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Prisoner Education Guide

Prison Legal News: September, 1996

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Volume 7, Number 9

In this issue:

  1. IMU Placement Implicates Due Process (p 1)
  2. Denial of Disciplinary Witnesses Upheld (p 3)
  3. Limited Interlocutory Appeals in Medical Cases (p 4)
  4. From the Editor (p 5)
  5. A Matter of Fact (p 6)
  6. Pro Se Tips and Tactics (p 7)
  7. Mass Transfer Madness (p 9)
  8. CBCC Struggle Ongoing (p 10)
  9. Phone Activist Seeks Info (p 10)
  10. Thanks from Thailand (p 10)
  11. The Price of Freedom (p 11)
  12. From the Home Front (p 11)
  13. Armed Guards in Illinois (p 11)
  14. Un-Happy Meals in Kansas (p 11)
  15. Elizabeth Alexander Named Director of ACLU National Prison Project (p 12)
  16. Washington Death Row Prisoners Get Habeas TRO (p 12)
  17. Florida Utilities Commission Refunds Phone Kickbacks (p 13)
  18. Texas Prisoners Build Their Own Cages (p 13)
  19. Challenging Evil That Ills This Society (p 14)
  20. Iowa State Court Rules on Forfeiture (p 15)
  21. BOP Phone Suit Settled (p 16)
  22. $43,410 in Attorney Fees Awarded in PC Case (p 17)
  23. NSP Double Celling Order Vacated (p 18)
  24. Supreme Court Closes Double Jeopardy Door (p 18)
  25. Warden Caught in Sex Sting (p 19)
  26. Rhode Island Fee Violates Ex Post Facto (p 19)
  27. Prisoner Has Right to Hunger Strike (p 20)
  28. Asbestos Exposure Violates Eighth Amendment (p 21)
  29. News in Brief (p 22)
  30. Job Denial Based on HIV Status May Violate ADA (p 23)

IMU Placement Implicates Due Process

The court of appeals for the ninth circuit held that an Oregon prisoner's transfer to an Intensive Management Unit (IMU) control unit may violate due process if done without procedural due process. The court also held that several control unit conditions stated a claim for constitutional violations. This ruling is significant because it applies a due process analysis in the wake of Sandin v. Connor, 115 S.Ct. 2293 (1995), which significantly gutted prisoners' right to due process with regards to segregated confinement.

Charles Keenan, an Oregon state prisoner, was infracted after guards found weapons in his cell. Keenan was found guilty at the hearing, sentenced to six months in the Disciplinary Segregation Unit (DSU) and fined $325. After being found guilty, Keenan was reclassified to maximum custody which entails housing in IMU. Keenan was not allowed to attend this hearing. Oregon law requires only notice and an opportunity to appeal. After six months in DSU Keenan was transferred to IMU and remained there for six months. Keenan filed suit challenging the transfer to IMU and numerous conditions of confinement in IMU. The district court dismissed the complaint on a motion for summary judgment. The court of appeals reversed ...

Denial of Disciplinary Witnesses Upheld

The court of appeals for the first circuit vacated and remanded a Massachusetts district court ruling that had held that a prison policy denying witnesses from the prison's general population to segregated prisoners' disciplinary hearings was unconstitutional. Brendan McGuinness is a Massachusetts state prisoner who was infracted for allegedly getting into a fight with a guard. At the disciplinary hearing McGuinness requested that a prisoner who witnessed the incident be called to testify on his behalf at the hearing. The policy at MCI Cedar Junction was to automatically deny all requests for witnesses from the prison's general population. McGuinness filed suit contending that this policy violated his constitutional rights. The district court held a bench trial and issued a ruling of declaratory judgment.

The district court held that under Kenney v. Commissioner of Corrections, 393 Mass. 28, 35, 468 N.E.2d 616 (1984) witnesses cannot be denied in a disciplinary hearing simply based upon the location of the individual within the prison. The court noted that Massachusetts DOC policy states that prisoners shall be allowed to present evidence and witnesses at disciplinary hearings unless certain predicates are met. The regulations required a case specific determination that security ...

