The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume VI, Issue 4, December 2006

ACCESS
IN RE: HERNANDEZ

NCPLS Staff Attorney, Lisa Chun,
successfully defended a client in
immigration court on removal proceedings in which
the Bureau of Immigration and Customs Enforcement
(BICE) attempted to
deport our client to
his native country
of Mexico. In Re
Hernandez, File No.
A 44-278-189.
Our client has been
a legal, permanent
resident of the U.S.
since 1993. In
2005, he was convicted of involuntary manslaughter
and misdemeanor
possession of marijuana. He was sentenced to 14–17
months to be served in the North
Carolina Department of Correction.
While incarcerated, the BICE filed
an immigration detainer against
him and commenced removal
proceedings, alleging that he was

deportable due to his convictions
of two crimes involving “moral
turpitude.” Upon his release from

DOC custody, he was transferred
into federal custody pursuant to the
detainer BICE filed earlier.
In response to the government’s
allegations, our client turned to
NCPLS. Ms. Chun filed a motion
to terminate the deportation pro-

ceedings. Ms. Chun argued that Mr.
Hernandez was not convicted of
two crimes involving moral turpitude. The case was
set for a master calendar hearing and
the immigration
judge granted the
motion to terminate
and ordered our
client’s release from
immigration custody. Our client has
been reunited with
his family, which
includes his United
States citizen wife,
his six-month-old
son, and his mother,
who is also a legal
permanent resident.
We expect this will
be a happy holiday
season for the Hernandez family, to
whom we wish “Felice Navidad!”
In this Issue:
In Re: Hernandez

1

In Profile: Angela G. Smigiel, R.N.

2

Health Facts: Hepatitis C

3

Custodial Rape Case Settled

5

Bureau of Justice Statistics Releases
New Report: Prisoners in 2005

5

In-House Training at NCPLS:
Cunningham Addresses NCPLS Staff

6

Correctional Officers: Officer Misconduct
Reflects Poorly on the Profession
7

NCPLS ACCESS

Page 2

ACCESS is a publication of North
Carolina Prisoner Legal Services,
Inc. Established in 1978, NCPLS is a
non-profit, public service organization.
The program is governed by a Board
of Directors who are designated by
various organizations and institutions,
including the North Carolina Bar
Association, the North Carolina
Association of Black Lawyers, the
North Carolina Association of Women
Attorneys, and law school deans at
UNC, Duke, NCCU, Wake Forest and
Campbell.
NCPLS serves a population of more
than 38,000 prisoners and 14,000 pretrial detainees, providing information
and advice concerning legal rights and
responsibilities, discouraging frivolous
litigation, working toward administrative resolutions of legitimate problems,
and providing representation in all
State and federal courts to ensure
humane conditions of confinement and
to challenge illegal convictions and
sentences.

Board of Directors
President Fred Williams, Esq.
Jim Blackburn
James A. Crouch, Esq.
Dean Ronald Steven Douglas
Professor Grady Jessup
Barry Nakell, Esq.
Susan Olive, Esq.
Gary Presnell, Esq.
Professor Ronald F. Wright
Executive Director
Michael S. Hamden, Esq.
Editor
Patricia Sanders, CLA

PLEASE NOTE: ACCESS is published

four (4) times a year.

Articles, ideas and suggestions are
welcome: tsanders@ncpls.org

Volume VI, Issue 4, December 2006

IN PROFILE:
ANGELA G. SMIGIEL, R.N.
One of the most frequent concerns
we hear from our clients has to do
with the quality of health care
services, or a lack of such services.
As attorneys, we can often answer
these health care questions and
determine whether legal standards
have been violated. But there are
occasions when the opinion of a
health care professional is required.
Unfortunately, it is often difficult to
identify such an expert who will
agree to work pro bono, or for the
discounted fees we can afford to
pay.
To address this problem and to
provide in-house medical analysis
and advice to our attorneys, we are
pleased to announce that Angela G.
Smigiel has joined our staff. Ms.
Smigiel is a Registered Nurse with
23 years of nursing experience in a
wide array of health care settings,
including five years with the North
Carolina Department of Correction, and some experience with the
Florida Department of Correction.
Other experiences include inpatient
treatment at Charter North Ridge
Hospital, the Durham Med-Care
Center, the Wake Medical Center,
Rex Hospital, and similar settings
in Florida. Her clinical experience
includes teaching, precepting,
physical assessment, counseling

