detainees from violence by other detainees. In 1990 Larry Hale was held in the Tallapoosa County Jail in Alabama after failing to appear in court on a marijuana charge. The county jail had been extremely overcrowded for at least two years prior to Hale's arrival. During times of overcrowding violence at the jail escalated. While he was placed in a large communal cell, two prisoners, including one held on murder charges, attacked Hale and severely beat him. Hale screamed for help but no jail guards came to his assistance. Hale remained in the cell with his attackers for several hours until a new shift of guards came on duty.

Hale filed suit against the guard on duty at the time and sheriff Smith claiming that they had shown deliberate indifference to his right to remain free from attack by other prisoners. The district court granted summary judgment in favor of the defendants holding that Hale had not presented sufficient evidence to support his claim. The court of appeals for the eleventh circuit affirmed in part, reversed in part and ...


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