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Prisoner Education Guide

Prison Legal News: April, 1995

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Volume 6, Number 4

In this issue:

  1. A Viable ACA Litigation Strategy (p 1)
  2. CDC Issues New Shooting Policy (p 3)
  3. From The Editor (p 4)
  4. Pierce County Jail Sued (p 5)
  5. IN Prisoner and Guard Executed (p 6)
  6. Death Penalty Challenged by Philadelphia Public Defenders (p 6)
  7. Purdy Medical Suit Settled (p 7)
  8. S.Ct. to Hear Quayle Retaliation Claim (p 8)
  9. Mumia Speaks (p 8)
  10. Population PI Vacated (p 9)
  11. $50,000 Awarded in Groin Kneeing (p 9)
  12. $157,000 Awarded in Retaliation Suit (p 10)
  13. Most Murders by Friends and Family (p 11)
  14. Death Penalty Sought for Kurdish Legislators (p 11)
  15. State Prisons Subject to RA & ADA (p 12)
  16. 9th Cir. Clarifies Mailbox Rule (p 12)
  17. Retaliatory Infraction Illegal (p 13)
  18. VA Parole and Good Time Laws Don't Create Liberty Interest (p 13)
  19. Forfeiture Violates Double Jeopardy (p 14)
  20. CA Legislative Horror Show (p 14)
  21. No Habeas for Jailhouse Lawyer Aid (p 16)
  22. Attorney Fees for Monitoring Consent Decree (p 16)
  23. Reviews (p 17)
  24. Federal Habeas Rarely Granted (p 17)
  25. News in Brief (p 19)

A Viable ACA Litigation Strategy

On August 6, 1982, David Bazelon, Senior Circuit Judge for the U. S. Court of Appeals for the District of Columbia, resigned from the Board of Commissioners of the Commission on Accreditation for Corrections (American Correctional Association). In his Memorandum of Resignation, Judge Bazelon stated:

"I will soon complete two years of my 5year term in the Commission on Accreditation for Corrections. During my tenure, I have repeatedly called on the Commission to make some fundamental reforms in its fact finding procedures and in its relationship with the corrections community. The Commission has repeatedly refused to take the meaningful steps to guarantee its independence and to insure the integrity of its decisions. The Commission has therefore broken faith with the public and has betrayed the promise of accreditation."

In his Memorandum, Judge Bazelon stated that "the history of corrections in America, I believe, is best characterized as a conspiracy of silence between corrections officials and the public." He pointed out that the federal courts "have begun to back away from enforcing the eighth amendment's ban against cruel and inhumane prison conditions." In this climate, Judge Bazelon wrote, "the concept of accreditation is especially vital, for it offers one of ...

CDC Issues New Shooting Policy

In the March, 1995, issue of PLN we reported that the FBI was investigating the California Department of Corrections' (CDC) policy of shooting prisoners. That policy had lead to CDC guards shooting and killing at least 27 prisoners between 1989 and 1994, compared to eight in the other 49 states and federal prison system. In January, federal judge Thelton Henderson ruled in Madrid v. Gomez that excessive force was routinely and excessively applied against prisoners, and violated the eighth amendment. [An upcoming issue of PLN will report on the ruling.]

On January 20, 1995, the CDC issued emergency regulations prohibiting guards from shooting prisoners to break up fistfights. Until now, guards with high-powered rifles had routinely shot prisoners engaged in fistfights. Armed guards are posted within CDC prison security perimeters, even in the housing units.

As part of the changes in the shooting policy the CDC is issuing non lethal weapons to guards, including pepper gas, to provide an alternative to shooting and killing prisoners in fist fights and other minor altercations.

