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Prisoner Education Guide

Prison Legal News: February, 1997

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Volume 8, Number 2

In this issue:

  1. New Plantation (p 1)
  2. Washington Grievance Mail Case Reversed (p 5)
  3. Costs of Crime (p 6)
  4. Late Notice of Appeal Allowed (p 8)
  5. Notes from the Unrepenitentiary (p 8)
  6. Eyewitness News from Missouri (p 9)
  7. New Improved Chain Gang (p 9)
  8. Circus is in Town (p 10)
  9. Stunning Revelations (p 11)
  10. Kansas Prisoners Lose Welfare Fund Suit (p 11)
  11. PLRA's IFP Provisions Violate Equal Protection (p 12)
  12. Third Circuit Rules that PLRA Doesn't Apply to Habeas (p 12)
  13. PLRA IFP Provision Applied Retroactively (p 12)
  14. PLRA Doesn't Apply Retroactively to Special Masters (p 12)
  15. Rosenberg Fund for Children (p 13)
  16. South Carolina Consent Decree Terminated under PLRA (p 13)
  17. Corcoran Prison Cover-up (p 14)
  18. Tennessee Jail Overcrowding is State's Fault (p 15)
  19. Prison Health Report Issued (p 16)
  20. Book Review: Constitutional Rights of Prisoners (p 16)
  21. Women's Prison Book Project (p 16)
  22. World Criminal Justice Systems: A Survey (p 16)
  23. Corrections in the Community (book) (p 16)
  24. New Jersey Sex Offender Registration Injunction Vacated (p 17)
  25. Prison Population Growth in 1995 (p 17)
  26. No Administrative Exhaustion Requirement in 7th Circuit (p 18)
  27. Informant Testimony Must Be Reliable (p 18)
  28. New York Work Release Creates Liberty Interest (p 19)
  29. Private Prison Liable for Wrongful Imprisonment (p 20)
  30. Lawsuits Target Georgia Prison Abuse (p 20)
  31. ADA Requires Phones for Deaf (p 21)
  32. News in Brief (p 22)
  33. Inadequate Public Defender Funding Unconstitutional (p 23)

New Plantation

In the new world order, the ideological concerns that previously persuaded the capitalist ruling class to purchase social and labor peace with a comparatively generous social contract and high living standards no longer hold sway. The US ruling class will need to take drastic measures in order to maintain its hegemony in a rapidly changing socioeconomic paradigm.

Capitalism is rampant globally and is seeking to eliminate the premium between the $21,000 per capita first world average annual income and the $1,000 average in the rest of the world. Bringing the $1,000 up to first world levels would entail an increase in the consumption of resources to such a degree that it cannot happen: social and technical considerations aside, we would all be killed by the attendant pollution before wage parity with first world levels was even close to being achieved. Hence, the $21,000 will have to be depressed. Absent revolution, it will not be reduced at the expense of the ruling class and its henchpeople.

The have lesses and nots will be further impoverished by structural and economic machinations. Verily, this decline has been in progress for the past two decades. People, of course, will resent ...

Washington Grievance Mail Case Reversed

The court of appeals for the ninth circuit held that mail to and from government agencies is entitled to no special treatment and may be read and censored by prison officials outside the prisoner's presence. In the September, 1994, issue of PLN we reported O'Keefe v. Murphy, the unpublished case by US District Judge Alan McDonald which held that prisoners' mail to and from different government agencies was entitled to confidential treatment, i.e. being opened only in the prisoner recipient's presence without being read by prison officials. The state filed a motion for reconsideration. On August 8, 1994, Judge McDonald denied the motion and granted sanctions against the DOC for not complying with his earlier order. See: O'Keefe v. Murphy, 860 F. Supp. 748 (ED WA 1994). [PLN, Feb., 1995]

Timothy O'Keefe, a prisoner at the Washington State Penitentiary(WSP) filed suit seeking declaratory and injunctive relief because WSP officials refused to treat as "legal mail" letters he wanted to send to different government officials. The court granted summary judgment in O'Keefe's favor holding that mail to government officials is protected by the first amendment's right to petition the government for ...

Costs of Crime

by J.W. Mason

Suppose you could calculate the dollar value of the costs of crime -- lost property, medical bills, missed work, pain and suffering -- and figure out its total yearly cost to society? While "putting a dollar value on the suffering resulting from crime might seem cold and impersonal, such information is useful in the policy arena." For example, "is a patrol pattern that prevents a rape better than one that prevents three burglaries?" The answer, it turns out, is yes: 20.7 times better, in fact. Who would have guessed it?

The quotes and figure come from "Victim Costs and Consequences: A New Look," a study by Mark Cohen, Ted Miller, and Brian Wiersema (CM&W) published with some fanfare by the National Institute of Justice (NIJ) this spring. This study, building on earlier work by Miller and Cohen, adds up seven types of cost (lost productivity, medical care, mental health care, police and fire services, social services, property loss and damage, and lost quality of life) for a dozen types of crime. The bill, by their reckoning, comes to $447 billion a year.

