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Prisoner Education Guide

Prison Legal News: April, 1997

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Volume 8, Number 4

In this issue:

  1. US Supreme Court: Florida Gain Time Statute Violates Ex Post Facto (p 1)
  2. California EFV Injunction Reversed (p 3)
  3. California Slashes Family Visits (p 3)
  4. From the Editor (p 5)
  5. Law's Nature (p 6)
  6. A Matter of Fact (p 7)
  7. PLRA Consent Decree Termination Provision Unconstitutional (p 8)
  8. Reversal of Frivolous Dismissal Voids PLRA Strike (p 8)
  9. PLRA Applied to Attorney Fees (p 9)
  10. Prisoners Retain Right to Safety (p 10)
  11. Philadelphia Fined for Degrading City Prisons (p 10)
  12. Racial Violence in California Lockups (p 11)
  13. Florida Private Prison Criticized (p 11)
  14. Impregnated Arkansas Prisoner Wins Suit (p 12)
  15. No Double Jeopardy in Massachusetts Disciplinary Hearings (p 13)
  16. Inadequate Jail Staffing Violates Due Process (p 13)
  17. Ohio Jail Construction Corruption? (p 14)
  18. No Immunity for Eighth Amendment Violation in Rectal Search (p 14)
  19. Beating and Strip Cell Require Trial (p 15)
  20. Farmer Remanded Again, for Discovery (p 16)
  21. Connecticut Supreme Court Upholds Phone and Mail Restrictions (p 16)
  22. Drug Sales Boom in Wisconsin Prisons (p 16)
  23. Virginia Felons Disenfranchised (p 17)
  24. A Native American Resource (p 17)
  25. Ex-Sheriff Sex Offender Retains Pension (p 17)
  26. FJC Prisoner Litigation Guide (p 17)
  27. Louisiana Jail Abuse Settlement (p 18)
  28. Texas Lawyers Unhappy About Conscription (p 18)
  29. ABA Calls for Halt to Executions (p 18)
  30. CBCC Associate Superintendent Resigns (p 19)
  31. Copying Claims Not Barred by Res Judicata (p 19)
  32. News in Brief (p 20)
  33. Double Celling States Eighth Amendment Claim (p 21)
  34. Seventh Circuit Analyzes RFRA (p 22)

US Supreme Court: Florida Gain Time Statute Violates Ex Post Facto

On February 19, 1997, a unanimous United States Supreme Court held that the revocation of previously granted good time credits violates the ex post facto provision of the United States constitution. The Court held that subjective intent on the part of legislatures was immaterial for ex post facto purposes. In 1983 the Florida legislature enacted legislation authorizing the Department of Corrections (DOC) to award prisoners "gain time" when the prison system came to within 98% of its rated capacity. See 1983 Florida Laws, Chapter 83-131 § 8. In 1986 Kenneth Lynce pleaded no contest to a charge of attempted murder and was sentenced to 22 years (8,030 days) in prison. In 1992 Lynce was released from prison based on the Florida DOC's calculation that he was entitled to five different types of early release credits totaling 5,668 days. Of that total, 1,860 days were "provisional credits" awarded under the prison overcrowding statute.

In 1992 the Florida legislature canceled provisional overcrowding credits for prisoners convicted of various violent crimes, including attempted murder. In Florida Attorney General opinion 92-96 (1992), state attorney general Bob Butterworth held that this cancellation could be retroactively applied to prisoners who had already ...

California EFV Injunction Reversed

In the September, 1995, issue of PLN we reported that a Marin county superior court judge had issued a preliminary injunction enjoining Title 15, section 3174(e)(1) of the California Code of Regulations (CCR). The regulation in question eliminated family visits for a wide category of prisoners, including those convicted of violent offenses or sex offenses against family members, as well as prisoners sentenced to life, life without parole, etc. The superior court granted the plaintiffs' motion for a preliminary injunction holding they were likely to prove the regulation violated their rights to equal protection and the ex post facto provisions of the US constitution.

The court of appeals reversed, holding the trial court erred in granting the injunction as the plaintiffs had no likelihood of success at trial. The court noted that prisoners have no right to family visits and that prison officials can ban them altogether. See: In Re Cummins, 30 Cal.3d 870 (1982) and In Re Price, 25 Cal.3d 448 (1979). Readers should note that this case appears to overrule Homan v. Gomez, 37 Cal. App. 4th 597 (1995) [PLN, June, 1996] which held that CCR 3174(e)(1) was enacted in violation of ...

