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Prisoner Education Guide

Prison Legal News: July, 1997

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Volume 8, Number 7

In this issue:

  1. Edwards v. Balisok: A Partial Victory for Prisoners (p 1)
  2. Not All Things Considered (p 3)
  3. From the Editor (p 4)
  4. Ruchell Cinque Magee: Sole Survivor Still (p 5)
  5. Trouble Coming Every Day; ADX-The First Year (p 6)
  6. Prisoners Roasted Alive (p 9)
  7. Prison Pay Policy May Violate Court Access (p 9)
  8. Administrative Exhaustion Requirements Not Retroactive (p 10)
  9. Automatic Stay Provisions (p 10)
  10. PLRA Filing Fees Not Applicable to Habeas (p 10)
  11. Filing Fees Required in Civil Mandamus (p 10)
  12. Consent Decree Termination (p 10)
  13. Special Masters (p 10)
  14. 6th Circuit Upholds PLRA IFP Provisions (p 11)
  15. PLRA Doesn't Apply to Immigration Detainees (p 11)
  16. Physical Injury Requirement Not Retroactive (p 11)
  17. A Matter of Fact (p 12)
  18. New York Smoking Suit Set for Trial (p 12)
  19. Puerto Rican POW 'Graduated' from ADX Florence to USP Marion (p 13)
  20. Washington Prisoner Escapes from State's Most Secure Lockup (p 14)
  21. Private Prison Disciplinary Action Subject to Colorado Court Review (p 14)
  22. Judge Rules Texas Prisoner's Death a Result of Excessive Force (p 15)
  23. Prisoners of Colonialism: The Struggle for Justice in Puerto Rico (p 16)
  24. In Defense of Mumia (p 16)
  25. Death Blossoms (p 16)
  26. Suit Seeks to Expose BOP 'Suicide' Cover-up (p 17)
  27. Jury Trial May Require Plaintiffs' Presence (p 18)
  28. Hygiene and Retaliation Claims Require Trial (p 18)
  29. Lucasville Uprising: $4.1 Million Settlement (p 19)
  30. Plight of Undertrial Prisoners in India (p 20)
  31. News in Brief (p 21)
  32. State Must Pay for Prisoner Witnesses (p 22)

Edwards v. Balisok: A Partial Victory for Prisoners

by David C. Fathi

On May 19, 1997, the United States Supreme Court decided Edwards v. Balisok, 520 U.S. 117 S.Ct. 1584 (1997). Although the Court reversed a favorable decision by the U.S. Court of Appeals for the Ninth Circuit, it also reaffirmed the ability of prisoners to challenge unfair prison disciplinary proceedings under 42 U.S.C. §1983.


THE ISSUE

The issue in Balisok was whether a claim for damages and declaratory relief by a state prisoner challenging prison disciplinary procedures can be brought under §1983, or whether the only federal vehicle for such a challenge is a habeas corpus proceeding. The distinction is important, because damages and injunctions are not available in habeas proceedings, and federal habeas, unlike §1983, requires a state prisoner to first exhaust his or her state remedies.

BACKGROUND

Jerry B. Balisok, a Washington state prisoner, was found guilty in a prison disciplinary hearing, and was sentenced to 10 days in isolation, 20 days in segregation, and loss of 30 days' good-time credit. He filed suit in federal district court under §1983, alleging that the disciplinary proceedings violated his due process rights under the Fourteenth Amendment. Specifically, he alleged that the hearing ...

Not All Things Considered

Award-winning poet Martin Espada was commissioned by National Public Radio's "All Things Considered" to compose a poem as part of the radio network's April observance of National Poetry Month. NPR suggested a poem focusing on a news story from one of the cities Espada was visiting during a reading tour. Espada chose Philadelphia and submitted a poem about one of the most prominent news stories in that city. The poem was entitled "Another Nameless Prostitute Says the Man Is Innocent."

'Everyone around me in Philadelphia was talking about Mumia's case," Espada says. He read an article in the Philadelphia Weekly of April 16 reporting that witnesses whose testimony might exonerate Mumia seemed to vanish.

Mounting evidence indicates that Mumia Abu-Jamal is innocent of the crime of murder for which he is facing a death sentence. More to the point, the evidence -- stemming not only from the "crime scene" but surrounding the judicial process which has flowed from that scene -- indicates that Mumia is not only innocent, but that his conviction and death sentence were not a simple "mistake" of the injustice system. The evidence overwhelmingly paints a picture of a system which intentionally targeted Mumia for conviction ...