Angela G. Smigiel, R.N.

and direct nursing. She also has a
strong background with pharmacology and substantial knowledge
of chemical dependency, psychiatric care, chemotherapy and HIV &
TB patient teaching.
Part of her responsibility will be
to develop good relationships with
correctional health care professionals, and to recruit experts in various disciplines who will be both
willing and able to assist in our
review of our clients’ inquiries and
concerns.
With all of this education, training,
and experience, Ms. Smigiel has
already demonstrated a great deal
of useful skills, sound judgement,
and a pleasant disposition. We
are pleased to welcome her to the
NCPLS Team.

NCPLS ACCESS

Volume VI, Issue 4, December 2006

Page 3

HEALTH FACTS: HEPATITIS C
By: Angela Smigiel, R.N.
NCPLS Nurse/Consultant

Introduction
Hepatitis-C is a liver disease caused
by the hepatitis C virus (HCV),
which is found in the blood of
persons who have this disease. The
infection is spread by contact with
the blood of an infected person. It
is the most common blood-borne
disease in the U.S., with more than
2.7 million people diagnosed as
chronically infected to date.
Most people who contract Hep-C
suffer no serious or debilitating
symptoms throughout their entire
lives. But for others, it can be life
threatening. Hep-C attacks the
liver. It can cause scarring of the
liver (cirrhosis) and, over a long
period of time, it can cause the
liver to fail.
Exposure: Protect Yourself
and Others
Hep-C is transmitted in many of
the same ways as sexually transmitted disease, through the blood.
Most commonly, transmission
occurs through sharing needles and
unprotected sex, although it can be
contracted when the blood or
bodily fluids of an infected person
come into contact with your blood.
To prevent contracting or spreading
the disease, do not share personal
items that may have blood on them
(such as toothbrushes, razors, nail
clippers, and the like). Be sure to
cover any open wounds or sores.
Avoid unprotected sex, especially
with multiple partners.

Hep-C normally cannot be transmitted through sharing glasses or
eating utensils, food or water,
coughing, sneezing, and other types
of casual contact.
Diagnosis
A diagnosis of hepatitis C infection
will require life-style changes to
protect your health. Some of the
changes you will need to make
include a change in diet (eat more
vegetables and fruit) and discontinue the use of any alcohol or any
drugs that are not prescribed by
your physician. (Make sure your
doctor is aware of all medications
you are taking – including Tylenol, vitamins and over-the counter
medications.) In other words, the
maintenance of good health diminishes the chances of developing
serious consequences.
Treatment for hepatitis C depends
on many factors, including the
extent of damage to the patient’s
liver, other health conditions the
patient may have (such as a weakened immune system), how much
virus is present in the body, and
the type of hepatitis C the patient
has contracted. Treatment is not
always prescribed because the
medicines used to treat hepatitis C
have significant side-effects and do
not work for everyone. Initial
treatment may also depend on
whether you have a short-term
(acute) infection or a long-term
(chronic) infection.
Treatment of short-term (acute)
hepatitis: Most people with acute

hepatitis C are not treated because
they do not know they have the
virus. It is common for people to
live with hepatitis C for years without knowing they have it, simply
because they do not have symptoms. By the time hepatitis C is
diagnosed in most people, they
already have long-term chronic
infection. There is still debate over
when and whether treatment is
recommended. There are many
factors in deciding when treatment
should begin. A patient should
thoroughly discuss these matters
with the physician.
There is debate in the medical community over whether and when to
begin treatment and how long to
treat acute hepatitis C because there
are so many relevant factors that
are unique to an individual patient.
One patient may receive treatment,
another may not be actively treated,
and still another may opt out.
Again, this is an individualized
disease process and no two patients
are exactly alike. You may have no
symptoms or elevated liver
enzymes, therefore your provider
may decide against treatment.
That’s why it is extremely important to continue with follow-up
blood work on a routine basis, even
when your last results were normal.
Keep yourself informed and ask
your physician any questions you
may have.
Treatment of long-term (chronic)
hepatitis: If your blood tests show
that you have a chronic infection but no damage to your liver,
(Continued on Page 4)

