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Prisoner Education Guide

Prison Legal News: August, 1998

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Volume 9, Number 8

In this issue:

  1. Through the Civil Commitment Looking Glass (p 1)
  2. A Zoo Within a Prison (p 4)
  3. CCA Sells Self; Wackenhut Creates REIT (p 5)
  4. From the Editor (p 6)
  5. NJ Prisoners Refuse to Swallow PINs (p 6)
  6. Idaho Law Libraries Closed, Pillaged (p 7)
  7. STGMU-tized in New Jersey (p 7)
  8. Notes from the Unrepenitentiary (p 8)
  9. MCI Refund to Florida Prisoner Families (p 8)
  10. Los Angeles Jail Death Ruled Homicide (p 9)
  11. The Tough-On-Crime Myth: Real Solutions to Cut Crime (p 10)
  12. The Real War on Crime: The Report of the National Criminal Justice Commission (Book Review) (p 10)
  13. The Rich Get Richer and the Poor Get Prison: Ideology, Class and Criminal Justice (p 10)
  14. Union County, NJ, Jail Guards Convicted (p 11)
  15. PLRA Finding Required for Injunctive Relief (p 12)
  16. Plaintiffs Must Be Allowed to Present Evidence in PLRA Motions to Terminate Prospective Relief (p 12)
  17. TDCJ PLRA Forms Okay (p 13)
  18. CA Tort Claim Not Required for Administrative Exhaustion (p 13)
  19. Consent Decree Termination Upheld (p 13)
  20. Dismissal for Lying About Poverty Affirmed (p 13)
  21. PLRA Filing fees Don't Apply to Civil Commitments (p 13)
  22. PLRA Fees Don't Apply to Mandamus (p 13)
  23. $22,500 to Seattle WA Jail Brutality Suit (p 14)
  24. Proof of Administrative Exhaustion Required (p 14)
  25. Mock Prison Riot Staged (p 14)
  26. Racism in the Ranks (p 15)
  27. WA Prison Telemarketing Elicits Controversy - Again (p 16)
  28. CBCC Warden Fired in Telemarketing Hoopla (p 17)
  29. Bureau of Prisons Estopped from Denying Sentence Reduction (p 19)
  30. Sentence Runs During Wrongful Release (p 19)
  31. U.S. Supreme Court Clarifies § 1983 Claims (p 20)
  32. Jericho: Thoughts From Political Prisoners in Leavenworth (p 21)
  33. Jericho '98 March and Rally (p 21)
  34. Convict Mine Labor in the Information Age (p 22)
  35. Cheaper to Exile Prisoners? (p 23)
  36. Prisons Promoting Tourism (p 24)
  37. Jailers Charged in Bribery, Kickback Schemes (p 24)
  38. WI Predator-Law Poster Boy Gets Released (p 25)
  39. WI Guard Settles Discrimination Suit for $105,000 (p 25)
  40. News in Brief (p 26)
  41. Mailbox Rule Applied to Habeas Petitions (p 27)
  42. WA DOC Investigators Can't Detain Visitors: Drugs Suppressed (p 28)
  43. Oregon Guard Pleads Guilty to Perjury (p 28)
  44. Risk of Serious Harm States Claim (p 29)
  45. Disciplinary Hearing Violations Enjoined (p 29)
  46. Probable Cause Required for Visitor Body Cavity Search (p 30)

Through the Civil Commitment Looking Glass

If the object or purpose of the Kansas [civil commitment] law had been to provide treatment but treatment were adopted as a sham or mere pretext, there would have been an indication of the forbidden purpose to punish . -- Justice Kennedy's concurring majority opinion in Hendricks v. Kansas , 117 S.Ct. 2072 (1997)

Iam about to tell you what I believe to be among the more peculiar employment sagas ever told: the story of what happened when I was sent to work in the state of Washington's Special Commitment Center (SCC) as a court-appointed ombudsman.

In 1995, Judge John C. Coughenour, in Federal District Court, invalidated Washington's Sexually Violent Predator law that led to the creation of the SCC [See: Young v. Weston , 898 F.Supp. 744 (WD WA1995), PLN Vol. 6 No. 11]. The state immediately appealed. The ninth circuit remanded the case for reconsideration in light of Hendricks. See: Young v. Weston , 122 F.3d 38 (9th cir. 1997).

In June, 1997, the U.S. S.Ct., in a 5-4 decision, ruled that Kansas' statute, on its face, was constitutional. In February, 1998, Coughenour acquiesced to the Supreme Court, ruling that Washington's civil commitment law ...

A Zoo Within a Prison

On April 18, 1998, a fleet of buses, trucks, and police cruisers rolled up to the SCC's subterranean asylum. It was moving day.

Washington sex offenders have continually been snared by the civil commitment process since 1990. Because only one has been deemed "cured" of the mental abnormality which consigned them to the SCC, the program needed room to grow.

There were SWAT teams, strip searches, and police vehicles at checkpoints all the way down to the SCC's new home on McNeil Island. It was strictly a DOC show. And that makes it hard to swallow the legal fiction that SCC residents are "mental patients," not prisoners; that they are detained for "treatment," not punishment; in a program administered by the state Department of Social and Health Services (DSHS), not the DOC.

The SCC was originally located in one wing of the DOC's Special Offender Center (a maximum-security prison for the state's mentally ill prisoners). The SCC wing, though attached to a prison, was administered by DSHS. However, because of the physical layout of this prison and the nature of its mission, it was somewhat easier to maintain the "treatment facility") fiction.

That is no longer ...

CCA Sells Self; Wackenhut Creates REIT

In July 1997 the Corrections Corporation of America (CCA) spun off a related company, the Prison Reality Trust, which was formed to purchase CCA's prisons under a lease-back arrangement [ PLN Dec. 97]. Prison Realty is a real estate investment trust, or REIT, which offers certain corporate tax advantages. Nine months later, on April 20. 1998, CCA stunned investors by announcing it planned to sell itself to Prison Realty Trust in a $3 billion stock swap that would create a combined "super REIT."

There had already been controversy regarding the inter-connected corporate directorships of CCA and Prison Realty Trust: Doctor R. Crants, CCA's C.E.O., is also chairman of Prison Realty: his son is Prison Realty's president, former CCA officers sit on Prison Realty's corporate board, and both companies share the same Nashville office. Crants & company deny there is a conflict of interest.