From the Editor

Prison population growth is an oft-cited statistic. Since most PLN readers are either imprisoned or otherwise closely involved with the U.S. "corrections" industry, it is easy for them to readily appreciate the concrete (and steel) meaning of prison population stats. Here is a familiar one: according to the Bureau of Justice Statistics, prison populations have increased at an average annual rate of 7.7 percent in the 1990s. We appreciate the enormity of that figure. We live it.

Annual growth of 7.7 percent. Often accompanied by adjectives like "explosive" or "phenomenal." Well, if your experience with imprisonment prepares you to contextually appreciate the phenomenal explosiveness of 7.7 percent annual growth, try this one on for size:

According to a glowing account in Business Week magazine, 1996 profits for the Fortune 500 corporations increased 14 percent after inflation (which was 3.3 percent). That was an improvement over the 13.4 percent jump in 1995, and it marked the fifth consecutive year of double-digit profit growth. Explosive? Phenomenal? How about monstrous? Scandalous?

These last two adjectives are more to the point when you compare corporate profits to workers' wages, which increased 3.3 percent (before inflation) in 1996 ...

Ruchell Cinque Magee: Sole Survivor Still

Slavery is being practiced by the system under the color of law ... Slavery 400 years ago, slavery today; it's the same thing, but with a new name. They're making millions and millions of dollars enslaving Blacks, poor whites, and others - people who don't even know they're being railroaded.

- Ruchell Cinque Magee (from radio interview with Killu Nyasha, "Freedom is a Constant Struggle", KPFA-FM (12 Aug. 1995)

If you were asked to name the longest held political prisoner in the United States, what would your answer be?

Most would probably reply "Geronimo ji jaga (Pratt)" [Geronimo was granted a new trial on 29 May, 1997 by Santa Ana Superior Court, and released June 10], "Sundiata Acoli" or "Sekou Odinga" - all three members of the Black Panther Party or soldiers of the Black Liberation Army, who have been encaged for their political beliefs or principled actions for decades. Some would point to Lakota leader, Leonard Peltier, who struggled for the freedom of Native peoples, thereby incurring the enmity of the US government, who framed him in a 1975 double murder trial. Those answers would be good guesses, for all of these men have spent hellified years in state ...

Trouble Coming Every Day; ADX-The First Year

Society reflects itself in the microcosm of prison. From a class-based, economically driven, racially motivated construct devolves life as a series of Chinese boxes -- a set of boxes decreasing in size so that each box fits inside the next larger one. I am in the smallest box.

I am in Administrative Maximum (ADX) prison, the Federal government's latest boondoggle to contain prisoners' rebellion and dissent. I am in a "boxcar" cell. Picture a cage where top, bottom, sides and back are concrete walls. The front is sliced by steel bars. Several feet beyond the bars is another wall. In this wall is a solid steel door. The term boxcar is derived from this configuration: a small, enclosed box that doesn't move.

I am confined to the boxcar cell 157 hours of each 168 hour week. Eleven hours each week I'm allowed into the barren area adjacent to this cell. Each morning begins with the noisy rumble of the steel door opening. A guard steps to the bars and slides food through a small slot. Feeding time. The guard steps back and the door slaps shut with a vengeance.

The purpose of a boxcar cell is to gouge ...

Prisoners Roasted Alive

A van carrying prisoners burst into flames alongside a Tennessee interstate highway, killing all six prisoners shackled inside a wire mesh cage in the back of the van.

The prisoners were being transported in a van operated by Federal Extradition Agency, a private Memphis-based company that transports prisoners. The driver of the van suffered burns on his arms while attempting to open the rear door of the van.

"The driver could not get close to the back of the vehicle," said Tennessee highway patrol Lt. Mike Dover. "The prisoners were consumed in the fire."

Dover said the heat from the fire was so intense that it welded the van's back door shut. Another employee of the private transport company, who was riding shotgun, escaped without injuries.

The prisoners had spent the previous night, Wednesday April 2, 1997, in a Memphis lockup. The private transport company was ferrying them to various jails in the south.

Proponents of privatization laud the benefits of government downsizing and the efficiencies associated with market forces (i.e. the profit motive), but the "magic" of the market is illustrated by this tragedy.