NCPLS ACCESS

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Volume VI, Issue 4, December 2006

HEALTH FACTS: HEPATITIS C
(CONTINUED)
(Continued from Page 3)

again, you may not need treatment.
Should you have some liver damage, you may be treated with a
combination of medicines that fight
the viral infection. Antiviral medicines may not be recommended if
you:
-- Drink alcohol, use IV drugs, or
any other drugs not prescribed by
your physician;
-- Have advanced cirrhosis (a
chronic liver disease marked by
degeneration of cells and thickening of tissue);
-- Have depression or other psychiatric problems;
-- Are pregnant or might become
pregnant (the medications used are
toxic and may cause harm to the
fetus);
-- Have an autoimmune disease
(such as lupus, rheumatoid arthritis or psoriasis) or other particular medical problems (such as
advanced diabetes, heart disease or
seizures).
The U.S. National Institutes of
Health has recommended treatment
for those over 18 that have significant detectable levels of the virus
in their blood and/or significant
liver damage confirmed with a liver
biopsy.
Hepatitis C
Treatment Medications
Most commonly, hepatitis C is
treated with pegylated interferon
and other interferons, which are
similar to a protein your body
makes to fight off infection. In

cases in which the condition is
drug-resistant, a combination of
antiviral therapy with interferons
and ribavirin increases the chances
of getting rid of the virus.
Medicines for hepatitis C have serious side-effects, such as constant
fatigue, headaches, fever, nausea,
depression, thyroid problems, and
many other side-effects. It is

important to weigh the benefits of
medicines for hepatitis C against
the drawbacks. If you are confronted with a choice to use these
medications, you do not need to
make a quick decision because the
disease progresses very slowly.
You and your doctor must discuss
prior medical conditions and current test results. You will need to
have routine blood tests to help
your doctor know how well your
liver is working.
Treatment Procedures
Peginterferon and other interferons
are given as a weekly injection.

Ribavirin is taken as a pill two
times a day. The time that treatment will continue depends on the
hepatitis C genotype (the genetic
constitution of the individual
organism). If the liver does not
show improvement after three
months of treatment, or the patient
is unable to tolerate the sideeffects, treatment may be stopped.
Even if treatment is recommended,
it may not work or have a lasting
effect. Chronic hepatitis C treatment simply is not successful in
all patients that complete the full
course of medication prescribed.
On the other hand, while treatment
may not lower the amount of virus
in the blood, it may reduce scarring in the liver, which can lower
the chances of developing cirrhosis
(degeneration and thickening of
tissue), and liver cancer.
Bibliography: www.webmd.com
(WEBMD) (last accessed December 2, 2006)
www.cdc.gov/ncidod/diseases/
hepatitis/c/index.htm#corrections
(CDC: Hep-C in Correctional Settings) (last accessed December 2,
2006)
Contact info:
Center for Disease Control
www.cdc.gov/hepatitis (last
accessed December 16, 2006)
or write:
CDC and Prevention
Division of Viral Hepatitis
Mailstop G37
Atlanta, GA 30333

Volume VI, Issue 4, December 2006

NCPLS ACCESS

Page 5

CUSTODIAL RAPE CASE SETTLED
By: Michele Luecking-Sunman

Over the past few years, NCPLS
has vigorously advocated for victims of sexual assault at the hands
of correctional officials in North
Carolina prisons. Again, we can
report a favorable outcome in a
case that recently settled.
Throughout 2004 and 2005 an officer at North Piedmont Correctional
Center for Women abused his position of power and trust by engaging
in inappropriate and unlawful
sexual activities with numerous
female inmates. This officer’s victims included our current client, on
whose behalf we were able to reach
a settlement this month.
In a prison work assignment, our
client was under the supervision of
an officer who exploited his position. Our client had been unable to
remove herself from the physically
and emotionally damaging environment in which she found herself.

