30th Anniversary Issue! Prison Legal News PUBLISHED BY THE HUMAN RIGHTS DEFENSE CENTER

VOL. 31 No. 11 November 2020 ISSN 1075-7678 Dedicated to Protecting Human Rights

Milestone: Thirty Years of Prison Legal News and the Human Rights Defense Center by Paul Wright

riginally we were planning to 30th anniversary. Yale law professor and and mailed to 75 potential subscribers with Ocelebrate the 30th anniversary of Pris- author James Forman Jr. will be our keynote a budget of $50. The first three issues were on Legal News (PLN) in the May 2020 issue. speaker. Details on the event and how to banned in all Washington state prisons, However, with the COVID-19 pandemic attend virtually are inside this issue. the first 18 in all Texas prisons. Since then impacting prisoners and the criminal justice When I started PLN in 1990 I was 25 we have published 367 consecutive issues, system we decided to postpone it until later years old and three years into a life sentence. grown to 72 pages with offset printing and in the year given the urgency of reporting The United States had a million people now have approximately 9,000 subscribers on the pandemic. We also had planned to locked in cages. Today, I am 55 years old and in all 50 states. PLN long ago became the do events in Seattle and New York City to have been out of prison for 17 years, and the longest continuously published indepen- commemorate our 30th anniversary as we United States has around 2.5 million people dent prisoner rights publication in U.S. have in the past, but COVID has put a halt locked in cages. In addition to having a lot history. to in-person events. more prisoners, living conditions, by every Started in a Prison Cell Instead, we will do a national virtual possible measure with the possible excep- event on December 10 to mark both In- tion of disability rights, are far worse than In 1987, I entered the Washington ternational Human Rights Day and our they were 30 years ago. state prison system with a 304-month sen- Prison population growth has been fu- tence after being convicted of first-degree eled by the growth of the American police felony murder for shooting and killing a INSIDE state and increases in sentences.With 5% drug dealer in an armed robbery attempt. of the world’s population, the U.S. has 25% The following year I met Ed Mead, a politi- From the Editor 14 of the world’s prisoners. The USA is indeed cal prisoner and veteran prison activist, at Second Wave of COVID Infection 20 number one when it comes to caging people. the Washington State Reformatory (WSR) Millions more are on probation or parole in Monroe, Washington. Ed had been Judge: Prisoners Can Get Stimulus Checks 24 or other forms of state carceral supervision. incarcerated since 1976. During that time CA Guards Aid Attacks on Prisoners, Keep Jobs 26 Over its 30 years, HRDC has grown period, he had been involved in organizing from an all-volunteer organization in Se- and litigating around prison conditions and DOJ Report: Excessive Force Common in AL Prisons 30 attle that published a monthly newsletter issues. He also had started and published New Jersey Guard Acquitted of Sexual Assaults 34 into a professional organization with 15 several newsletters, including The Chill Fac- employees that publishes two monthly tor, The Red Dragon and The Abolitionist. By PA County Nets Rebate But No Cut to Jail Phone Costs 36 magazines, publishes and distributes late 1988, Ed and I were jointly involved in Private Prison Firms Pumped Campaign Cash to GOP 38 books, litigates cases around the country class action prison conditions litigation and and conducts national advocacy campaigns other political work. Rikers Island: Population Falls, Violence Up 42 nationally. Going into our 31st year, in the As the 1980s ended, it became apparent Private Prison Pepper Sprays Striking ICE Detainees 46 middle of a pandemic, here is a look back that collectively prisoners were in a downhill at how we got here. spiral – they were suffering serious setbacks Sixth Circuit Ok’s Ohio Prisoner’s Civil Rights Lawsuit 49 • • • on legislative, political, judicial and media HRDC Lawsuit Over CO Sheriff’s Censorship Policies 55 fronts. Prisoners and their families were the The first issue of Prisoners’ Legal News people most affected by criminal justice poli- News in Brief 62 (PLN) was published in May 1990. It was cies but also were the ones almost entirely hand-typed, photocopied, 10 pages long, absent from what passed as debate. There HRDC 2019 ANNUAL FUNDRAISER

Please Help Support Human RigHts Defense CenteR HRDCthe 2020 Annual Dedicated to Protecting HumanHuman Rights Rights Defense Center! www.HumanRightsDefenseCenter.org Fundraiser The Human Rights Defense Center (HRDC), which publishes Prison Legal News and Criminal Legal News, cannot fundPlease its operations help through support subscriptions the and Human book sales Rightsalone. We relyDefense on donations Center! from our supporters! HRDCThe Human conducts Rights only Defense one annual Center fundraiser; (HRDC), which we don’tpublishes bom Prisonbard ourLegal readers News and with Criminal donation Legal requests, News, cannot we only askfund that its if operationsyou are able through to contribute subscriptions something and book to our sales vital alone. work, We thenrely onplease donations do so. from Every supporters! dollar counts and is greatly appreciated and will be put to good use. No donation is too small (or too big)! HRDC conducts only one annual fundraiser; we don’t bombard our readers with donation requests, we only askWhere that if you does are yourable to donation contribute something go? Here’s to our some vital work,of what then pleasewe’ve do done so. Every in thedollar past counts year: and is greatly appreciated and will be put to good use. No donation is too small (or too big)!  WhereWe does prevailed your indonation a lawsuit go? against Here’s the some Palm ofBeac whath County we’ve Sheriff’s done in Officethe past in Floridayear: for holding juvenile offenders in solitary confinement and denying them educational programs. The case settled • Wein won November censorship 2018, lawsuits and resultedagainst three in a numberjails in California of reforms and at jails the in jail. Virginia and North Carolina which now allow prisoners to receive books and magazines. • WeHRDC won public filed records First Amendment lawsuits against censorship the US Marshalls lawsuits Service,against ICE,the MichiganGeo Corporation DOC, andthe MarshallCorizon. County • As Jailpart inof Tennesseeour Prison Phone and the Justice Forrest Project County we continuedJail in Mississippi; to press the we Federal also settled Communications a censorship Commis case against- sionthe to Cook reduce County the cost Jail of prisonin Chicago, and jail and phone a federal calls to court no more ruled than in our $.05 favor per minute on liability and to in eliminate a suit against all ancillarythe Southwest fees. Virginia Regional Jail Authority in Virginia. • WeAs won part a resounding of the Campaign victory forin the Prison federal Phone Ninth Jus Circuittice, weCourt submitted of Appeals comments over the practiceto the FCC of taking opposing pris- a onersproposed money mergerand giving between them feetwo laden of the debit nation’s cards. largest prison telecoms, Securus and ICSolutions. The • WeFCC published then recommended The Habeas Citebook: denial Prosecutorial of the merger, Misconduct, and it was by withdrawnAlissa Hull and in April edited 2019. by Criminal Legal News Editor Richard Resch. With Withyour your help help we we can can do do somuch much mo more!re! PleasePlease send send your your donation donation to: to: HumanHuman Rights Rights Defense Defense Center, Center, P.O. PO BoxBox 1151, 1151, Lake Lake Worth Worth Beach, Beach, FL 33460 FL 33460 Or Orcall call HRDC’s HRDC’s office at at 561-360-2523 561-360-2523 andand use your credit credit card card to to donate. donate. Or visitOr visit our our websites websites at atprisonlegalnews.org prisonlegalnews.org or or criminallegalnews.org, criminallegalnews.org and and click click on on the the “Donate” “Donate” link. link.

November 2020 2 Prison Legal News 30 Years of PLN (cont.) appeared in May 1990. Ed and I each typed Prison Legal News five pages of PLN in our respective cells. a publication of the Columns were carefully laid out with blue Human Rights Defense Center was a lack of political consciousness and pencils and graphics applied with a glue www.humanrightsdefensecenter.org awareness among prisoners, and widespread stick. We sent the proof copy to Richard ignorance about the realities of the prison Mote, a volunteer in Seattle, who copied EDITOR Paul Wright system among those not incarcerated. and mailed it. PLN’s start-up budget for Ed and I decided to republish The Red our first six issues was a whopping $300, or MANAGING EDITOR Ken Silverstein Dragon as a means of raising political con- $50 to print and mail each issue. We did not EDITORIAL ASSISTANT sciousness among prisoners in the U.S. We have the money to continue publishing after Betty Nelander planned to model the new publication on the the $300 ran out but vowed that as long COLUMNISTS old one: a 50- to 60-page Marxist quarterly as the money came in we would continue Michael Cohen, Mumia Abu-Jamal magazine that Ed had previously published. publishing. If it did not, it meant there was CONTRIBUTING WRITERS We eventually put together a draft copy, but a lack of interest and we would have to cease Anthony Accurso, Douglas Ankney, it was never printed for distribution. The publishing and regroup. Bill Barton, Kevin Bliss, main reason was a lack of political and finan- The first three issues of PLN were Dale Chappell, Matthew Clarke, cial support on the outside. We lacked the banned in all Washington prisons on spuri- Michael Fortino, Derek Gilna, money to produce a large quarterly magazine ous grounds. Ed was infracted by WSR Scott Grammer, Ed Lyon, Chad Marks, David Reutter, and were unable to find volunteers outside officials for allegedly violating copyright laws Mark Wilson, Christopher Zoukis prison willing to commit the time involved in by writing law articles. Officials at Clallam ADVERTISING DIRECTOR laying out, printing and mailing such a publi- Bay ransacked my cell and confiscated my Susan Schwartzkopf cation. Additionally, in 1989 I was subjected writing materials, background information ADVERTISING COORDINATOR to a retaliatory transfer to the Penitentiary and anything that was PLN-related. Ed’s Judith Cohen at Walla Walla, due to success in the WSR infraction was eventually dismissed, and my LAYOUT overcrowding litigation. Prison officials also materials were later returned. Lansing Scott wanted to ensure that The Red Dragonnever Just as we were on the verge of fil- HRDC LITIGATION PROJECT got published. The transfer meant that Ed ing a civil rights lawsuit challenging the Daniel Marshall – General Counsel and I were relegated to communicating by censorship of PLN, the Washington DOC Eric Taylor – Staff Attorney heavily censored mail. capitulated and allowed PLN into its pris- PLN is a monthly publication. We scaled back our ambitions and ons. Jim Blodgett, then the warden at the instead decided to publish a small, monthly Penitentiary in Walla Walla, told me that A one year subscription is $30 for prisoners, $35 newsletter focused on prison issues in PLN would never last because its politics for individuals, and $90 for lawyers and institu- Washington state. If the support was there, were “harmless and outmoded,” and pris- tions. Prisoner donations of less than $30 will be pro-rated at $3.00/issue. Do not send less than it would grow. Originally named Prisoners’ oners were too “young and immature to be $18.00 at a time. All foreign subscriptions are Legal News, we set out with the goal of influenced” by our radical ideas. The repri- $100 sent via airmail. PLN accepts credit card publishing real, timely news that activist sals had been fully expected, given prison orders by phone. New subscribers please allow four to six weeks for the delivery of your first is- prisoners and their supporters in Washing- officials’ historic hostility to the concepts of sue. Confirmation of receipt of donations cannot ton state could use. free speech and due process. be made without an SASE. PLN is a section 501 With the social movements that had Then disaster struck: Richard Mote (c)(3) non-profit organization. Donations are tax deductible. Send contributions to: traditionally supported prison reform ef- turned out to be mentally unstable. He re- Prison Legal News forts in this country at a low ebb (i.e., the fused to print and mail PLN’s second issue PO Box 1151 civil rights, women’s liberation and anti-war because he took offense to an article written Lake Worth Beach, FL 33460 movements), we saw PLN’s objective as one by Ed that called for an end to the ostraciza- 561-360-2523 that would emphasize prisoner organizing tion of sex offenders. Mote took off with all [email protected] www.prisonlegalnews.org and self-reliance. Like previous political of PLN’s money that contributors had sent, journalists who had continued publishing about $50, the master copy of the second PLN reports on legal cases and news stories related during the dark times of the 1920s and issue and our mailing list. For several weeks to prisoner rights and prison conditions of con- finement. PLN welcomes all news clippings, legal 1950s, we saw PLN’s role as being similar. it looked like there would be no second is- summaries and leads on people to contact related From the outset, PLN has striven to be an sue of PLN. Fortunately we located another to those issues. organizing tool as much as an information volunteer, Janie Pulsifer, who was willing to Article submissions should be sent to - The source. When we started, we had no idea print the publication. Ed and I sent Janie Editor - at the above address. We cannot return submissions without an SASE. Check our website that things would get as bad as they have another copy of the issue, which she copied or send an SASE for writer guidelines. in our nation’s criminal justice system. Nor and mailed. We were back on track. Advertising offers are void where prohibited by that they would continue to be as bad as The Presses Keep Rolling law and constitutional detention facility rules. they have for as long as they have. PLN is indexed by the Alternative Press Index, In 1990, I was transferred to the Clal- Ed’s then-partner, Carey Catherine, Criminal Justice Periodicals Index and the Depart- ment of Justice Index. lam Bay Corrections Center, a then-new had agreed to handle PLN’s finances and Washington prison. The first issue of PLN accounting, such as they were, after Mote Prison Legal News 3 November 2020 30 Years of PLN (cont.) we purposely did not seek further growth to advance their interests. These stories because we did not have the infrastructure were picked up by other media, increasing to sustain it. Once we had nonprofit status PLN’s exposure. While PLN continues to jumped ship. This was short-lived, because and postal permits from the post office, we be the leader in reporting on prison slave by August 1990 she was preparing to go to were ready to expand. labor, my own views on the subject have China to study. The only person we knew In the summer of 1992, we did our changed. Influenced by the writings of with a post office box who might be able to first sample mailing to prison law libraries. Bruce Western, I came to realize the big take care of PLN’s mail, mainly to process Since PLN’s reader base had increased and story wasn’t the 5,000 prisoners who work donations, was my father, Rollin Wright. changed, we decided to reflect that change for private companies in PIE programs or He lived in Florida but generously agreed by renaming the publication Prison Legal the estimated 80,000 who work in state to handle PLN’s mail for what Ed and I News, as PLN wasn’t just for prisoners any- prison industries – and those only because thought would be a few months at most, more. PLN was now being photocopied and of the massive government subsidies that until we found someone in Seattle. Those mailed each month by a group of volunteers prison industries receive – but the 2.3 mil- few months became six years as he served in Seattle. lion prisoners who have been removed from as PLN’s office manager, publisher and When PLN started out in 1990, Ed the U.S. labor market completely. board member. and I had decided it would be a magazine of In June 1992, I was transferred back to Support for PLN slowly began to grow, struggle, whether in the courts or elsewhere, WSR where Ed and I could collaborate on as did our circulation. In January 1991 we and everything would be chronicled. At a PLN in person for the first time since the switched to desktop publishing. Ed and I time when the prisoners’ rights movement magazine started. I had been infracted by sent our typed articles to Judy Bass and was overcome by defeatism and demoral- Clallam Bay officials for reporting in PLN Carrie Roth, who would retype them and ization, we thought it important to report the racist beatings of prisoners by gangs lay them out. We would then proof each the struggles and victories as they occurred of white prison guards. Unable to gener- issue before it was printed and mailed. to let activists know that theirs was not a ate attention for the beatings themselves, In 1991, PLN also obtained 501(c)(3) solitary fight. my punishment for reporting the attacks nonprofit status from the IRS so we could A mainstay of PLN’s coverage from received front-page news coverage in the use lower postage rates. PLN’s circulation the beginning has been the issue of prison Seattle Times. Eventually the disciplinary had stabilized at around 300 subscribers; slave labor. This is where the interests of charges were dropped, but not before I had prisoners and free world workers intersect spent a month in a control unit for reporting at their most obvious. If people outside the abuses. The PLN presses kept rolling.