California Slashes Family Visits

The young Hispanic woman, juggling a squirming infant under each arm, began to cry as she read the notice posted on the wall of the visitor processing building at Lancaster prison. For months prisoner rights advocates had been warning visitors, trying to organize resistance, but few believed it would ever happen. The California Department of Corrections issued administrative regulations severely limiting the family visiting program. As the young woman quietly sobbed, four prison guards openly laughed at her pain.

On November 1, 1996, the CDC initiated severe restrictions on family visits. Prison staff throughout the state received special briefings concerning the regulation change which excluded a large number of men and women from the program. The restrictions are the result of an almost decade long effort by self-styled victims' rights advocates, the prison guards union and right-wing politicians to end family visits in California.

The following classes of prisoners are no longer eligible to receive family visits: Anyone sentenced to life without parole; anyone with a life top who doesn't have a release date within three years; anyone convicted of specified sex offenses, including rape, statutory rape, oral copulation, sex with a minor, child pornography and lewd and lascivious ...

From the Editor

Longtime PLN readers may recall that in early 1994 Ed Mead, PLN's former co-editor, and I filed suit against the Washington State Indeterminate Sentence Review Board (ISRB, aka the parole board). The suit challenged the "no association" parole condition they had placed on Ed that prohibited from having contact with felons.- whether in person, by mail, phone or through third parties. They were especially adamant about Ed communicating with me for the purposes of editing PLN. The Washington ACLU filed suit on our behalf contending the restriction violated our first amendment rights. See: Mead v. ISRB. [PLN, July, 1994] In an unpublished ruling, federal judge Robert Bryan of Tacoma dismissed the suit holding that even though we had produced evidence showing the ISRB's intent was to shut down PLN, parolees' had no more free speech rights than prisoners, thus, the restriction was permissible.

We appealed the ruling to the ninth circuit, which heard oral argument on the case in August, 1996. In October, 1996, Ed was released from parole supervision and in February, 1997, the ninth circuit dismissed the suit as moot. The upshot is that once more the state got away with violating someone's right to ...

Law's Nature

"Laws grind the poor, and rich men rule the law." Oliver Goldsmith, The Vicar of Wakefield (1766)

For many jailhouse lawyers, especially those new to the craft, there is a sort of "awe" that governs their study, contemplation and utility of the law. Like new converts to a religion they ascribe all power, all rationality and the penultimate of wisdom to this area of human endeavor.

Luckily, like those new converts, they come down to earth and may even come to the realization that their earlier impressions were either naive or overblown.

What may prove most enlightening to those who remain naive about the field of prisoner's rights law is a study of legal history, as shown by rulings of America's Court of Last Resort. In this history of the Court's written opinions, one finds the true face of America with a clarity that is lost (or ignored) in the study of U.S. history.

Here is history unadorned, naked and yes, ugly.

If you were to speak in purely neutral legal principles, you might be able to say things like: 1) Someone held in unlawful detention need only apply for judicial relief; 2) people have an ...

A Matter of Fact

New York City jails have an average daily population of 20,000. Cigarettes sell for $2.36 a pack, and city jails sell about 8,000 packs per day (not counting weekends) for a total of nearly $5 million in annual cigarette sales. A proposed ban on smoking in NY City jails was rescinded after guard union representatives warned of a "potential blood bath" if cigarette sales were eliminated.

More than 130,000 people a year spend time in NY City's Rikers Island Jail; 92 percent are black or hispanic, 90 percent have no high school degree, and 26 percent of the women and 16 percent of the men are HIV positive.

As of July 1996, the United Nations estimates that there are 21.8 million HIV infected adults and children in the world, 780,000 in North America.

The Texas Department of Criminal Justice is transferring HIV positive prisoners from all over the state to the Stiles Unit prison near Galveston. By the end of 1996 there were an estimated 700 HIV positive prisoners there. HIV tests are voluntary in Texas prisons. According to TDCJ statistics, about one in six Texas prisoners are tested for HIV each year ...

PLRA Consent Decree Termination Provision Unconstitutional

A federal district court in Michigan held that provisions of the Prison Litigation Reform Act (PLRA) calling for the immediate termination of consent decrees where no findings of constitutional violations were made by the court, was unconstitutional on several grounds. The PLRA created 18 U.S.C. § 3626(b)(2) whereby a prison official "defendant or intervenor shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the federal right, and is the least intrusive means necessary to correct the violation of the federal right."

This case is the latest in a series of rulings spanning almost two decades. It involves a consent decree governing conditions at several Michigan state prisons. Since signing the decree in 1985 the MI DOC has steadfastly refused to abide by it. As soon as the PLRA was signed into law the MI DOC filed motions to terminate the decree. In Hadix v. Johnson, 933 F. Supp. 1360 (ED MI 1996) and 933 F. Supp. 1362 (ED MI 1996) [PLN, Dec. 1996 ...