Limited Interlocutory Appeals in Medical Cases

The court of appeals for the eighth circuit held that the law is clearly established that a heart transplant patient is entitled to reasonable medical care. Whether he actually received that care was a factual question it lacked jurisdiction to answer. In 1985 Edward Miller received a heart transplant. In 1989 he began serving a long sentence for the state of Missouri. Miller filed suit claiming that prison doctors did not provide him with the specialized and ongoing medical care he required as a heart transplant patient. The defendants sought summary judgment claiming that Miller had not produced evidence from which a jury could conclude that he was deprived of the necessary medical care, or that if he was, that they were responsible. They also claimed that Miller was not harmed by any neglect on their part, because he had not rejected the heart and was still alive. They also claimed that they were entitled to summary judgment on qualified immunity grounds. The district court rejected these arguments and the defendants filed an interlocutory appeal.

As a preliminary matter the court noted that it lacks jurisdiction to hear interlocutory appeals that challenge the sufficiency or adequacy of the evidence in ...

From the Editor

By now you should have noticed that we have a new mailing address and new subscription rates. While all mail sent to our Florida address will be processed for the next few months you will get faster results by sending all correspondence, donations, etc., to our Seattle address. The PLN move to Seattle is about six years overdue. When PLN first started in 1990 we were Seattle based but had difficulty finding a reliable volunteer to handle our mail and banking. We asked my dad, Rollin, if he would handle PLN's mail on a "temporary" basis, just until we found someone in Seattle to do it. That was six years ago, but better late than never. By consolidating our operation in one place we will be able to provide faster service. We would like to extend our heartfelt thanks to Rollin for his many years of generous and selfless help to PLN. Hopefully by the end of the year he can be a retired PLN volunteer.

One of the changes, in addition to the rate increase, is that we have established a minimum donation of $5. We did this due to the huge amount of time, proportionately, that it ...

A Matter of Fact

The racial makeup of California prisoners is: 29% white, 33% black and 34% brown. But in California's supermax, Pelican Bay SHU, 14% are white, 17% are black and an astounding 60% are brown. In California's other SHU for male prisoners at Corcoran, 18% are white, 23% black and 55% brown.

A 1992 report published in Business Week showed that immigrants in the U.S. pay $90 billion a year in taxes and collect $5 billion a year in welfare benefits. Even in Los Angeles (remember California's Proposition 187?), undocumented workers pay $1.8 billion more in taxes than they ever get back in services. (Does imprisonment in SHU count as a service?)

In California whites make up 53% of the total population, 35% of the people arrested and only 29% of state prisoners. On the other hand, blacks make up 7% of the state's population, 18% of those arrested, and 33% of the state's prison population.

From 1991 to 1993, 13 million U.S. workers were eliminated from their jobs by downsizing.

The Fortune 500 firms shed 4.4 million jobs between 1980 and 1993. During that same period their sales increased 1.4 times ...

Pro Se Tips and Tactics

In the June issue of PLN, I discussed the defense of so-called "qualified immunity" that is available to public officers and employees sued under 42 U.S.C. § 1983. This companion column discusses the other kind of immunity you may run into, so-called "absolute immunity" from a § 1983 suit. I first explain what an absolute immunity is, then give an overview of what officials are entitled to absolute immunity and under what circumstances, and finally provide a few practical suggestions.

1. What Absolute Immunity Is

An "immunity," as this word is used in § 1983 cases, refers to an "immunity from suit." A defendant who has an immunity cannot be sued for damages, as the courts have found that there are values more important than the plaintiff getting compensation.

An "absolute immunity" is an immunity that applies to persons acting in certain public offices. It is an immunity based on the role the person plays in the government. Courts have found that people acting in such roles should be free to act without the threat of suits for damages getting in the way of the decisions they have to make. These immunities are called "absolute immunities" to distinguish them from "qualified ...