The proposed merger would split CCA into three companies, all under the CCA name, with two managing prisons and jails not owned by the REIT and the third handling contracts for REIT-owned facilities. This convoluted arrangement is necessary to squeeze the CCA Prison Realty merger into IRS regulatory guidelines, which limit the types of revenue that REITs can receive. Prison Realty also plans to buy out the real estate assets of U.S. Corrections Corporation, the third largest private corrections company in the United States, thereby adding to CCA's market share of the for-profit prison industry.

Apparently Wall Street didn't appreciate the incestual marriage between CCA and its sister corporation -- in the weeks following the announced merger CCA's stock dropped almost 25%. Several investment analysts downgraded their ratings of CCA stock, and one firm, Paine Webber, criticized the merger and stated it would result in a "shell corporation with very little capitalization behind it." At least nine investors have filed shareholder suits against CCA, claiming the proposed merger puts the personal gain of corporate officers before the interests of stockholders. Following the merger Crants would own 1.9 million shares in the combined companies.

Meanwhile, Wackenhut, the nation's second ranking for-profit prison contractor, announced that it was creating a REIT of its own, the Correctional Properties Trust, which would purchase eight of Wackenhut's privately-owned facilities. Although Correctional Properties Trust will be run by two former Wackenhut executives. Wackenhut C.E.O. George Zoley made it clear that his company didn't plan to follow in CCA's footsteps by pursuing a merger. Eager investors looking to cash in on the profitable private prison industry took him at his word; while CCA's stock plummeted, shares in Wackenhut's newly-formed REIT rose 15% on its first day of trading.

Sources: Palm Beach Post, New York Times, Wall Street Journal, Tennessean

From the Editor

Greetings and welcome to the 100th consecutive monthly publication of PLN . Who knew when Paul Wright and Ed Mead put out the first rough and tumble issue of PLN in May 1990, that it would flourish and prosper for 100 months? Certainly not the Washington prisoncrats who initially tried to nip PLN in the bud by banning its entry in all Washington prisons. But when Paul and Ed made it clear that such efforts would result in legal action, they backed off. One senior DOC official said, in essence, "Let them publish their pitiful little newsletter. It'll never last."

I say this to answer the many letters we get (especially from prisoners) that ask "How did you guys do it?" The answer, in part, is luck. It was fortunate that the DOC gave up early and saved us (and them) from a protracted legal battle over the right of prisoners to receive PLN . We still have to fight sporadic censorship battles, though.

Another part of the "secret" of our success is that PLN has always had the selfless and tireless support of volunteers on the outside, without whose efforts PLN could not have survived. For though the magazine is ...

NJ Prisoners Refuse to Swallow PINs

Approximately two years ago, the entire NJ prison system switched to an "automated call" phone system. Despite a predicted hike in costs to family and friends of prisoners, very few prisoners objected in a short-lasting boycott.

On September 15, 1997, the prison population here (Trenton State Prison/NJ State Prison) was notified via memo that all Trenton State prisoners would now be required to complete and submit telephone IPIN [Individual Personal Identification Number] forms, listing ten names and phone numbers, with an additional listing for one attorney. These IPIN forms were distributed to all wings and units within this prison, and were to be completed and submitted by October 15, 1997, at which time the IPIN phone system would go into effect. Those who did not correctly fill out the IPIN form and those who refused to fill out the form or refused to sign their name, would simply be unable to use any phone call to home.

Out of approximately 1,800 prisoners, only about 130 IPIN forms were completed and submitted to the administration. Of that number, about 50 forms had obscenities and other assorted comments written on them.

October 15 came and went and the planned IPIN ...

Idaho Law Libraries Closed, Pillaged

Following the lead of Arizona
[See: "Experiment in Access" Oct '97 PLN ], the Idaho DOC, on January 19, 1998, revised their method of providing court access to Idaho prisoners.

Under the revised policy, the law libraries in Idaho prisons will permanently close. Court access will be provided by a state paralegal who will assist only in the initial pleading stage. No research materials will be available to prisoners.

Thus, not only will Idaho prisoners be unable to defend against Motions for Summary Judgement and Motions to Dismiss, but in addition, anyone will be able to sue an Idaho prisoner and win by default, as there exists no provision in the revised policy for dealing with a situation where a prisoner is a defendant in an action. Of interest is that often the State is the plaintiff in this situation.

As of this writing (January 22, 1997), attorneys from the ACLU's Denver office and the National Prison Project have obtained a Temporary Restraining Order enjoining the IDOC from closing prison law libraries and from removing the materials therein.

Update: 02/12/98

On January 31, 1998, Idaho prisoners were informed that the temporary Restraining Order had been lifted. As such ...

STGMU-tized in New Jersey

On March 4, 1998, approxmately 170 NJ state prisoners were rounded up by the Special Operation Group (S.O.G.) and Internal Affairs, cameras in hand, and shipped to this [Northern State] prison. We were handed a memo signed by the Assistant Commissioner, Howard Beyers and dated 4 March. This memo designated five groups as being a "Security Threat Group" (STG): Almighty Latin King/Queen Nation, Association NETA, East Coast Aryan Brotherhood, The Five Percent Nation (AKA The Nations of Gods & Earths), Prison Brotherhood of Bikers.

The memo further stated that activities of these groups, including: possession of literature, lessons, lists, and paraphernalia (such as: beads, artwork, medallions and clothing articles) are prohibited. "In accordance with this policy," it stated in the memo, "any inmate found to be taking part in these types of activities shall be subject to disciplinary action and may be targeted for transfer to the Security Threat Group Management Unit (STGMU)."

The NJ DOC rounded us up and shipped us to their new Control Unit without any prior notice of their new STG Policy. None of the "prohibited acts" were in the "New Jersey Register" for 30-day comment, nor was the prison population notified in a ...