Reversal of Frivolous Dismissal Voids PLRA Strike

The court of appeals for the fifth circuit held that the Prison Litigation Reform Act (PLRA) applies retroactively to appeals pending on its date of enactment as well as cases dismissed prior to its enactment. The court also held that dismissals based on frivolousness which are reversed on appeal do not count as PLRA strikes. When the PLRA was enacted on April 26, 1996, it contained a "three strikes" provision creating 28 U.S.C. § 1915(g) which states that prisoners will not be allowed to proceed in forma pauperis (IFP), unless they are in imminent danger of physical injury, if on three or more occasions they have had a lawsuit or appeal dismissed on grounds that it is frivolous, malicious or fails to state a claim upon which relief can be granted.

Valentino Adepegba filed a suit against immigration officials which was dismissed as frivolous by the district court. Adepegba had previously had 11 suits dismissed, three for being frivolous. The court issued this ruling in response to his motion to proceed IFP on appeal.

The court held that since congress specified no effective date for the PLRA it went into effect the day it was signed. The PLRA ...

PLRA Applied to Attorney Fees

A federal district court in Michigan held that the Prison Litigation Reform Act (PLRA) required that attorneys representing prisoners be paid a maximum of $112.50 an hour. Hadix v. Johnson is the long running Michigan class action suit. After prevailing in the district court in a challenge to a portion of the PLRA's constitutionality, the plaintiffs filed a motion for attorney fees, seeking payment of $150 an hour. This rate had been established earlier in the case.

When the PLRA was enacted it amended 42 U.S.C. § 1997e so that "no award of attorney's fees in an action [brought by a prisoner in which fees are authorized] shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of title 18, United States Code, for payment of court appointed counsel." The Eastern District of Michigan authorizes payment of $75 an hour for attorney fees. Thus, the PLRA maximum rate would be $112.50. This rate is misleading; unlike appointed counsel in criminal cases where the attorney gets paid whether (s)he wins or loses, counsel in civil rights cases get paid only if they win.

The court rejected ...

Prisoners Retain Right to Safety

The court of appeals for the second circuit held that a district court erred in dismissing a prisoner's failure to protect claim on the basis that the prisoner could not name his attackers beforehand. The court also held that district courts cannot resolve conflicting deposition testimony by granting summary judgment on the underlying claim. Ronald Hayes was a New York city prisoner who was attacked on three separate occasions by other prisoners and severely injured each time. Prior to the first attack he informed jail officials that his safety was in danger and that he wanted to be transferred to a different unit. Jail officials took no action to protect Hayes or to identify his enemies. The court cites no reason for the attacks on Hayes. Hayes filed suit claiming his eighth amendment right to safety had been violated by the repeated attacks.

The district court disagreed and dismissed the case on the defendants' motion for summary judgment. In considering two depositions by Hayes, the court concluded he had altered his testimony in material respects, namely as to whether he had identified his enemies to jail officials. The court then disregarded one deposition and held the defendants initially lacked ...

Philadelphia Fined for Degrading City Prisons

A Philadelphia common pleas court panel fined the city $2.2 million for "degrading" conditions in the city's prisons.

The judgment, passed down by a three judge panel in early October, 1996, was accompanied by a contempt of court citation for the city. The fine and citation stem from an ongoing prison rights lawsuit known as Jackson v. Hendrick.

The court noted that halfhearted measures or sham claims of compliance do not address the problems or conditions within the [city's] prisons. The judges said that city prisons were 'cruel, disgusting and degrading," and lacked adequate guards, laundry and job-training facilities. Also cited were poor plumbing, rat and insect infestation and faulty heating. The $2.2 million fine is slated to go into a social services fund for the city's prisoners.

Deputy city solicitor James B. Jordan, who represents the city in the case, said the judgment was based on "third-rate issues," such as the speed with which social workers respond to kites from prisoners. Philadelphia mayor Edward G. Rendell promised to fight the decision, "and if we lose the appeal, they would have to put me in prison before I'd pay the taxpayers' money for this ...

Racial Violence in California Lockups

On Friday, September 27, 1996, rioting broke out among more than 200 black and Latino prisoners in New Folsom's B Facility. The violence lasted some 31 minutes with fighting on the yard, in the medical clinic, and in prison industries. Guards fired over 30 rounds from assault rifles and gas guns. Victor Flores, 22, was shot in the back and killed by a guard as fifty others were injured. Four guards had to be hospitalized and eleven more were injured in the disturbance.

