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Prison Legal News: May, 1998

Issue PDF
Volume 9, Number 5

In this issue:

  1. Oregon's Prison Slavocracy (p 1)
  2. Slaves-R-Us Corporate Partners Wanted (p 3)
  3. Profits First! Convict Labor in America, book: Twice the Work of Free Labor (Book Review) (p 4)
  4. Book Reviews (p 4)
  5. From the Editor (p 4)
  6. Profits First! Convict Labor in America, book: Worse than Slavery, D. Oshinsky (p 4)
  7. WA County Launches Slave Labor Center (p 6)
  8. Jailhouse Travel Agents (p 6)
  9. Notes from the Unrepenitentiary (p 7)
  10. Work Strike Suppressed and Sabotaged in Ohio (p 8)
  11. Texas Prison Labor Union (p 9)
  12. CURE-Ohio and the Aftermath (p 9)
  13. Prior Dismissals Count as Strikes (p 10)
  14. Bad Faith Appeals (p 10)
  15. Fee Required in Voluntary Dismissal (p 10)
  16. Grievance Exhaustion Required (p 10)
  17. Physical Injury Limit Defined, Wrongly (p 10)
  18. Tenth Cir. Upholds IFP Provisions (p 10)
  19. No Ex Post Facto Violation in Permanent Loss of Forfeited Good Time (p 11)
  20. Alaska Classification Subject to Court Review (p 11)
  21. DC Women Prisoners' Suit Settled (p 12)
  22. Deliberate Indifference Applies to Detainees (p 12)
  23. Louisiana DOC Defiance Rule Unconsitutional (p 13)
  24. Prison Jobs and Free World Unemployment (p 14)
  25. Unicor Steals Glove Business From Private Firms (p 14)
  26. Union Reverses Position on Private Prisons (p 15)
  27. New Jersey Mental Health Class Action Gains Momentum (p 16)
  28. Fact Finding Required in Disciplinary Suits (p 17)
  29. Prison Phones Discussed (p 18)
  30. $60,000 Judgement Against Florida DOC Reinstated (p 18)
  31. Jury Verdict Affirmed in Arkansas Prisoner Attack (p 19)
  32. No Federal Remedy for False Disciplinary Charges (p 19)
  33. Fact Dispute Bars Qualified Immunity Appeal (p 20)
  34. Florida Finally Learns the Meaning of Ex Post Facto (p 20)
  35. Florida Prisoners Have Right to Present Evidence at Disciplinary Hearings (p 21)
  36. Delay of Dental Service Violates 8th Amendment (p 21)
  37. Michigan Visiting Restrictions Upheld (p 22)
  38. Delay in Treatment for Jail Prisoner Actionable (p 22)
  39. Denial of Counsel Reversed (p 23)
  40. Law on Strip Searches of Prison Visitors Clearly Established (p 23)
  41. News in Brief (p 24)
  42. AZ Prisoners Have Right to Attend Paternity Hearings (p 25)
  43. Prison Disciplinary Proceedings Cognizable Under § 1983 in Florida (p 25)

Oregon's Prison Slavocracy

What I propose is, that as we embark on this massive prison construction program, we try a new approach -- convert our "warehouses" into factories with fences around them. To do that we must change our thinking and change the reactionary statutes that stand in the way. I believe the American ...

Slaves-R-Us Corporate Partners Wanted

[The following "Marketing Focus" fax from the Oregon Department of Corrections found its way to PLN , the full text of which is reproduced here.]

Prime land, buildings, and labor available to nursery industry.

Nursery products-related individuals and business interested in expanding operations through public-private partnerships are sought by the Oregon ...

Profits First! Convict Labor in America, book: Twice the Work of Free Labor (Book Review)

A. Lichtenstein

The United States, in the throes of a vicious social war against the poor, is poised on the brink of dismantling New Deal legislative prohibitions such as the Ashurst-Sumners Act which made the interstate transport of prison-made goods a felony offense. [In 63 years, not one person has ...

Book Reviews

Profits First! Convict Labor in America

Alex Lichtenstein, Twice the Work of Free Labor: The Political Economy of Convict Labor in the New South (London and New York: Verso, 1996).