No doubt the private transport company could move prisoners in a more cost-effective ...

Prison Pay Policy May Violate Court Access

The court of appeals for the eighth circuit held that a prison pay policy requiring prisoners to buy hygiene items and litigation supplies may violate prisoners right of access to the courts. Three Iowa state prisoners in administrative segregation (ad seg) challenged a prison policy that provides them with $7.70 a month in "idle pay." From this amount they must buy hygiene supplies, non prescription medication, stamps and litigation supplies. They contended that $7.70 was not enough and forced them to choose between being clean and pursuing their legal claims. The district court, relying on Blaise v. Fenn, 48 F.3d 337 (8th Cir. 1995) dismissed the case, holding that the prisoners had not shown any actual prejudice to lawsuits they were litigating.

The court of appeals affirmed in part, reversed in part and remanded. This is one of the first circuit rulings to discuss prisoners' right of access to the courts since the supreme court decided Lewis v. Casey, 116 S.Ct. 2174 (1996). The court distinguished this case from Blaise because in that case prisoners received their basic hygiene supplies at no cost and could spend their entire $7.70 a month on legal supplies.

The ...

Administrative Exhaustion Requirements Not Retroactive

The court of appeals for the sixth circuit held that 42 U.S.C. § 1997e(a), which requires prisoners to exhaust administrative remedies before filing suit in federal court do not apply to cases pending on April 24, 1996, when the PLRA was signed into law, creating the exhaustion requirement. This case involves four consolidated cases to determine the exhaustion requirements applicability to cases filed, dismissed by district courts and appealed before the PLRA was signed into law.

Prior to the PLRA's enactment prisoners were not required to exhaust administrative remedies before filing suit for civil rights violations. The court gave an extensive discussion to the PLRA's vague and contradictory language as to its retroactivity as well as the relevant legal standards which determine whether statutes can be retroactively applied to pending litigation.

"Because the language of 42 U.S.C. § 1997e(a) is explicitly prospective and there is no reason to think that congress intended a retroactive effect, we will not apply the new administrative exhaustion requirement to these cases where appeals were pending in this court on April 26, 1996, the day the PLRA was enacted. These four cases are properly before this court, and can ...

Automatic Stay Provisions

After a federal district court in Michigan found the Michigan DOC guilty of contempt for not complying with prior judicial orders on the prisoners' court access and educational opportunities, see: Glover v. Johnson, 934 F. Supp. 1360 (ED MI 1996), the defendants moved to immediately terminate the consent decree under 18 U.S.C. § 3626(b)(1), (2) and (3). The defendants claimed that by filing their motion for termination they were entitled to immediate relief (suspension of the decree and prior court orders) under 18 U.S.C. § 3626(e)(2).

The court held that 18 U.S.C. § 3626(e)(2) was unconstitutional and violated the constitutional separation of powers doctrine. This same judge had previously held the portion of the PLRA was unconstitutional. See: Hadix v. Johnson, 933 F. Supp. 1360 (ED MI 1996). [PLN, Dec. 1996.] The court relied on its finding in Hadix in this case. The court also rejected the federal government's argument that the law was constitutional. See: Glover v. Johnson, 957 F. Supp. 110 (ED MI 1997).

PLRA Filing Fees Not Applicable to Habeas

The tenth and eleventh circuit courts of appeals held that the PLRA's filing fee requirements for indigent prisoners do not apply to habeas corpus petitions. The five other circuits to consider this question have reached the same result. Thus, indigent prisoners need not pay the filing fee when filing a habeas corpus petition in federal court. See: Anderson v. Singletary, 111 F.3d 801 (11th Cir. 1997) and United States v. Simmonds, 111 F.3d 737 (10th Cir. 1997). In the latter case the court also held that the one year statute of limitations contained in the Anti-Terrorism and Effective Death Penalty Act of 1996 which is applicable to habeas corpus petitions, did not apply retroactively to prisoners whose convictions were final before the laws enactment on April 24, 1996. Thus, prisoners whose convictions were final before that date had until April 24, 1997, in which to file their habeas petitions. [PLN, Aug. '96]

Filing Fees Required in Civil Mandamus

The court of appeals for the tenth circuit held that the PLRA's filing fee requirements apply when a prisoner litigant seeks a writ of mandamus in an ongoing civil suit. The court did not discuss whether this applied to writs of mandamus in criminal or habeas proceedings. The court also held that Melvin Tyler, the petitioner, could not seek In Forma Pauperis status at all because he had previously had three suits dismissed as frivolous. The court refused to consider the merits of Tyler's petition until he paid the filing fee and it noted Tyler was still liable for the fee even if the petition was dismissed. See: In Re Tyler, 110 F.3d 528 (10th Cir. 1997). Readers should note other circuits have held the PLRA's filing fee requirements do not apply to writs of mandamus in criminal and habeas cases.