Prison officials tried to minimize the incident. "There wasn't anything that would have made us uneasy," said Linda Howell, speaking for New Folsom. "This was totally unexpected." However, longtime visitors paint a different picture.

"Basically, it's a war between the Crips and Southern California Mexicans," said the wife of a prisoner who was visiting at the time the riot started. "It wasn't a big secret (that a fight was coming)." She said an announcement came over the public address system about 9:00 a.m. that visits were terminated. Immediately, several guards dressed in riot gear stormed through the visiting room and she heard the sound of gunfire coming from the yard.

"Prison ...

Florida Private Prison Criticized

by Glenn Wright and Dan Pens

Louisville, Kentucky based private prison vendor U.S. Corrections Corporation (USCC) was sharply criticized by Florida's Auditor General in three separate reports issued by the Office of Program Policy Analysis and Government Accountability (OPPAGA). The reports were the result of state audits of Gadsden Correctional Institution, a 768 bed adult female prison in Quincy, Florida. USSC constructed the prison and has operated the facility under contract with the state of Florida since it opened in March, 1995.

Some of the most serious problems cited relate to staffing. Starting pay at Gadsden is about $18,000/yr, or 7% lower than a state operated starting guard's salary. USCC also offers a much leaner benefits package to its employees than what is offered to state prison workers. Consequently, the average employee turnover rate in state prisons is 22 percent, compared with a staggering 200 percent at Gadsden. During one ten month period, according to the State Auditor, 424 different individuals had held the 223 total staff positions at the institution.

Florida Statute 944.714(2) mandates that "correctional officers" must be certified by the state, with the exception of guards on "temp" or "trainee ...

Impregnated Arkansas Prisoner Wins Suit

An Arkansas state prisoner was awarded $120,000 after a jury heard her claim that she was impregnated by one guard and sexually harassed by another. The federal court jury found that Laura Berry's constitutional rights were violated by former guard Randall Reed and former Sgt. Jay Oswalt at ...

No Double Jeopardy in Massachusetts Disciplinary Hearings

In the October, 1995, issue of PLN we reported that a state trial court in Massachusetts, in an unpublished ruling, had dismissed criminal indictments against twelve prisoners because the indictments were brought after the prisoners had already been subjected to prison disciplinary hearings and punishment. The trial court held that this violated the double jeopardy clause of the fifth amendment to the U.S. constitution. The state appealed and the Supreme Judicial Court of Massachusetts vacated "because it is now clear, in light of the recent opinion in United States v. Ursery, 116 S. Ct. 2135 (1996), that double jeopardy principles do not in all instances bar both the imposition of prison discipline and a criminal prosecution for the same conduct." The prisoner defendants did not claim that they had greater rights under the Massachusetts constitution, which has no explicit double jeopardy provision, than they did under federal law.

In reaching this conclusion the court cited rulings from nine federal circuit courts and its own precedent which "have unanimously agreed that the double jeopardy clause does not preclude both prison discipline and a criminal prosecution (and a further sentence) based on the same facts." The court held that prison discipline ...

Inadequate Jail Staffing Violates Due Process

The court of appeals for the fifth circuit held that a jail staffing practice that allowed a lone male guard to oversee female detainees could be held to violate due process after a woman detainee was raped by a guard. The court held that financial considerations alone do not justify unconstitutional practices and that the staffing level at the jail constituted "official policy" for purposes of holding the jail liable for the rape.

Artelia Scott was arrested on minor charges and processed into the Killeen City, Texas, jail by a female guard. The female guard was relieved at the end of her shift by guard George Moore. Through the course of his eight hour shift Moore repeatedly raped Scott in her cell. Scott was unable to report the rape for three days until after she was released from custody. When Scott reported the attack she was required to take a polygraph test by police; after she passed an investigation began. Moore resigned and later pleaded guilty to unspecified criminal charges.

Scott later filed suit against Moore, the city and police chief claiming the rape occurred as a result of official city policy and that it violated her right to due ...

Ohio Jail Construction Corruption?

Questions arise as to whether a contract for the Franklin County jail renovation was legal. The county commissioners awarded the unbid contract in May 1995 to Voinovich-Sgro Architects, Inc., a subsidiary of the Voinovich Group, owned by Paul Voinovich, the brother to Governor George Voinovich. John Hay, a man who keeps his eyes on local officials, filed a complaint with the county prosecutor's office, charging the contract is illegal because it was not competitively bid as required in Ohio.