Matthew J. Mancini, One Dies Get Another: Convict Leasing in the American South (Columbia S.C.: University of South Carolina ...

From the Editor

Welcome to the eighth anniversary issue of PLN . This issue marks eight continuous years of monthly publishing, and in August we'll publish our 100th issue. This is an enormous accomplishment when one considers that the bulk of prison and alternative publications measure their existence in single digits as far ...

Profits First! Convict Labor in America, book: Worse than Slavery, D. Oshinsky

In Worse than Slavery, David Oshinsky writes about a world of forced toil with which we are more familiar: the great agricultural slave labor camp of Parchman Farm in the Mississippi Delta. Actually, Oshinsky's canvas is much wider than Parchman itself. Indeed, he seeks to provide the reader with ...

WA County Launches Slave Labor Center

Construction crews were hard at work in February, l998, pounding nails, framing walls and stirring Spackle to remodel a building adjacent to the Whatcom County (WA) Courthouse. Pictured on the front page of the Bellingham Herald , they looked like any typical hard-working bunch of all-American construction workers -- except they weren ...

Jailhouse Travel Agents

Travel Wholesalers International, a travel agency based in Fairfax, Virginia, recruits workers in out-of-the-way places. The company employs 12 maximum-security prisoners at the Leath Correctional Institution, a women's prison in Greenwood, South Carolina. The prisoner-workers talk to clients over the phone, registering plane reservations and other travel plans in ...

Notes from the Unrepenitentiary

Notes From The Unrepenitentiary

By Laura Whitehorn

The Jericho '98 rally in Washington, D.C. on March 27th was, I hope, a step in the direction of freeing all u.s.-held political prisoners and Prisoners of War. Vigorous action of all kinds both domestic and international will be needed ...

Work Strike Suppressed and Sabotaged in Ohio

The October 16th, 1997, issue of the Cleveland black community newspaper The Call and Post printed a letter announcing a statewide work strike by Ohio prisoners on November 1st. The letter was signed by Prisoners United For Equal Justice.

The purpose of the protest was to demand an end to ...

Texas Prison Labor Union

The Texas Prison Labor Union (TPLU) was established in 1995 by Texas prisoners and outside supporters. The state had just completed a $1.5 billion prison expansion program, and it now incarcerates close to 150,000 prisoners in a vast network of more than 100 prisons. One-hundred percent of Texas ...

CURE-Ohio and the Aftermath

[Editor's Note: The following information reaches PLN by mail from an Ohio reader whose name and initials we are withholding at our discretion.]

The situation with CURE-Ohio is getting worse! CURE has formed a "coalition" of outside support groups, and is dictating policy to them. To join this "coalition ...

Prior Dismissals Count as Strikes

The court of appeals for the third and ninth circuits joined the fifth, seventh and tenth circuits in holding that 28 U.S.C. § 1915(g) applies to cases dismissed before the PLRA's April 26, 1996, enactment. Section 1915(g) prohibits prisoners from proceeding with in forma pauperis (IFP ...

Bad Faith Appeals

The court of appeals for the District of Columbia circuit held that 28 U.S.C. § 1915(a)(3) precludes prisoners from appealing without full prepayment of the filing fees if the district court certifies that the appeal is not taken in good faith. The issue was one of first ...

Fee Required in Voluntary Dismissal

A federal district court in Nebraska held that the IFP fee requirements of the PLRA, 28 U.S.C. § 1915(b)(2) require payment of the full filing fee even if the prisoner plaintiff later decides to voluntarily dismiss the action. See: Conley v. Henderson , 980 F. Supp. 322 (D ...

Grievance Exhaustion Required

The court of appeals for the sixth circuit held that 42 U.S.C. § 1997e(a) requires administrative exhaustion of all claims filed after the April 26, 1996, enactment of the Prison Litigation Reform Act (PLRA). Section 1997e(a) states that "no action shall be brought with respect to prison ...