Consent Decree Termination

A federal district court in Indiana heard a motion by Lake County officials to dissolve a consent decree governing jail conditions. The motion sought immediate termination of the decree pursuant to 18 U.S.C. § 3626(b)(2) and (3). The court gave an extensive discussion to the history of the PLRA and the plaintiffs' challenge to the PLRA's constitutionality. The court declined to rule on the defendants' motion, stating it would take the case under advisement pending a hearing. The court was clear that it felt the termination provisions of the PLRA are constitutional but that if there were ongoing constitutional violations at the jail caused by overcrowding it would not terminate the decree. The court ordered a hearing to determine what the actual conditions were at the jail and if the consent decree was narrowly tailored to remedy the violations. See: Jensen v. County of Lake, 958 F. Supp. 397 (ND IN 1997).

Special Masters

The court of appeals for the ninth circuit held that 18 U.S.C. § 3626(f)(4), the portion of the PLRA which limits the hourly rates paid to special masters appointed to oversee court orders in prison litigation to $75.00 an hour paid for by the federal judiciary, does not apply retroactively to special masters appointed before the PLRA's April 26, 1996, enactment.

Pete Wilson, the governor of California, sought a writ of mandamus from the ninth circuit court of appeals to force the district courts to give retroactive application to section 3626(f)(4) in three pending class action suits where special masters had been appointed. The appeals court denied the writ, holding the district court rulings did not constitute "clear error." "In reviewing § 3626(f)(4) and its legislative history under the retroactivity analysis of Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483 (1994), we cannot say that the district courts' conclusion of non retroactive application is clearly erroneous." The special masters in these cases were being paid between $90 and $250 an hour for their services by the California Dept. of Corrections. The PLRA now limits such payments to ...

6th Circuit Upholds PLRA IFP Provisions

The court of appeals for the sixth circuit rejected the first extensive constitutional challenge made to the In Forma Pauperis (IFP) provisions of the Prison Litigation Reform Act (PLRA). The PLRA changes to 28 U.S.C. § 1915, the IFP statute, were detailed in the July, 1996, issue of PLN and every issue since the November, 1996 PLN. With regards to filing suit, prisoners now must always pay the filing fee up front or in installments. In this case Ohio prisoner Lee Hampton filed suit claiming he was retaliated against for exercising his first amendment rights. The district court dismissed the suit and Hampton appealed, seeking IFP status. The appeals court raised several concerns about the constitutionality of the IFP changes and appointed counsel to brief the issue. The merits of Hampton's claims were not raised.

The court rejected all challenges made to the PLRA's fee requirements for indigent litigants. The court held it does not violate the right of access to the courts because prisoners can still file suit, even if they are penniless, they just become liable for the filing fee and must eventually pay it should they ever have the funds to do so. The ...

PLRA Doesn't Apply to Immigration Detainees

The court of appeals for the fifth circuit held that the Prison Litigation Reform Act (PLRA) does not apply to immigration detainees. Anthony Ojo was convicted of a drug offense, sentenced to five years in prison and after completing that sentence the Immigration and Naturalization Service (INS) began deportation proceedings against him. Ojo filed a habeas corpus petition challenging his conviction, which was denied as frivolous.

The court of appeals affirmed denial of the petition. The court first held that immigration detainees need not obtain a certificate of appealability when appealing immigration rulings under 28 U.S.C. § 2241 and § 2253.

The court held that Ojo could proceed in forma pauperis, without payment of the filing fees, because his detention, at this point, was civil, for violating immigration law, it was not criminal. The court concluded that alien detainees do not fall within the sweep of the PLRA, thus they can file suit IFP. However, under the recently passed Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, 110 Stat. 3009 (1996), federal courts no longer have jurisdiction to review deportation orders against aliens who are deportable due to felony convictions. While not explicitly saying as much ...