What's wrong. It's worth reviewing why this is such a bad idea. Take CM&W's discussion of lost productivity. For nonfatal crimes, they not unreasonably estimate lost productivity from workers' compensation awards for similar types of injuries to workers of the same age and earnings as crime victims. But most lost productivity is due to fatal crime, and here, rather than base their estimate on the actual earnings of murder victims, they simply use average earnings for individuals of the same age and sex. This introduces a major upward bias in their calculations, since murder victims are generally poor.

In the absence of data on the earnings of murderees, one could correct for race, since nonwhites are both disproportionately poor and likely to be murdered. CM&W declined to do that math, because "society...might decide for equity reasons that differences in value of life estimates across individuals should not be used for policy analysis." Say what? If CM&W are prepared to fudge some numbers on the basis of some social preference, they might as well have saved everyone a lot of trouble and just made them up. Left unexplained, too, is why they do incorporate age and sex into their analysis; that is, why it's OK to value the life of a young person more than that of an old person and that of a man more than that of a woman. Murder victims tend to be young, male, poor, and nonwhite; it's interesting that CM&W incorporate the two factors that increase their estimate of lost earnings and ignore the two that would diminish it. If "lost productivity" means lost wages, then an affluent person's death is more costly than a poor person's. How does "society" feel about that?

Getting spongier. All these problems aside, at least there are some dollar values to base the estimates on. But what about the "lost quality of life" of crime victims? Suffering has no market value, concede CM&W, but "[n]evertheless, these losses are real. Victims would pay dearly to avoid them." How can you measure the dollar value of something with no market price?

Here you have to give CM&W some credit for ingenuity. They based their calculations on 1,000 jury awards to victims of violent crimes, extracting a "functional relationship" among the characteristics of the crime victim (like age, sex, and work status) and the crime (severity of injury, relationship of victim to offender, etc.) and the size of the pain and suffering award. From this, they calculate what the total awards would be if every crime resulted in a jury award: $344 billion. "It's the sort of thing," says Berkeley law professor Franklin Zimring, "that if a first-year law student did it, you would give him an A for originality and then you would explain why it was completely wrong."

Indeed. The pain and suffering costs computed by CM&W are a case of what Zimring has called "catastrophic compound error" and a warning to anyone inclined to play games with statistics. Because CM&W assume that jury awards to crime victims represent measurements of the "true" value of their suffering, their equations include factors they assume are relevant to victim pain and suffering, like whether the crime involved facial scarring, but not ones they assume are irrelevant, like the state where the trial took place. But the size of awards depends heavily on jurisdiction: compensatory awards are 25 times higher in New York than Tennessee. Far from being neutral measurements of lost quality of life, jury awards are highly sensitive to details of the legal process.

Confidence game. But you can't tell from the NIJ study alone just how vacuous the pain and suffering (P&S) numbers really are. Like any figure arrived at by extrapolating from a sample, these numbers mean nothing without their confidence intervals, typically given as the range within which one can be 95% certain that the true numbers lie. So, for example, when a poll says that 50% of the population believes there's life on Mars, with a 3-point margin of error, the chances are 95 out of 100 that the real number lies between 47% and 53%.

In the NIJ study, CM&W don't give the confidence intervals, merely noting that they are "extremely large." Helpfully, Miller provided LBO with those numbers. So how large are these "extremely large" confidence intervals? Soooo large...that they leave the figures completely meaningless. For quality of life lost by assault victims, the 95% confidence interval runs from $1,700 to $1.3 million; for rape, $7,500 to $9.8 million. For society as a whole, the total P&S costs of crime are between $175 billion and $27 trillion. No wonder they published only the $344 billion number; even a journalist might think there's something fishy about an estimate with a range of almost $27 trillion (greater ...

Late Notice of Appeal Allowed

The court of appeals for the District of Columbia Circuit held that Fed.R.Civ.P. 4(a)(6) allows the late filing of a notice of appeal where the party misses a filing deadline through no fault of their own. Eduardo Benavides sued the Bureau of Prisons under the Freedom of Information Act over their refusal to provide him with his medical records.

After several years of litigation, and winning, the BOP still had not complied with a court order to produce the records. Benavides filed a motion requesting sanctions against the BOP, and in 1992 the court denied the motion. Benavides never received the ruling because he was transferred to several different prisons. Benavides notified the court clerk of his new address as soon as he arrived at a permanent prison and inquired about the status of his motion, to which the court never replied. Several months later an attorney in an unrelated case told Benavides his motion had been denied. After the lawyer sent him a copy of the ruling Benavides filed a motion to reopen the period within which to file an appeal which had long since expired.

The district court denied the motion holding Benavides ...