Physical Injury Limit Defined, Wrongly

A federal district court in Texas dismissed a lawsuit as being legally frivolous for not alleging sufficient physical injury under 42 U.S.C. § 1997e(e). Thinh Minh Luong is a Hawaii state prisoner transferred to the Dickens County Corrections Center, a private prison operated by the Bobby Ross Group ...

Tenth Cir. Upholds IFP Provisions

The court of appeals for the tenth circuit held that the PLRA's IFP provisions, requiring full payment of all filing fees, were constitutional. All circuit courts to consider the issue have held likewise. The court also upheld the censorship of the magazine Muhammad Speaks on grounds that it advocates ...

No Ex Post Facto Violation in Permanent Loss of Forfeited Good Time

The court of appeals for the fifth circuit held that a Texas Board of Criminal Justice (TBCJ) directive forbidding prison officials from restoring good time credits previously lost did not violate the ex post facto clause. Since 1977 Texas law has allowed the director of the Texas Department of Criminal ...

Alaska Classification Subject to Court Review

The supreme court of Alaska held that prison classification hearings are adjudicatory determinations subject to judicial review and that Alaska prisoners have a state constitutional right to rehabilitation. Richard Brandon is an Alaska state prisoner transferred to a privately run prison in Florence, Arizona, as part of an effort to ...

DC Women Prisoners' Suit Settled

In the December 1995, June 1996 and September 1997 issues of PLN we reported the saga of Womens Prisoners of the District of Columbia DOC v. District of Columbia , which is cited in 877 F.Supp. 634, 899 F.Supp. 659, and 93 F.3d 910, respectively. After the district ...

Deliberate Indifference Applies to Detainees

The court of appeals for the tenth circuit held that county jail officials have a constitutional duty to protect the health and wellbeing of prisoners in their custody. The appropriate standard of liability under these circumstances is deliberate indifference, not objective reasonableness. Under the proper standard the court found that ...

Louisiana DOC Defiance Rule Unconsitutional

The court of appeals for the fifth circuit held that the Louisiana DOC rule prohibiting "defiance" was facially invalid to the extent that it proscribes prisoners from threatening prison employees "with legal redress during a confrontation situation." The court also held that habeas corpus was the proper remedy for prisoners ...

Prison Jobs and Free World Unemployment

In May, 1996, the Fabry Glove & Mitten Company opened a production facility in Wisconsin's Green Bay Correctional Institution. The company hired 70 prisoners as laborers, later adding 30 more. The prisoners, who operate cutting and sewing machines, earn $5.25 per hour. The Department of Corrections keeps 65% of the prisoners' wages to offset the expense of imprisoning them.

A year earlier, Wisconsin's legislature had approved Republican governor Tommy Thompson's plan to amend the state's labor laws in order to allow private firms to set up shop inside the state's prisons. Thompson won passage of his proposal only after assuring legislators that the convict-labor program would not be permitted to steal the jobs of any workers outside prison walls. Michael Sullivan, secretary of the Wisconsin DOC, affirmed that prisoner labor would be used solely to make products not currently being produced in this country.

At the beginning of 1996, the Fabry company employed 205 workers at its three Green Bay-area plants. By April, 1997, less than a year after the company began hiring prisoners, Fabry's outside-the-walls workforce had fallen by 40%, to 120 employees.

Fabry laid off the fabric cutters at its city plants in August, 1996. The following month, the firm issued orders for prisoners to cut fabric for 50,000 gloves, hats, scarves and other products. Many other workers were laid off or fired in the ensuing weeks. In the first nine months of the prison shop's operation, prisoners cut or sewed 461,000 items.

Before the prison venture began, Fabry's outside workers earned up to $11 an hour. Employing free workers also entails non-wage expenses like health-care benefits, vacation benefits, unemployment compensation and workers-compensation insurance premiums. Fabry pays none of those expenses for its prisoner employees.

Democratic state senator Charles Chvala, the senate majority leader, called the Fabry layoffs outrageous. "I challenge the governor to go to Green Bay, stand eye to eye with those laid-off workers who have played by the rules all their lives, and explain why he believes inmates should have their jobs," Chvala said. "Law-abiding citizens working Wisconsin citizens -- are being forced into competition with prison inmates for jobs, and this is indefensible."