prison didn’t think criminal justice policies PLN Becomes a Magazine Stamps affected them, PLN would make prisons relevant by showing how prison slave labor On PLN’s third anniversary in May for CA$H ! took their jobs and undermined their wages. 1993, we made the big leap. We switched to Great Goods will buy your stamps ! This coverage was helped by the fact that offset printing instead of photocopying and 70% of face value: complete, new and perfect books of 20 stamps. Washington state was a national leader in expanded to 16 pages. PLN was no longer 60% global forever and high denomination the exploitation of prison slave labor by a newsletter; we were now a magazine with stamps. private businesses. 600 subscribers. 50% any partials,singles and strips. No quantity of stamps too big. PLN has broken stories on how cor- In October 1993, Ed was finally pa- -Please inquire for a complete list of rates- porations like Boeing, Microsoft, Eddie roled after spending 18 years in prison. GREAT GOODS Bauer, Planet Hollywood, Starbucks and The state parole board, no doubt unhappy PO BOX 888 LAKE WORTH , FL. 33460 Nintendo, plus then-U.S. Representative at PLN’s critical coverage of their activities, www.easycashforstamps.com Jack Metcalf, all used prison slave labor imposed a “no felon contact” order on Ed. [email protected]

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November 2020 4 Prison Legal News This meant he could have no contact, by the mailing for us. PLN and the depth and breadth of our cov- mail or phone, with me or any other felon. We hired our first staff person, Sandy erage. He became PLN’s managing editor The parole board made it very clear that Judd, in January 1996. PLN’s needs and until earlier this year when he was replaced this was for the purpose of preventing Ed’s circulation had grown to the point that by Ken Silverstein. Ken has over 30 years’ involvement with PLN. If he were involved volunteers were simply unable to do all the experience as an investigative reporter and in publishing PLN in any way, he would be work that needed to be done. With some journalist and was one of PLN’s earliest thrown back in prison. 1,600 subscribers, data entry, layout, ac- subscribers in the 1990s. The ACLU of Washington filed suit counting and other tasks required full-time More Than a Monthly Publication on our behalf to challenge the rule as vio- attention. As the workload of increased lating Ed’s right to free speech as well as circulation grew, so did our staff. My first day out of prison illustrates my own. In an unpublished ruling, Judge The bulk of each issue of PLN is the transition from prisoner editor to non- Robert Bryan in Tacoma dismissed our written by current and former prisoners. prisoner editor. I was picked up at the lawsuit, holding that it was permissible for In 1999, the Washington DOC banned Monroe Correctional Complex in Washing- the state to imprison someone for publish- correspondence between prisoners. The re- ton state at 8:30 a.m. on December 16, 2003 ing a magazine while they were on parole. sulting breakdown in communication made by two PLN employees. By 10:30 a.m. we The Ninth Circuit Court of Appeals coordinating PLN difficult, to say the least, were in PLN’s Seattle office and I was learn- eventually dismissed our appeal as moot between myself and PLN’s incarcerated ing to use the Internet and e-mail, my first when, after three years on parole, Ed was contributing writers. experience with both. At noon, we had lunch finally discharged from the parole board’s Upon my release in 2003, I was able with Jesse Wing and Carrie Wilkinson, part custody. In the meantime, Ed had tired of to do a lot more in the way of research of the MacDonald, Hoague & Bayless legal PLN as he had with his previous publishing and advocacy as PLN’s editor than I had team that successfully represented us in PLN efforts, and got on with his life and moved while imprisoned. In 2005, I hired Alex v. Lehman, a censorship suit against the to California. Friedmann as PLN’s associate editor. Alex Washington DOC. By 2:30 p.m. I was back PLN switched to an East Coast printer had been serving a 20-year sentence in in PLN’s office doing a television interview that offered significant savings over Seattle Tennessee when he first began writing for with Fox News on prison slave labor. It hasn’t printers. This allowed us to expand to 20 PLN in 1996 as a volunteer contributing stopped since then. pages. Within the year, PLN was no longer writer. His invaluable skills as a researcher The November 2020 issue of PLN being mailed by volunteers; our printer did and editor vastly improved the content of marks our 30-year anniversary and 367th