Notes from the Unrepenitentiary

In the last months of 1996, the court system in Israel legalized torture. Preventing "terrorist attacks" makes it necessary, the courts ruled, to use physical torture to extract information from Arab "suspects."

Fifty years ago the nazis used similar rationales to justify the dehumanization of Jews and other "threats" to the Aryan state. From the founding of the state of Israel on invaded Palestinian land in 1948 to the present, it's been clear that the Zionist solution to anti-Semitism is about as moral as the nazi "solution to the Jewish problem." Settler colonialism can never provide a defense against oppression, just as genocide in any of its forms can never be anything but a coffin nail in the life of the human race.

Yet waves of silence followed the Israeli court decision on torture, just as they have every new outrage of the Netanyahu regime. The Palestinian liberation struggle, having been weakened by the dismantling process barely disguised as the "Peace Accords," cannot mobilize large numbers of international supporters. In the midst of daily continuing aggression against the Palestinians (bulldozers further invade Palestinian land to spread new Jewish settlements; Israeli soldiers and civilians alike have carte blanche to shoot ...

Eyewitness News from Missouri

This is the eyewitness account of what went down here at the Jefferson City Correctional Facility on August 10, 1996. At about three in the afternoon, a prisoner in Four House was being seen on a [disciplinary] violation. The caseworker (guard) got loud with the prisoner and he stabbed her. She called for help and two more guards got stabbed.

As fifty or more guards came to the aid of the other three guards, one or two gung-ho guards set in action a small riot with about ten prisoners who were just looking on. As of now nine guards and six prisoners have been put in the hospital and we have been on lockdown. Just so you will know, contrary to many published reports nationwide, the chain gang HAS NOT been abolished in Alabama. They have simply stopped chaining the prisoners on the chain gang in groups of five. These prisoners are still individually chained for no other reason than humiliation and degradation.

These prisoners are still denied visitation, canteen privileges, adequate medical care, televisions, and any type of educational or self-help programs, all of which other prisoners in the system have access to.

Back in the 1920's, 30 ...

New Improved Chain Gang

Just so you will know, contrary to many published reports nationwide, the chain gang HAS NOT been abolished in Alabama. They have simply stopped chaining the prisoners on the chain gang in groups of five. These prisoners are still individually chained for no other reason than humiliation and degradation.

These prisoners are still denied visitation, canteen privileges, adequate medical care, televisions, and any type of educational or self-help programs, all of which other prisoners in the system have access to.

Back in the 1920s, 30s, and 40s, black children in Alabama grew up playing a game called chain gang. It was something they simply grew up expecting to experience. How long will it be before black children of today will again be playing this game?

It is sad to think that the chain gangs in Alabama may end only after some good white citizen notices their own children playing chain gang. To think that one day we may have to thank these white children for ending this aspect of our torture, and will then have to live in fear of what degradation it will be replaced with.

-- F.P., Alabama

Circus is in Town

by Mr. Wolf

Russian novelist Fyodor Dostoevsky wrote, 'The degree of a civilization in society can be judged by entering its prisons and jails." By the events which unfolded in Phoenix, Arizona during September, 1996, it is no doubt evident now to the world at large that America, and particularly Arizona, is now a very uncivilized, even barbaric society.

On September 16, Bob Dole, the Republican contender for head ringmaster, came to town and surrounded himself with notable local clowns as they gathered in front of the "Big Top" of the Madison Jail Tent City. It was an appropriate photo-op site for the Republicans, since it is on the backs of the downtrodden that Republicans are carving out their political careers and padding their fortunes. [Editor's Note: Ditto for the Demos.] In the background of this staged photo-op sprawled 1,500 men and women caged like animals, lying on steel bunks partially attired, sweating and dirty, and being held up to the cameras of the world. In the center ring of this media circus stood Sheriff Joe Arpaio, spouting into the cameras how his sadistic policies and degrading conditions were taking a bite out of crime. He boasted about ...

Stunning Revelations

Recently Governor Thompson signed into law a bill permitting prisoner chain gangs in Wisconsin. In a high-tech twist on the old Southern chain gangs, Thompson's program includes requiring prisoners to wear electrical stun belts in addition to being chained at the ankle.

When activated, the stun belt sends a fifty thousand volt charge through the prisoner for eight seconds, totally incapacitating him. The electrical charge often causes prisoners to urinate and defecate on themselves. In other states, use of the stun belts has triggered heart attacks. One of the persistent problems with the stun devices is inadvertent activation. Prison guards supervising prisoner crews have accidentally triggered the belts, shocking prisoners without cause.

The use of these devices is so cruel that Amnesty International is vigorously opposing the practice, decrying the use of stun belts as torture. Michael Heflin, midwest regional director of Amnesty International, spent a week in Madison recently lobbying against the introduction of stun belts in this state's prisons.

As a part of his efforts to educate the public about the cruelty of stun belts, Heflin appeared June 20, 1996, on a talk show aired by Wisconsin Public Radio. I heard on that program the most ...