Source: New York Times, 1/21/95

From The Editor

From the Editor

By Paul Wright

Welcome to another issue of PLN. Recently the National Lawyers Guild (NLG) Prison Law Project (PLP) held elections in order to elect five prisoners to its steering committee board. I was nominated for one of the slots and asked if I would run. I accepted and set doing public outreach and education on prison and criminal justice issues as a priority. I was both pleased and surprised to see the number of quality prison activists running for the slots, many of whom are PLN readers. Jailhouse lawyer members of the PLP across the country voted and I was elected along with Marcia Bunny, Beverly Seymour, James McGourty and Joseph Everroad. Many PLN readers have written and said they voted for me. I would like to thank all the PLN readers who did. I'll do my best to ensure that prisoners' interests are well represented. This is the first time I have held an "elected office" as it were. It also goes to show that people can openly campaign as a Marxist-Leninist and get elected; it's all about representing people's interests. Anyone interested in learning more about the NLG / PLP can see ...

Pierce County Jail Sued

On January 19, 1995, a class action suit was filed against Pierce County (Tacoma, Washington) concerning massive overcrowding at its jail. The jail was built in 1984 and designed to hold 470 prisoners, it was later remodeled to hold 628. On January 17, 1995, the jail held 1,026 prisoners, more than 400 beyond its design capacity. Since 1989 Pierce County has operated a satellite jail in a national guard armory which holds 154 prisoners. Despite massive overcrowding the jail holds prisoners from other jurisdictions (federal government, cities, etc.) on a rent-a-cell basis.

The overcrowding requires that many prisoners in the jail sleep on mattress pads on the floor. Prisoners spend between 2-4 weeks sleeping on the floor until they acquire seniority to be assigned a bunk. Prisoners lose their seniority if they are moved to another unit. This happens frequently which results in some prisoners spending months sleeping on the floor. Even obviously pregnant women are forced to sleep on the floor under these conditions.

The suit contends that forcing people to sleep on the floor for prolonged periods of time creates an unreasonable risk of injury to the prisoners. The risk results from tripping over mattress pads and ...

IN Prisoner and Guard Executed

On December 8,1994, Gregory Resnover was executed by the state of Indiana. Governor Evan Bayh denied Resnover's request for clemency. Resnover was convicted and sentenced in 1984 for the 1980 killing of an Indianapolis police sergeant and in connection with the robbery and slaying of a Brinks security guard at a K-Mart. The last execution in Indiana was in 1985.

In retaliation for Resnover's execution, a prison guard named Phillip Curry was stabbed to death on December 13, 1994, at the Indiana State Prison in Michigan City. Prisoner Leonard McQuay was arrested in the guard's execution and sent to MCC Westville.

As one prisoner has stated: "This sort of pushes things to a whole new level in this state for the prison movement, primarily because such a move is unprecedented in this state and the political ramifications of such a retaliatory act is extreme. Resnover was a revolutionary political prisoner of war who had a political case. He was well liked and loved by many prisoners." The prison at Michigan City was placed on lock down and all death row prisoners were moved to Westville.

Curry's death came after Charles Roche, a death row prisoner ...

Death Penalty Challenged by Philadelphia Public Defenders

Philadelphia's Public Defenders, Bar Association and Institutional Law Project Committee challenged the constitutionality of Pennsylvania's death penalty this October (1994), filing legal challenges in 78 murder cases including their clients.

The Defender Association of Philadelphia contends the law is "broadly drafted" and the state supreme court has "expansively interpreted" it, leaving more than 95 percent of murder defendants subject to a possible death sentence.

A 78 page petition to be filed with trial judges seeks to block, the death penalty on the basis that the state law violates provisions in the U.S. and Pennsylvania constitutions prohibiting cruel and unusual punishment and requiring due process of law.

After surveying 449 murder cases awaiting trial in July of 1994, Assistant Defender David Zuckerman found that 86.9 percent had at least one "aggravating factor" that would allow the District Attorney's office to seek the death penalty. The DA's offices had filed a notice of intent to seek the death penalty in 94.2 percent of those cases.

While, if successful, the challenges would invalidate the statutory scheme underlying the death penalty statewide, the figures cited by the Defenders were gathered only in Philadelphia.

Bradley Bridge of the ...

Purdy Medical Suit Settled

In the April, 1994, issue of PLN we reported Hallet v. Payne, No. 93-5496(T)D, the class action suit by women prisoners in federal court in Tacoma against prison officials at the Washington Corrections Center for Women, also known as Purdy. The suit alleged that medical care for prisoners ...