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Prison Legal News 5 November 2020 30 Years of PLN (cont.) zine, Criminal Legal News, to report on have done hundreds of radio and media criminal law and procedure. Under the interviews on PLN’s behalf advocating for leadership of editor Richard Resch the the rights of prisoners and for progressive consecutive published issue. We now magazine has quickly become established criminal justice reform. Further, PLN is have around 9,000 subscribers in all 50 as an essential resource on criminal law, frequently quoted on criminal justice issues states. PLN goes into every medium- and sentencing, policing and surveillance. by other publications, ranging from The As- maximum-security prison in the U.S. and In addition to our print and online sociated Press and USA Today to CNN, The to many minimum-security facilities and publications, PLN has engaged in extensive New York Times and the Wall Street Journal. jails as well. PLN’s subscribers include advocacy efforts involving the media, law- In 2003, Routledge Press published prisoners and their family members, judges, makers and government agencies. HRDC Prison Nation: The Warehousing of America’s attorneys, journalists, academics, prison and staff regularly speak on the topic of prisoners’ Poor, a PLN anthology edited by attorney jail officials, activists and concerned citizens. rights at conferences, conventions and law Tara Herivel and myself that made the Our websites receive over 150,000 unique schools. We do dozens of media interviews connection between mass imprisonment visitors each month. each year and provide background informa- and under-funded indigent defense sys- PLN’s website, www.prisonlegalnews. tion on prison, jail and criminal justice issues tems. Winner of the 2003 Gustavus Myers org, is the largest online resource for prison to journalists and researchers. HRDC staff Outstanding Book Award, Prison Nation and jail news and case law; it includes all have testified before the U.S. Congress and has been well-received. PLN editor Ken PLN back issues in .pdf format as they state legislatures on prison-related topics, Silverstein wrote the introduction. appeared when published, a searchable da- and have submitted comments to numer- The New Press published Prison tabase with over 45,000 articles and 13,000 ous public agencies including the Federal Profiteers: Who Makes Money from Mass court rulings, plus a library of more than Communications Commission, the National Incarceration in 2008. An anthology edited 7,600 publications and a brief bank with Prison Rape Elimination Commission, the by Tara Herivel and myself, in this volume 11,200 pleadings. Our site receives over Civil Rights Commission, the U.S. Depart- we explored who benefits, and profits, from 100,000 visitors a month and is frequently ment of Justice and the Consumer Financial the policies of mass imprisonment that used as a source of information by journal- Protection Bureau. make the U.S. the world’s leader in putting ists, criminal justice activists and attorneys, Common Courage Press published people in prison. among others. PLN’s first book, The Celling of America: This trilogy of PLN anthologies, In 2017 we launched another maga- An Inside Look at the U.S. Prison Industry, in spanning a decade, did an impressive job 1998. Edited by Daniel Burton-Rose, Dan of laying out the political landscape of the Pens and myself, the book is an anthology of 1990s that cemented the most repressive PLN articles. Celling of America lays out the policies of mass incarceration, the conveyor- Stop Prison Profiteering: reality and politics of the prison industrial belt judiciary that ensures poor people Seeking Debit Card Plaintiffs complex in the mid-1990s; now in its fourth accused of crimes are more likely to wind printing, the book received critical acclaim up in prison than their wealthy counterparts The Human Rights Defense Center is and helped boost PLN’s profile. Between accused of crimes, and the economic and currently suing NUMI in U.S. District 1998 and 2000, while incarcerated, I did a political beneficiaries of these policies and Court in Portland, Oregon over its weekly radio show on KPFA’s Flashpoints who is harmed by them. release debit card practices in that program called “This Week Behind Bars.” In addition to PLN’s monthly maga- state. We are interested in litigating The show aired on Fridays and consisted zine, online resources and anthologies, our other cases against NUMI and other of news reports from PLN about what many other projects – including media and debit card companies, including was happening in American prisons and advocacy work – are detailed in our annual jails. Over the past 30 years, HRDC staff reports posted on our website. In 2013, we JPay, Keefe, EZ Card, Futura Card received the First Amendment Award from Services, Access Corrections, Release the Society of Professional Journalists. Pay and TouchPay, that exploit pris- PLN remains unique in many respects. oners and arrestees in this manner. COLLEGE DEGREES FROM PRISON First, it is the only independent, uncensored If you have been charged fees to Earn an Associate’s, Bachelor’s, Masters, or nationally circulated magazine edited and access your own funds on a debit Doctoral Degree in Christian Counseling. produced largely by prisoners and former Ordination services also available card after being released from prison prisoners anywhere in the U.S., if not the or jail within the last 18 months, we Tuition as Low as $12.95 per month world. It also is the only explicitly advocate want to hear from you. Scholarships available. To see if you qualify, publication that seeks to improve the lives send a self-addressed, stamped envelope of prisoners and their families. We don’t to P.O. Box 530212 Debary, FL 32753. Please contact Kathy Moses at kmo- just report the news, we make the news ses@humanrightsdefensecenter. INTERNATIONAL CHRISTIAN and also seek to influence it. Second, it is org, or call (561) 360-2523, or write one of the few publications that offers a to: HRDC, SPP Debit Cards, P.O. Box COLLEGE & SEMINARY class-based analysis of the criminal justice 1151, Lake Worth Beach, FL 33460. ICCSCAMPUS.ORG system. No other publication has the depth and breadth of coverage of detention facility November 2020 6 Prison Legal News litigation and news. If you want to know Litigation Manual, second edition, by Dan we co-founded the Campaign for Prison about American prisons or jails, chances Manville. In 2020, we published The Habeas Phone Justice (www.prisonphonejustice. are somewhere in the past 30 years, we have Citebook: Prosecutorial Misconduct by former org and www.phonejustice.org) to lower reported on it. HRDC staff attorney Alissa Hull. the cost of prison and jail phone calls. We Since its inception PLN has largely We started HRDC’s litigation project successfully lobbied the Federal Commu- relied on donations from our subscribers in 2010. We also added a part-time staff nications Commission to cap the cost of and supporters. In recent years, advertising attorney position and hired Dan Manville interstate prison phone rates, and the FCC income has helped offset our costs and al- as our first general counsel. When the posi- is currently considering similar reforms lowed us to expand the size of the magazine. tion became a full-time job, Lance Weber for in-state rates. We were able to prevent PLN began distributing books with the joined us as our general counsel and litiga- the state of Vermont from enacting a civil release of our first anthology, The Celling of tion director. He was followed by Sabarish commitment statute for sex offenders and America, in 1998. Neelakanta, and our current general counsel successfully advocated to amend a Vermont PLN: Then and Now and litigation director is Dan Marshall. law to allow attorney fees for prevailing 2.3. HRDCx has7.1 a national litigation capability In 2009, we changed the name of our and regularly litigates and wins civil rights, parent nonprofit organization to the free speech, wrongful death, consumer pro- Human Rights Defense Center (www. tection and public records lawsuits around humanrightsdefensecenter.org), to better the country. National reflect our diverse activities. Those activities In March 2010, we closed our Seattle include book publishing. The first title pro- office and moved all HRDC/PLN opera- Federal Legal duced by PLN Publishing was The Prisoners’ tions to Brattleboro, Vermont, where I had Guerrilla Handbook to Correspondence Pro- been living following my release from Services grams in the U.S. and Canada, third edition. prison. I became HRDC’s executive direc- Written by Missouri prisoner Jon Marc tor in addition to editing PLN. In 2013, Taylor and edited by PLN staff member we relocated our office to Florida for what  Federal Susan Schwartzkopf (now HRDC’s chief should be our final move, and in 2014 we re- Appellate finance officer), it reflected our desire to opened our Seattle office, staffed now by our publish and distribute self-help, non-fiction public records manager Kathrine Brown. Representation reference books that prisoners can use to Since our inception, PLN has been all Circuits and help themselves. Our next title, The Habeas involved in advocacy campaigns. In the Supreme Court Citebook, by federal prisoner Brandon Sam- 1990s, we successfully led the struggle for  Admitted to all Federal ple (now a federal criminal defense lawyer), Washington state prisoners to keep family Circuits and Supreme Court was published in 2011 with a second edition visits, law libraries and weight lifting. Na-  Over 150 Appeals Filed and published in 2016. In 2015, we produced tionally we are one of the few opponents represented our third book, the Disciplinary Self-Help of the private prison industry. In 2011,  Federal 2255 Habeas Petitions Federal Post-  Representation  Pro Se review and Conviction Assistance  Over 200 Habeas filed and and Habeas Represented

• Resentencing We do not do prison law suits or state cases. • Motions for new trial .

• Rule 35 Helping you successfully navigate the federal criminal justice system in Pro Bono not accepted. Serious the United States for over 24 years. financial inquiries only. Send financial info and inquiries to: www.federalappealslawyer.com The Law Offices of 2392 N. Decatur Rd, Decatur, GA Patrick F. McCann 30033 700 Louisiana, Ste 3950 Voice: 404-633-3797 Houston, Texas 77002 713-223-3805 [email protected] * Not board certified by the Texas Board of Legal Specialization

Prison Legal News 7 November 2020 30 Years of PLN (cont.) oners and their families on all fronts, and What Have We Accomplished? ensuring the ability of prisoners to receive their PLN subscriptions, are daily struggles A question I have been asked is wheth- parties in public records litigation. We for us. Expanding PLN’s bookstore list, er PLN is “successful.” Success is a relative were part of the coalitions that succeeded publishing more self-help books, further term. When a French journalist asked Mao in preventing prison privatization initia- increasing PLN’s size to provide more Tse-Tung in the 1960s if he thought the tives in New Hampshire and Florida. Most news and information for our readers, and 1789 French Revolution had been success- recently, in 2015 we launched the Stop expanding our circulation are all goals for the ful, Mao reportedly replied, “It’s too soon Prison Profiteering campaign to oppose the immediate future. Going forward, PLN will to tell.” So too with PLN. longstanding practice of financially exploit- still be here, giving a voice to the voiceless The prison and jail population in the ing prisoners and their families. and publishing the best news and analysis on U.S. more than doubled to 2.5 million PLN has grown from being an all- criminal justice-related issues that we can. people just in the time we have been pub- volunteer project to having 15 full-time A free press doesn’t come cheap. Nei- lishing. By any objective standard, prison employees in three offices (Lake Worth, ther does free speech. From the very first conditions, overcrowding, impunity and Florida; Seattle, Washington and Wash- issue to this day, PLN has been censored brutality are now far worse than at any ington, D.C.). The magazine has expanded in prisons and jails across the country. In time in the past 60 years. Draconian laws from 10 to 72 pages, and from 75 prospec- some cases, we have been able to resolve criminalize more behavior and impose tive subscribers to about 9,000 nationwide. censorship issues administratively. In cases harsher punishments in worse conditions Since the very beginning, the only thing where that was not possible, we filed suit of confinement than at any other point that has held us back in terms of what can and addressed the matter in court. The in modern world history. While some lip accomplish has been a lack of funding; the article following this cover story provides a service has been paid about changing this more money we have had, the more we have summary of PLN’s extensive litigation his- state of affairs, no one in a position of power been able to do with respect to prisoners’ tory. Whether as a reflection of the fascistic is even talking about the brutal conditions rights and criminal justice reform. As our times or a comment on PLN’s effectiveness, American prisoners are subjected to on a budget went from $600 a year to $1.5 mil- we are currently facing more attempts at daily basis in the U.S., or providing any lion a year, so did what we were able to do censorship than at any time in the past 30 type of accountability or oversight of the and accomplish. years. PLN is the most censored publication criminal justice system, or repealing the Continued advocacy on behalf of pris- in America. thousands of harsh laws that have led the U.S. to become the world’s leading carceral state. The idea of American prisoners having enforceable rights as to the conditions of If You Write to Prison Legal News their captivity is anathema to the American We receive many, many letters from prisoners – ruling class. By contrast, primates used in around 1,000 a month, every month. If you contact medical experiments have far more en- us, please note that we are unable to respond to the forceable rights for humane conditions of vast majority of letters we receive. confinement than do American prisoners. In almost all cases we cannot help find an The legal rights of American prisoners attorney, intervene in criminal or civil cases, are diminishing daily under coordinated contact prison officials regarding grievances or attacks by conservative courts, yellow disciplinary issues, etc. We cannot assist with journalism and reactionary politicians. wrongful convictions, and recommend contacting The corporate media and lawmakers alike organizations that specialize in such cases – see the resource list on page 68 (though we can help thrive on a daily diet of sensationalized obtain compensation after a wrongful conviction crime and prisoner bashing, while prisons has been reversed based on innocence claims). and jails consume ever-increasing portions of government budgets to the detriment Please do not send us documents that you need to of everything else – such as education, af- Nolo’s Plain-English have returned. Although we welcome copies of Law Dictionary verdicts and settlements, do not send copies of fordable housing and social services. The complaints or lawsuits that have not yet resulted in COVID pandemic has given sharp illus- $29.99 a favorable outcome. tration to the utter contempt politicians and the government hold for the lives of Order from Also, if you contact us, please ensure letters are American prisoners. As tens of thousands of Prison Legal News legible and to the point – we regularly receive 10- to 15-page letters, and do not have the staff time prisoners have been infected and hundreds POP.O. Box Box 1151 1151 or resources to review lengthy correspondence. If if not thousands have died, prisoner releases Lake Worth Worth, Beach, FL 33460 FL 33460 we need more information, we will write back. have been few and far between. By contrast, 561-360-2523 the Islamic Republic of Iran, no bastion of Add $6 shipping for orders under $50 While we wish we could respond to everyone who contacts us, we are unable to do so; please do not human rights, furloughed nearly 30% of be disappointed if you do not receive a reply. its prison population to deal with COVID www.prisonlegalnews.org among the remaining prisoners. November 2020 8 Prison Legal News PLN has duly chronicled each spiral in be writing this retrospective 30 years later in helpful information that people can use in this downward cycle of repression, neglect, the same magazine. In this sense I believe their daily struggle for justice. indifference and violence. We have provided PLN has been successful. The main obstacles that PLN faces are a critique and analysis of the growth of the But not all is gloom and doom. PLN those faced by most alternative media: a lack prison industrial complex and have exposed has helped stop some of the abuses and of sufficient funds and the corresponding the daily human rights abuses that are the also borne witness to what is happening inability to reach more people with our grim reality of the American gulag. While and documented it for future generations. message. Absent large-scale funding from some people purported to be shocked when Recent years have seen an increase in in- outside sources to do outreach work, this the American military torture chambers in terest and support for criminal justice and will continue to be a problem. The other Iraq were first exposed by the photos taken human rights issues in the United States; issues facing PLN are censorship by govern- at Abu Ghraib, we could sadly point out many of PLN’s critiques of prison slave ment officials, prisoner illiteracy – various that PLN had been reporting similar inci- labor and other issues have been picked studies have found that 40% to 70% of the dents in American prisons since 1990, and up and adopted by labor groups and even prison population is functionally illiterate still do. Americans had long been subjected some elements of the corporate media. – and political apathy. Despite these dif- to what the Iraqis were getting. We were Our censorship litigation has helped ficulties, PLN has persevered and steadily not surprised when it turned out many of secure the First Amendment rights of grown. The need that led to PLN’s creation the military guards torturing Iraqi prison- hundreds of thousands of prisoners and has only increased. ers were prison guards in civilian life who publishers alike in many states, and our Mainstream media coverage of prison had been sued for beating and torturing public records cases have helped ensure and criminal justice issues is often abys- American prisoners. government transparency. We have done mal. Input from prisoners or activists is Even if we haven’t ended the evils of this with remarkably little in the way of rarely sought. Since its inception, PLN has our time, we have struggled against them funding and resources. ensured that the voices of class-conscious and did the best we could under the circum- Ultimately, I believe that HRDC and prisoners and former prisoners are heard. stances. That we have managed to publish PLN’s success will be measured by its use- We are proud of the fact that over the years PLN at all given the relentless opposition fulness to the prisoners, activists, journalists, many stories originally broken or developed by prison and jail officials is a remarkable attorneys and citizens who are working to by PLN have been picked up by other news success. When I started PLN in my prison make a difference for the better. We have sources, including the corporate media. cell at Clallam Bay, I never thought I would tried our best to provide timely, accurate, Sadly, the independent prisoner press is