Notes from the Unrepenitentiary

On June 1, Rosalind Simpson Moore-Bey died at home in Washington, D.C. To anyone who has passed through the D.C. Jail or CTF (Central Treatment Facility), Roz's name is not only familiar it is well-known. Her name is known, as well, to many prisoners with HIV or AIDS anywhere in the u.s., and to AIDS activists everywhere. Roz was a warrior

Roz did time in D.C. and at the old Federal Women's prison in Lexington, Kentucky in the 80's and 90's. If you think back, you will remember that as a time when AIDS and HIV were surrounded by even more ignorance and prejudice than now. In the mid- to late80's, the medical establishment, the government and the media didn't even recognize that women get HIV, and, largely as a result, many women suffered terribly and died quickly with AIDS undiagnosed and un-cared-for. The earliest mention of HIV as a virus that infected women was when some men claimed to have contracted HIV from prostitutes. The sex workers, of course, remained faceless: they existed only as vectors of the disease, a danger to men.

Despite the extensive number of HIV-positive ...

MCI Refund to Florida Prisoner Families

Friends and family of Florida prisoners may be entitled to $190,000 worth of free telephone calls under a recommendation issued by the Florida Public Service Commission (PSC).

Between February and July 1996, as previously reported in several PLN articles, telephone giant MCI overcharged Florida customers who accepted phone calls from FL prisons by nearly $2 million. MCI was forced to refund $1.7 million for the overcharges, but has been unable to locate customers who received $190,000 worth of the over-priced calls.

The overcharged resulted from a $3 surcharge on all intrastate calls made from MCI's "Maximum Security" pay phone system in Florida's 40 state prisons. The maximum intrastate surcharge fee allowable under state regulations was $1 for two weeks of that period and $1.75 for the remaining four months that MCI gouged prisoners' "Friends and Family" with the $3 connect fee.

In its investigation, the PSC pointed out that MCI is the seventh phone company since 1991 cited for overcharging on pay phones in state prisons and jails.

Source: Palm Beach Post

Los Angeles Jail Death Ruled Homicide

Los Angeles County coroner's investigators revealed in early April that a jail detainee who died in November during a "physical altercation" with seven sheriff's deputies at the L.A. Twin Towers jail was a victim of homicide.

The incident occurred on Wednesday, November 26, 1997 -- the day before Thanksgiving. Mark Phylaw, 33, was in jail for driving with a suspended license and had just attended a court hearing where he was ordered released. He thought he'd be home to spend Thanksgiving with his family. Instead, he died at the hands of at least seven deputies who reportedly beat, kicked and choked him.

Mark Phylaw had just returned from court along with several dozen other prisoners and was subjected to a strip search. Phylaw reportedly told deputies that an earlier leg injury prevented him from complying with their demands that he "bend over and spread `em." The incident was witnessed by dozens of other prisoners.

"We was coming back from court and they had us all in like a gym," said one former detainee who was there. "There was probably 35 of us in a big old circle. They had us strip all our clothes off and squat ...

The Tough-On-Crime Myth: Real Solutions to Cut Crime

American penal reform movements have a long and distinguished history: that of middle-class activists working to check the excesses of the centralized state against the underclass. Some of the reformers had good hearts, some didn't. Either way, they're responsible for many of the most hellish elements of incarceration, from the penitentiary itself and solitary confinement to parole and the indeterminate sentence. It's not unduly cynical to say that reformists' efforts to put a less blatantly oppressive face on the social structure have served to deflate efforts
against that social structure. This ensures that reformers maintain their cushy place in the hierarchy and feel good about themselves in the process.

The Real War on Crime and The Tough-On-Crime Myth fit solidly in this
reformist tradition. The Real War on Crime is the product of thirty-four
generally progressive folks with experience around criminal justice issues, formed into "The National Criminal Justice Commission." Most of the Commission's offerings' are useful. They deflate misleading statistics (though they aren't immune from uncritically using some misleading statistics themselves, such as in regards to what constitutes
"the violent offender"); speak out against mandatory minimums; point out the ways in which race effects ...

The Real War on Crime: The Report of the National Criminal Justice Commission (Book Review)

by Steven R. Donziger, Editor Harper Perennial, 1996, $15.00

by Daniel Burton-Rose

The Tough-On-Crime Myth: Real Solutions to Cut Crime, by Peter T. Elikann Insight Books, 1996, $24.95

The Rich Get Richer and the Poor Get Prison: Ideology, Class and Criminal Justice , by Jeffrey Reiman, Allyn and Bacon, 1998, 5th ed.

American penal reform movements have a long and distinguished history: that of middle-class activists working to check the excesses of the centralized state against the underclass. Some of the reformers had good hearts, some didn't. Either way, they're responsible for many of the most hellish elements of incarceration, from the penitentiary itself and solitary confinement to parole and the indeterminate sentence. It's not unduly cynical to say that reformists' efforts to put a less blatantly oppressive face on the social structure have served to deflate efforts
against that social structure. This ensures that reformers maintain their cushy place in the hierarchy and feel good about themselves in the process.

The Real War on Crime and The Tough-On-Crime Myth fit solidly in this
reformist tradition. The Real War on Crime is the product of thirty-four
generally progressive folks with experience around criminal justice issues, formed ...

The Rich Get Richer and the Poor Get Prison: Ideology, Class and Criminal Justice

Jeffrey Reiman's book is an excellent antidote to The Real War on Crime and The Tough on Crime
Myth. First published in 1979 and now in its fifth revised edition, The
Rich Get Richer is a classic attempt to tear-down the socially-constructed barriers that obscure the class bias in the U.S. criminal justice system.

Reiman starts from the eminently reasonable query "Why aren't all human
acts that hurt others punished equally as crimes?" He examines corporate crime, for example, finding that almost twice as many people are killed each year by preventable accidents or illnesses which take place on the job than are killed by "violent crime" as defined by the mass media. Concrete decisions are made which result in those deaths-all having to do with the bottom line-though those who make those decisions are rarely
punished as criminals.

But Reiman doesn't simply lament class-exemptions for punishments, or,
buying into what political scientist Noam Chomsky has called "the assumed beneficence of the state," state simple-mindedly that "prisons are a failure." Instead, he looks at what functions prisons serve in our society and who this benefits. By only punishing individual violent crimes and individual property crimes, the ...

Union County, NJ, Jail Guards Convicted

In June, 1995, twenty-five political asylum seekers were hauled in chains from a federal INS Detention Center in Elizabeth, NJ, to the nearby Union County Jail. The 25 immigrant detainees many of whom are refugees who escaped religious and political persecution in their home countries were forced by guards to chant "America is number one!" while crawling through a gauntlet of jeering guards, who punched, kicked and beat them.