Assistant prosecutor Bill Shimp dismissed Hay's complaint, then retired. Shimp said that the contract was awarded to Voinovich-Sgro for an architect, not construction manager. Under Ohio law, architectural contracts do not have to be competitively bid. Hay said he was resubmitting the complaint to Shimp's successor, Jeff Glasgow, and requesting a special prosecutor.

The contract seems to have been awarded to a construction manager. Draw your own conclusions. County commissioners spokesman Gary Gudmundson wrote a memo to WCMH-TV that the commissioners awarded a "Construction Manager contract to Voinovich." In a May 4, 1995, purchase order, the county's director of public facilities management, Ron Neutzling, said the contract was for construction management. Also, in at least four other ...

No Immunity for Eighth Amendment Violation in Rectal Search

The court of appeals for the ninth circuit reversed a jury verdict which had found prison officials had violated a prisoner's eighth amendment rights during a rectal search but that they were entitled to qualified immunity for doing so. The court held these findings were inconsistent and reversed and remanded for a new trial. This ruling reaffirms the standard that qualified immunity from money damages is not available to prison employees who violate the eighth amendment. Mark Koch is an Arizona state prisoner who was subjected to a rectal search in 1984 after informants told prison officials that prisoners were concealing gunpowder and blasting caps in their rectums. This is the fourth time this case has been ruled on by the ninth circuit, twice the issue was whether the defendants were entitled to qualified immunity and then whether Koch had filed his appeal in a timely manner. Earlier rulings, Vaughn v. Ricketts, 859 F.2d 736 (9th Cir. 1988) and 950 F.2d 1464 (9th Cir. 1991), held that Arizona prison officials were not entitled to qualified immunity as a matter of law for performing the searches.

After a trial on the merits was finally held, a jury concluded ...

Beating and Strip Cell Require Trial

The court of appeals for the tenth circuit held that beating a naked, handcuffed, non-resisting prisoner violates the eighth amendment; that placing a prisoner in a strip cell without blankets or heating violates the eighth amendment as well. The court also discussed when a district judge should be recused from hearing a case and a new judge assigned. Carl Mitchell, an Oklahoma state prisoner, was housed in a medium security cell block when a riot broke out that lasted three days, during which most of the cellblock was destroyed. Mitchell was not involved in the riot but he was among prisoners transported to the Oklahoma State Penitentiary. Upon arrival he was stripped naked and chained. Guards picked him up by his elbows with nightsticks and made him run across a gravel yard. When he fell they began kicking and stomping him, yelling "get up, nigger, get up." Mitchell suffered cuts, bruises and a swollen hand with two immovable fingers. He was then placed, still naked, in a cell with no clothing or bedding, or blankets. The building had no heat or hot water. The prison warden authorized all the cell conditions claiming clothing and bedding were privileges. Mitchell was not ...

Farmer Remanded Again, for Discovery

The court of appeals for the seventh circuit held a district court erred in dismissing a case without allowing the plaintiff to conduct discovery in order to oppose the defendants' motion for summary judgment. In doing so the court gives a detailed discussion of the relation between discovery, compelling discovery and summary judgment. In the July, 1994, issue of PLN we reported Farmer v. Brennan, 114 S.Ct. 1970 (1994), the supreme court case where the court held that prisoners have an eighth amendment right to be protected by prison officials from rape or attack by other prisoners. In doing so the court remanded the case to the appeals court which in turn remanded it back to the district court at 28 F.3d 1216 (7th Cir. 1994). On remand the district court promptly dismissed the case again. Farmer appealed and the court of appeals for the seventh circuit vacated and remanded the case.

Dee Farmer is a pre-operative transsexual. After being transferred to the U.S. Penitentiary at Terre Haute, IN, she was raped. She filed suit claiming prison officials were deliberately indifferent to her right to personal safety. The district court dismissed the case and the dismissal was ...

Connecticut Supreme Court Upholds Phone and Mail Restrictions

In the February, 1995, issue of PLN we reported that Connecticut state prisoners had filed a class action suit in state court challenging prison regulations that required the recording of prisoner phone calls and that prisoners, outgoing mail could be read and censored by prison officials.

The Connecticut supreme court ruled entirely in the prison officials' favor, holding that the phone regulations did not violate any state statute or constitutional right, including the right to be free from unreasonable search and seizure. The court held that prison rules allowing the reading of prisoners non-legal mail was permissible and that prisoners did not have a constitutional right to be allowed to call their attorneys at the lawyer's request.