S.Ct. to Hear Quayle Retaliation Claim

On January 20, 1995, the US Supreme Court announced that it had granted certiori to hear a prison retaliation case and it may have an interesting effect on the 1996 presidential campaign if Dan Quayle, George Bush's former vice president, changes his mind and decides to run for the presidency.

Brett Kimberlin is a federal prisoner serving time on drug and weapons charges. Prior to the 1988 presidential election he was scheduled to give a press conference, in prison, alleging that he had sold drugs to Dan Quayle while both attended college. On three occasions, just prior to press conferences being held, Kimberlin was placed in segregation and prevented from talking to the media. He filed suit claiming that his segregation was an effort by the Bureau of Prisons to silence him. The district court agreed, see Kimberlin v. Quinlan, 774 F. Supp 1 (DC DC, 1991), denied the government's motion for summary judgment and scheduled the case for trial.

The government appealed and the court of appeals for the District of Columbia Circuit reversed, dismissing the case at 6 F.3d 789 (See PLN, Vol. 5, No. 3). The appeals court claimed that Kimberlin had presented only ...

Mumia Speaks

Mumia Abu Jamal is the former Black Panther unjustly convicted of killing a cop in Philadelphia. A journalist and outspoken advocate for the oppressed before and after his conviction, Mumia was sentenced to death. Since he has been on death row he has continued his incisive and insightful criticism and commentary of the criminal justice system and American condition in general. Mumia is a PLN reader and over the years has contributed articles to our pages. We recently reported that National Public Radio had dropped Mumia from its All Things Considered radio program after it had contracted to air his commentaries on the radio.

Now people don't have to wait on the corporate media to hear Mumia. He publishes a tabloid paper called The Jamal Journal: From Death Row This is Mumia Abu Jamal. The 20 page paper has articles by Mumia, about his case and updates on his situation as well as other political prisoners in the United States. Subscriptions aren't available but $3.00 will get you the latest issue. For copies or more information write: Jamal Journal, P.O. Box 19709, Philadelphia, PA. 19143. (215) 476-8812.

For those desiring more information and a clearer view ...

Population PI Vacated

Prisoners at the North Carolina DOC Morrison Youth Institution (MYI) filed a class action suit claiming that overcrowding and under staffing at the prison exposed them to constitutionally unacceptable risks of physical violence. They sought a preliminary injunction (PI) which was granted. The district court ordered prison officials to reduce the prison's population by 30% in two months to a total of 205 prisoners in single cells and limited the number of prisoners to be held in dormitories, to create and staff new guard posts in the prison and cease using dorms to house segregation prisoners. The court of appeals for the fourth circuit immediately stayed the order and then vacated the preliminary injunction.

The appeals court gave an extensive discussion of the role federal courts play in prison reform litigation by state prisoners. "Even where there has been a finding on the merits that unconstitutional conditions exist, federal courts should proceed cautiously and incrementally in ordering remediation so as not to assume the role of prison administrators." Essentially, federal courts should issue injunctions in the details of prison management only when prison officials have been given an opportunity to correct the constitutional violations and fail to do so ...

$50,000 Awarded in Groin Kneeing

Fred Culver is a mentally disabled alcoholic. He was arrested by city police in Sparta, Georgia and taken into custody. Once in the jail he began slapping at one of the policemen. In an ensuing melee Culver was twice kneed in the groin. He was released from the jail the ...

$157,000 Awarded in Retaliation Suit

Jory Lowrance is a Muslim New York state prisoner. In a seven year period he was transferred a total of 17 times to different state prisons. He filed suit under 42 U.S. C. § 1983 claiming that the transfers were in retaliation for his having exercised his rights of free ...

Most Murders by Friends and Family

One of the propaganda lies hyping the anti-crime hysteria is the fear of seemingly random crimes committed by strangers against strangers. Anyone who watches the television news or reads newspapers would conclude that such crimes constitute the majority of murders committed. However, according to government statistics, that is not the case.