As a result of this brutal "welcome wagon" twelve Union County jail guards faced criminal charges. Four were convicted in jury trials, six others pleaded guilty to lesser charges, one was acquitted, and another died in an auto accident before his case went to trial.

The 25 asylum seekers were among 300 immigrants held at the privately-run Esmor Immigration Detention Center. Conditions at the crowded, windowless Esmor facility a converted warehouse were nightmarish. On June 18, 1995, the 300 detainees chased out the 12 poorly-trained and underpaid guards and proceeded to demolish the hated facility. [See: "INS Detainees Trash Private Prison," PLN Vol. 6, No. 5]

Five hours after the Esmor rebellion began, a contingent of local, state, and federal law enforcement agents stormed the facility in a hail of flash ...

PLRA Finding Required for Injunctive Relief

The court of appeals for the Ninth circuit held that district courts must make specific findings under the Prison Litigation Reform Act (PLRA) before granting prospective relief regarding prison conditions and this requirement applied retroactively to cases pending at the time of the PLRA's enactment on April 26, 1996. The court also held that the district court erred in sue sponte granting summary judgment to a prisoner because the defendants weren't given adequate notice.

The court's PLRA ruling is of extreme importance to plaintiffs and defendants in prison and jail litigation alike. Plaintiffs seeking injunctive relief need to alert district courts to this bright line requirement and ensure the necessary findings are made in any injunctions entered by district courts. Defendants appealing injunctions can seek reversals if district courts neglected to make the requisite PLRA findings.

Ras Oluwa, a California state prisoner, filed suit claiming he was entitled to a special religious diet as a "Nazarite Disciple." The defendants moved for summary judgement claiming Oluwa's alleged beliefs were not entitled to First amendment protection because they could not determine if a "Nazarite Disciple" is part of any recognized religious group. Oluwa then claimed he was a ...

Plaintiffs Must Be Allowed to Present Evidence in PLRA Motions to Terminate Prospective Relief

The court of appeals for the Eighth circuit held that court injunctions limiting jail or prison populations must be dissolved unless findings to justify such relief are entered by a three judge district court. Once a motion to terminate an injunction is filed, the plaintiffs must be given an opportunity to present evidence that prospective evidence is still required. District courts denying such motions must make explicit findings of fact, failure to do so is reversible error.

This case illustrates the axiom that bad facts make for bad case law. In 1974 prisoners in the St. Louis City jail filed a class action suit challenging their conditions of confinement. The district court found constitutional violations due to overcrowding and has regulated the jail ever since. In 1993 and 1994 the court entered a series of injunctions establishing various population caps, including a maximum of 20 Technical Probation Violators, at the jail's Medium Security Institution (MSI). The Eighth circuit vacated and remanded the MSI cap for consideration in light of the Violent Crime and Law Enforcement Act of 1994, 18 U.S.C. § 3626.

On remand the district court entered a new order establishing a cap of 20 Technical Probation ...

TDCJ PLRA Forms Okay

TDCJ PLRA Forms Okay: The court of appeals for the fifth circuit denied a prisoner's motion to proceed on appeal with IFP status because he refused to fill out a Texas Dept. of Criminal Justice (TDCJ) form authorizing withdrawals from his prison trust account to pay PLRA filing fees. The prisoner claimed the form did not comply with the PLRA. 28 U.S.C. § 1915(b)(2) requires that prisoners proceeding IFP pay an initial filing fee and then pay 20% of their income in monthly installments until the fees are paid for. However, the prisoner's trust account balance must exceed $10 before any deductions are made. The TDCJ form does not prohibit withdrawals when the account balance goes below $10.

"The authorization form at issue gives the TDCJ consent to withdraw from Chachere's trust fund account 20% of each deposit made to the account until the full amount of the filing fee is satisfied. The form does not include the $10 threshold. The specific language of the PLRA, however, does not mandate the use of an authorization form or, if one is used, that the form specifically include both the 20% and $10 limitations. Absent evidence ...

CA Tort Claim Not Required for Administrative Exhaustion

CA Tort Claim Not Required for Administrative Exhaustion: A federal district court in California held that it is not necessary for CDC prisoners to submit a California Tort Claims Act (CTCA) complaint to the state Board of Control before filing suit under 42 U.S.C. § 1983. 42 U.S.C. § 1997e(a) requires that prisoners exhaust administrative remedies before filing suit in federal court. In this case the plaintiff showed he had submitted complaints to all three levels of the CDC grievance system. The court noted the ninth circuit has previously rejected a CTCA requirement for prisoners. See: Willis v. Reddin , 418 F.2d 702 (9th Cir. 1969). In Felder v. Casey , 487 U.S. 131, 108 S.Ct. 2302 (1988) the supreme court held that state law notice of claim statutes are inapplicable to section 1983 litigation. The court in this case held that the PLRA did not overrule Felder or Willis.

The plaintiff did not receive a response to his grievances. "Because plaintiff has attempted to appeal the prison official's inaction with regard to his treatment to every level of the prison grievance system, it does not appear (and the moving party has not attempted to ...

Consent Decree Termination Upheld

Consent Decree Termination Upheld: In the April, 1997, issue of PLN we reported Hadix v. Johnson , 947 F. Supp. 1100 (ED MI 1997) where a district court struck down 18 U.S.C. § 3626 as unconstitutional. Section 3626 allows for the immediate termination of consent decrees. The court of appeals for the sixth circuit reversed and remanded. The court held that § 3626 does not violate the separation of powers doctrine or any other constitutional provision. To date, every circuit court, except the ninth, to consider the issue has upheld the constitutionality of § 3626. The court remanded the case back to the lower court for consideration of the defendant's motion to terminate the decree. See: Hadix v. Johnson , 133 F.3d 940 6th Cir. 1998).

Dismissal for Lying About Poverty Affirmed

Dismissal for Lying About Poverty Affirmed: The court of appeals for the seventh circuit held that 28 U.S.C. § 1915(c) requires courts to dismiss cases if applicants for In Forma Pauperis (IFP) status lie about their poverty. Courts have the discretion to make the dismissals with prejudice. Since prisoners are, eventually, liable for paying the full filing fees under the PLRA, lying about financial status reaps little benefit and can result in dismissal of the case. See: Mathis v. New York Life Insurance Co. , 133 F.3d 546 (7th Cir. 1998).