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Prison Legal News 9 November 2020 30 Years of PLN (cont.) day we serve the people who subscribe to clude Dan Axtell, Rick Best, Bell Chevigny, our magazines and purchase our books. Scott Dionne, Howard Friedman, Mike Our advertisers have enabled us to grow Godwin, Judy Greene, Tara Herivel, Sandy largely dead. What had been a diverse, and bring our readers even more news and Judd, Ed Mead, Janie Pulsifer, Sheila Rule, vibrant media no longer exists. information and kept subscription prices Ellen Spertus, Peter Sussman, Silja J.A. Talvi, We are, however, heartened that a low even as printing and postage costs have Bill Trine, Michael Avery, Ethan Zuckerman number of well-funded nonprofit news gone up. In 1990, a 12-issue subscription to and Rollin Wright. organizations have taken an interest in PLN at 10 pages per issue cost $10. Thirty We also want to give a collective criminal justice news coverage. This in- years later, prisoner subscribers can receive shout out to all the attorneys who have cludes The Marshall Project, The Intercept, a year’s worth of 72-page PLNs for $30. The co-counseled, advised and represented PLN ProPublica, The Appeal, Truthout and oth- best deal in America! on matters as diverse as internet law, public ers who generously allow PLN to reprint Our supporters who have donated records requests, wrongful death cases and some of their news coverage. This is a vast money above and beyond the cost of a First Amendment censorship litigation; improvement. As I look back at the past 30 subscription have long made possible the the columnists, contributing writers and years of PLN issues, which have all blended advocacy we do on behalf of prisoners. This investigative reporters who have supplied into one big issue in my mind, it is worth includes the censorship litigation, our cam- articles; our designers and layout artists; our noting that through the entire 1990s, 120 paigns to end private prisons, prison slavery donors; and our employees and volunteers. issues, PLN did very few reprints simply be- and seeking phone justice for prisoners and Ultimately, the people who have con- cause there was so little to reprint. It was all their families. Nowhere does your donation tributed articles, subscribed and donated pro police state, all the time as Bill Clinton get more criminal justice bang for the buck their time, energy and money are those doubled the American prison population in than at HRDC. who have made PLN possible. Without all the span of a decade and everyone in the A Collective Effort of these contributions to PLN’s collective corporate media and positions of wealth effort – and there are far too many to name and political power, including nearly all of We would like to thank all those here – we would have met the fate of the vast the mainstream civil rights organizations, people who have served on our board of majority of alternative publications: PLN thought this was a great idea. directors over the years, first as Prisoners’ would have quickly folded. Instead, we have After 30 years of publishing, it must Legal News and now as the Human Rights lasted 30 years and look forward to another be emphasized that PLN has always been Defense Center, PLN’s parent organization. 30 years of publishing and advocacy. very much a cooperative effort. PLN has Our current and former board members in- Spread the word. had editors who bore the brunt of prison officials’ displeasure for speaking truth to power, but the reality is that PLN would Thirty Years of HRDC Litigation never have been possible were it not for the many volunteers and supporters who have so Around the Country generously donated their time, energy, skills, by Paul Wright labor, advice and money. Prisoners’ rights and human rights have never been very popular ince the very first day we pub- prison, I had never given much thought to causes in this country, and in today’s political Slished Prison Legal News in May 1990, the political act of reading and had never climate it takes extraordinary courage and American prisoners and jails around the written anything for publication and prob- commitment to support a project like PLN. country have attempted to censor, block, ably like most Americans, did not think I Critical to our success has been PLN’s crush and otherwise ensure we do not had anything to say that anyone else would readers and subscribers. At the end of the publish or, if we do, that prisoners cannot want to hear about. Prison changed both of receive our publications. Since my release those things for me. from prison in 2003, I frequently speak at Initially the successful pro se lawsuits PICTURES: GIRLS! GIRLS! GIRLS! NON-NUDE law schools and legal events about the First that I won had to do with being denied Get our Single-sheet, Double-sided Color Catalogs! Amendment, free speech and attempts by access to law books, legislative guides and Over 220 Pics in each one! prisons and jails to silence prisoners and books on Marxism. The next ones were Order as few as 15 pics: Or Grab the new Hustler’s Deal on orders of 800+ pics! intimidate and exclude the media. being infracted and punished for having in (And now if we don’t have her, we’ll get her!!) Someone once asked me how I became my possession the books on Marxism that BOOKS: MASS INC/HIP HOP BIOS/STREET LIFE/ETC. interested in the First Amendment. First, the mailroom had actually delivered to me. Get the Single -Sheet, Double-Sided BROCHURE from our because I was interested in reading about Then came the retaliation suit over seek- “Free Minds Library” Low prices on the stories of REAL LIFE Move Makers who come topics prison officials did not want me to ing enforcement of a prison overcrowding from where YOU come from…and MORE! read about, namely political struggle and consent decree. Send SASE or $1 for info on either PICS or BOOKS, or send $1.50 Marxism and then later because prison When the first issues of PLN were for info on BOTH: officials did not want me to write about censored by Washington state prison of- Who Want What? LLC PO Box 18499 corruption, racism and brutality within the ficials, Ed Mead and I began preparing a Philadelphia PA 19120 Washington state prison system and later civil rights suit to challenge it. When the [email protected] national prisons and jails. Before going to ban was lifted after our first three issues, we November 2020 10 Prison Legal News focused on publishing. When we did not and our subscription information packs. of prisoners. We also successfully sued the fold after a few years but instead continued Many of the cases remain pending. Pinal county jail in PLN v. Babeau in 2013. publishing, the censorship efforts began in Censorship Litigation Arkansas: PLN has sued jails in Baxter earnest and have continued since. and Union counties. We lost the Baxter HRDC is the only publisher in Ameri- Alabama: In PLN v. Haley, we success- county case at trial and are currently appeal- ca that routinely steps up to defend both its fully sued the state prison system in 2000 ing to the Eighth Circuit. Union remains right to reach prisoners and prisoners right over a ban on gift publications. We settled pending while we await a ruling in the to receive books and magazines. We also file with a consent decree. other case. public records cases to obtain documents Arizona: In PLN v. Ryan, we are cur- California: The California Depart- the government wants to conceal, and we rently suing the state prison system over ment of Correction and Rehabilitation have since expanded to file wrongful death its censorship of PLN, claiming that it is a remains under a consent decree since 2005 and consumer class action lawsuits on be- “sexually explicit” publication because we over its delivery of books and magazines. half of prisoners and arrestees. HRDC is report court rulings dealing with the rape PLN v. Newsom. We have successfully sued remarkably successful in its litigation; we win around 98% of the cases we file, and LEGAL NOTICE we have dozens of consent decrees and injunctions in our favor around the country. The last time we did a litigation sum- If your vehicle or currency was seized by the mary for our 25th anniversary in 2015, D.C. Metropolitan Police Department for civil forfeiture the summary was around 10,000 words between April 25, 2010 and June 15, 2015, your rights may in length, or 10 pages. We are now filing be affected by a class action settlement. an average of 10 to 15 cases a year around the country. Pretty soon we will not have Para una notificación en español, visite www.HoytevDCSettlement.com. enough pages in the magazine to “sum- A proposed settlement has been reached between Class Representatives (“Plaintiffs”) and the marize” our litigation, and these are just District of Columbia (“the District” or “Defendant”) in a class action lawsuit entitled Hoyte, et al. v. the wins! Government of the District of Columbia, United States District Court for the District of Columbia, Every case filed is reported on the Case No. 13-0569 (CRC). PLN and HRDC website, along with its What is the lawsuit about? Plaintiffs believe the District should have provided them with a prompt post- disposition. Here is the state by state sum- seizure hearing in which they could have contested the District’s right to keep their vehicle or currency pending the outcome of the final judicial forfeiture proceeding. The District denies any wrongdoing and mary, which is current as this issue of PLN agreed to a settlement to avoid litigating these claims. The Court has not decided who is right. goes to press. One attorney general referred Who is affected? You are a Class Member if between April 25, 2010 and June 15, 2015 (“Class Period”), to us as the “PLN litigation juggernaut.” the District, through its Metropolitan Police Department (“MPD”): (1) seized your vehicle for a forfeiture The saddest commentary is government determination and held your vehicle for more than thirty days; or (2) seized your currency for civil officials around the country have YAPWRITE.COMspent so forfeiture ADVERTISEMENT and did not provide you with adequate notice within one year. much time and energy and money trying to What can you get from the Settlement? The District has agreed to pay $3.95 million into a Settlement 1/12th pageFund (2X3/8 of which – 2 $1,955,214.39X3/8) will be paid to Settlement Class Members or SCMs. Each Class Member censor our publications and keep prisoners whose vehicle was held more than 30 days may receive $30 for each day their vehicle was held after ignorant of their rights and the news. the first 30-day grace period, or $50 if their vehicle was a specialty vehicle. Each Class Member whose This is why we ask prisoners to notify vehicle was held more than 15 but less than 30 days and not classified as evidence may receive a flat us immediately if any HRDC publications payment of $250. The District will also return any Class Member vehicle remaining in its possession, provided that the Class Member holds good title to that vehicle. are censored or withheld from delivery. The Each Class Member whose money was seized during the Class Period (and not returned by the District) censorship cases have involved the censor- may receive 75% of the amount seized by the District for forfeiture. ship of PLN and the books we distribute, Settlement Class Member payments may be reduced if the amounts to be paid for all valid claims is greater than $1,955,214.39. How do you get a payment? Class Members must submit a valid Claim and Release Form YAPWRITE.COM online or received by mail no later than March 22, 2021. Claim and Release Forms are available at www.HoytevDCSettlement.com. Mail Made Easy! Each inmate on Yapwrite.com gets What are your other options? If you do not want to be legally bound by the Settlement, you may send a request for exclusion (“Opt-Out”). You will not receive any money, but you will keep your right their own email address! to sue Defendant for the claims in this case. If you do not exclude yourself, you may object to the Letters sent to the email are printed Settlement. You will still be bound by the Settlement if your objection is rejected. For details on how to opt out or object, go to www.HoytevDCSettlement.com. Opt-Outs and objections must be filed or and mailed to the inmate! received by January 6, 2021. The Court will hold a Fairness Hearing on March 9, 2021, to consider Inmate letters are scanned and whether the Settlement is fair, reasonable, and adequate. The Court will also decide whether to approve $133,000 in Class Representative Awards; up to $48,879 for notice and administration; $1,777,500 for emailed back to pen pals! Attorneys’ Fees; and $292,118.11 for Litigation Expenses, of which $226,711.50 will be donated to For more info visit Yapwrite.com or increase payments to SCMs and $30,000 to the Class Representative Awards. You may ask to appear at the Fairness Hearing, but you don’t have to. send a SASE to Yapwrite.com, 3000 South Hulen St. Suite 124/251, Ft Worth, TX 76109. Questions? Visit www.HoytevDCSettlement.com or call (888) 681-1215