Mass Transfer Madness

by W. Wisely

On April 1, 1996, the California Department of Corrections began the first phase of its "180/270" transfer plan for Level IV prisoners. All prisoners housed in Level IV prisons have been classified for retention in either a "180" or "270" degree design facility. The initial wave of transfers to newly opened Salinas Valley State Prison (New Soledad) is near completion as the largest, and most expensive, mass movement of prisoners in the nation's history gets under way.

So-called "270" degree design format prisons require prisoners from several housing units to walk outdoors to use a central dining facility for meals. The cells are arranged in a 270 degree layout around a central control. All three sections within a single housing unit share the same day room and cell doors are made of sheet metal with nine millimeter holes every half inch. After several serious staff and prisoner assaults at 270 design prisons, prison officials concluded the older 180 degree institutions were more secure.

In 180 degree prisons, every two housing units share a dining hall and prisoners do not walk outside to use them. The three sections of each housing unit are separated by concrete ...

CBCC Struggle Ongoing

You printed "CBCC Prisoners Struggle" [in the Jan '96 PLN]. Well, prison authorities didn't like that too much. It was photocopied and passed around. It was hanging in every pod in close-custody, and the [guards] here were going around tearing it down, calling it unauthorized. Here's what's happened since.

On March 3rd I guess the [guards] heard rumor of a suspected work strike because of the 35% [seized from prisoners' accounts--See: June '96 PLN]. Well, when no morning kitchen workers showed up for work (5:00 a.m.), they locked down the close-custody section of the joint.

We didn't get our first shower until after four days, our first phone call after five. We were denied commissary and were served (foul, rotten) bologna sandwiches two meals a day for the entire lock-down. All the while we could see medium/minimum [prisoners] walking back and forth to chow, gym, etc. because they broke weak and chose not to participate.

So anyway, on March 9th, a squad of six goons equipped with a video camera came to the cells of about 50-60 prisoners, cuffed them, and took them to D-Unit, which they had cleared out and turned into ...

Phone Activist Seeks Info

In late 1994 I asked you to publish a request for information regarding prisoners whose friends and families have had to pay for collect calls which the prisoners didn't make.

I received several replies, and ended up maintaining correspondence with one prisoner. With his help I filed suit in federal court against AT&T and the prison system where my friend is incarcerated. I filed this suit after all my requests for reimbursement were denied. Not only were there calls made after 9:00 p.m., when the phones were turned off, and calls made when she was physically locked in her cell for the night, but calls were also made during daytime and nighttime cell counts. Although they were on my telephone bills, they were not (could not have been) placed by my friend nor received by me.

I am again appealing for information from other prisoners who have had to deal with this--particularly with AT&T, but also with any other telephone companies.

If enough people have had to pay these fraudulent charges to AT&T in order to keep their telephone service, perhaps (just perhaps) I could interest a law firm in handling a class action ...

Thanks from Thailand

Dear PLN Readers -- It's been over a year since we wrote. We received many thoughtful and kind responses from PLN readers--and we have wonderful news to share with you. Because of everyone's efforts on behalf of Americans incarcerated in Bangkok, the one kilo provision (which barred most of us from ever coming home) has been removed! I'm eligible now and along with seven other women will be submitting our requests to transfer. If I'm accepted by the DOJ we're looking at a July return "home."

This is proof that we can win one now and then, but we still need to work on getting Thailand to remove the 4/8 year mandatory minimum length of stay enforced on foreigners here. Many foreigners have life sentences. Eight years is a terrible toll for anyone to pay, separated from family and country.

We wish to thank you all very, very much for caring. We will still have time to do in the States, but there's no place like home!

-- Jackie Sample,
U.S. prisoner in Thailand

The Price of Freedom

The Vermont DOC and its planning director Mr. John Perry, have developed a plan for charging all probationers, those under house arrest or on parole, and those who are under conditions of release of one form or another, to pay the Vermont DOC $30 per month to remain free. The DOC expects to bring in about $250,000 from 8,000 affected prisoners within the first year. The plan was signed into law and will go into effect on July 1, 1996.