Physical Injury Requirement Not Retroactive

A federal district court in New York held that 42 U.S.C. § 1997e(e), a section of the PLRA which requires prisoners to sustain physical injury before they can seek money damages, is not retroactive to claims arising before the PLRA's April 26, 1996, enactment. The court also held prison officials were not entitled to qualified immunity for denying a Muslim prisoner access to congregate religious services.

In 1995 Darlena Harris, a New York state prisoner, was denied access to Muslim church services by prison guards, who also yelled obscenities at her. Harris filed suit claiming the denial of church services violated her rights under the first amendment and Religious Freedom Restoration act (RFRA), 42 U.S.C. § 2000bb. The defendants filed a motion to dismiss because Harris had sustained no physical injury.

The court held that 42 U.S.C. § 1997e(e), which prohibits federal civil actions from being filed by prisoners and detainees "for mental or emotional injury suffered while in custody without a prior showing of physical injury" is not retroactive to claims that occurred before its enactment. To hold otherwise would attach new legal consequences to events completed before the PLRA's enactment as ...

A Matter of Fact

A 15-year study of 1,300 sex offenders who were arrested in 1973, conducted by the California Dept. of Justice, found that 19.7 percent were re-arrested for a subsequent sex-offense. That figure may seem low, so in a dazzling example of statistical hocus-pocus, the study concluded that "sex offenders were five times more likely than other violent offenders and six times more likely than all types of offenders to commit another sex offense." [duh? And drug offenders are more likely to commit another drug offense, robbers are more likely to commit another robbery?]

Correctional Services of Canada figures show that in 1995-96, 10,534 Canadian prisoners were released on some type of parole and of that number, 984 (9.3 percent) were later charged with a crime. Of the 11,488 prisoners paroled in 1994-95, 1,097 (9.5 percent) have been charged with a new crime.

In 1990, 75 percent of Texas prisoners considered for parole were released. In 1995, only 18 percent of potential parolees were released. The parole rate for sex offenders was 12 percent in 1991 and less than one percent (98 out of 11,782) in 1995.

While state prison populations increased at an ...

New York Smoking Suit Set for Trial

A federal district court in New York held that prison officials were not entitled to qualified immunity for exposing prisoners to Environmental Tobacco Smoke (ETS), also known as second hand smoke, and scheduled a trial to determine prison officials' liability. Several New York state prisoners at Sing Sing filed suit complaining of smoke related discomfort and other maladies caused by ETS exposure. The exposure was magnified by poor ventilation and the large number of prisoners who smoke. The NY DOCS allows prisoners to smoke in their cells and certain recreation areas. The defendant prison officials sought summary judgment, which the court denied.

In Helling v. Mckinney , 509 U.S. 25, 113 S.Ct. 2475 (1993) [ PLN , Sept. 1993] the supreme court held that exposing prisoners to excessive levels of ETS violates the eighth amendment's ban on deliberate indifference to prisoners' serious medical needs. The court in this case held that a 1986 report by the U.S. Surgeon General warns of the dangers from ETS to non smokers and the report put the defendants on notice as to the illegality of their conduct. "Indeed, a rational fact finder could further accept the smoking policy with respect to problem areas ...

Puerto Rican POW 'Graduated' from ADX Florence to USP Marion

On November 8, 1996, Puerto Rican prisoner of war Oscar Lopez Rivera was transferred from ADX Florence to USP Marion after completing the 36-month "step program" at ADX in just 23 months. He received no disciplinary infractions while at ADX and was among the control unit's first "graduates." Lopez Rivera was rewarded for his reluctant cooperation with the ADX step program by a transfer to Marion, the only other federal Bureau of Prisons (BOP) control unit for men.

After completing the ADX program, Lopez Rivera was asked to which prison he wished to be transferred. He answered USP Lewisburg, PA. He was informed by an associate warden that the transfer had been approved. He didn't find out until he was already in transit that he was destined for USP Marion. He was the only one of 13 ADX prisoners in his transfer group to be sent to Marion.

Regional BOP officials have refused to comment about the transfer, and Teresa Banks, a spokesperson for Marion, said she had no information on the reason Lopez Rivera was transferred there.

Florence ADX spokesperson Louis Winn said of Lopez Rivera's stated preference of USP Lewisburg: "The inmate can definitely request ...