Company president John Fabry said the layoffs were unrelated to his firm's employment of prisoners. He explained that the company had been planning layoffs since 1995. If the opportunity to hire prisoners had not materialized, Fabry claimed, the company would likely have moved production facilities to Asia.

The DOC supports Fabry's assertion that the layoffs occurred independently of the convict-labor deal. "With the information we have at this point in time, displacement [of Fabry workers with prisoners] did not occur," DOC secretary Sullivan said. "To stay viable, Fabry did reduce some operations, but I am unaware of any displacements resulting from the agreement with us."

John Matthews, governor Thompson's chief of staff, agrees. "The marketplace was forcing him to find a different place to produce these products," Matthews told a reporter. "It came down to a choice between the Pacific Rim and the prison."

Senator Chvala took issue with these denials. "There can be no mistaking the connection between Fabry's downsizing and their use of prison labor," Chvala wrote in a letter to Sullivan. Chvala called on the DOC chief to cancel the Fabry contract "before more honest, law-abiding working people lose their jobs."

Federal law mandates that private companies hiring prisoners must not displace outside workers. The U.S. Department of Justice is investigating the Fabry ordeal, but the law is unclear. The term "displacement" is not defined and the statute has not yet been tested in court.

Job loss was not the only change that awaited Fabry workers after the company shifted production to the prison shop. Four months after it began hiring prisoners, Fabry slashed the wages of its remaining free employees up to $5.50 an hour. "If you want to work for what the prisoners make," said Penny Vande Voort, a former sewing-machine operator who quit following the pay reduction, "go ahead and work for John Fabry."

The phenomenon of people outside prison walls being thrown out of their jobs by companies employing convicts is not confined to Wisconsin. A replay of the Fabry affair occurred in Texas, where U.S. Technologies sold its - electronics plant in Austin and laid off 150 workers; 45 days later, the company's owners opened a facility using convict labor in a Texas prison.

Nationwide, more than 100 private firms have reached convict-for-hire agreements with 29 states. Microsoft, IBM, Victoria's Secret and TWA are among the companies that have ...

Unicor Steals Glove Business From Private Firms

The Genco Corporation of Tennessee is among 10 private firms that have contracts with the Defense Department to manufacture gloves for the U.S. military. Suppliers of military gloves are not a happy lot these days, though. Complaining loudly of unfair competition, the 10 glovemakers have banded together to form ...

Union Reverses Position on Private Prisons

Last May, when a bill was introduced in the Tennessee legislature to privatize the state's entire corrections system, the private prison industry achieved a major coup by winning the support of the American Federation of State, County and Municipal Employees, a 1.3 million-member union that agreed to represent ...

New Jersey Mental Health Class Action Gains Momentum

Afederal district court in New Jersey has upheld the claims of a statewide class of mentally ill prisoners against defendants' motions to dismiss and for summary judgment. The defendants are: officials of the New Jersey Department of Corrections; Correctional Medical Services, Inc. ("CMS"), a private corporation providing prison health care ...

Fact Finding Required in Disciplinary Suits

In two separate rulings federal district courts in New York held that prisoners litigating disciplinary due process cases must be given an opportunity to develop a factual record to support their claims before the court rules on a motion to dismiss or for summary judgment.

Carlos Cespedes, a New York ...

Prison Phones Discussed

As more and more prison systems use automated phone systems that automatically record and monitor conversations there are increased questions about the legality of such systems. This ruling arose from an indirect challenge to the Massachusetts Inmate Telephone System (MITS). The MITS requires prisoners to obtain a personal identification number ...

$60,000 Judgement Against Florida DOC Reinstated

A Florida appellate court reversed a trial court order setting aside a jury verdict against the Florida Department of Corrections (DOC) and granting the DOC a new trial. The court directed the lower tribunal to reinstate the jury award of $60,000 in favor of the prisoner.

Twice during the ...