Prison Legal News 11 November 2020 30 Years of HRDC Litigation (cont.) Indiana: We successfully sued the Ohio: We successfully sued the Greene GEO Group-run prison in New Castle. County jail. HRDC v. Greene County. PLN v. GEO Group. Oklahoma: We have successfully sued jails in Ventura, Placer, Tehama, San Diego, Kansas: We successfully sued the jails in Pottawatomie, Pontotoc and Cleve- Sacramento, Tulare and Napa counties. Kansas DOC in 2007 over its ban on gift land counties. PLN v. Pottawatomie County Colorado: In 2020, we sued the Adams publications. PLN v. Werholtz. We have Public Safety Center Trust, PLN v. Lester and county jail over a publication ban. HRDC v. successfully sued the Shawnee county jail. HRDC v. BOCC Pontotoc County. Bd of Commissioners for Adams County. We PLN v. BOC of Shawnee. We are currently Oregon: We have twice sued the Or- have previously sued the Bureau of Prisons suing the Johnson county jail. HRDC v. egon DOC over its censorship of HRDC ADX “supermax” prison for censoring PLN BOC Johnson County. materials, in 1998 and again in 2003. PLN twice. Both times the BOP mooted the case Kentucky: We successfully sued the v. Cook and PLN v. Schumacher. We also and began delivering the magazines. PLN Kentucky DOC over its ban on HRDC successfully sued the jails in Umatilla and v. Hood and PLN v. FBOP. books. HRDC v. Ballard. We are currently Columbia county. PLN v. Umatilla County Florida: Between 2003 and 2005, and suing the Henderson County jail. HRDC and PLN v. Columbia County. from 2009 to the present, the Florida DOC v. Henderson County. South Carolina: In 2011, we success- has censored PLN and CLN, claiming that Louisiana: We have successfully sued fully sued the Berkeley county jail. PLN v. our advertising content poses a threat to jails in the parishes of East Baton Rouge, Dewitt. prison security. The first case was dismissed St. Bernard and New Orleans. PLN v. Texas: In 2011, we unsuccessfully sued as moot when the DOC changed its policy Geatreaux, PLN. Stephens and PLN v. Gus- the TDCJ over the censorship of books on the morning of trial. The second case man. distributed by HRDC. PLN v. Livingston. resulted in the censorship being upheld, Maryland: We have successfully sued We have successfully sued the jails in Dal- while we won on due process. Both deci- the Montgomery county jail. HRDC v. las, Upshur, Comal and Galveston counties. sions were upheld on appeal. PLN v. Crosby Montgomery County. A censorship suit PLN v. Lindsey, PLN v. Betterton, PLN v. and PLN v. Jones. against Prince George’s county remains Holder and PLN v. Galveston. Georgia: We have successfully sued pending. HRDC v. Prince George’s County. Utah: We have successfully sued the the Fulton and Walton county jails over Massachusetts: In 2009, we settled a jail in Box Elder County. PLN v. Piper. publication bans. PLN v. Freeman and PLN lawsuit against the state DOC over its ban Virginia: We have successfully sued v. Chapman. on gift books. PLN v. Clarke. the Virginia DOC, which claimed PLN Illinois: We are currently suing the Michigan: We are currently suing the “cast law enforcement in a negative light.” Illinois DOC. We have successfully sued Michigan DOC. HRDC v. Winn. We sued PLN v. Johnson. We have successfully sued jails in Cook, Kankakee and Kane coun- the MDOC in 1999 for censoring our book, jails in Virginia Beach, the Northwestern ties. HRDC v. Baldwin, PLN v. Cook The Celling of America. PLN v. Ransom. We Regional Jail Authority, and the Southwest County, PLN v. Kane and PLN v. County have successfully sued the Livingston and Regional Jail Authority. PLN v. Stolle, of Kankakee. Macomb county jails. PLN v. Bezotte and HRDC v. SWRJA and PLN v. NRJA. HRDC v. Wickersham. Wisconsin: In 2014, we successfully Minnesota: HRDC recently filed suit sued the Kenosha county jail. PLN v. Keno-

The Colossal Book of Criminal Citations against the Sherburne county jail, which re- sha County. (6th Edition) By Richard Davis mains pending. HRDC v. Sherburne County. Washington: Washington state is  5000+ Supreme, Circuit, District, and Mississippi: We successfully sued the where prisoncrat pathology against HRDC State Citations  125+ Topics Covering Pretrial Post Forrest county jail in 2018. HRDC v. For- runs the highest. In the 1990s, the following Conviction rest County. suits were filed and won against the state  Prosecution & Defense Strategies Revealed Nevada: We have had to sue the Ne- DOC for censoring PLN: Humanists of  District Court & Innocence Project vada DOC twice, once in 2000 and again Washington v. Lehman, Miniken v. Walter, Addresses 800+ pages  Sample Motions in 2013 for censoring our publications and MacFarlane v. Spalding, Crofton v. Spalding. Price $99.95  500+ Legal Definitions not providing notice of the censorship. PLN And then in 2007 we won PLN v. Lehman. (S/H Included)  8.5 x 11 Soft Cover v. Crawford and PLN v. Cox. We have successfully sued jails in Spokane The Colossal Book of Civil Citations New Mexico: We have successfully and Lewis and Chelan counties. PLN v. (1st Edition) by Richard Davis sued the jails in Bernalillo, San Miguel, Spokane County, PLN v. Chelan County and

 1000+ Supreme, Circuit, District, and Santa Fe and the private Management and PLN v. Lewis County. State Citations  40+ Important Topics Training Corporation. HRDC v. BOCC San Public Records Litigation  Sample Motions Miguel, HRDC v. BOCC Santa Fe, PLN v.  500+ Legal Definitions  8.5 x 11 Soft Cover County of Bernalillo and PLN v. MTC. The government thrives on secrecy  A Must Have for Prisoners Filing 42 U.S.C. § 1983 Actions New York: In 2012, we successfully and is loath to let the public knows what sued the NY DOC. PLN v. Lee. happens in its prisons and jails. Over the Send Check or M.O. to: Barkan Research North Carolina: We have success- past 30 years, HRDC has had extraordi- P.O. Box 352 Rapid River, MI 49878 www.barkanresearch.com fully sued the jails in Mecklenburg and nary success litigating public records cases. 906.420.1380 Columbus counties. HRDC v. Carmichael PLN v. Washington DOC, where I sought Credit Cards Accepted and HRDC v. Hatcher. the disciplinary records of prison doctors November 2020 12 Prison Legal News who killed and maimed their prisoner CCA/CoreCivic, where two of our clients courts. HRDC is a renowned expert on patients, resulted in the biggest payout in were killed by rival gang members at a prison and jail conditions and our views and a state public records case in Washington private prison in Arizona. We also sued the expertise are frequently relied on by courts history as of 2007 — $545,000 in fees and Washington DOC when our client died in these cases. penalties. Likewise, HRDC’s 14-year-long due to flesh-eating bacteria and CCA when HRDC started its litigation project legal battle with the federal BOP in PLN v. our pregnant client was put in isolation after in 2009 and has been able to maintain a Lappin resulted in the biggest attorney fee she went into labor and her baby died. We steady flow of cases around the country payout in BOP history, of almost $500,000. have won suicide cases against Community dedicated to fighting for prisoner rights and HRDC has successfully sued numer- Education Centers and CCA in Tennessee free speech and government transparency ous federal agencies under the federal and Pennsylvania. We are currently litigat- in particular. HRDC has a well-earned Freedom of Information Act for various ing a case against the Florida DOC and reputation of being a formidable courtroom records. This includes the BOP, ICE, Secret Corizon, in which prisoner Vincent Gaines adversary. We are grateful to the great law- Service and Marshals Service. was starved to death. yers who have been and are HRDC staff We have successfully sued state prison Consumer Class Actions attorneys and to the many lawyers and systems for records in California, Missis- firms that have represented HRDC and co- sippi, Illinois and Washington. HRDC is currently litigating debit counseled with us over the years. We have One of our most unique projects is card cases against the companies Rapid been able to leverage our limited resources suing private prison companies to subject Financial and NUMI and the banks that and get a lot more done this way. them to state public records laws. To date, support them for taking money from pris- It is also fair to say that but for the we have won these cases in Texas, New oners and giving them fee laden debit cards awesome support of the legal community Mexico, Florida, Vermont and Tennessee. against their will. We have litigated similar across the U.S., PLN and HRDC would We have won rulings against GEO Group, cases with success for the individual clients. not exist today. If you are a prisoner reading CCA/CoreCivic and Corizon. We cur- HRDC is currently suing GTL and Securus this, there is a good chance that your ability rently have public records lawsuits pending in a national anti-trust class action suit over to read this article was impacted by one of against GEO, Wellpath, Armor, MTC and their practice of charging consumers $14.99 the cases above. Corizon. to accept a single collect call from a prisoner. The sad and pathetic reality, though, Wrongful Death Cases Amicus Briefs is that the censorship of PLN and other HRDC publications continues unabated, HRDC has recovered millions in dam- Each year HRDC files or signs on to and we need to fight hard and win every ages for its clients who have been killed in a number of amicus or “friend of the court” single case we bring just to maintain the prisons and jails across the United States. briefs in cases involving prisoner and ar- status quo. Readers desiring more informa- Due to our very limited resources, we have restee and criminal defendant issues. Many tion about HRDC’s 30 years of litigation focused our efforts on cases where prison- of these cases are pending before the U.S. can find all the case documents and briefs, ers are killed or seriously injured. This has Supreme Court and state Supreme Courts injunctions, consent decrees, etc., on both included failure to protect lawsuits against as well as the state and federal appellate the PLN and HRDC websites.