Kansas Prisoners Lose Welfare Fund Suit

A federal district court in Kansas held that state prisoners were not entitled to injunctive relief regarding how money from the Inmate Benefit Fund (IBF) was spent by the DOC. Kansas state prisoners filed a class action suit challenging how the Kansas DOC spends money generated by prisoner phone calls (in the form of kickbacks from the phone companies) that is deposited in the IBF. The IBF receives about $1 million a year in phone kickbacks. The DOC uses some of the money to pay for a Victim Notification Program and a video imaging system that allows computers to generate graphic images of prisoners. Almost $250,000 is spent on these two projects annually.

The prisoners claimed that use of the funds for these projects, which provided no benefit to prisoners, deprived them of their due process right to use of the funds. The court rejected all the claims. Analyzing the relevant Kansas statutes the court held that no due process liberty interest accrued to the prisoners. "Given the plain language and the alternative construction of the amended statute, no reasonable reading gives rise to a legitimate expectation that all expenditures from an inmate benefit fund must in some way ...

PLRA's IFP Provisions Violate Equal Protection

A federal district court in Iowa held that the In Forma Pauperis (IFP) provisions of the Prison Litigation Reform Act (PLRA) are retroactive and violate the equal protection clause of the fifth amendment. Section 804(d) of the PLRA created a new subsection to the IFP statute which allows indigents to file suit without full prepayment of filing fees, 28 U.S.C. § 1915(g), which states that prisoners will be denied IFP status if three lawsuits they have filed have ever been dismissed on grounds of being frivolous, malicious or failing to state a claim. The only exception is if the prisoner is claiming imminent danger of serious physical injury. Everett Lyon, an Iowa state prisoner, attempted to file suit but his suit was dismissed pursuant to the three dismissal rule of the PLRA because prior to the statute's enactment he had had three suits dismissed as frivolous. Lyon then challenged the constitutionality of section 1915(g).

The court agreed with Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996) that § 1915(g) could be properly applied retroactively to lawsuits dismissed prior to the PLRA's enactment.

The court then went on to hold that section 1915 ...

Third Circuit Rules that PLRA Doesn't Apply to Habeas

The court of appeals for the third circuit held that the Prison Litigation Reform Act's (PLRA) provision that prisoner litigants pay the filing fee for civil actions does not apply to habeas corpus petitions. The court gave an extensive discussion to the history and intent of the poorly drafted PLRA. The court concluded that the PLRA's fee requirements do not apply to habeas corpus petitions. Thus, litigants can file the traditional in forma pauperis application for the waiver of docketing on appeal fees. The court agreed with the second and seventh circuits in this issue. See: Martin v. U.S., 96 F.3d 853 (7th Cir. 1996) and Reyes v. Keane, 90 F.3d 676 (2nd Cir. 1996). This ruling also effectively overrules Van Doren v. Mazurukiewicz, 935 F. Supp. 604 (ED PA 1996) which had held that the PLRA did apply to habeas proceedings. See: Santana v. United States, 98 F.3d 752 (3rd Cir. 1996).

PLRA IFP Provision Applied Retroactively

The court of appeals for the ninth circuit held that 28 U.S.C. § 1915(e)(2), which allows courts to dismiss prisoner suits that have been filed In Forma Pauperis (IFP) at any time if determined to be frivolous, can be applied retroactively to appeals pending at the time the statute was created on April 26, 1996, with the passage of the Prison Litigation Reform Act (PLRA).

Chester Marks, an Arizona state prisoner, filed suit claiming violation of his eighth amendment rights after be was not provided with a contact lens solution kit for a week. The district court dismissed the suit as frivolous under 28 U.S.C. § 1915(d). Marks filed his appeal notice on April 25, 1996, and was granted IFP status.

The court held that the PLRA's change of the IFP statute did not impair any substantive rights of prisoners but only affected their ability to maintain IFP appeals. "We conclude that Section 1915(e)(2) is a procedural rule which raises no retroactivity concerns under Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483 (1994). We hold that Section 1915(e)(2) applies to all appeals pending on or ...

PLRA Doesn't Apply Retroactively to Special Masters

A federal district court held that provisions of the Prison Litigation Reform Act (PLRA) limiting payment to special masters and requiring that such payment be borne by the federal judiciary, were not retroactive and did not apply to masters appointed before its enactment on April 26, 1996.

Federal courts sometimes appoint special masters to oversee court orders and consent decrees in complex institutional reform litigation. This case involves a class action suit challenging conditions of confinement at the Pelican Bay State Prison. After the court ruled in the prisoners favor in Madrid v. Gomez, 889 F. Supp. 1146 (ND CA 1995) the court appointed Thomas Lonergan as a special master to oversee implementation of the court's injunction.