1 would like to say that your legal news information has assisted us here in Vermont more than a few times over the last year, and due to your reports of wins as well as losses, and prison conditions across this country, we have kept ourselves to a proper legal approach, using only proper and adequate legal arguments based on sound case law. I, for one, am very grateful for your efforts and intent in making the information in PLN available to Vermont prisoners.

-- B.E., Vermont Prisoner

From the Home Front

I've been receiving PLN for a year now. I appreciate your work on behalf of prisoners and for the cause of truth telling in our society. PLN is a righteous satisfaction to read. Your editorials are especially excellently written, intelligent, articulate, radical and sane.

I think many of us living ordinary lives out here in minimum security are terribly angered by current social control tactics, the drug war, the race war, the war on the poor. But our outlets for expression are few, and efforts at activism feel futile in the face of a deadening paranoia fed by the media isolation and scapegoating of a criminal class.

Until the tentacles of the police state sting at home, it is comfortable for some to indulge in the illusion of us and them. Until our own brothers and lovers and sisters and sons get swept into the net, we can silently shake our heads and carry on our ridiculous busy complacent insular lives.

While it was apparent that the inflammation of the crime issue was a political expediency designed, in part, to compliment and cover government complicity in the cartel-enabled inner city drug glut, and in part to re-deploy a military ...

Armed Guards in Illinois

In the article entitled No Specific Intent Required for 8th Amendment Claim [PLN Vol. 7 No. 3], you stated that to the best of [your] knowledge, Nevada and California are the only prisons which station armed guards within their housing units. Please be advised that Illinois also has armed guards within their housing units at each of the four maximum security facilities, and will most likely have armed guards at the supermax which is scheduled to open in 1997.

Here at the Pontiac Maximum Penitentiary, guards continuously walk up and down a semi-caged catwalk looking into cells. The catwalk guards are armed with an M-14.

On January 12, 1996, a catwalk guard observed a prisoner approaching another guard in what he described as a threatening manner, and he believed said prisoner to be armed with what appeared to be a homemade knife. The catwalk guard said he feared for the safety of his fellow officer, so he shot and killed the prisoner. Pontiac has been on lockdown status since the killing [letter dated July 7] and prisoncrats are using this incident along with prior and subsequent incidents of violence to justify what is appearing to be a permanent lockdown status ...

Un-Happy Meals in Kansas

On May 19, 1996, the Kansas DOC turned over the kitchens of all the prisons to Canteen Correctional Services (CCS), a private for-profit contractor. It is worth noting that despite the contract to feed the prisoners, prisoner labor is still required, and the prisoner kitchen workers are paid from 60¢ to $1.05 to do all of the dirty work, while the CCS employees receive big paychecks for a minimal amount of work.

The Warden, Michael A. Nelson, and his deputy nazis made a video and played it via the prison movie channel, asking that all prisoners be patient and cooperate with the staff during the transition, and what a wonderful program this was going to be.

The prisoners fell for his lies, and as a result we now have portion control. We lost the salad bar that prisoners fought for many years to obtain. We get small amounts of food, no more than the "Happy Meal" for kids served at McDonalds. We get one pack of salt & pepper, two slices of bread one pack of ketchup (if we have the 3 oz. hamburger w/fries). You get one napkin, etc. Get the picture?

Grown men are going hungry. Kansas ...

Elizabeth Alexander Named Director of ACLU National Prison Project

The American Civil Liberties Union has announced that Elizabeth Alexander was appointed director of its National Prison Project, which has been in the forefront of the battle for prisoners' rights for 25 years. She succeeds Alvin J. Bronstein, who had been director since the start of the Project in 1972.