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Prison Legal News 13 November 2020 From the Editor by Paul Wright

elcome to the 30th anniversary don’t even know about. tions to PLN. Alas, the grant we received Wissue of Prison Legal News. As the Today HRDC is doing a lot more to to pay for it has expired and we have not cover story notes, this was slated to run in help prisoners and their families. We are been able to find any other funders. I hope the May 2020 issue but that got pushed publishing two magazines, not just one. you will extend your subscription at the back due to the COVID-19 pandemic. Ini- We publish and distribute books and we regular rates. We will save requests received tially we had planned to skip it for this year litigate and advocate on behalf of prisoners after October 31 in the event donors wish given the pandemic itself but as COVID around the country. The biggest thing that to sponsor subscriptions. To ensure you exposes the brutal nature of the American has not changed between 1990 and today is receive a subscription, please subscribe at police state, we thought it more important the simplest: we need money to keep doing the regular rate. than ever to mark our 30th anniversary. As what we do. To make it for 30 years, PLN has relied noted in the ad in this issue of PLN, we will There has been and is very little in the on the help and support of literally thou- be doing a virtual event to celebrate our 30 way of foundation funding for anything that sands of people: our writers, our volunteers, years of publishing and advocacy on behalf smacks of improving conditions of confine- our employees, our advertisers, our board of prisoners and their families around the ment. We receive no government grants or members, our donors and the dozens of country. funding except when we successfully sue the lawyers that have represented PLN over the While we cannot do an in-person event government. To keep the doors open and years to ensure that prisoners can actually this year as we had planned, a virtual event the computers running we continue to rely receive the most censored publication in allows us to reach our supporters and lets on subscriptions and advertising income, America. At every step of our existence, we more people know about the Human Rights donations from our readers and wise use would not be here if it were not for everyone Defense Center’s history in ways that do- of limited resources on our part. If you are pulling together to help. The most important ing events tied to a city do not. Author and interested in criminal justice reform, no people for any publication are its readers and activist Victoria Law will be the master of one gives you more bang for the buck than subscribers. You are the ones who make it ceremonies for the event and Yale Law Pro- HRDC. We have a lean operation that is possible, and encourage us, to keep publish- fessor James Forman Jr. will be our keynote efficient and very cost effective for every- ing. If you like PLN and find value in what speaker. I will be speaking at the event as thing that we do. we have to say, subscribe and encourage oth- well. If you do not have Internet access to If you can, please make a donation to ers to subscribe as well. No one else stands attend, please let friends and family who support our work and let others know about up for prisoners and their families like we do, can know about it. Tickets are only $29.99 us. We rely on individual donors like you, as we have for the past 30 years. each, or $30 for 30 years! to keep everything going. Please encourage friends and family to When PLN started in 1990 I never As readers noticed, for the past several attend our 30th anniversary event. Happy thought that 30 years later it would still be months we were providing free subscrip- anniversary! publishing or that I would still be its edi- tor. At many levels, things are far worse for prisoners than when we started publishing. Fifth Circuit Reinstates Lawsuit Over Starting with the most obvious fact: the more than doubling of the prison and jail Texas Jail Prisoner’s Death population from 1 million in 1990 to its by Matt Clarke current 2.5 million. Americans are sur- veilled, policed, caged and killed at much he family of a Texas detainee who to contact her. When she missed work the higher levels than ever before in American Tdied of a suicidal overdose under jailers’ next evening, he notified law enforcement. history. The recent Black Lives Matter noses can continue its lawsuit against Young Police in a nearby city found Simpson protests indicate that perhaps Americans County, Texas. That decision was handed asleep in her car the next day, surrounded are getting tired of being slaughtered like down on April 22, 2020, by the Fifth U.S. by empty beer containers and empty blister animals by the police and caged in massive Circuit Court of Appeals, which reversed packs of medication. They asked her how numbers. It remains to be seen if anything in part a summary judgment in favor of the much she had taken. She said, “all of it.” positive comes of the recent protests and county granted by a district court in the case. After denying it to police, Simpson uprisings and it is sad, but not unsurprising, Diana Simpson had previously at- admitted to a medic she was trying to kill that among the many calls for long overdue tempted suicide when she told her husband herself. She was arrested for public intoxi- police reform, there is a deafening silence she would try again by overdosing on pills. cation and taken to the Young County Jail, about the need and urgency for prison and She even laid out her plan to get cash from where jailers only partially completed the jail reform. As we report in every issue of an ATM and check into a motel where he book-in process before placing Simpson in PLN, the police state killings don’t stop at could not find her. A few weeks later, when a holding cell to “sleep it off ” because they the prison gate. If anything, they intensify he noticed a withdrawal from their bank ac- assumed she was drunk. Simpson’s husband and increase. And there is much that we count, he became worried. But he was unable called the jail three times, told jailers she had November 2020 14 Prison Legal News been missing and was suicidal and asked the mandatory suicide-screening form, a Jailers consistently testified that the them to get her help. They ignored him. computer-based medical intake form, as suicide-screening and medical intake forms Hours later, Simpson was found well as a state-mandated Continuity of Care were not completed until a highly intoxi- half-naked and dead of “mixed-drug in- Query. The only thing jailers had to go on cated detainee had “slept it off.” Together toxication” on the floor of her holding cell. were Simpson’s own responses to the first with a de facto policy of not monitoring Her family filed a federal civil rights law- part of the suicide-screening form in which highly intoxicated prisoners, this could have suit against Young County and its sheriff ’s she denied having taken medication. denied Simpson her needed medical care. department, alleging they deprived her of A Texas Ranger who investigated the The Fifth Circuit opinion said: “The her civil rights. death noted discrepancies between jail County has no apparent process or policy for The district court granted defendants’ logs of checks on Simpson’s cell and video preventing such an overdosee from success- motion for summary judgment and dis- recordings of the cell area. Her death oc- fully killing herself. The jail has no medical missed the case on two theories: Neither curred some time during a six-hour period staff, jailers do not consider outside informa- the jail’s “episodic acts or omissions” nor for which video was inexplicably missing. tion that contradicts what a detainee states at its “conditions of confinement” rendered it Even these questionable records showed intake, and after intake, jailers do not conduct liable for Simpson’s death. The appeals court excessive periods between cell checks. follow-up assessments. The only follow-up agreed with dismissal on the first theory but During the five years prior to Simpson’s they do is periodic monitoring. And Plaintiffs remanded the case for the district court to death, the Texas Commission on Jail Stan- claim that this monitoring is pervasively in- reconsider the plaintiffs’ other claims, ruling dards filed numerous reports citing the jail adequate. Given the different, compounding that they raised a question as to the possibil- for several failures: ways that these alleged policies might interact, ity that the jail had created a de facto policy • to properly complete intake screen- a jury could reasonably conclude that they allowing improper monitoring – a question ing forms, had a ‘mutually enforcing effect’ that deprived which could be factually answered. • to properly monitor prisoners, and Simpson of needed medical care.” On remand, the district court again • to document the monitoring. Therefore, the court upheld the dismissal granted summary judgment. On appeal These reports put the sheriff on notice of the failure-to-train claim and reversed the following remand, the Fifth Circuit noted of the problems, the appeals court noted. dismissal of the failure-to-assess and failure- that jailers had testified that there was a The claim covered failure to assess, monitor to monitor claims and remanded the case for policy of having highly intoxicated pre-trial and train. The last was barred by the previous further proceedings. See: Sanchez v. Young detainees “sleep it off ” before completing summary judgment, but the others were not. County, 956 F.3d 785 (5th Cir. 2020).

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Prison Legal News 15 November 2020 Denied Medical Care During Pandemic, New Jersey Prisoner Treats Infected Wound With Bleach by Dale Chappell

hile the coronavirus runs to the point it split open. Desperate, he And New Jersey had the worst fatality Wrampant through the country’s pris- cleaned his infected wound on May 28 with rate of any U.S. state prison system, the ons, medical treatment for even serious bleach, after a lack of medical attention at ACLU said in early June. Out of 14,800 problems has taken a backseat, leaving pris- the prison. prisoners, over 2,000 tested positive for oners to get creative and perform their own Also desperate were his family mem- COVID-19 and at least 45 have died. Of treatment. For one New Jersey prisoner, bers, who had pestered the New Jersey the NJDOC staff tested, 768 tested positive. this meant cleaning his infected wound Department of Corrections (NJDOC) to [Editor’s note: As of October 8, 52 New with bleach, his family says, making them do something for their loved one, Patch. Jersey prisoners had died, the eighth highest concerned for his health. com reports. “We are not in a Third World in the county but still the worst per capita The problem started with just a small country here,” said his wife, Jessica Am- fatality rate at 34 per 10,000 prisoners, ac- scrape on his foot, probably caused by brose. “He’s supposed to have access to cording to data compiled by The Marshall ill-fitting boots the prison forced him to basic medical needs. This is neglect in the Project.] wear, Patch.com reported on June 4, 2020. prison system.” NJDOC said it has taken steps to Maybe this wouldn’t be a problem for The NJDOC has blamed the COVID-19 reduce the risks by handing out face masks most people, but for this 36-year-old man pandemic for the lack of medical care. In and by screening for fevers. A Patch.com housed at the Northern State Prison in a statement, a spokesperson for NJDOC reporter contacted the NJDOC on behalf Newark, a small cut on his foot could eas- said its health-care contractors “have of Ambrose’s husband and that night he ily turn into a life-threatening dilemma: suspended elective surgery and certain was seen by a doctor. With outside help, the He’s a diabetic, and any wound to his feet non-life-threatening treatments in light man finally received the help he needed, at puts him at risk for infection that could of the pandemic.” least for a short time. lead to amputation. The man was supposed to have an ul- “On May 28, as Ambrose’s husband Soon, an ugly, open wound broke out trasound to rule out a blood clot in his leg, was disinfecting his wound with bleach and an infection went all the way to his “but that’s indefinitely postponed because inside his prison cell, a stirring rally knee. The prison gave him some antibiotic of the coronavirus,” his wife said. to remember New Jersey inmates who ointment and ibuprofen for pain, plus some He also was denied early release died of the coronavirus took place in oral antibiotics. This didn’t work, and he de- under the governor’s executive order to Trenton,” Patch.com reported. “More veloped cellulitis and borderline septicemia, release thousands of low-level prisoners to than 450 cars gathered from across the a systemic and life-threatening infection ease crowding in order to avoid exposure state at the Trenton War Memorial for that is difficult to treat even in the hospital to COVID-19. The state approved his a ‘Say Their Names funeral procession.’ with IV antibiotics. release residence in May, but days later the Bearing photos of deceased loved ones, Finally, he was transferred to South prison refused to release him, saying he the vehicle cavalcade served as a grim Woods State Prison, where he received was denied. So far, the state has released reminder that social distancing is a near- dialysis and was eventually eased off anti- only a fraction of the approximately impossible task when you’re trapped biotics. Things got better — until he was 3,000 eligible prisoners, according to the behind bars.” transferred to New Jersey State Prison in American Civil Liberties Union of New Trenton. That’s where his other leg swelled Jersey (ACLU). Source: patch.com

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November 2020 16 Prison Legal News Ninth Circuit: No Summary Judgment for Prison Officials Who Allegedly Allowed Attack on Nevada Prisoner by David M. Reutter

n April 23, 2020, the Ninth Cir- tion. Based on that, Wilk agreed to move to The court said Neven and Nash had Ocuit Court of Appeals reversed the Unit 8. Nunley, however, had been returned knowledge of the risk because they were grant of summary judgment to defendants to Unit 7 and was never placed on Wilk’s either present or represented at the clas- in a civil rights action alleging they failed enemy list. sification meetings at issue. It further to protect a prisoner from an attack from On the day of the attack, February 11, found a jury could conclude Neven was another prisoner. 2014, Nunley was released from his cell for personally aware of the risk Nunley Before the court was the appeal of a medical appointment. The defendants ad- posed because of his role in supervising Nevada prisoner Robert Wilk. He was mitted he broke away from his unit. He then the enemy list revision process. It also attacked by prisoner Ysaquirle Nunley attacked Wilk with stones, gravel, and fists found a jury could determine Nash was on February 11, 2014, at High Desert that resulted in Wilk sustaining a broken partially responsible for the failure to up- State Prison (HDSP). Nunley, on Oc- nose and damage to his eyes. date Wilk’s enemy list because she acted tober 20, 2013, threatened to attack and Leavitt concede being at the clas- immediately after the attack to update the kill Wilk, who immediately reported sification meetings with Wilk, but Nash list. Each of the defendants also mislead the threat. and Neven denied they were there. Leavitt Wilk by telling him Nunley had not been HDSP’s units 7 and 8 were protective admitted he made “a clerical mistake re- moved to Unit 7. units that shared a common yard. Prisoners garding assigning Nunley to the enemy The Ninth Circuit said “[a]ny rea- in the units were on different schedules to list,” but claimed it was not his job to do so. sonable prison official in defendants’ use the yard, but opportunities existed for The district court found Nash and Neven position would know that the actions de- prisoners of the two units to have contact. had no subjective knowledge of the risk fendants took, or failed to take, violated At the time of the threat, Wilk and Nunley Nunley posed to Wilk. It further found the Eighth Amendment.” The district were housed in Unit 7. Will failed to show “Leavitt was aware of court’s order was reversed. On remand, Wilk was placed in segregation after an excessive or intolerable risk to Will’s the district court was ordered to allow reporting the threat. On October 30 and health or safety.” Wilk to have another opportunity to again in November, he attended a clas- On appeal, the Ninth Circuit held that obtain discovery materials such as his sification meeting where Warden Dwight a jury could find Leavitt was subjectively institutional file and records of hous- Neven, Associate Warden Jennifer Nash, aware of the substantial risk of harm to ing classification meetings, which the and caseworker Cary Leavitt were either Wilk. It noted nothing in the circumstances defendants “resisted turning over.” Ap- present or represented. Wilk was informed had changed when Wilk’s was placed in pointment of counsel was encouraged to Nunley would be placed on his “enemy list” Unit 8, and it was conceded that Units 7 assist in that process. See: Wilk v. Neven, and told he was still in disciplinary segrega- and 8 allowed limited contact. 956 F.3d 1143 (9th Cir. 2020).