PLRA Filing fees Don't Apply to Civil Commitments

PLRA Filing Fees Don't Apply to Civil Commitments: A federal district court in Wisconsin held that the filing fee provisions of the PLRA do not apply to so called "sex predators" civilly committed in detention facilities for "treatment." 28 U.S.C. § 1915(h) defines prisoners as those incarcerated or detained for violations of criminal law or the terms of their probation or parole. The Wisconsin supreme court has held that civil commitment under Wis.Stat.Ch. 980 is neither punitive nor a criminal punishment. The court relied on Ojo v. INS, 106 F.3d 680 (5th Cir. 1997)[ PLN , July, 1997] in holding the PLRA does not apply to chapter 980 detainees. In Ojo the fifth circuit held the PLRA applies only to those whose current detention serves as punishment for one of the legal violations specified in the PLRA statute. This is the first published ruling addressing this issue for civil commitments. The state of Wisconsin agreed with the plaintiff that the PLRA did not apply. The court granted IFP status. See: West v. Nacht , 986 F. Supp. 1141 (WD WI 1997).

PLRA Fees Don't Apply to Mandamus

The court of appeals for the tenth circuit held "that this circuit will no longer require mandatory fees under the PLRA for filing petitions for writs of mandamus seeking to compel district courts to hear and decide actions brought solely under 28 U.S.C. § 2241, 2254 and 2255. To the limited extent that any of our earlier cases could be interpreted to the contrary, they are overruled." See: In Re Phillips , 133 F.3d 770 (10th Cir. 1998).

$22,500 to Seattle WA Jail Brutality Suit

The King County (Seattle) jail in Washington settled a brutality suit on January 26, 1998, by paying a former jail prisoner $22,500. Lonnie Burton was a prisoner in the King County jail when he alleged he was attacked without provocation by jail guard Troy Bacon, who slammed Burton's ...

Proof of Administrative Exhaustion Required

Proof of Administrative Exhaustion Required: A federal district court in California held that prisoners filing suit have to provide proof, at the time of filing, that they have exhausted their administrative remedies pursuant to 42 U.S.C. § 1997e(a). "Before he may properly file an action in this court, plaintiff must exhaust the administrative requirements of the Cal. Code of Regulations. As defendants point out, plaintiff alleges in his complaint that he has exhausted all administrative remedies, but fails to attach proof of such exhaustion as is explicitly required on the form complaint he employed." "Accordingly, the court hereby dismisses plaintiff's complaint with leave to amend. He needs to work within the prison system to have his case heard and then come to the court after he has exhausted his administrative remedies as required under federal law." See: Alexandroai v. California Dept. of Corrections , 985 F. Supp. 968 (SD CA 1997).

Mock Prison Riot Staged

On April 25 and 26, 1998, there was a weekend-long riot at the old West Virginia State Penitentiary. This wasn't your typical prison riot, though. First of all, it was anything but spontaneous. Rather, the two-day event was meticulously planned, and carried out by prison guards and law enforcement teams from Ohio, West Virginia and Pennsylvania. Other law enforcement types and prison officials from across the United States had received invitations to attend and observe the riot. But no actual prisoners were invited and none participated in the two-day event.

Prisoners are no longer housed at the former state penitentiary at Moundsville, West Virginia, making it the perfect staging ground for the second annual mock prison riot and prison-industrial complex vendor jamboree.

The Office of Law Enforcement Commercialization at Wheeling Jesuit University sponsored this year's mock riot to showcase cutting-edge riot-control technologies from a number of laboratories, inventors, and manufacturers and to train police and prison tactical teams on the proper use of these emerging technologies.

The West Virginia Department of Corrections, the Moundsville Economic Development Council and the National Institute of Justice coordinated this year's riot, along with Wheeling Jesuit University. More than 150 criminal justice ...

Racism in the Ranks

By W. Wisely

Agroup of prison guards at the California Institute for Men, in Chino, call themselves SPONGE, an acronym for the "Society for the Prevention of Niggers Getting Everything." In Wasco prison, a guard wears a sheet over his head while working a cellblock. In Folsom, a swastika is carved into the butt of a guard's rifle. These are just a few examples of racism within the ranks of the California prison system as documented by complaints, lawsuits, and State Personnel Board records.

"A wedge is being driven through staff, between white and minority officers, like you wouldn't believe," said Sgt. Jim Ashe, a black officer who works at New Folsom. "And it's going to get a lot worse if management ignores it. It won't go away on its own," the guard told a reporter for The Sacramento Bee .

The Department of Corrections employs more than 42,000 people -- the largest executive-branch agency in the state. It leads all other agencies in minority hiring at 47 percent. Yet it's the worst place in the state for minorities to work according to complaints to the Department of Fair Employment and Housing.

In 1994, the Department ...

WA Prison Telemarketing Elicits Controversy - Again

In December 1997 and January 1998, statewide media attention spotlighted a "shocking" prison tele- marketing partnership between the Washington state Parks and Recreation Department and the Department of Corrections (DOC) Correctional Industries (CI). For two years prisoners at Clallam Bay Corrections Center (CBCC) manned the Parks Department's toll-free information hotline. Callers to the 1-800 number had no way of knowing that the person they spoke with (and who took their address to mail them Parks Department brochures) was in fact a prisoner, not a Parks Department employee.

The prisoners were paid between 40¢ and $1.10 an hour, which cuts to the heart of the matter: the Parks Department wanted to cut labor costs.

The money-saving partnership was dissolved, however, in January 1998, after Alison Hamman of Redmond, WA told reporters and state legislators that she had received "suggestive" greeting cards from Parker Stanphil, a serial rapist, after she called the hotline and asked to have Parks Department brochures mailed to her home.

Legislators hastily scheduled public hearings on the matter and demanded an investigation. One report of the incident states that Stanphil admitted to investigators that he had sent cards to another woman whose home address he had ...

CBCC Warden Fired in Telemarketing Hoopla

As part of the CBCC shake up that occurred over publicity of prisoner Parker Stanphil sending holiday cards to women whose addresses he obtained while employed at his Correctional Industries telemar-keting job, Clallam Bay Corrections Center (CBCC) superintendent Robert Wright was fired. In numerous media interviews Wright claimed he was being scapegoated for CI policies over which he had no control. He is probably correct.