After passage of the PLRA the defendants moved to modify the court's order of reference setting Lonergan's pay at $125 an hour with the defendants bearing the cost. The court denied the motion, holding that Section 802 of the PLRA, codified at 18 U.S.C. § 3626, cannot be applied retroactively to special masters appointed before its enactment. Moreover, the PLRA applies only to "prospective relief" in cases and appointment of a special master does not constitute "relief" for PLRA ...

Rosenberg Fund for Children

by Carol Carvalho, RFC Director of Grantmaking

The progressive community needs to support activists, prisoners rights advocates and political prisoners who risk their lives and economic security for causes of peace, justice, protection of the environment and equal rights. The Rosenberg Fund for Children (RFC) was created to provide for some of this support. It provides for the educational and emotional needs of children whose parents have been harassed, injured, arrested, imprisoned, fired or killed because of their progressive activities and who, therefore, are no longer able to adequately care for their children. If you're being persecuted in prison because you are working for prisoner's rights or prison reform and you have children, you may fall within the RFC's guidelines. The RFC pays progressive-minded professionals and institutions, chosen by the parents or guardians, to provide children with therapy and educational, physical and other similar activities.

Since 1990, the RFC has provided advice and funding to meet these needs within the progressive community. Robert Meeropol, the RFC's founder and Executive Director, is the child of Ethel and Julius Rosenberg, who were imprisoned and then executed in 1953 for conspiring to give the "secret of the atomic bomb ...

South Carolina Consent Decree Terminated under PLRA

The court of appeals for the fourth circuit upheld the termination of a consent decree pursuant to the Prison Litigation Reform Act (PLRA) and rejected challenges to the constitutionality of the PLRA. In 1982 South Carolina prisoners filed suit challenging conditions of confinement throughout the state prison system. In 1986 the parties settled the suit by entering into a consent decree governing overcrowding, health care, educational services, food, visits, etc.

The PLRA was passed on April 26, 1996, and allows for the immediate termination of consent decrees entered before its passage, see 18 U.S.C. § 3626(b)(2). The state of South Carolina filed a motion to terminate the decree under this PLRA provision. The prisoners responded claiming that the PLRA's termination provision was unconstitutional. The district court rejected this claim and in an unpublished ruling terminated the decree. On appeal the U.S. department of justice intervened to defend the constitutionality of the PLRA while the Legal Aid Society of New York, the Youth Law Center, Human Rights Watch and the National Women's Law Center filed a joint friend of the court brief on behalf of the prisoners.

In short order the appeals court disposed of ...

Corcoran Prison Cover-up

by W. Wisely

On October 7, 1994, former California prison guard Richard Caruso decided he had enough. The frequent shooting of prisoners forced into fights staged, then covered up, by guards at Corcoran prison's Security Housing Unit (SHU) weighed on his conscience. So, Caruso gathered evidence of the abuse and arranged to pass it to the FBI.

At 10 a.m. two FBI agents met Caruso at his home. They had to move fast because Jim Brown, Assistant Director of the Department of Corrections, and the man in charge of the agency's internal investigations, had threatened Caruso. "I understand you have stolen state property (referring to the log books and prisoner files Caruso took) and that you're going to meet with the FBI and turn it over to them," Caruso recalled Brown saying in a telephone call the day before. Brown then reportedly said, "You're not turning over a motherfucking thing."

As Caruso and the federal agents left the house, two state cars screeched to a halt just outside. Special Services Unit (SSU) investigators rushed forward. "Where are you taking him?" an investigator demanded.

"You don't need to know," one of the FBI agents replied ...

Tennessee Jail Overcrowding is State's Fault

Tennessee is now spending over $100 million a year to house state prisoners in county jails - a 14% increase from the previous year. Despite 7,350 prison inmates being double-celled, state prisoners still overcrowd jails because the state has no room for them.

As of July 19, 1996, 2,056 felons were in jails waiting for prison beds to open up. Jails also held 3,409 people awaiting trial for felonies and 3,297 convicted felons with 1-6 year sentences that were sentenced to serve their time in county jail instead of prison.

The counties are paid by the state for the convicted felons in their jails, including those sentenced to do their time in the jails.

Nancy Menke, a top advisor to Governor Don Sundquist, doubts the cost of housing prisoners in jails has peaked, saying "it is hard for me to say that the cost of anything related to corrections will peak until we quit incarcerating felons."

Since 1986 seven new prisons have opened and the state has spent almost half a billion dollars on prison construction and expansions.

Two prisons, each to hold about 1,500 prisoners, are due to open within two years - one in 1997 ...

Prison Health Report Issued

The National Institute of Justice, a branch of the Department of Justice, has published a 125 page booklet titled "Managing Prison Health Care and Costs." The book provides an overview of rising prison health care costs with national examples of various cost containment strategies. The book is aimed primarily at prison administrators and legislators.