Washington Prisoner Escapes from State's Most Secure Lockup

In July, 1996, John Allen Lamb, 33, hijacked a prison truck at knife point and attempted to ram the truck through security fencing at the Washington State Penitentiary (WSP) at Walla Walla [later reported in PLN's News In Brief]. The unsuccessful escape attempt earned Lamb an extended stay in the state's most secure lockup, the penitentiary's infamous Intensive Management Unit (IMU).

On Sunday, March 16, 1997, Lamb strolled out of the IMU, scaled two fences unnoticed by nearby tower guards, and walked away from the maximum security prison. He was captured a few short hours later.

"You look a lot like a guy we're looking for," Walla Walla police officer said to Lamb who was hitchhiking on a highway on-ramp near downtown Walla Walla.

"You got me," Lamb replied, then turned and place his hands behind his back, according to published news accounts.

Although Lamb failed to make good his getaway, he did manage to seriously embarrass prison officials who were left to answer questions about how a prisoner managed to escape from Washington's most secure facility, the same unit that houses the state's death row prisoners.

"It is kind of like a wake-up ...

Private Prison Disciplinary Action Subject to Colorado Court Review

The Colorado court of appeals held that state prison disciplinary codes apply to private prisons and are subject to judicial review. Patrick Murphy, a Colorado state prisoner, was placed in the Bent County Correctional Facility (BCCF), a privately owned and operated prison. Murphy was infracted for possession of heroin and found guilty at a disciplinary hearing. Murphy then filed an action seeking a state court review under CRCP 106(a)(4) of the disciplinary hearing. The trial court dismissed the petition holding that because BCCF is not a government agency, its employees are not government officers and hence are not subject to judicial review.

The court of appeals reversed and remanded. The court noted that all Colorado prisoners in the custody of the DOC's executive director are subject to the Code of Penal Discipline. Under state law, anyone sentenced to prison is deemed to be in the DOC director's custody regardless of where they are actually imprisoned. Therefore, disciplinary hearings must be conducted in accordance with the COPD.

"CRCP 106(a)(4) provides a vehicle for judicial review of the actions of 'any governmental body.' Because Bent county was imposing discipline pursuant to the COPD as an agent ...

Judge Rules Texas Prisoner's Death a Result of Excessive Force

On January 27, 1997, a guard at the French Robertson Unit in Abilene, TX, showed up to search Gary Lee Crenshaw's cell. Crenshaw, 31, serving a 45-year sentence for possession with intent to deliver cocaine, returned from the shower and reportedly "became irate" when he saw his cell being tossed.

The guard, Mike Helm, claims Crenshaw took a swing at him. Another guard, Bradley Johnson, then joined Helm in "restraining" Crenshaw. After cuffing and shackling Crenshaw, the two guards asked if he was "prepared to cooperate." They received no response. Crenshaw was unconscious and had stopped breathing. He was taken to the infirmary where attempts at CPR were unsuccessful. He was later pronounced dead at a local hospital.

Warden R.H. Drewry told reporters that there was no indication of wrongdoing. The warden said he interviewed several prisoners and guards who witnessed the incident, "and there's nothing in there that should cause us any concern." TDCJ spin doctor, Larry Todd, told reporters days later that it was possible that Crenshaw hit his head on the ground when the guards took him down. "That's one of the things the autopsy will be looking for," Todd told reporters.

The ...

Prisoners of Colonialism: The Struggle for Justice in Puerto Rico

Review by Daniel Burton-Rose

This work by Ronald Fernandez provides a history of Puerto Rico's efforts to free itself from the imperial rule of the United States, from the time it was "won" from the Spanish in 1898 to the present state of affairs. It concentrates on the four generations of POWs confined in U.S. federal prisons for their actions to free their homeland, and provides a very personal account of how each generation of freedom fighters inspired and energized the next. Though the book has many rough edges and is poorly organized, it has much to offer for anyone interested in anti-imperialist struggle and the continued efforts of Puerto Rican Nationals to regain control of their own land and culture. 377 pages. ISBN 1-56751-028-0. $14.95. Common Courage Press. 1994. Available from: Left Bank Dist., 1404 18th Ave., Seattle WA 98122.