As reported in detail in past issues of PLN , Wright became CBCC warden in 1992 after spending 22 years in the Oregon DOC. As CBCC warden Wright presided over a virtual orgy of civil and human rights abuses ranging from the sexual and racial harassment of DOC employees; the rape, stabbing and beating of prisoners; blatant brutality and racism by his staff; repression and much more. While one mid level Washington DOC official once commented that CBCC was run "like a Nazi concentration camp," Wright's management style, or lack thereof, garnered high praise in Washington DOC command circles. In 1996 Wright was nominated as the WA DOC's candidate as "Warden of the Year" to the North American Warden's Association.

It is high irony indeed for Wright to be fired over two post ...

Bureau of Prisons Estopped from Denying Sentence Reduction

A federal district court in Colorado granted a habeas corpus petition reducing a federal prisoner's sentence by one year for successfully completing a drug treatment program. The court held the BOP was estopped from denying the sentence reduction having initially granted it, then denied it. In 1994 congress enacted 18 U.S.C. § 3621(c) which allows the BOP to reduce by one year the sentences of prisoners convicted of non violent offenses who complete a 500 hour drug program.

Donovan Sisneros is a federal prisoner convicted of possession with intent to distribute over 500 grams of cocaine. He completed the drug treatment program at FCI La Tuna, NM, and his sentence was duly reduced by one year. Sisneros was later transferred to FPC Florence, CO where BOP officials claimed he wasn't eligible for the sentence reduction because he had received a sentencing enhancement for possessing a firearm. Under BOP Program statement 5162.02 possession of a firearm is considered a "violent offense." The ninth and third circuits have held the program statement is void to the extent it attempts to redefine what constitutes a "violent offense." See: Roussous v. Meniffee , 122 F.3d 159 (3rd Cir. 1997 ...

Sentence Runs During Wrongful Release

The Arizona supreme court held that when a prisoner is incorrectly released before his sentence expires the sentence continues to run and the offender is entitled to any good time credits he would have accrued had he remained in custody. The court also held prisoners have no legal duty to alert prison officials that they are being released prior to the expiration of their sentence.

In 1980 James Schwichtenberg was sentenced to 10-12 years imprisonment for embezzlement. He was eventually paroled and later sentenced to 5.25 years in prison for burglary to run consecutive to the earlier sentence for which his parole had been revoked. The consecutive sentence was apparently never sent to the Arizona DOC which paroled Schwichtenberg in 1985 and gave him an absolute discharge in 1986.

In 1996 Schwichtenberg made administrative requests for an absolute discharge of the burglary sentence; a commutation or credit towards his sentence for his time at liberty. The requests were denied and the DOC told him to report to prison to serve his sentence. He sued for relief, which was denied by the superior court and affirmed by the court of appeals. The state supreme court reversed and remanded.

The supreme ...

U.S. Supreme Court Clarifies § 1983 Claims

John Midgley and David C. Fathi

Recently, the United States Supreme Court has made it difficult for prisoners to successfully file claims under 42 U.S.C. § 1983 that "necessarily imply" the invalidity of a conviction or a decision that lengthens a prison term, such as a prison disciplinary hearing that results in loss of good time. On these claims, the Court has told prisoners they must first get an appellate or habeas court to declare the trial or hearing invalid, and only then may they sue under § 1983. However, there may be an important exception to this rule for prisoners who have been released before their habeas claims can be decided.

In recent years, the Supreme Court has repeatedly said that any legal claim that directly implicates how long a prisoner will stay in prison (or whether he or she should be in prison in the first place) must be first addressed not in a § 1983 case, but through criminal appellate or habeas corpus remedies. The Court first announced this rule in Heck v. Humphrey , 512 U.S. 477 (1994), a case in which a prisoner filed a § 1983 suit for damages for claimed constitutional violations leading to his ...

Jericho: Thoughts From Political Prisoners in Leavenworth

JERICHO 98 -- as many people already know and we hope many more soon will know, is the nationwide March 27th rally in Washington DC, calling for the recognition and release of all political prisoners in America.

Here are some of the principle reasons we think this rally is so important. By important we mean not only for us, the political prisoners, but for the Freedom Struggle overall.

1.) America's political prisoners have been in captivity a long long time. The approximately 200 political prisoners, and the fact that there is no complete listing of political prisoners is another sign of the lack of significant public awareness and low priority that many otherwise progressive and revolutionary organizations give to this issue, have all been locked up for 12, 15, 20, 25 and more years. For example, BLA and Black Panther Sundiata Acoli has been in prison for 25 years. Ruchell Magee, close comrade of long ago assassinated author and revolutionary George Jackson, has been in prison for over 30 years! American Indian Movement activist Leonard Peltier has been in captivity over 22 years. The 15 Puerto Rican independentistas have been behind walls for 18 years. North American social justice activist ...

Jericho '98 March and Rally

Between 5,000 and 7,000 people gathered in Washington, D.C. on March 27, 1998 to protest the Big Lie: The U.S. has no political prisoners. And like Joshua at the legendary battle of Jericho, the marchers circled the citadel of their foes -- the White House -- and blasted its walls with the clear trumpet call of truth.

A new generation of energized youth stood shoulder to shoulder with veteran members of The Struggle. Huge photos of Mumia Abu-Jamal, Leonard Peltier, Sundiata Acoli, the MOVE 9, the 15 Puerto Rican independistas, and many more were held high in the air so America could see the faces of its political prisoners. Scores of banners were proudly unfurled, with messages like: "Their Freedom is our Freedom: FREE ALL POLITICAL PRISONERS".

There were rallies in Malcom X and Lafayette Parks. Geronimo Ji Jaga, himself imprisoned for 27 years on a COINTELPRO frameup, told the crowd: "This is a dream come true for many brothers and sisters who are behind those walls, who for years have struggled to try and get the message out to everyone that this country does in fact have political prisoners and prisoners of war."

Participants trekked to D ...

Convict Mine Labor in the Information Age

One hundred years ago the U.S. economy was in the heyday of its Industrial Age. Steel was king. Railroads, machine tools, heavy manu- facturing. All fueled by coal.