In our client’s case, multiple
sources of information indicated
that the officer had previously been
investigated for sexual misconduct,
but was subsequently returned to
his post. We do not know why this
officer was re-assigned to a position where he could isolate our
client and make sexual advances
towards her.
We learned of our client’s situation
when she wrote to us in May of
this year. We have successfully
advocated for several other women
involved in similar situations at
North Piedmont Correctional
Center for Women. Through these
earlier cases, we learned that this
officer had engaged in unlawful
sexual conduct with numerous
other female inmates. We also
knew he had been investigated and
returned to his post before some of
his abuses of our current client.
Through serious negotiations with
the Attorney Generals’ Office, we

secured a settlement of the case,
providing monetary compensation
in an amount our client found
acceptable.
What we do know is that officials
throughout the DOC must take
allegations of sexual misconduct by
officers more seriously. Correctional officials at North Piedmont
Correctional Center for Women
would later learn with certainty that
the earlier internal investigation
reached an erroneous conclusion
when the officer in question was
convicted in Davidson County of
custodial rape of several female
prisoners.
At NCPLS, we are committed to
advocating on behalf of individuals who have suffered abuse of any
kind at the hands of guards. If
you are in a situation like the one
described above, or a similar one,
please write and ask for our help.

BUREAU OF JUSTICE STATISTICS RELEASES NEW REPORT:
PRISONERS IN 2005
In 2005, the prison population of
the U.S. grew 1.9% for a total population at year’s end of 2,320,359
according to a recently released
report. Beck & Harrison, Prisoners in 2005, Bureau of Justice
Statistics (November 2006). An
annual increase of 1.9% is slightly
less than the 3.1% average increase
over the previous three years.
People are being detained or incar-

cerated in a variety of correctional
settings, including juvenile facilities (with an estimated 96,655),
local jails (747,529), and state and
federal prisons (1,446,269).
As you might imagine, a prison
population of more than 2.3 million has resulted in crowded conditions in many correctional facilities
Some state facilities report prison
populations that are as high as 14%

above capacity. The federal
prison system is operating at about
34% above capacity. From December 31, 2004 through December
31, 2005 (the most recent period
for which statistics have been
compiled), North Carolina has
experienced a 2.8% growth in the
number of people it imprisons.
With a present population over
(Continued on Page 7)

NCPLS ACCESS

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Volume VI, Issue 4, December 2006

IN-HOUSE TRAINING AT NCPLS:
CUNNINGHAM ADDRESSES NCPLS STAFF
By: Senior Staff Attorney Elizabeth ColemanGray

Bruce Cunningham, an experienced
and knowledgeable lawyer who
practices in Southern Pines, came
to the office of NCPLS. Mr. Cunningham is a distinguished and
respected attorney who has litigated literally hundreds of cases
in North Carolina courts at every
level. His scholarship and insight
into the Blakely line of cases was
stimulating and educational.
On November 17, 2006, Mr. Cunningham led a two-hour discussion
about the Jones/Apprendi/Blakely
line of cases. (Readers of ACCESS
will recall that the general holding
of these cases is that, except for
prior convictions, any factor that
could lengthen a criminal sentence
must be tried to a jury and proven
beyond a reasonable doubt. Previously, many sentencing schemes,
including Structured Sentencing in
North Carolina, required the judge
to determine whether “aggravating
factors” outweighed “mitigators,”
and if so, the judge was required to
impose a lengthier sentence.)
About twelve NCPLS attorneys
and one paralegal attended the presentation. In preparation for the
event, staff was assigned about 200
pages of case law to review to ensure that discussion and an
exchange of views with Mr. Cunningham would be productive.

Mr. Cunningham focused on the
decision in Blakely v. Washington,
542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (June 24, 2004).
Blakely holds that a defendant can

legally be sentenced based only on
facts that were either admitted or
that were found by a jury to be true
beyond a reasonable doubt. Without a plea of guilty or a jury finding of additional aggravating facts,
only a sentence within the standard
range is authorized by law. A
sentence in the aggravated range
had been imposed on Mr. Blakely
because a judge found that the
aggravators were more likely true
than not, and that the aggravating
factors outweighed mitigating
facts. This, the Supreme Court

explained, violated Blakely’s right
to a jury trial and required the sentence to be set aside and re-determined by a jury (or acceptance
upon agreement by Blakely).
Mr. Cunningham compared the
holding of Blakely to the Supreme
Court’s earlier ruling in Apprendi
v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435
(2000). Afterward, the group
discussed many complicated issues
that remain unresolved in the wake
of Blakely, including whether the
case might be applied retroactively.
Staff Attorneys Hoang Lam and
Elizabeth ColemanGray arranged
and coordinated Cunningham’s
presentation. They also applied
for and obtained Continuing Legal
Education (CLE) credits for the
attorneys who prepared for and
attended the presentation. (The
State Bar requires every North
Carolina attorney to complete at
least 12 hours of continuing legal
education every year.) While many
of our attorneys had already met
that requirement, NCPLS feels it is
important to keep up with changes
in the law and the ideas of experienced and scholarly practitioners.
We are grateful for Mr. Cunningham’s participation.