The Department of Justice released its report Murder in Families, July, 1994. The study consisted of findings drawn from a representative sample survey of state and county prosecutors' records. The survey covered disposed charges against nearly 10,000 murder defendants accounting for over 8,000 murder victims in 1988. The study's findings are that murder victims usually know their killer and that parents are the leading killers of children.

The study revealed that 16% of murder victims were members of the defendant' s family. 64% were killed by friends or acquaintances while only 20% were killed by strangers. 57% of all murdered children under the age of 12 were killed by their parents. 11 % of all victims over 60 were killed by their children. 45% of family murder victims were female compared to only 18% of non-family murder victims. Among black marital partners women are just as likely ...

Death Penalty Sought for Kurdish Legislators

On August 3, 1994, the trial of eight Turkish Members of Parliament (MP) began in a special state security court in Ankara. Seven of the legislators are members of the now banned Democratic Party, one is an independent. They are charged with capital treason. Prosecutors claim that the eight MP's worked politically to further the cause of Kurdish Worker's Party (PKK), a communist party which has been waging an armed struggle since 1984 to establish an independent Kurdistan.

After months of trial the case was adjourned on December 8, 1994, to await a verdict. One of the MP's lawyers, Yusuf Alatas, stated that the prosecution had rested on its claims that the defendants were guilty of separatism and was seeking the death penalty. Alatas said the defendants decided not to produce a defense against the charges after their motions for evidence were denied. "They believe a defense will make no difference to the outcome," he said.

None of the MP's are charged with any acts of violence. The basis of the charges, according to Turkish prosecutor Talat Salk is: "Their aim is to form a Kurdish state by taking land from the government." The legislators were ...

State Prisons Subject to RA & ADA

State Prisons Subject to RA & ADA

Anthony Torcasio is an extremely obese Virginia state prisoner who is 5' 7" tall, weighs over 460 pounds and has a girth of 78" . He filed suit under 42 U. S. C. § 1983 claiming that his obesity is a disability that limits his walking range, gives him back pain, makes him unable to climb stairs, bend over, stand or lay down for prolonged periods of time and makes him vulnerable to body imbalances. The essence of his suit is that prison facilities simply cannot accommodate him due to his size, this ranges from cell doors, toilets, dining halls, pod tables, and outside recreational activities. Torcasio alleged that these conditions violated the Rehabilitation Act of 1973 (RA) 29 U. S. C. § 794, the Americans with Disabilities Act (ADA) 42 U.S.C. § 12132 and the eighth and fourteenth amendments of the US Constitution.

The defendant DOC officials moved for summary judgment.on various grounds, which the court granted and denied in part. Because Torcasio had been released on parole while the suit was pending the court dismissed the claims for injunctive relief as being moot.

The state claimed that the RA does not apply to ...

9th Cir. Clarifies Mailbox Rule

The Federal Rules of Civil Procedure and Appeals set forth numerous time limits by which motions and other documents must be filed, answered, etc. This has led to a large body of case law concerning how prisoners comply with these time limits due to the difficulties associated with litigating from within' prison, namely, having to rely on prison officials to forward their legal mail to the post office in a timely manner. In Houston v. Lack, 487 US 266, 108 S.Ct. 2379 (1988) the supreme court held that a pro se prisoner's "notice of appeal was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk."

Since then various appeals courts have expanded this rule to include bankruptcy petitions, motions, discovery replies, etc. and the rulings have dealt with the means by which prisoners actually mailed the documents at issue, i.e. through legal mail systems that logged the mail, certified mail, etc. Under the Federal Rules of Appellate Procedure (FRAP) litigants have thirty days from the time of the lower court ruling within which to file their notice of appeal, this time limit is mandatory and jurisdictional. Mark Koch is ...

Retaliatory Infraction Illegal

Donald Dixon is a Missouri state prisoner. He filed suit under 42 U.S. C. § 1983 after a prison guard filed a retaliatory disciplinary charge against him after he filed a grievance. The district court granted summary judgment in favor of the guard because the disciplinary hearings committee dismissed the infraction and Dixon was not punished. The court held that Dixon could not establish his retaliation claim without showing independent injury. The court of appeals for the eighth circuit reversed and remanded in a brief opinion.