Jury Verdict Affirmed in Arkansas Prisoner Attack

The court of appeals for the eighth circuit affirmed a jury verdict that found a prison guard liable for failing to protect two prisoners from attack by another prisoner. Arkansas state prisoners Lonell Newman and Hoseia Chestnut were both attacked by a prisoner named Johnson who, armed with a knife ...

No Federal Remedy for False Disciplinary Charges

The court of appeals for the seventh circuit held that a prisoner who is falsely accused of misconduct and punished for no apparent reason has no legal recourse in federal court if the only punishment imposed involves 15 days of segregation. In the June, 1996, issue of PLN we reported ...

Fact Dispute Bars Qualified Immunity Appeal

The court of appeals for the fifth circuit held that it lacked jurisdiction to hear an interlocutory appeal on the denial of qualified immunity to prison officials where the lower court denied qualified immunity due to disputed facts. Two Louisiana state prisoners sued Kirt Guerin, a drill instructor, who locked ...

Florida Finally Learns the Meaning of Ex Post Facto

In a one paragraph memorandum opinion the Supreme Court of Florida held that the retroactive cancellation of provisional credits, previously awarded pursuant to statute, violates the ex post facto restrictions of the state and federal constitutions.

As a result of a population cap imposed on the Florida DOC by a ...

Florida Prisoners Have Right to Present Evidence at Disciplinary Hearings

Florida Prisoners Have Right To Present Evidence At Disciplinary Hearings

A Florida state appellate court held that a denial by prison authorities of an opportunity for a prisoner to present exculpatory evidence at a prison disciplinary hearing states a claim for a denial of due process. The court rejected the ...

Delay of Dental Service Violates 8th Amendment

The court of appeals for the eighth circuit held that a district court erred when it dismissed a prisoner's suit over delays in dental care. The appeals court also held that untimely service of the suit by the marshalls service was not a basis for dismissal and that genuine ...

Michigan Visiting Restrictions Upheld

In the June, 1996, issue of PLN we reported Bazetta v. McGinnis , 902 F. Supp. 765 (ED MI 1996) which denied a preliminary injunction to Michigan prisoners, and their visitors, challenging prison visiting restrictions. In 1995 the Michigan DOC amended the Michigan Administrative Code (MAC) related to visiting so that ...

Delay in Treatment for Jail Prisoner Actionable

Afederal district court in Mississippi held that disputed issues of fact involving claims by a jail prisoner that he was beaten by his cellmates required a trial to resolve. Emmett Davis was sentenced to 54 days in the Greenville, Mississippi, jail because he was too poor to pay a $554 ...

Denial of Counsel Reversed

The court of appeals for the third circuit held that a district court abused its discretion in refusing to appoint counsel to an indigent pro se prisoner litigant. Paul Parham, a Pennsylvania state prisoner, filed suit after receiving inadequate medical treatment for tinnitus (ringing in the ears). Marshall Johnson, the ...

Law on Strip Searches of Prison Visitors Clearly Established

The court of appeals for the second circuit held that the reasonable suspicion standard for strip searches of prison visitors is clearly established. However, the court decided that the defendants were entitled to qualified immunity based upon the facts.

This case began in March 1989, when an assistant district attorney ...

News in Brief

CA : On January 8, 1998, Lancaster state prison guard Elizabeth Begaren was shot and killed by four men while driving on a freeway. The assailants chased Bergaren's vehicle and forced it to stop on an on ramp in Anaheim where she was shot in front of her husband and ...

AZ Prisoners Have Right to Attend Paternity Hearings

An Arizona state court of appeals held that Arizona prisoners have a right to attend paternity hearings in person or telephonically. Lenny Valentine, an Arizona state prisoner, had a paternity judgment entered against him. A hearing to establish a child support schedule was held. While the trial court denied Valentine ...

Prison Disciplinary Proceedings Cognizable Under § 1983 in Florida

Prison Disciplinary Proceedings Cognizable Under § 1983 In Florida

AFlorida state appellate court held that a denial of staff assistance, documentary evidence, and witness testimony in a prison disciplinary hearing states a due process claim under 42 U.S.C. § 1983, and the prison officials were not entitled to qualified immunity ...