"Elizabeth Alexander is one of the premier prison litigators in the country," said Steven R. Shapiro, legal director of the ACLU. "She brings to the National Prison Project a unique combination of courage, commitment and intellectual savvy. I look forward to seeing her guide the Project through this difficult time when the rights of prisoners are under unprecedented attack."

Ms. Alexander assumes the directorship at a critical juncture in the Project's mission: Incarceration rates are at an all-time high, while the three branches of government are cutting back on long-held safeguards for prisoners. In particular, the Prison Litigation Reform Act was swept into law this spring, seriously crippling the power of the federal courts to correct even the most egregious prison conditions, including rape, physical abuse, and lack of medical care.

"Public officials need to be reminded that prisoners are entitled to fair and humane treatment," said Alexander. "Under ...

Washington Death Row Prisoners Get Habeas TRO

In the August, 1996, issue of PLN we reported the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996 (habeas law). One of the new law's provisions is that it has an option whereby a state's death penalty cases can be placed on a judicial fast track, whereby all federal habeas petitions must be filed within six months of exhausting state remedies, courts must promptly rule on the petitions, and few if any stays of execution will be granted. However, before a state can "opt in" and take advantage of these speedy resolution provisions for capital cases (readers should note these provisions apply only to death penalty cases), it must take measures to ensure a fair and complete state post-conviction appeal process. This requires a rule or statute governing the standards of competency for counsel in capital cases, a mechanism for the appointment and compensation of counsel; payment of litigation expenses and a "unitary review" system whereby petitioners can raise collateral claims on direct review in state court.

Shortly after the habeas law's passage on April 24, 1996, Washington state's ethically challenged attorney general Christine Gregoire announced that she would place Washington death penalty ...

Florida Utilities Commission Refunds Phone Kickbacks

The June, 1996, issue of PLN reported that the contract to provide phone services to Florida state prisoners was awarded without competitive bidding in circumstances strongly suggesting corruption. Since 1987 Florida prisoners have been allowed to make collect calls to friends and families, providing the proverbial captive market to phone companies holding the contracts to provide such services. The state, i.e., the DOC, gets kickbacks in the form of commissions.

An investigation by the Florida Public Service Commission determined that North American Intelecom Inc. (NAI), of San Antonio, Texas, had fraudulently overbilled consumers who accepted collect calls from Florida prisoners. In one case a woman was billed for calls from 200 miles away even though they were made from a prison 26 miles away. When PSC investigators made test calls from prisons they found the charges were inflated by as much as 30%. A 34 second call was billed as three minutes! NAI agreed with the PSC to refund $400,000 to consumers who accepted calls from Florida prisoners in recent years.

A 1992 PSC memorandum indicated this problem was likely to arise because phone companies could not afford to pay big kickbacks to the state, now averaging 50 ...

Texas Prisoners Build Their Own Cages

Texas increased its prison population over the past ten years from 37,000 to a soon-to-be 145,000. At one point, the lack of prison space kept a backlog of 35,000 state prisoners in county jails. All told, the state paid more than $650 million in court-imposed fines because of overcrowded prison conditions.

In the early 1990's Texas voters approved $2 billion in bonds for an unprecedented prison expansion program, but according to Wayne Scott, director of the TDCJ Institutional Division, the new beds were brought on-line for $1.5 billion.

"We built 75,000 prison beds in four years--that's like building the fourth largest prison system in the country," says Scott, "and we were able to do it ahead of schedule and under budget."

There were two main reasons the state was able to accomplish this gargantuan feat, and do so at a cost estimated to be one-half of the national average for prison construction: the use of a prototypical (cookie-cutter) design done by in-house architectural teams and the extensive use of unpaid prisoner labor.

'Almost all of the furnished items that go into the prisons are manufactured by the prison inmates in our state, including ...

Challenging Evil That Ills This Society

The September 1995 New York State Prison Strike

[The following is reprinted from Peace Newsletter, 3/96.]