In Defense of Mumia

Review by Daniel Burton-Rose

This work, edited by S.E. Anderson and Tony Medina, is a powerful compilation of graphic art, prose, and poetry inspired by political prisoner Mumia Abu-Jamal's struggle for freedom from PA's death row, the 1985 bombing of the radical MOVE organization by the city of Philadelphia, and the events and larger social structure which have placed Mumia in "the Shadow of Death" and have killed or imprisoned so many of his fellow revolutionaries. It includes works by such powerful liberation fighters as Assata Shakur, Standing Deer, Leonard Peltier, Sufiya Bukhari, Susan Rosenberg, Ngugi Wa Thiong'o, William Kunstler, and Mumia himself, as well as more mainstream Progressives such as Katha Pollitt, Allen Ginsberg, Margarett Randall, and Manning Marble. The most central and pressing cry of this book is that we need Mumia among us, free and alive, and working for the betterment of us all. The moral is, in the words of Michael Parentti: "If we are to vent our riotous anger, let it be before they try to murder Mumia Abu-Jamal, not after." 364 pages. ISBN 0-86316-099. $14 (all royalties go to the Mumia Abu-Jamal Legal Defense Fund). Writers and Readers Publishing, Inc ...

Death Blossoms

Review by Mark Cook

Mumia Abu Jamal's Death Blossoms walks the reader through a hallway of mirrors reflecting the thoughts of a prisoner of conscience contending with the oppressive diversion of a death sentence. Death Blossoms evades the State's attempt to silence him. In an effort to silence him the State served him with a write-up, a misconduct report, for engaging in a business by writing and having published his former book, Live from Death Row. The State does not take criticism of its fallibility well. His first order of business, no pun intended, in Death Blossoms is to point out, "the writer who is endorsed by the State is the writer who says what everyone wants to hear." He tells his readers that he will keep "right on writing. You keep right on reading!"

One cannot find much credibility in a prisoner on death row condemning the death penalty but Mumia's perspective appears to hit the nail right on the head given the "get tough on crime" theme of contemporary politicians. Mumia says "the death penalty is a creation of the State, and politicians justify it by using it as a stepping stone to a higher ...

Suit Seeks to Expose BOP 'Suicide' Cover-up

A former U.S. Congressman and his organization are offering a $10,000 reward in the death of Kenneth Michael Trentadue. Congressman George Hansen says the U.S. Citizens Human Rights Commission is offering the money for the identification, indictment and conviction of the people responsible for Trentadue's death.

One fact is not in dispute. Kenneth Michael Trentadue died at the Federal Transfer Center (FTC), operated by the Federal Bureau of Prisons (BOP), in Oklahoma City, Oklahoma, during the evening of August 20, or the early morning hours of August 21, 1995. How he died is the question that won't go away. Perhaps the BOP and Department of Justice hoped Kenneth's death wouldn't arouse any suspicion or garner much scrutiny. Maybe they thought the incident would fade away and be forgotten. If that's what they believed, they were wrong. Dead wrong.

Kenneth's family didn't believe the BOP's claim that Kenneth committed suicide. They refused the BOP's repeated offers to cremate the body. They contacted the media, hired investigators, got Amnesty International involved, wrote letters to politicians, filed Freedom of Information Act requests. They demanded justice. They didn't give up. And ...

Jury Trial May Require Plaintiffs' Presence

The court of appeals for the fifth circuit held that a district court erred in not allowing two pro se prisoner litigants to be present when their case went to a jury trial. The court also found error in the manner in which the trial was conducted. [Editors' Note: Anyone interested in the obstacles facing prisoner litigants should read this case. This is the first time PLN has heard of a case where a jury trial was held, the prisoners were pro se and not allowed to attend while the prison official defendants are represented by counsel and did attend.]

Two Louisiana state prisoners became ill, along with half the Louisiana State Penitentiary, due to food poisoning. They were treated by medical staff and excused from work that day. The next day they were still sick from the food poisoning but were ordered to work anyway. When they refused to work they were placed in segregation. Another medical exam found they were indeed ill. Prison officials then fabricated a claim that the prisoners were inciting a work stoppage. They were infracted, found guilty at a disciplinary hearing and sentenced to punitive segregation. The prisoners filed suit and the case went ...