When addressing the prisoners' state law constitutional claims the court noted the condition of Connecticut prisons in 1818 when the state constitution was written. At that time prisoners were kept in a mine shaft below ground in horrid conditions described by the court as a "hellhole." Thus, any claim that prisoners had greater rights under the state constitution than the federal constitution was misplaced. See: Washington v. Meachum, 680 A.2d 262 (CT S.Ct. 1996).

Drug Sales Boom in Wisconsin Prisons

One of every eight adult and juveniles in Wisconsin's prisons or reform schools are receiving psychotropic drugs for a mental disorder. According to Sharon Zunker, director of Wisconsin's Department of Corrections Bureau of Health Services, the cost of psychotropic drug treatment has grown from about $58,000 in 1987 to $110,000 in 1991 and has ballooned to $991,044 in 1995.

"There are a lot more mental health conditions than years ago," Zunker said. "You've got a lot more psychotropic medication possibilities than you did years ago."

Overall, about 12.5 percent, or 1,676, of the 13,406 total population in prisons and reform schools receive drugs for disorders ranging from depression to attention deficit disorder. About 140 of 648 adult females, or about 22 percent, and 22 of 109 female juveniles, or about 20 percent, are treated with psychotropics.

State lawmakers said it is the state's duty to provide necessary treatment, no matter what the cost. Rep. Judith Robson (D-Beloit), a registered nurse, said, "If we're ever going to get a handle on aggressive behavior, we have to invest the dollars."

One can hardly help but wonder, however, if or how major ...

Virginia Felons Disenfranchised

Virginia is one of 13 states that permanently revoke the voting rights of felons. As a consequence, nearly a quarter of a million Virginians, most of them black men, cannot vote.

A Virginia newspaper, the Richmond Times-Dispatch, examined state police records to compile a report citing 241,420 convicted felons banned from voting. As many as 144,900 of them are black men, an estimate based on the state prison system's current makeup of 60 percent black prisoners.

In comparison, approximately 210,000 black men are registered to vote in the state, said Larry Sabato, a University of Virginia political analyst. Sabato called the number of disenfranchised people "stunning."

Margaret Winter of the ACLU National Prison Project said the effect 'has been to create a permanent subclass of disenfranchised citizens who are mostly black and who are mostly poor."

Jerry W. Kilgore, Virginia's secretary of public safety countered that the state constitutional provision is "race neutral," adding that it "has nothing it to do with whether the felon is black or white, rich or poor."

Historians and legal scholars, however, have said that the original intent of the ban was to disenfranchise blacks and poor whites. But while ...

A Native American Resource

The Traditional Native American Tobacco Seed Bank and Education Program (TNAT) at the University of New Mexico has three objectives: 1.) Collecting, preserving, growing and distributing the seeds of the many traditional Native American types of tobacco; 2.) Educating Native Americans about the dangers of tobacco misuse; 3.) Providing traditional tobacco leaves for pow-wows, meetings, conferences, elderly and needy Native Americans (including prisoners), ceremonies, rituals, prayers, and other events requiring the use of tobacco.

TNAT provides traditional tobacco seeds (and small quantities of native tobacco) at no cost to all Native Americans requesting them, as long as they agree to use the resulting tobacco very carefully, in prayers, ceremonies and other traditional contexts. We always try to match a request with the seeds or tobacco with the type grown or collected by that individual's tribe, or from a closely related tribe.

Please note that traditional tobacco seeds and leaves are provided only to Native Americans and only for use in a traditional Native American context. Contact: Joseph Winter, University of New Mexico, Traditional Native American Tobacco Seed Bank and Education Program, 1717 Lomas Blvd. NE, Albuquerque, NM 87131.

Ex-Sheriff Sex Offender Retains Pension

In the July 1995 issue of PLN we reported "51 Months for Sex With Prisoners," about Gulf County (FL) sheriff Al Harrison, then 52, who was convicted of seven misdemeanor counts of violating the civil rights of five female prisoners over a period of several years. The jury found that Harrison forced the women to have sex with him in his office, often offering them furloughs or other favors in exchange.

In late 1996, circuit court judge Phil Padovana ruled that Harrison is due retirement benefits because he was convicted in federal court on misdemeanor charges and Florida state law denies pensions only for felony convictions. As a result of this ruling, Harrison will receive a $38,532 annual state pension.

The state argued that Harrison violated the state's ethics law and that his crimes would be a felony under Florida's sexual battery statute. But in 1995, state prosecutors declined to file criminal charges against him, opting instead to allow federal prosecutors to charge him with misdemeanors.

It seems disingenuous, then, that deputy state attorney general Peter Antonacci characterizes Padavano's decision as "an outrage," and vows to appeal the decision.