"In Sprouse v. Babcock 870 F.2d 450 (8th Cir. 1989), we recognized the First Amendment right to petition for redress of grievances includes redress under established prison grievance procedures .... Although the filing of a false disciplinary charge is not itself actionable under § 1983, the filing of a disciplinary charge becomes actionable if done in retaliation for the in mate's filing of a grievance&, see: Franco v Kelly, 854 F. 2d 584, 589-90 (2nd Cir. 1988). Having presented evidence that Brown's disciplinary charge was false and made in retaliation for Dixon's grievance against Brown, Dixon need not show a separate, independent injury as an element of his case.  Because the retaliatory ...

VA Parole and Good Time Laws Don't Create Liberty Interest

Orillion James is a Virginia state prisoner who filed suit seeking money damages and an injunction ordering prison officials to expunge his records of false educational information that hindered his ability to be paroled. The records in question claim that James can only read at a fifth grade level and does not have a GED. Despite several requests, the defendants refused to expunge the erroneous information. James contends that the erroneous information has resulted in his security level being increased which results in a liklihood he will be denied parole.

The court noted that in Paine v. Baker, 595 F.2d 197 (4th Cir 1979) it was held that prisoners could challenge the accuracy of information in their prison files if the information was "constitutionally significant," i.e. it would affect their release from prison by being relied on to deny parole or statutory good time credits. "The entire premise for the Paine dictum was that an inmate had a liberty interest in parole and good time credits that was protected by the due process clause of the fourteenth amendment."

Analyzing Virginia parole statute, Va Code § 53.1-155, the court held "The Virginia statute, far from creating a presumption that ...

Forfeiture Violates Double Jeopardy

In the November 1994 issue of PLN (Vol. 5, No. 11) we reported on the abuse of asset forfeiture laws by law enforcement agencies more interested in monetary gain than in any legitimate measure of justice. Shortly after that article went to press (PLN articles are typically written 2-3 months before they appear in the issue you read) the Ninth Circuit made a landmark ruling in an asset forfeiture case. The court ruled that when the government seeks a criminal conviction against defendants and also seeks forfeiture of assets in a separate civil action and when both actions are based on the same illegal activities, that whichever action (criminal or civil) was prosecuted second is a violation of the Double Jeopardy Clause of the Fifth Amendment.

The ruling stemmed, from a pro se brief filed by James Wren and Charles Arlt following their convictions of various counts of conspiracy and money laundering. In the criminal case, Arlt, Wrens and several others had been accused of conducting a large-scale methamphetamine manufacturing operation. The government instituted the civil forfeiture action five days after a grand jury issued a superseding indictment in the parallel criminal case. The forfeiture complaint listed $405,089.23 ...

CA Legislative Horror Show

Due to our very long lead time (I write this on March 7th) it's difficult to report on fast moving stories like the goings on in the state house. As you read this, who knows what may have happened since this story was written. But that said, here is "the latest" from the California Legislative Horror Show.

AB 411, introduced by assembly member Bordonaro, would greatly reduce the number of prisoners eligible to participate in the family (trailer) visiting program. Those convicted of crimes relating to murder, manslaughter, sex offenses, or anybody doing life without parole would be prohibited from having trailer visits.

Not to be outdone by the state assembly, James Gomez, Director of the CA Dept. of Corrections (CDC) filed an application for "emergency" regulatory changes to the California Code of Regulations which. would prohibit family (trailer) visits for any prisoners convicted of murder; with a life top; manslaughter or attempted murder of a family member; specified sex offenses; in close custody, ad seg, SHU, a reception center or on death row; convicted of narcotics trafficking, in prison or out; or who has received a disciplinary charge within the past year.

Gomez is applying for emergency regulations ...