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Prison Legal News 17 November 2020 Lives at Stake as Pennsylvania County De-privatizes Prison by David M. Reutter

n March 2020, Florida-based GEO is watching two cell blocks containing 100 in a cell and died – five female prisoners IGroup formally asked the government prisoners. overdosed on heroin that was allegedly of Delaware County, Pennsylvania, to That is similar to what happened when smuggled in by one’s teenage son during a terminate a five-year, $264 million con- GEO Group bought Cornell Corrections visit. Four of the prisoners recovered after tract, which it signed in 2018 to manage in 2010 for $685 million and inherited the treatment at a hospital, but prisoner Fatima the county’s George W. Hill Correctional contract for Mississippi’s Walnut Grove Muse, 27, died. Facility (GWH). The firm’s request to be Youth Correctional Facility, which was “The GEO Group dropped the ball relieved of its obligations by year’s-end fol- finally closed in 2016 (See PLN, September on what transpired that horrifying week,” lowed a February 2020 vote by the County 2017, p.58). agreed a GWH guard. “They follow some Council to study assuming control of the “The GEO Group is a bed of snakes,” crazy corporate mathematical equation 1,883-bed prison. said Berl Goff, a former supervisor at Wal- where a Sergeant is equivalent to six guards; Since it was built in 1996 – by Wack- nut Grove, who said the firm “came in and Lieutenant to nine; and Captain to twelve. enhut Corrections Corp., which became promised the world: an unlimited budget, So, with each one and six officers, they GEO Group in 2004 – GWH has been new uniforms, and a $1.50-an-hour raise believe they have the manpower of 33 — privately managed. Providing the first for all the officers.” when actually they have nine — who they private prison in Pennsylvania, the firm “But as soon as they got there,” he treat like garbage.” bragged of saving taxpayers $30 million in added, “they started cutting corners. We In December 2019, the newly elected construction costs while providing services got to the point where they were intention- Delaware County Council’s Democratic on par with those in publicly operated ally running us at 15 percent beneath the majority signaled its desire to end privatiza- prisons. Instead, problems and scandal minimum staffing levels to maximize profit tion at GWH. have plagued GWH. margins.” “I want to make it abundantly clear During a six-year stretch under GEO Back in Pennsylvania, over a five-week — we stand absolutely behind the idea Group’s management from 2002 to 2008, stretch in the summer of 2019 – after that profiteering on the incarceration of 12 prisoners died, spawning a number of GEO Group had resumed operational individuals is not something that should wrongful death lawsuits that claimed ram- control – GWH suffered five major -in be happening in Delaware County,” said pant understaffing had created a dangerous cidents: a prisoner’s suicide, a guard’s Councilman Kevin Madden, who added environment for prisoners and guards. beating and hospitalization, the overdoses that having “the only privately-run for- In 2008, Community Education Centers of two prisoners in the jail’s work release profit prison in the state of Pennsylvania” (CEC) took over the GWH contract. program and a “full blown riot” that was was an “ignominy” and that it “needs to “CEC was OK,” said a guard who quelled only after a Community Emer- end.” requested anonymity out of fear of losing gency Response Team armed with pepper But transitioning GWH to public his job if he spoke openly. “They didn’t balls managed to subdue 26 prisoners. (See operation carries a learning curve for a want to pay overtime, so they flooded us PLN, January 2020, p.14) county government that has always relied with hires.” In September 2019, the County Coun- upon private companies to run the prison. But even as staffing levels improved at cil took a significant step in trying to right “The first step is really to make sure Hill Correctional under CEC’s stewardship, the ship by abolishing the two-member that we understand the implications … and there were still problems. Nine prisoners Board of Prisons Inspectors, which was that we have thought through all the steps committed suicide between 2009 and 2016, created in the 19th century, and replacing it necessary to safely transition to a public-run including the May 25, 2016 suicide of Ja- with a seven-member Jail Oversight Board. model,” said Madden. “During that time nene Wallace, whose estate later reached a Then, in November 2019, GEO Group’s of the transition, it doesn’t take us off the $7 million settlement with the county. (See Hill Correctional superintendent, John A. hook of overseeing GEO and that doesn’t PLN, November 2018, p.36.) Reilly, retired one day after a Philadelphia mean we can’t reform the way in which the In April 2017, GEO Group resumed Inquirer report disclosed his use of racial prison is run.” control of operations at GWH when it slurs toward jail employees had been cov- Fortunately for the county, it owns acquired CEC in a $360 million deal. Con- ered up and that he kept a $750,000 account GWH, so GEO Group can’t do what it ditions at the prison again began to decline secret from the County Council. did when Colorado Gov. Jared Polis (D) due to understaffing. But still the prison’s problems contin- expressed an interest in late 2019 in closing “With GEO, we’re constantly under- ued to mount. the Cheyenne Mountain Re-Entry Center staffed,” the guard said. “There are times In mid-December 2019, a female that GEO Group both owns and runs. The where I can’t find a working radio or a pair prisoner was sexually assaulted after guards firm responded with a January 7, 2020, of handcuffs.” were instructed to put male and female statement giving the state Department of He also said only 245 of the 350 guard prisoners together because of overcrowding. Corrections (DOC) just 60 days to remove positions are staffed, forcing guards to On December 25, 2019 – just hours its 600 prisoners from the facility. work 16-hour shifts. At times, one guard after Austin Mulhern, 45, hanged himself “I knew that this certainly was going to November 2020 18 Prison Legal News be a possibility,” admitted Colorado DOC Immigration and Customs Enforcement to the county payroll,” admitted County Executive Director Dean Williams, who (ICE). Councilwoman Christine Reuther, who added that he thought his agency and GEO However, when GEO Group manages added that this will also provide the em- Group were “on track” and “would continue a prison it doesn’t own, like GWH, it has to ployees with more generous benefits while to work this situation out.” take a different approach than it did with at the same time improving conditions for As for what prompted the ultimatum Colorado. Losing a contract worth $52.8 prisoners. from GEO Group, Williams said, “You’d million annually, the firm has given itself “People are dying in that prison,” she have to ask them, but I’m sure it was a a nine-month withdrawal window also to said. “It’s not just an issue of deprivatiz- corporate decision. That’s the deal that you smooth operational transition of GWH to ing the prison, there’s lives at stake right make with a private prison corporation. You Delaware County. now.” know if it starts to go south, you really don’t “One of the things that’s going to have have long-term leverage to keep a prison to happen to deprivatize the prison is to be Sources: yc.com, The Philadelphia Inquirer, going that they operate.” able to move all of those employees back delcotimes.com, bizjournals.com With the war on illegal immigration peaking under the Trump administration, GEO Group could offer its Colorado cells to its biggest customer: the U.S. govern- ment. That revenue stream had been shut off by an Obama administration order to CATHOLIC PRIEST AND CHILD SEX ABUSER phase out private prisons. But when Presi- dent Trump took office in early 2017, one of then-Attorney General Jeff Session’s first moves was to rescind the Obama order. GEO Group, which donated $170,000 to a Trump political action committee in 2016 SCOUT LEADER AND CHILD SEX ABUSER and $250,000 to his inaugural bash, quickly signed over $774 million in contracts in 2017 to provide detention cells for federal

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Prison Legal News 19 November 2020

Coronavirus: A Second Wave of Infection by Michael D. Cohen, M.D.

t may be useful to know some more door spaces. Additionally, testing, isolation suppresses the body’s immune response. It Iabout the words epidemiologists use to of cases and quarantine of case contacts are has been widely used for decades for that describe disease statistics. Incidence refers still not being carried out as effectively as is purpose. It was approved for emergency to the number of new infections. Preva- necessary to control the epidemic. use in COVID patients with severe illness lence or “active cases” refers to the number The increases are driven in part by to suppress the out-of-control immune currently infected. Infection Rate refers reopening of schools, colleges and universi- response that is killing people. Dexa- to the number of cases per unit of popula- ties; indoor dining at bars and restaurants, methasone is not an anabolic steroid that tion (for example, per million population). and cooler weather driving people indoors promotes muscle growth. Other measures of prevalence may also be for family and group activities. Remdesivir is an antibiotic used to treat used as indicators of the severity of the Midwestern states have been surprised viruses. It was used successfully to treat epidemic in a city or state or correctional by the extent of rural spread of the disease. Ebola, another disease caused by a corona- system, such as: number currently hospital- Local hospitals have been overwhelmed and virus. It was approved for use in COVID ized; number newly hospitalized, number in patients transferred to urban hospitals for care. patients with severe illness in ICU. ICU; number on ventilator; number died. Rural America is where people have Manufactured antibodies are antibod- Similarly, infection rate per 1,000 persons resisted safety measures the most, so it ies to coronavirus produced in cell cultures. incarcerated in a state system may be used is not surprising at all that the epidemic Trump received a substantial dose of two to compare the severity of the epidemic is taking off in those regions now. CDC antibodies made by the drug company Regen- among systems with widely differing total monitoring suggests that many cases are eron. The Regeneron antibody treatment has numbers of people imprisoned. spreading within households. However, not been approved by the FDA yet for emer- Infection rates are increasing rapidly indoor and outdoor large group gatherings gency use. Until Trump’s illness, it was only throughout the U.S. At press time, the Mid- are still causing super-spreader events in being given in a research study. Only a few west had the most rapid increase in rate of which dozens of people are infected and hundred patients had received this medicine infection (steepest upward angle of the rate spread the disease to their families, friends under a research protocol. Research studies graph) and a higher rate of infection than and co-workers. are still ongoing to determine the safety and ever before. In the Northeast, the current Trump’s Treatment effectiveness of these specific antibodies for rate as of October 13 was about 95 per treatment or prevention of COVID. million population. In the Midwest, the Trump was found to be infected with Trump says he is “immune” since he rate was about 240 per million population. COVID-19 and had symptoms includ- appears to have recovered from his illness. By the time you read this article, the rates ing fever and shortness of breath. He was However, he did not have a normal clinical will most likely be substantially higher in treated with oxygen and sent to Walter infection. Early treatment with a steroid all regions. Reed Army Hospital for treatment. He was and manufactured antibodies may have Infection rates are rising because people given several medicines, including dexa- suppressed his own immune response to are not using the protective measures we methasone; Remdesivir; and manufactured the infection. His ability to produce his know help prevent infection: avoid large antibodies. All three were given early in his own antibodies may not have developed suf- groups; avoid indoor groups; people who are illness. None of these medicines have been ficiently to protect him from re-infection. in contact with others should be wearing face recommended or generally given to patients As the manufactured antibodies he received masks; frequent hand washing and surface with early disease. as treatment disappear over the following disinfection; and effective ventilation of in- Dexamethasone is a corticosteroid that 30 to 60 days, he may become susceptible