While the bulk of cost containment efforts focus on negotiating lower prices for pharmaceuticals; hiring staff physicians; reviewing cost bills; reducing prices for purchased hospital services, etc. Other sections focus on reducing utilization of health care services by charging access fees to prisoners (AKA "co-payments"). The book discusses various court rulings dealing with medical access fees. As a practical matter the book dryly notes that: "The risk of an across the board co-payment requirement is that prisoners may be dissuaded from seeking necessary treatment or from seeking treatment early enough to avert higher cost treatments later. If co-payment policies do indeed result in more expensive treatment because earlier attention was not sought, they may be cost ineffective."

The book analyzes the co-payment system in Nevada noting the collection rate of the $4 fee was 52%. While the amount of money collected from such co-payments averaged $11 ...

Book Review: Constitutional Rights of Prisoners

Fifth edition, is an 804 page book by law professor John Palmer. The book examines the history, evolution and current state of prisoner rights, with extensive case citations. Organized into thirteen chapters Palmer examines the use of force; right to visitation, association, mail and phones; segregation, disciplinary hearings; legal services (this section includes an extensive discussion on jailhouse lawyers); religion; parole; the liability of prison officials; medical care; rehabilitation; conditions of confinement and more.

This book differs from Dan Manville's "Prisoners' Self Help Litigation Manual" in that it does not contain "how to" information on how to actually litigate a case in court, nor does it discuss legal procedure beyond a brief overview of the legal system in general.

The actual discussion of prisoner rights occupies the first 285 pages of the book. In an extremely useful feature, the book reprints all the major U.S. supreme court decisions, with footnotes omitted, relating to prisoner rights issues. Some 58 rulings. This is very convenient, especially to litigants who may not have direct or ready access to a law library with the relevant cases. This feature alone makes the book worth having.

The book also includes the American Bar Association ...

Women's Prison Book Project

The Women's Prison Book Project (WPBP) is a group of volunteers organizing to provide women in prison with free reading materials covering a wide range of topics from legal and education materials to politics, history, and women's health.

There are other prison book projects, but we seek to meet the specific needs of women in prison by providing materials on families, kids, self-help and legal aid materials for women serving prison time for fighting back against their abusers.

Please join us in getting this project off the ground. While we have vision and commitment, we need the support of others to make the WPBJ a reality. Specific needs include: Money (checks payable to WPBP), book donations (new or used), photocopying services, postage, new package-size envelopes, computer & printer, wheelchair accessible space.

We also welcome tips on U.S. women's prisons and words of encouragement. Contact: Women's Prison Book Project, c/o Arise Resource Center and Bookstore, 2441 Lyndale Ave. S., Minneapolis, MN 55405.

World Criminal Justice Systems: A Survey

by Richard Terrill is a 472 page book examining the criminal justice systems of France, England, Sweden, Russia and Japan. In that respect the title is misleading as all five countries are industrialized bourgeois democracies that have more in common with each other than with, say, Bolivia, Zaire, Algeria or Pakistan. Each chapter of the book gives an overview of the country in question's government, police, judiciary, prisons and juvenile justice system. Anyone interested in how other capitalist countries run their criminal justice systems will find the book a worthwhile and informative read. Cost $33.95.

Corrections in the Community (book)

by Edward Latessa and Harry Allen is a 473 page college textbook giving an overview of criminal sanctions other than prison, such as probation, home detention, community services, etc. The authors' underlying theme is that prisons generally do more harm than good and efforts should be made to minimize the number of people subjected to it. Cost $34.95.

New Jersey Sex Offender Registration Injunction Vacated

In the July, 1995, issue of PLN we reported Artway v. Attorney General of New Jersey, 876 F. Supp. 666 (D NJ 1995) where a district court held that a New Jersey sex offender registration law was constitutional as far as requiring sex offenders to register with police upon release from prison. The court held the law's community notification provisions were unconstitutional as applied to offenders convicted before the law went into effect and issued an injunction enjoining the community notification part of the law. The court of appeals for the third circuit, in a lengthy ruling, affirmed in part and vacated in part. New Jersey passed its Sexual Offender Registration Act (known as Megan's law, after a seven year old girl who was raped and killed by a paroled sex offender) in late 1994. Alexander Artway, a convicted sex offender, filed suit claiming that the law violated several provisions of the constitution including the ex post facto clause (which bans increasing the punishment of a crime after it is committed), the eighth amendment, due process, equal protection and privacy rights. Artway had been convicted, and released, before the law went into effect.

The appeals court affirmed that ...

Prison Population Growth in 1995

According to the Bureau of Justice Statistics Bulletin, Prison and Jail Inmates, 1995, an estimated 1,585,400 persons were incarcerated in the U.S. at year end 1995. The state and federal prison population topped a million (1,078,357) with an additional 507,044 in local jails.

The nation's prison population grew by 72,059 prisoners (6.8%) between yearend 1994 and 1995, which translates to an increase of 1,386 prisoners per week. The number of state and federal prisoners in custody has grown by an annual average of 8.3 percent since 1985.