Some of that coal was hacked out of the earth by companies in Tennessee, Alabama, and Georgia that utilized convict `.lease labor" to extract the black gold. But coal wasn't the only "black gold" from which profit was extracted. Southern sheriffs were paid bounties by these companies to scour the countryside for "idle Negroes" to arrest under vagrancy laws. Once convicted, this human "black gold" was converted to slave labor in the mines, producing coal for less than half the labor cost incurred by rival companies that employed "free labor".

A hundred years later the U.S. economy is in the throes of a booming "Information Age". Marketing is king. Targeted direct mail, telemarketing, consumer preference profiles. All fueled by data. And just as convict labor was harnessed a century ago to mine the lifeblood of industry, prisoners today are increasingly used in "data mining" operations.

In 1993 and 1994 hundreds of thousands of "Shoppermail" surveys detailed product preference questionnaires filled out by consumers and mailed to P.O. Boxes ...

Cheaper to Exile Prisoners?

The state of Connecticut closed its Northeast Correctional Institution (NCI) in July 1997 in a budget-cutting move. Just seven months later, state legislators called for the governor to reopen NCI because of overcrowding in the state's other prisons.

But the administration of Gov. John G. Rowland claims that it would be more cost-effective to keep NCI closed and pay to have the prisoners shipped to out-of-state rent-a-prisons.

The now-mothballed NCI prison was built in 1990 at a cost of $17.5 million and can accommodate 350 prisoners -- the exact number Rowland wants to ship out of state.

Marc Ryan, a Rowland budget adviser, said it would cost $9 million a year to operate NCI, and estimates the cost of exiling the prisoners at a mere $7 million a year ($54.70/prisoner/day).

However, whether or not NCI houses prisoners, the state will still be saddled with $940,000 a year in interest payments on a mortgage that will not be paid off until 2001. In accounting parlance, that's referred to as a "stranded cost". If Rowland has his way and exiles Connecticut prisoners, there will be an additional "stranded human cost" to the prisoners and their families ...

Prisons Promoting Tourism

As states spend an increasing amount of their budgets to expand their prison systems they increasingly seek ways to replenish impoverished state coffers. One major source of revenue is tourism, and some states are well-known for their tourist attractions -- such as Disneyworld and Epcot Center in Orlando, Florida; the Grand Old Opry in Nashville, Tennessee; and the federal prison complex at Leavenworth, Kansas. Leavenworth? Yes, Leavenworth.

Once a symbol of shame hidden from outside observers, prisons are now being used as tourist draws. While some towns and cities promote local crafts or their cultural backgrounds, others emphasize their detention facilities. For almost two years a cartoon convict bedecked in black-and-white stripes has appeared on billboards and in magazine ads with the tag line, "How about doin' some `time' in Leavenworth?" Another marketing slogan proclaims, "You don't have to be indicted to be invited."

Apparently the ads are working; calls to the Leavenworth-Lansing Convention and Visitor's Bureau's 800-number increased by over 65% from 1995 to 1996, the year the bureau introduced the "doin' time" ad campaign. According to Connie Hachenberg, director of the visitor's bureau, exploiting the widely recognized prison was an obvious choice and she hopes ...

Jailers Charged in Bribery, Kickback Schemes

Asenior administrator in the Los Angeles County Sheriff's Department and an independent contractor face felony bribery charges involving padded contracts for millions of dollars in jail food. And, in Texas, a McLennan County grand jury indicted a county sheriff's Sgt. on misdemeanor charges stemming from "unethical [food procurement] practices and procedures due primarily to a lack of written policies."

Frederick Gaio, second in command of the L.A. Sheriff's $20 million food operation, and food contractor Rick Hodgin were arraigned in L.A. Superior Court on accusations that they participated in a pattern of corruption spanning at least two years. Prosecutors say that Hodgin paid Gaio bribes totaling more than $20,000 beginning in 1995 while working for a Florida-based company called Joy Food Service, which at the time was the beneficiary of millions of dollars in food contracts from the L.A. County Jail. When Hodgin later became sales director for California-based Harvest Farms, that firm suddenly captured much of the lucrative jail food business.

On a somewhat smaller scale, Sgt. Martha Warren Normen, a 17-year veteran and former supervisor of the McLennan County Jail kitchen, was accused of improperly accepting unspecified "gifts" from a vendor ...

WI Predator-Law Poster Boy Gets Released

On Halloween, 1973, nine-year-old Lisa French disappeared while trick-or-treating in Fond du Lac, Wisconsin. Gerald Turner, a neighbor and friend of the French family, was ultimately convicted of abducting, raping and murdering the girl. Dubbed the Halloween Killer, Turner languished in the maxi- mum-security Waupun prison until 1992, when he reached his mandatory release date.

Predictably, the news of Turner's release from prison sparked an uproar across the state. Right-wing politicians rode the wave of public outrage for all it was worth, decrying Wisconsin's laws as soft on violent criminals and promising to enact tough-on-crime measures to rectify the problem.

The state legislature ended up enacting a sexual predator law, similar to those in other states, imposing indefinite confinement on offenders deemed sexually dangerous. Local media routinely referred to the legislation as the "Turner Law."

After being confined since 1994 awaiting trial under the new law, Turner's day in court arrived in January. Everyone in the state seemed to assume it was a foregone conclusion that the Halloween Killer would be judged a predator and imprisoned for the remainder of his life.

The jury, however, didn't see it that way. Jurors returned a verdict declaring that ...

WI Guard Settles Discrimination Suit for $105,000

Ablack prison guard who filed a discrimination suit against the Wisconsin Department of Corrections agreed to a $105,000 settlement in December, 1997, shortly after a U.S. district court judge ruled the case would go to trial. An unusual term of the settlement allowed Sgt. William Rogers to face ...

News in Brief

Brazil: On May 28, 1998, 22 prisoners were killed by other prisoners at the Barretto Campelo prison. Designed to hold 400 prisoners, the prison held 1,200 at the time of the incident. Police claim the killings occured as a group of prisoners sought to avenge the death of a popular guard. A third of the prison was destroyed in fighting before police retook the prison.