No Habeas for Jailhouse Lawyer Aid

In a rather novel ruling the third circuit has ruled that federal courts lack authority to issue writs of habeas corpus to ensure that an imprisoned pro se litigant has the assistance of a jailhouse lawyer at trial. Michael Jones is a New Jersey state prisoner who filed suit claiming he had been raped by other prisoners. The case was scheduled for trial. Before trial Jones filed a motion for the appointment of counsel which the district court denied. After the court's denial Jones requested that Thomas Hill, a prisoner paralegal at the Trenton State Prison, be allowed to assist him at trial. The court agreed and issued a writ of habeas corpus directing the warden at TSP to produce Jones for the trial and Hill to assist him. The prison official defendants appealed and the court of appeals for the third circuit vacated and remanded.

As a preliminary matter, the appeals court held that it had jurisdiction to hear the appeal as an interlocutory appeal. It also held that the defendants, who, would not personally bear the cost of transporting Hill, were the proper parties to file the appeal.

Jones did not seek a writ of habeas corpus ...

Attorney Fees for Monitoring Consent Decree

In 1992 prisoners seeking to desegregate the Southern Ohio Correctional Facility (SOCF) in Lucasville, Ohio, entered into a consent decree with prison officials. Under the terms of the decree the cells at SOCF would be randomly integrated. After the April, 1993, rebellion at SOCF [see PLN, Vol . 4. No. 6 ...

Reviews

By Paul Wright

What you're holding in your hands is referred to as the "Alternative Press." We are called that because we offer an "alternative" view to that provided by the corporate media. In our case we are advocates for the rights and well being of prisoners and seek to add our perspective to the criminal justice policy debate. Ours is a small voice because unlike the corporate media we aren't subsidized by advertising and deep pocket publishers. Because we rely directly on reader support we are able to represent the views and interests of progressive prisoners.

We frequently review and plug other alternative publications because we believe it is important to inform people about their existence and encourage support for the alternative media. None of us can afford to advertise, the only way we can make ourselves known is through word of mouth and supporting each other. We are especially anxious to support other prisoner publications, by this I mean publications by and for prisoner interests, not the ones published by prisons that are censored and all to often are nothing more than the warden's public relations office. Ideally, every state should have a monthly newsletter ...

Federal Habeas Rarely Granted

The National Center for state Courts in Williamsburg, VA has released a study conducted by Victor Flange, concluding that post conviction challenges by prisoners in state or federal court are rarely successful. The report was originally commissioned in 1989 by the Conference of Chief Justices to determine if state court reforms could reduce the need for federal habeas corpus review. The report claims to be only the second multi-state study of habeas corpus ever made. The courts studied are located in Alabama, Texas, New York, California and the federal district courts located in those states. The data gathered was based on state and federal habeas filings in 1990 and 1992.

The report concluded that the number of federal habeas filings by state prisoners has remained relatively constant over the past thirty years. In 1963, when the supreme court substantially increased the availability of federal habeas review to state prisoners the number of filed federal habeas petitions was 2,106. This represented 1.08 percent of all state prisoners. In terms of percentages of state prisoners this number grew to 5.14 percent in 1970 but has retreated every year since. In 1991 federal courts received 10,323 habeas petitions which ...

News in Brief

WA: Dean Wilkins, a Kitsap county jail guard, resigned on January 20, 1995, after county detectives investigated a complaint that he had had consensual sex with a female prisoner at the jail. The complaint was made by another prisoner who witnessed the incident.

FL: In the March, 1995, NIB section we reported the five prisoners who tunneled out of the Glades Correctional institution. On January 10, 1995, more than 80 heavily armed police surrounded two of the escapees, Florencio Alvarez and Armando Junco, in a shack at a homeless area. Alvarez tried to hide while Junco attempted to flee out the back door. A Miami cop shot and killed the unarmed, 63 year old Junco. Police charged Alvarez with second degree felony murder in Junco's death. He faced another life sentence if convicted. Prosecutors later dismissed the charges.

VA: On February 5, 1995, prisoners at the Lorton prison's maximum security cell block left their cells after a power problem opened the cell doors of 88 prisoners at 1 AM. Two guards were stabbed and four others injured during the nocturnal cell release. Six prisoners suffered injuries as well. It took prison officials six hours to subdue the prisoners ...

 

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