California's yearend prison population topped all states at 135,646, followed in order by Texas (127,766), New York (68,484), Florida (63,879), and Ohio (44,677). The states with the highest incarceration rates (prisoners per 100,000 residents) were Texas (653), Louisiana (568), Oklahoma (552), South Carolina (515), and Nevada (482). The District of Columbia topped all states, however, in incarceration rate at a whopping 1,650 prisoners per 100,000 residents. Unlike previous annual BJS reports, the 1995 edition does not provide separate incarceration rates broken down by ethnicity.

The largest prison population increases among states in 1995 ...

No Administrative Exhaustion Requirement in 7th Circuit

The court of appeals for the seventh circuit held that prisoners seeking money damages need not exhaust administrative remedies prior to filing suit. The court also held a district court erred when it dismissed a complaint filed in forma pauperis solely because the plaintiff was already litigating another suit against prison officials. Anthony Pratt, a federal prisoner, sued prison officials for having an inadequate law library which resulted in a state case he had filed being dismissed. He claimed the prison law library lacked state court rules in its collection. The second complaint, filed two months after the first, sought money damages from BOP officials who did not place him in a community corrections center. The district court dismissed the first suit for Pratt's failure to exhaust administrative remedies and dismissed the second because he had not concluded the first. The appeals court held that he had stated a claim and appointed counsel to represent him on the law library claim in that court.

The court noted there is no exhaustion rule for damages suits by federal prisoners. See: Madigan v. McCarthy, 503 US 140, 112 S.Ct. 1081 (1992). In this case Pratt sought damages for having lost ...

Informant Testimony Must Be Reliable

A federal district court in Texas granted habeas relief to two Texas prisoners who had lost good time at a disciplinary hearing based on unconfirmed informant testimony. Morris Broussard and Gary Johnson filed a 42 U.S.C. § 1983 action contesting the loss of good time at a disciplinary hearing. A prison informant told prison officials they planned to escape and that a cutting tool had been hidden in the kitchen where they worked. The two prisoners were placed in segregation and two searches of the kitchen revealed nothing, the third search uncovered a pair of bolt cutters in a box of coffee.

The two prisoners were infracted and found guilty at a disciplinary hearing. The main evidence against them was the testimony of the prison's investigating officer, Captain Hammers. He related the information provided by the informant and confirmed that the bolt cutters had been found in the kitchen. Hammers had not interviewed the informant himself and did not even know the informant's identity, instead, he knew only what the prison warden had told him. The hearing officer refused to allow the prisoners to question Hammers about why the informant was reliable or credible. The hearing officer ...

New York Work Release Creates Liberty Interest

A federal district court in New York held that state law creates a due process liberty interest which requires a hearing before prisoners can be removed from work release. The court also held that res judicata did not bar a § 1983 suit in federal court where the same issue had been litigated, and lost, in state court. Ronald Roucchio was a New York state prisoner nearing the completion of his sentence in a work release facility. While on work release he was arrested for drunk driving and other traffic offenses. He did not notify work release officials and they did not learn of the arrest for several months. When they did they infracted him for violating work release rules, placed him segregation and afforded him no hearing until 47 days later. While in segregation Roucchio pleaded guilty to various traffic offenses in state court. At a hearing which Roucchio was not allowed to attend, his work release status was revoked and he was transferred to a secure prison.

Roucchio filed an Article 78 petition in state court contending his removal from work release violated due process because he could not attend the hearing or present evidence on his behalf. The ...

Private Prison Liable for Wrongful Imprisonment

A federal district court in Florida held that a private corporation which ran a county jail under contract was liable for a detainee's wrongful imprisonment. Thomas Blumel was arrested without a warrant after being accused of violating a restraining order. Blumel was then placed in the Hernando County Jail which was operated by Corrections Corporation of America (CCA) under contract. After spending the night in jail Blumel appeared before a judge who did not appoint counsel or determine bail, instead the judge said he was in the "wrong court." Blumel spent another 30 days in jail before eventually appearing before a judge who dismissed the charge for lack of evidence and ordered Blumel released. Blumel then sued the county and CCA claiming his right to due process was violated when the county and CCA violated their constitutional duty to ensure that warrantless pre-trial detainees are detained only after a judicial determination of probable cause within the first 48 hours of arrest. He also claimed CCA was liable for negligence and false imprisonment.

CCA filed a motion to dismiss for failure to state a claim and the court denied the motion. The court held that jail and prison officials can ...

Lawsuits Target Georgia Prison Abuse

by Robert Bensing, Esq.

Prisoners in Georgia have recently filed two lawsuits, challenging the Georgia Department of Corrections' (GDC) shakedowns of Georgia prisons. A shakedown entails a search of an entire prison's prisoner population and prisoner living areas. While the shakedowns are ostensibly to discover contraband, many prisoners have alleged that they were physically abused during these operations.