CA: In March, 1998, the CDC announced it would purchase three 43 foot long, armor plated, 38 passenger prisoner transport buses for $450,000 each. The buses are made by Motor Coach Industries, a North Dakota company specializing in prison transport buses. By comparison, regional transit buses that run on natural gas cost $280,000.

CA: On April 2, 1998, Tammy Heptner escaped from the Merced county jail by slipping away from other prisoners, blending in with jail visitors and walking away unnoticed. Heptner had been arrested for failing to appear on drug charges.

CA: On March 10, 1998, 180 immigration detainees at a privately operated INS prison in EL Centro rioted for 12 hours to protest night searches at the facility and lengthy delays in immigration proceedings and appeals. Three unidentified guards who ...

Mailbox Rule Applied to Habeas Petitions

The court of appeals for the Third circuit extended the mailbox rule to habeas corpus petitions, holding that habeas petitions are considered filed when given to prison officials for mailing. Donald Burns, a New Jersey state prisoner, gave his federal habeas petitions to prison officials to mail on April 22, 1997, one day before the one year statute of limitations applicable to such petitions under 28 U.S.C. § 2244(d)(1) would have barred it. Burns' petition arrived in the district court on April 28, 1997, and was filed on May 5, 1997. The district court dismissed the petition as untimely. The court of appeals reversed and remanded.

28 U.S.C. § 2244(d) went into effect on April 24, 1996. It gave prisoners one year after a judgment becomes final in which to seek federal habeas relief. [ PLN , Aug. 1996]. The court held that applying § 2244 to petitioners whose state court proceedings concluded before April 24, 1996, would be impermissibly retroactive. "Accordingly, we hold that habeas petitions filed on or before April 23, 1997, may not be dismissed for failure to comply with § 224(d)(1)'s time limit." This applies to federal prisoners as well.

Under Houston ...

WA DOC Investigators Can't Detain Visitors: Drugs Suppressed

Astate appeals court in Washington held that prison investigators lack the authority to detain and question visitors, therefore any drugs found after a search had to be suppressed. William Dane, a Washington state prisoner at the Clallam Bay Correction Center (CBCC) was being investigated for drug smuggling activities by CBCC investigators Lori Hansson and James Reno after they received an anonymous note. Elizabeth Dane went to CBCC for an Extended Family Visit with her husband. Upon arriving at the prison Elizabeth Dane (Dane) was told that Hansson wanted to speak with her privately. Dane agreed and entered a secure area of the prison where Reno advised her of her Miranda rights. Dane waived her rights. Reno told her that she was suspected of smuggling drugs into the prison.

Reno had previously arranged for members of the Clallam County Drug Task Force to be present at CBCC when Dane arrived to visit. Dane asked police for immunity, which they said they could not provide. When she attempted to leave, she was arrested. Dane eventually removed ten balloons of marijuana and a balloon of heroin from her vagina and gave police a taped statement admitting to the crime. The trial court denied ...

Oregon Guard Pleads Guilty to Perjury

Aformer Oregon prison corporal pleaded guilty to one count of perjury on April 17, 1998, after prosecutors offered to downgrade the felony perjury charge to a misdemeanor. The guard, Cpl. Ronald Robertson, 32, was sentenced to two days in jail and 36 months probation.

Robertson was fired by the Oregon DOC in February after an indictment named him and four other guards at the Oregon State Penitentiary's Intensive Management Unit (IMU), alleging a pattern of brutalizing prisoners and lying to cover it up. In addition to the five indicted guards, four others were fired or quit as a result of a joint investigation by the Oregon State Police and Department of Corrections.

The investigation began in 1997 when another guard, Christine Cilley, alerted officials that she had witnessed illegal force being used on IMU prisoners. According to state police sources, the investigation was launched after Cilley passed a lie-detector test. Cilley later resigned her prison job.

Aside from Robinson, two other guards pleaded guilty and a third was convicted on charges ranging from official misconduct to perjury. Charges against one other guard are still pending.

The Oregonian

Risk of Serious Harm States Claim

A federal district court in New York held that jail officials can be held liable for exposing jail detainees to a significant risk of serious harm, whether or not any injury actually occurs. The court also held that jail conditions intended to be punitive are also unconstitutional. Richard Heisler was a pretrial detainee in the Rockland County Correctional Center (RCCC) in New York. Heisler had been charged with sexually assaulting a minor in Bergen county and was transferred to RCCC to avoid harm from other prisoners. Six days after arriving at RCCC Heisler was attacked by another prisoner and suffered contusions and swelling. Heisler filed suit claiming jail officials knew he was in danger of being attacked and did nothing to protect him and that he was denied access to showers, recreation, the law library and a phone while in protective custody (PC).

On the defendants' motion for summary judgment the court dismissed some claims and scheduled the remainder for trial. The court held that Heisler had presented enough evidence to indicate that the defendants were deliberately indifferent to his safety. The court rejected the defendants' argument that liability attaches only when serious injury results from the failure to protect ...

Disciplinary Hearing Violations Enjoined

A federal district court entered an injunction in a class action suit which challenged the systematic denial of due process in prison disciplinary hearings. Prisoners at the Statevile Correctional Center in Illinois filed a class action suit claiming they were denied due process under a prison policy that prohibited prisoners from calling witnesses at disciplinary hearings. Instead, prisoners seeking to present testimony could do so "only via the presentation of their statements as filtered through ex parse interviews by an unsworn hearing investigator."

The court held that prospective injunctive and declaratory relief was actionable under 42 U.S.C. § 1983. See: Edwards v. Balisok , 117 S.Ct. 1584 (1997). [ PLN , July, 1997]

Illinois prisoners have a liberty interest in their good time credits. Due process requires procedural protections before prisoners can be deprived of a protected liberty interest in earned good time credits. See: Wolff v. McDonnell , 418 U.S. 539, 94 S.Ct. 2963 (1974). Therefore, the procedures used by prison disciplinary committees to revoke prisoners good time credits "must at a minimum comport with the requirements of due process". Wolff held that prisoners have a right to call witnesses and present evidence at disciplinary hearings when doing so ...

Probable Cause Required for Visitor Body Cavity Search

A federal district court in Utah held that prison officials must have probable cause and a valid search warrant before subjecting a prison visitor to a body cavity search. Stana Laughter is married to a Utah state prisoner. Laughter visited her husband in prison on a regular basis, often accompanied ...

 

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