Harrison is serving a sentence of four ...

FJC Prisoner Litigation Guide

The Federal Judicial Center, a branch of the federal judiciary, has published a 172 page book, "Resource Guide for Managing Prisoner Civil Rights Litigation." The book is written for judges and court personnel who receive, process and rule on prison suits. The book pays special attention to the Prison Litigation Reform Act (PLRA) and cites extensive pre-PLRA cases as guidance on how to proceed with pro se prisoner litigation under the PLRA. The book includes the text of the PLRA in an appendix and numerous sample forms used in the initial stages of litigation.

The book offers a very useful insight and explanation into how prisoner litigation is actually processed by the federal courts. This is a useful and informative addition to any library. It is available free. Contact: Federal Judicial Center, 1 Columbus Circle, N.E. Washington D.C. 20002-8003.

Louisiana Jail Abuse Settlement

Iberia Parish, Louisiana, reached an agreement December 2, 1996, with the U.S. Department of Justice (DOJ) to settle a lawsuit alleging prisoner abuse in the parish jail. The suit was filed by the DOJ in June, 1996, against then-sheriff Errol Romero and then jail warden Danny David.

The DOJ alleged that prisoners were routinely tied into "restraining chairs" for prolonged periods or were hog-tied, often with tape over their mouths and a football helmet placed backwards over their heads.

The restraint chair manufacturer's guidelines say that prisoners should never be left in the device for more than four hours. Iberia parish jail prisoners complained of being left in the chair for days and sometimes weeks at a time and were forced to urinate and defecate on themselves.

Under the settlement, all allegations of prisoner abuse are acknowledged to have taken place prior to July 1, 1996, when current sheriff Sid Herbert and warden Ron Nicholas took office and the DOJ will monitor compliance for six months.

Corrections Digest

Texas Lawyers Unhappy About Conscription

In 1995 Congress cut funding for some twenty-odd regional death penalty resource centers, pro bono legal aid clinics which specialized in death penalty appeals. The Texas legislature halved the $4 million in state funds budgeted to pay for counsel in state capital appeals cases to go along with a state habeas corpus reform bill it passed in 1995. This type of both state and federal legislation was widely hailed by conservatives as a badly needed "reform" that would speed up executions and eliminate waste on tax dollars spent for needless appeals.

In November of 1996, the Texas court of criminal appeals began mailing out orders to private practice attorneys, appointing them to represent Texas death row prisoners in state appellate court. The orders drew a heated protest to presiding judge Michael McCormick from David L. Botsford, president of the Texas Criminal Defense Lawyers Association (TCDLA).

In a December 9 letter from the Law Offices of David Botsford in Austin, Botsford said, "We are firmly opposed to conscription and believe it is not the answer to the problem."

"We tried to get volunteers," said judge McCormick, "and when that didn't work, we made the appointments." McCormick added that he didn ...

ABA Calls for Halt to Executions

In February, 1997, by a vote of 280 to 119, representatives of the American Bar Association's House of Delegates endorsed a report calling for a nationwide suspension of executions until the judicial process is overhauled.

The report was offered jointly by the A.B.A.'s individual rights and litigation committees and was endorsed by 20 of 24 past A.B.A. presidents, though current A.B.A. president N. Lee Cooper opposed it.

"What you really have here is an up-or-down vote on the death penalty," said Cooper. "Folks, bring it in the front door. Don't come in the back door."

Proponents of the report, however, cited systemic unfairness in what former supreme court justice Harry Blackmun dubbed "the machinery of death." The A.B.A. has previously adopted policies that call for: competent counsel for all capital defendants; availability of federal court review of state prosecutions; efforts to eliminate racial discrimination in capital sentencing; and no executions of mentally retarded defendants or those under 18.

The report accompanying the resolution to halt executions says: "Not only have the A.B.A.'s existing policies generally not been implemented, but ... more critically, the federal and state governments ...

CBCC Associate Superintendent Resigns

The November 26, 1996, edition of the Peninsula Daily News reported that Lisa Wikstrom, a guard at the Clallam Bay Corrections Center in Washington had filed a $1 million damage claim against the state, claiming she had been sexually harassed. Wikstrom's claim stated that Steve Sowers, associate superintendent at CBCC, had sent her letters, cards and money to "weaken (her) resistance of his sexual intentions." Sowers resigned in November, 1996. Wikstrom said she was led to believe that she would be denied promotions if she did not submit to Sower's lascivious sexual advances. As a result of the unwanted harassment Wikstrom claimed she suffered mental and emotional suffering. Neither Sowers nor anyone with the Attorney General's office (who is defending the state) nor the DOC would comment on Wikstrom's claim.