Musaa has served 13 years of a 20 year sentence in the NYS penal system. He has earned three degrees with an emphasis on political science and social critique. Until last fall Musaa was at Auburn Correctional Facility.

This interview is adapted from our correspondence. Here Musaa discusses last September's statewide prison protest against worsening prison conditions. Sept. 13, 1995, was chosen as the date to kick off the two week protest because it was the anniversary of the 1971 Attica Rebellion. That bloody rebellion was also a protest against worsening prison conditions.

In the aftermath of the protest many prisoners, including Musaa, were shipped around the state and placed in special housing units or deprivation cells. Musaa mentions Jean Marie DeMay, formerly of the NYC Legal Aid Society. She lost her job on Sept. 4 for allegedly urging maximum-security prisoners to strike. - Ed Kinane

PNL - Was the September action unprecedented?

Musaa: Strikes, boycotts, and protests by prisoners over dehumanizing prison conditions certainly aren't anything new. Rather they are a classical part of prison experience. Our protest differed in that, firstly ...

Iowa State Court Rules on Forfeiture

The Iowa supreme court recently ruled that civil forfeiture of cash proceeds from illegal drug sales was not punishment for double jeopardy application, reversing the district court's decision that dismissed the state prosecution of a drug charge, since it occurred after the forfeiture.

The state of Iowa brought a civil forfeiture action to seize contraband (marijuana) and $86 in cash confiscated from the defendant, McFarlin, upon his arrest. McFarlin did not file for the return of his property, and it was forfeited to the state. He was charged with possession of a controlled substance with intent to deliver. He filed a motion to dismiss the criminal charge on the ground that since there had already been a forfeiture, further punishment was barred by the double jeopardy clause. The dismissal was granted and the state appealed.

The state argued that since the defendant did not seek the return of the forfeited property, he had no interest or ownership of it, and the forfeiture therefore did not impose a penalty on him. The state's argument was based on United States v. Torres, 28 F.3d 1463 (7th Cir.), cert. denied, - U.S. -, 115 S.Ct. 669, 130 L.Ed.2d ...

BOP Phone Suit Settled

In the March and November, 1994 and March, 1995, issues of PLN we reported developments in Washington v. Reno, a class action suit filed by federal prisoners which challenged numerous aspects of a new phone system imposed by the Bureau of Prisons (BOP). (Back issues are available for $5.00 each.) On November 23, 1995, judge Henry Wilhoit, based in Lexington, Kentucky, approved the settlement dismissing the suit. Because we have already extensively reported the litigation and facts in the case in previous issues of PLN this article will only summarize the settlement itself. The settlement was made available to all BOP prisoners via their prison law libraries.

Collect Calls: Under the settlement the BOP must award a phone contract that will enable all BOP prisoners to place collect calls in addition to debit calls (where the prisoner pays for the call by buying phone credits on the commissary). For a four year period, starting from when the agreement is signed, the BOP must allow all prisoners to make at least 120 minutes of collect calls a month, in addition to debit calls. The BOP may require that the collect calls be placed to numbers on the prisoner's official ...

$43,410 in Attorney Fees Awarded in PC Case

A federal district court in New York awarded $43,410 in attorney fees to prisoners who sued over conditions in protective custody (PC) units in the New York state prison system. The litigation involved a class action suit filed by PC prisoners in 1976. In 1986 the Department of Correctional ...

NSP Double Celling Order Vacated

The court of appeals for the eighth circuit held that a district court had to reconsider prisoners' double celling claims under the supreme court's ruling in Farmer v. Brennan, 114 S.Ct. 1970 (1994). This case arises from a class action suit filed by prisoners at the Nebraska State Penitentiary (NSP) contending that double celling at the prison violated their eighth amendment rights. In Jensen v. Gunter, 807 F. Supp. 1463 (D NE 1992), the court held that the double celling did not violate the eighth amendment but the manner in which it was carried out did, and entered an injunction. In Jensen v. Gunter, 869 F. Supp. 1446 (D NE 1994), the court awarded the prisoners attorney fees. Both cases were reported by PLN, See: Vol. 4, No. 5; Vol.5, No.3,7.