The first lawsuit, McClendon v. Garner, was filed in the U.S. Middle District Court in Macon, Georgia, in August of 1996. It alleges that the GDC's Tactical Squad, under the direct personal supervision of GDC Commissioner Wayne Garner, beat ten prisoners during its shakedown of the Scott State Prison.

The second lawsuit, Anderson v. Garner, alleges that Garner led shakedowns of the Hays and Walker State Prisons (conducted on the same day) resulted in the beatings of dozens of prisoners, including the fourteen plaintiffs in the case. This suit was filed in the U.S. Northern District Court in Rome, Georgia, in November of 1996. Unlike McClendon, the plaintiffs in Anderson are seeking class certification, and a court order directing that future shakedowns be conducted in a lawful manner.

Both case were filed by attorney Robert Bensing of the ...

ADA Requires Phones for Deaf

A federal district court in Michigan held that the Americans with Disabilities Act (ADA), 42 U.S.C. 12131 and the Rehabilitation Act of 1973, 29 U.S.C. § 794, requires state prison officials to provide prisoners and the people they call with Telecommunications Device for the Deaf (TDD). The court also held that the ADA and RA apply to state prisons and that congress has eliminated the states' eleventh amendment immunity by passage of the two acts. Because the ADA is a still developing area of law we report this case in detail. This case is also important because the disabled person involved was not the prisoner but a prisoner's visitor. The court held that ADA's provisions forbidding retaliation against those who report ADA violations applies to prisons.

Grant Hendrick is a Michigan state prisoner who can hear, his fiancee Linda Niece is deaf. Because Niece is deaf she cannot communicate over the phone with Hendrick without the use of a TDD (this device is a keyboard and screen which hooks up to a phone and allows parties to type messages to each other. AT&T offers a TDD service via operator at no charge but it must be accessed by calling a toll free number.) Niece attempted to donate a TDD to the prison to allow Hendrick to call her and for deaf prisoners at the prison to communicate by phone. Prison officials refused the donation and refused to provide access to a TDD. The MI DOC does not allow for toll free calls and prison officials refused to make an exception so Hendrick could call AT&T's free TDD service.

Hendrick filed an ADA complaint with the Department of Justice against the MI DOC. Under DOJ pressure the MI DOC made plans to install a TDD system at a maximum security prison, Hendrick was held at a minimum security prison. The MI DOC then moved Hendrick to the maximum security prison ostensibly to use a TDD. Hendrick complained that he was being retaliated against. After a DOJ investigator told prison officials he was referring the case to the US attorney's office for prosecution for retaliating against Hendrick the defendants moved Hendrick back to minimum security, compensated him for lost wages and reinstated his job. Eventually a TDD was installed but its access was severely limited; prisoners could only use it in a counselor's office at the ...

News in Brief

AZ: On October 20, 1996, six Alaska prisoners at the Central Arizona Detention Center in Florence, a private prison operated by Corrections Corporation of America, escaped by cutting through three wire fences. Four prisoners were recaptured shortly afterwards and the warden insisted the prison was secure. Leslie Simpson and Edward martin remain at large as we go to press.

Bangladesh: On December 11, 1996, 90 prisoners were freed under an amnesty celebrating the country's 25th anniversary. Angry at remaining locked up, prisoners in the Jessore and Tangail jails rioted and seized the jails. The prisoners demanded freedom for some and better treatment and food for the remainder.

CA: In November, 1996, a Santa Ana jury found Jose Bernal and Shawn Choate had been beaten with a pipe, brick and board, then kicked by sheriff deputies Brian Scanlan and Kurt Bourne. The jury awarded them $6,000 in damages. Superior court judge David Brickener, referring to the plaintiffs as "notorious local hooligans" then ordered them to pay $241,000 in attorney fees for the deputies. The plaintiffs' attorney, Thomas Beck, said his clients wouldn't pay and it was a travesty. 'It was bad enough that they had to get ...

Inadequate Public Defender Funding Unconstitutional

A federal district court in Illinois held that a lack of adequate funding for public defenders assigned to represent indigent defendants in state court appeals violates the federal constitution when it causes delays in excess of two years. Over the past ten years the number of appeal cases assigned to the Illinois Office of State Appellate Defender (OSAD) has steadily increased while the office's budget and staff has decreased. The result has been delays in excess of three years for an indigent defendant's appeal to be filed. Indigent defendants represented by OSAD filed a class action federal habeas petition seeking relief from this situation.

The court made lengthy findings of fact that go into extensive detail as to the delays faced by OSAD clients, appropriate case loads for appellate defenders, ethical obligations of appointed counsel, etc. The average delay faced by an OSAD client from the time the record was ready to when the first appeal brief was filed was in excess of two years with a backlog of more than 2,000 unbriefed cases awaiting counsel.

In its conclusions of law the court held that this case was appropriate for resolution as a class action and that ...


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