Hygiene and Retaliation Claims Require Trial

The court of appeals for the tenth circuit held that a prisoner's retaliation claim and claim that he had been denied hygiene items required a trial. The court affirmed dismissal of claims regarding inadequate law library access and his placement in administrative segregation (ad seg). Donald Penrod, a Colorado state prisoner, filed suit after he was placed in ad seg because he was not employed within the prison or programming. Penrod contended the provision of five hours a week law library access was inadequate and that he was retaliated against for suing prison officials. He also claimed that he was denied toothpaste and razors for several months, which caused his gums to recede and bleed. The district court granted the defendants summary judgment on all counts and dismissed the case.

The court of appeals affirmed in part, reversed in part and remanded. The court affirmed dismissal of the law library claim under Lewis v. Casey, 116 S.Ct. 2174 (1996) because Penrod only claimed the limited law library access left him with nothing to read and caused him "mental deterioration, anxiety and deep depression." [All of which could be relieved by a subscription to PLN.] To state a court ...

Lucasville Uprising: $4.1 Million Settlement

In January, 1997, a settlement was filed in federal court in the three-year-old class action based on injuries stemming from the 1993 Easter Day uprising and 11-day siege at the Southern Ohio Correctional Facility (SOCF) at Lucasville, OH. The settlement establishes a $4.1 million fund to pay prisoner damage ...

Plight of Undertrial Prisoners in India

In India there are 85 central prisons, 252 district prisons, 14 women's prisons, and about 547 sub-jails. The exact number of prisoners in the country is not known. At the end of 1993, according to one estimate, there were about 200,000 prisoners throughout India. Of that number, about 137,838 (or 68 percent) were 'undertrials" [the name for pre-trial detainees in India]. The All India Committee on Jail Reforms (better known as the Mulla Committee) noted in a recent report that the majority of undertrial prisoners are people from poorer and underprivileged sections of Indian society with rural and agricultural backgrounds.

In India the administration of prisons is governed by the Prison Act of 1894. The Act is old and many of its provisions are outdated. Section 27 of this Act provides that unconvicted prisoners are to be kept apart from the criminal prisoners. Many jail manuals also provide for strict segregation of undertrials from convicted prisoners. The Orissa jail manual, for example, even provides that undertrial prisoners with previous convictions should be kept apart from those undergoing trial for the first time, and juvenile undertrial prisoners should be separated from adult undertrial prisoners.

But these rules are ...

News in Brief

CA: On May 8, 1997, 11 year Sacramento County deputy district attorney Pete Harned was charged in federal court with 19 counts of receiving, transporting and possessing child pornography over the Internet. This included felony receipt of a CD Rom titled "The Boy Lovers." A search of his home revealed dozens of video tapes of child pornography involving boys having sex with adult men, as well as cocaine, marijuana and methamphetamine. Between 1990 and 1994 Harned prosecuted sex crimes, from 1994 until his arrest he prosecuted homicides. Harned faces less than 5 years in prison if convicted.

FL: In March, 1997, Ft. Myers jail prisoner Gregory Williamson walked out of jail after his girlfriend faxed a fake letter from Pennsylvania's governor to jail officials claiming Williamson had been pardoned. The ruse was not discovered until PA officials arrived to extradite Williamson. Williamson was arrested a week later when he tried the same trick to free his former cellmate.

GA: On March 17, 1997, Clayton county jail prisoners Venteris Hobson, Raychel Cosden and Robert Peppers escaped by climbing to the jail roof through a plumbing chase. Designed to hold 480 prisoners, the jail holds more than 1,000 and is ...

State Must Pay for Prisoner Witnesses

A federal district court in California held that courts may issue writs of habeas corpus ad testificandum to ensure prisoner witnesses are produced to testify in court on behalf of a prisoner plaintiff. The court also held that the cost of transporting and producing prisoner witnesses was properly borne by the state; 28 U.S.C. § 2241(c)(5) in conjunction with 28 U.S.C. § 1651 (a) allows district courts to issue writs of habeas corpus ad testificandum to order prison officials to produce prisoner witnesses in court to testify.

The court rejected the defendant prison officials' argument that such writs can only be granted within the district court's respective geographical jurisdiction.

In order to grant such writs the court must determine the prisoner witness's testimony is relevant and necessary. "[T]he court finds that the party requesting a writ of habeas corpus ad testificandum must set forth in a sworn affidavit (1) what the inmate witness will testify to; (2) how the plaintiff knows that the inmate witness will testify as such; and (3) why the testimony is necessary. The state can oppose the writ with an affidavit showing that the inmate-witness would not provide such ...

 

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