Volume VI, Issue 4, December 2006

NCPLS ACCESS

Page 7

CORRECTIONAL OFFICERS:
OFFICER MISCONDUCT REFLECTS POORLY ON THE PROFESSION
It is a truism that the public does
not adequately appreciate the important public service provided by
correctional officers. Regrettably,
many prisoners lack appreciation
for their work, as well. Each day,
they risk their lives to protect
prisoners from harm, to ensure that
prisoners are not deprived of basic
needs, and in some cases, endure
despicable conduct from those for
whom they perform these services.
All this correctional officers do
without recognition or reasonable
pay.
But there is a difference between
correctional officers and mere
guards. This latter category of
correctional employees fail to treat
prisoners with basic human respect,
they engage in misconduct of all
types, and they have little concern
that they will be held accountable
because correctional officers have
a strong sense of comradery and
a code of silence to which they
strongly adhere.

officer also violates the prisoner’s
rights by her inaction. Jackson v.
Pantazes, 810 F.2d 426 (4th Cir.
1987).
The corrections profession has
worked long and hard to develop
respect in the broader community.
The development of standards, specialized techniques, and humane,
forward-thinking policies are but a
few of the measures that correctional officers have embraced and
which they consistently employ.
The inevitable outcome of this
effort is a professionalized correctional staff, a greater sense of pride
and self-esteem, and a higher
regard among prisoners, their
families, political leaders, and the
public.

correctional facilities, how often
have your families, friends, and
others questioned you about the
frequency of sexual assaults or the
use of excessive force in prison?)
Very few of the correctional professionals I have known over the
years would conduct themselves
in these ways, but they have sometimes covered-up such conduct by
guards.
The code of silence does not serve
the corrections profession or
correctional professionals and it
should not be tolerated. You and
all of the correctional professionals
with whom you work should make
that clear to officers new to the
facility. This Code of Correctional
Professionalism may be the best
defense available to diminish prisoner lawsuits, minimize damage
awards, de-escalate mistrust among
prisoners, and to support a misguided colleague by holding him
accountable for improper or illegal conduct. With such guidance,
guards can be mentored and transformed into the kind of correctional
professionals who will deserve and
command respect from everyone.

Of course, the actions of a few
knuckleheads who reject the
principles of professionalism and
are actively engaged in misconduct, do not deserve the respect
or the support of the professional
corps of correctional professionals.
Although a code of silence may be (Since Abu Ghraib or the recent
understandable, it is not appropriate reports of custodial rape and other
in these situations for several reasuch misconduct in this country’s
sons. First, these law enforcement
officers are duty-bound to comply
RISONERS IN
with the law themselves. It is
illegal for one who has been given
(CONTINUED)
the badge of authority to ignore her (Continued on Page 5)
duty and fail to stop another officer 38,000, North Carolina projects
U.S. Department of Justice
who summarily punishes a prisoner that the DOC will operate in excess Office of Justice Programs
in her presence. In other words, if
Bureau of Justice Statistics
of capacity for the next decade,
one officer is using unconstitutional in spite of an aggressive plan for
Washington, D.C. 20531
force against a prisoner and a
prison construction.
second officer observes this use of
Request a copy of Beck & Harriforce and fails to intervene to stop
son, Prisoners in 2005, Bureau of
To obtain a copy of this report,
or prevent it, then the second
Justice Statistics (November 2006).
write to:

P

2005

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.

1110 Wake Forest Road
P.O. Box 25397
Raleigh, NC 27611
Phone: (919) 856-2200
Fax: (919) 856-2223
Email: tsanders@ncpls.org

Visit our website at:
http://www.ncpls.org