Sower's resignation amidst Wikstrom's claim came after his speedy rise through the DOC bureaucracy, he went from sergeant to associate superintendent in the space of two years. In 1991 then Sgt. Sowers infracted PLN editor Paul Wright for writing 'Clallam Bay Prisoner Brutalized" [PLN Feb. 1991], which detailed the beatings of black prisoners by white guards there. The infraction was eventually dismissed. So much ...

Copying Claims Not Barred by Res Judicata

The court of appeals for the ninth circuit held that an Alaska state prisoner's claim that he was denied photocopies was not barred by res judicata where a similar claim was litigated in a class action suit but the issue was not raised. Timothy Hiser, an Alaska state prisoner, filed suit under 42 U.S.C. § 1983 in federal court claiming prison officials had violated his right of access to the courts when they refused to photocopy his legal documents. The district court did not reach the merits of the claim, instead it dismissed the complaint on res judicata grounds because in 1990 a class of all present and future Alaska prisoners had entered into a comprehensive state court consent decree dealing with prison conditions. Thus, the court reasoned, Hiser's claim was or could have been litigated in the state action, Cleary v. Smith. The consent decree dealt with court access but did not mention photocopying.

The court of appeals for the ninth circuit reviewed the res judicata issue de novo and reversed and remanded for a ruling on the merits. The doctrine of res judicata means that parties cannot litigate issues or claims that have already been ...

News in Brief

CA: In December, 1996, prison psychiatric counselor Massoud Shadzad was arrested while fondling a female prisoner at the Elmwood Correctional Center for Women in Milpitas and charged with sexual battery. The investigation began when Shadzad promised a female prisoner cigarettes in exchange for her panties and she reported the offer.

CA: On December 16, 1996, a federal jury in Sacramento awarded $48,000 in damages to Jane Mootz, a guard at the Mule Creek State Prison in Ione, after finding she was sexually harassed by her supervisor, sergeant Howard Helms.

CA: On January 23, 1997, PLN subscriber David Finney escaped from the Richard Donovan Correctional Center in San Diego by walking out of the prison. Prison officials said that Finney somehow gained access to cash, street clothes and employee ID. Once outside the prison Finney called a cab and waited 25 minutes for it to arrive, then drive him downtown. This is Finney's fourth escape since he was convicted of murder in 1974. In prior escapes Finney has impersonated a lawyer, a prison guard and cut a hole through a fence. The San Diego prison is surrounded by a mile of high voltage lethal fencing.

CA: On January 23 ...

Double Celling States Eighth Amendment Claim

The court of appeals for the third circuit set forth the conditions under which double celling will violate the eighth amendment. The court also held that segregation prisoners are entitled to legal assistance to present their claims to the courts. Several New Jersey state prisoners held in Protective Custody (PC) at the Wagner Youth Correctional Facility filed suit claiming their eighth amendment rights were violated by double celling in the PC unit and they had been denied access to the courts. The district court granted the defendants' motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). The court of appeals reversed and remanded.

The plaintiffs are double celled in 80 square foot cells with only one bunk; requiring one prisoner to sleep on the floor near the toilet. The cells have solid doors making it difficult to summon help. Prisoners share cells with others suffering from psychiatric problems, smokers with nonsmokers. Due to minimal floor space prisoners are largely confined to their bunks. Double celling has resulted in rapes, assaults and psychological stress. Ventilation in the cells regularly fails. Prisoners who refuse to double cell are punished by the loss of good ...

Seventh Circuit Analyzes RFRA

The court of appeals for the seventh circuit gave its first ruling on the application of the Religious Freedom Restoration Act (RFRA) to prison cases in that circuit and in doing so defined what constitutes a "substantial burden" on religious practcies. The court consolidated two appeals by Muslim prisoners in Illinois state prisons.

In one case, John Lipscomb-Bey was denied permission for a feast day to celebrate the birthday of the founder of the Moorish Science Temple; the other plaintiff, John Mack, sued over the conditions at the Ramadan feast in which the prison dining room was filthy and didn't allow him to pray before the meal, conduct a ritual cleansing or face Mecca while eating. Both cases were dismissed by the district courts. The primary question answered by the appeals court in these cases was what constitutes a "substantial burden" on a prisoner's exercise of religion, which is a key term in the RFRA, 42 U.S.C. § 2000bb.

Anyone litigating an RFRA claim will find this case extremely useful because the court gives a breakdown of all circuits that have analyzed the application of the RFRA in prison, with some differences in the language used to ...


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