The district court made findings that NSP was a violent prison and that the level of violence had increased after the prison was double celled. The court rejected the claims that double celling or overcrowding at NSP violated the eighth amendment. Instead the court held that prisoners faced a substantial risk of harm at the hands of their cellmates because prison officials had a ...

Supreme Court Closes Double Jeopardy Door

"Counsel, are you trying to show contempt for this court?"

"No, your honor, I'm doing my best to conceal it."

-- Attributed to Clarence Darrow in the Scopes "Monkey Trial"

He had a point. Some days it's tough to conceal it. What should we feel about a court that doesn't even respect itself and its recent precedents? Respect, or contempt?

When United States v. $405,098.23, and United States v. Ursery were argued before the Supreme Court in April, several justices asked the government, "Isn't the argument you are making (that forfeitures are punishment for purposes of excessive fines analysis, but not punishment for purposes of double jeopardy analysis), logically incoherent?" Several Justices seemed to think so. Very recent unanimous Supreme Court precedent seemed to dictate that forfeitures were punishment for double jeopardy purposes, but when it came time to write the opinion, the Court failed to respect even its own recent precedents. In an opinion considered by many government attorneys (who, naturally, have requested anonymity) to be shamelessly result oriented, and by the rest of us to be transparently dishonest, the Supreme Court ruled simply that civil "in rem" forfeitures based upon underlying crimes are ...

Warden Caught in Sex Sting

The Superintendent of Florida's Polk Correctional Institution resigned on the night of April 11, 1996, just hours after he was charged with propositioning an undercover sheriff's deputy at a local park.

Evon Alexis Colchiski, 39, was one of the twenty men arrested during a Polk County Sheriff's Office sting operation at the park. He was charged with committing a lewd act and offering to commit lewdness. Both charges are misdemeanors. He was booked into the Polk County Jail and released.

"Oh God," said Kerry Flack, public information official for the Florida DOC, when she was informed of the charges against warden Colchiski. Flack then called Colchiski at home, whereupon he resigned. "He said it wasn't what it appeared to be," said Flack, "but rather than embarrass the department he would resign."

Colchiski was arrested at 1:25 p.m. after he approached a male undercover deputy in the park, fondled himself and offered to perform oral sex on him, a sheriff's department spokesperson said. He later pleaded no contest to the charges and received six months probation and a $200 fine.

Meanwhile, back at the prison, we have this rather amusing on-the-scene report:

Friday morning ...

Rhode Island Fee Violates Ex Post Facto

A federal district court in Rhode Island held that a DOC policy imposing a monthly supervision fee on probationers convicted before enactment of the statute allowing assessment of such fees violated the ex post facto provisions of the U.S. and Rhode Island constitutions. Rhode Island general laws § 42-56-38 provide that criminal offenders sentenced to the care, custody or control of the DOC, including but not limited to those on probation and parole, are required to reimburse the state for the costs of the services. On June 17, 1994, the DOC enacted Regulation No. 10.07.03 entitled "Adult Probation and Parole Offender Supervision Fees,'' which stated that a monthly supervision fee of $15 would be assessed against all probationers and parolees effective July 1, 1994. The rule provided for a waiver of the fee if the offender can show a financial hardship.

All of the plaintiffs in this case had been convicted and sentenced to probation with the DOC before July 1, 1994. They were notified by the DOC that they had to pay the monthly fee but were not told of the waiver provisions. Plaintiffs who were late in paying received notices that if they did not pay ...

Prisoner Has Right to Hunger Strike

A Florida appellate court has ruled that a prisoner has a right to refuse forced feeding or medical treatment based on an interpretation of the privacy clause of the Florida State constitution.

In late 1994 Michael V. Costello, a Florida state prisoner who was the nominal plaintiff in the state's monumental conditions of confinement class action, was transferred from Polk Correctional Institution to the state's historically "sweet" prison at Avon Park. However, after a very brief stop at Avon Park, Costello found himself transferred to Martin Correctional Institution, a close-management control unit notorious for its chronic mayhem.

Shortly after arriving at Martin, Costello commenced a protest of this apparently punitive, retaliatory transfer by refusing all food and restricting his intake to black coffee and water. Approximately one week later Costello filed a complaint for declaratory and injunctive relief in the Martin County circuit court. This action sought a declaration of Costello's right to continue his fast devoid of non-consentual medical intervention. He also sought a permanent injunction prohibiting prison authorities from imposing such medical treatment or otherwise interfering with his fast.

Soon it became apparent to Costello that prison officials might intervene, and he filed a motion ...

Asbestos Exposure Violates Eighth Amendment

The court of appeals for the ninth circuit held that exposing prisoners to asbestos violates the eighth amendment. Clarence Wallis is an Oregon state prisoner assigned to a cleanup crew. His work detail was ordered to remove asbestos hanging off pipes, without any type of protective clothing. When prison buildings were re-roofed, asbestos covering the attic pipes had been damaged. A state fire marshal ordered the material removed and Wallis and other prisoners were assigned to do so. Their duties included tearing the asbestos off the pipes and bagging it for disposal. The prisoners and their guard supervisor were given no type of protective clothing or training in asbestos removal. The prisoners spent about 45 hours removing the asbestos dressed only in prison khakis and cotton work gloves.

Both the prisoners and their supervisor noticed the asbestos in the attic and experienced pain in their lungs, discharges and other health problems shortly thereafter. Wallis attempted to notify prison officials of the asbestos and filed a grievance requesting removal from the work detail or that he be provided with adequate protective clothing. After the complaints, the prison hired a professional asbestos removal company to remove the asbestos, and they removed more ...

News in Brief

AL: On May 15, 1996, chain gang prisoner Abraham McCord was shot and killed by guards after he allegedly attacked another prisoner with a bush axe and disregarded a warning shot.

AR: The Arkansas Democrat Gazette reports that prisoners doing time in the Cross county jail in Wynne used police vehicles, went drinking, took trips and used sheriff Ronnie Huey's deer hunting camp. Huey denied any misconduct.

Argentina: On April 4, 1996, two commandos of the People's Revolutionary Organization shot Jorge Berges 10 times with a pistol and five times with a shotgun, killing him. Between 1976 and 1983 Berges had been a police doctor responsible for overseeing the torture and murder of political prisoners and detainees by the Argentine police. His duties consisted of ensuring that victims lived long enough during torture to divulge any information they might have. He also enriched himself by selling the babies born to prisoners who were later murdered and disappeared. In addition to delivering the infants he falsified the birth certificates to allow their sale. In 1985 Berges was convicted of sundry war crimes and sentenced to six years in prison. His sentence was commuted after he had served two years ...

Job Denial Based on HIV Status May Violate ADA

A federal district court in Florida held that a jail's denial of trustee status to an HIV+ prisoner would violate the Americans with Disabilities Act (ADA) 42 U.S.C. 12131. Johnnie Dean was held in the St. Lucie County jail when he requested trustee status. Dean was HIV+ but asymptomatic and had informed jail officials of his medical problem upon his arrival. His request was denied for medical reasons with no other explanation given. Dean was later told by a nurse that the jail had a policy of denying trustee status to HIV+ prisoners. Dean filed suit, claiming that the denial of his request for trustee status based on his HIV status was an act of discrimination banned by the ADA. The defendants moved for summary judgment claiming that Dean was not disabled under the terms of the ADA, and even if he was, he suffered no discrimination. The court denied their motion, holding that a trial was required.

In its brief ruling, the court held that a person who is HIV+ but asymptomatic qualifies as disabled under both the ADA and the Rehabilitation Act (RA), 29 U.S.C. § 794 because the prison system treats prisoners who ...


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