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November 2020 20 Prison Legal News to COVID again. This is the risk he now may be infectious to others. depression and persistent anxiety, including has from taking unapproved medicines and Trump won’t say when his first rapid nightmares, fear of being alone, and fear of taking medicines for reasons other than test was positive (probably because it was going to sleep, for example. those that were proven and approved. before the first presidential candidate de- It is still unknown how frequent such Remdesivir was initially approved for bate). Thereafter, the White House medical injuries are or whether they are permanent. use with COVID after a study showed staff did a much more accurate (and slower) Recovery may occur very slowly. Doctors fewer deaths among ICU patients treated test for coronavirus RNA that was reported working with post-COVID patients sug- with it. Interestingly, a larger, more recent to be positive two days after the debate. gest patients don’t try to resume normal international study has shown no effect on Long Term Damage from COVID-19 activities right away; rather, increase ac- death from COVID among those treated tivities slowly. These recommendations are with Remdesivir. Evidence continues to accumulate similar to those given to people who have Rapid Tests Have Less that many patients who have recovered suffered a concussion: Too much activ- Accurate Results from acute COVID infection have suffered ity can make symptoms worse and slow long-term organ damage. Recently an elite recovery. Rapid diagnostic tests that can give college athlete was found to have suffered results in as little as 15 minutes are being heart muscle damage from COVID infec- Michael Cohen was the Medical Director for used at the White House, nursing homes, tion, likely ending his promising career. A the New York state juvenile justice system for and colleges and universities. Rapid tests recent New York Times article reported on 20 years and previously provided medical look for molecules that form part of the brain damage that has had lasting effects on care for incarcerated adults at the New York outer coat of the virus. These tests show memory and other higher functions. Loss City Rikers Island jail and at Greene CF in a positive result when sufficient numbers of smell and/or taste also may persist after Coxsackie, N.Y. For 10 years, he participated of these molecules are present to cause a recovery from the acute infection. Persistent in a support group for people with diabetes reaction with the test. However, early in the lung, liver and kidney damage have also oc- at Great Meadow CF in Comstock, N.Y. course of the infection, when viruses have curred. Others have reported fatigue, “brain With the group, he co-authored the Prisoner not yet multiplied very much, there may be fog,” irregular body temperature, rashes, Diabetes Handbook published by Southern a negative result. In that case, the result is and insomnia persisting after COVID. Poverty Law Center and distributed by Prison a false negative. The person has a negative People who experienced prolonged ICU Legal News. Heal the sick. Raise the fallen. test, but he is actually already infected and and ventilator treatment may have PTSD, Free the prisoners.

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he once self-styled “Toughest ship and high-profile crackdowns on primary and went on to win election, was TSheriff in America” has lost a bid to re- undocumented workers with the press in convicted of civil contempt of court and claim the office of Maricopa County sheriff. attendance. referred by the federal judge for criminal He was defeated in the Arizona Republican Despite outspending his primary op- contempt prosecution for the same reasons primary on August 4, 2020. ponent, Maricopa County Sheriff Jerry as Arpaio. However, the statute of limita- The controversial Joe Arpaio earlier lost Sheridan, 15 to 1 and having nearly 100% tions prevented federal prosecutors from his office in the 2016 election cycle. He then name recognition, Arpaio was defeated in charging Sheridan with criminal contempt tried a run for the U.S. Senate, but came the August Republican primary by about of court. in third in the 2018 Republican primary 6,300 of the over 420,000 votes cast. Under Arpaio, the Maricopa County behind Martha McSally and Kelli Ward. “They were tired of me and tired of my Sheriff ’s Department ran up a $147 million Arpaio, 88, was the sheriff in the county office,” said Arpaio, who said it would be his bill for legal costs—over $6 million for each encompassing Phoenix, Arizona’s largest last election bid. “I guess I lost by 1 percent, year he was in office—and failed to inves- city, for 24 years. His focus was more on ce- but I’m still the longest-serving sheriff in tigate over 400 sex crime complaints. Thus, lebrity than equitable law enforcement. He the history of Maricopa County. Nobody is his tenure was expensive and inefficient, was known for a disdain for civil rights—es- going to beat that one.” among its many other faults. pecially the civil rights of minorities. Ironically, Sheridan, Arpaio’s former He instituted attention-grabbing chief deputy who bested Arpaio in the 2016 Sources: fox10phoenix.com, theguardian.com policies, such as erecting a tent city at the county’s jail to house prisoners in substan- dard, sweltering conditions while working Eleventh Circuit Vacates COVID-19 in chain gangs and wearing pink-colored, jail-issued underwear. Injunction Against Miami Jail Arpaio also instituted a policy of by David M. Reutter racially profiling Hispanics to enforce im- migration laws. After he ignored a federal ust because prisoners get sick with That was four days after the lead judge’s order to have his department stop JCOVID-19 in a jail too crowded to plaintiff in the original suit, 43-year-old racially profiling, Arpaio was convicted of practice safe social distancing does not quadriplegic Anthony Swain, was released criminal contempt. make jail officials liable because so long as with an ankle monitor from Metro West Arpaio was an early and ardent Trump they say they are doing “their best,” they to his parents’ home. He had tested posi- supporter and, in 2017, that paid off as can’t be guilty of “deliberate indifference” tive for the disease on May 10, 2020, after President Trump issued his first presiden- to the problem. complaining of shortness of breath for tial pardon—for the criminal contempt That was the June 15, 2020, finding by several weeks. The last $15,000 payment for conviction. the Eleventh Circuit U.S. Court of Appeals, his $650,000 release bond was donated by According to Arizona Republican which vacated a preliminary injunction former NFL quarterback and racial justice political consultant Chuck Coughlin, Ar- requiring officials at Miami’s Metro West advocate Colin Kaepernick. paio “birthed the nationalism narrative that Detention Center (Metro West), the largest Swain and six other Metro West Trump is now using.” jail in Florida and one of three jails run by detainees filed their class action on April Arpaio used reality-star showman- Miami-Dade Corrections and Rehabilita- 5, 2020. The federal district court for the tions Department (MDCRD), to employ Southern District of Florida on April 29, numerous safety requirements to prevent 2020, issued a preliminary injunction that GO HOME TO YOUR LOVED ONES! the spread of COVID-19. required Metro West to provide detainees PLN previously reported on a U.S. with masks, an individual supply of soap, The Law Offices of Julia Bella Parole - Post-conviction - Appeals District Court’s grant of the preliminary enforce 6 feet of spacing between detainees, injunction, as well as the Eleventh Circuit’s test all detainees for COVID-19, waive Call or Write or Email: May 5, 2020, stay of that order. [See PLN, medical co-pays and grievance charges, (832) 757-9799 905 Richmond Parkway June 2020, page 28]. That stay was set to and provide disinfecting supplies. It also Richmond, Texas 77469 expire June 15, 2020, the same day the imposed stringent reporting requirements. [email protected] Eleventh Circuit issued its ruling. On appeal, the Eleventh Circuit vacat-

Working zealously for you On June 16, 2020, MDCRD reported ed the injunction, saying the prisoners in the and your family! that 592 prisoners and 123 employees at class had failed to show that defendants at Metro West had tested positive for CO- MDCRD were “deliberately indifferent” to VID-19. One inmate had died and 30 their COVID-19 risk. The district court had remained in medical isolation, while 82 affirmatively answered that question based employees had returned to work. on two considerations: “(1) the increase in

November 2020 22 Prison Legal News the rate of infections at Metro West and (2) were screened, detainees’ temperatures were storm of a contagious virus and space con- the lack — and seeming possibility — of taken, and disinfecting and hygiene supplies straints inherent in a correctional facility, meaningful social distancing at the facility.” were provided. the defendants here acted unreasonably But the Eleventh Circuit held that “the Issuing the majority opinion, Judges by ‘doing their best.’” They also noted that district court erred.” Kevin C. Newsom and W. Keith Wat- since the pandemic began, Metro West’s “Neither the resultant harm of in- kins also found the class failed to show population had been reduced to less than creasing infections nor the impossibility of it would suffer irreparable injury “unless 70 percent of capacity. achieving six-foot social distancing in a jail the injunction issues” because there was The majority further found that requir- environment establishes that the defendants no “finding about the extent and efficacy ing testing of all detainees with COVID-19 acted with ‘subjective recklessness as used of the measures that the defendants were symptoms and everyone they came in con- in the criminal law,’” the Court concluded, already taking.” tact with forced the defendants to “allocate citing the standard established in Farmer v. In dissent, Judge Beverly B. Martin limited testing resources at Metro West at Brennan, 511 U.S. 825, 834 (1994). noted the report’s experts recommended an the expense of other county facilities” and Instead, to show that defendants acted “urgent decrease” in Metro West’s popula- violated “politically accountable” county with a culpable state of mind, the Eleventh tion, yet the jail continued to detain more officials’ “keen interest in maintaining the Circuit said the lower court must “focus not people than it “can safely hold during this necessary flexibility to react quickly in re- on isolated failures — or impossibilities, as pandemic.” She also pointed out that the sponse to new information about the virus.” the case may be — but rather on the defen- district court had not failed to consider Thus, the district court’s order was dants’ entire course of conduct.” defendants’ assurances that “everything vacated because it failed to demonstrate the The court pointed to an expert report that could be done was being done” but had defendants were utterly reckless in their re- on conditions at Metro West commissioned in fact rejected them. Declarations from sponse to protect detainees from the spread by the district court, which found the de- detainees, Judge Martin noted, showed of COVID-19. The case was remanded to fendants “did their best” in regards to social “repeated failures to enact adequate social the lower court for a correspondingly modi- distancing by staggering bunks head to foot distancing measures” that betrayed a “sys- fied opinion. See: Swain v. Junior, 961 F.3d and placing tape on the floor to encourage tematic, institutional pattern of deliberate 1276 (11th Cir. 2020). social distancing in lines. It also noted indifference.” staff and detainees were required to wear The majority, however, said it “cannot Additional sources: Florida Phoenix, The masks, visits were canceled, staff members conclude that, when faced with a perfect Crisis Magazine Nebraska Declares Overcrowding Emergency in State Prisons by Kevin Bliss

ebraska Department of Correc- this certification will result in the automatic “Trying to build new prisons to keep up Ntional Services (NDCS) was forced to release of numerous inmates in an effort to with the rising prison population has not declare an overcrowding emergency on July reduce the number of people housed,” he worked at any time in the last 40 years.” 1, 2020. Capacity in the state’s 10 prisons said. “This is not correct.” As PLN has observed, building prisons to was at 151%, exceeding the 2015 mandated Frakes said Nebraska could not reduce deal with crime is like building cemeteries 140% threshold. overall population by selecting from a large to deal with a pandemic. In an effort to help reduce population, pool of low-level, non-violent prisoners whose The ACLU said Nebraska needed to parole board chairwoman Roslyn Cotton primary offense was a drug charge for release. address overcrowding in a new way. Petto said that the parole board was accelerating Only 14% of the 821 parole-eligible prisoners suggested starting by addressing Nebraska’s the number of reviews being held. She said in the state had drugs as a primary offense. All mandatory minimum sentencing scheme that from January to May the board con- others had at some primary offense precluding and creating stronger, more functionable ducted 2,700 hearings and released 1,546 them from the desired category. reentry program as a means of lowering to parole. Nebraska ACLU communications Frakes believes the only possible an- capacity. director Sam Petto said, “Cotton proudly swer for the state is to build a new prison. noted that three-fifths are granted parole, but “Nebraska needs a new prison,” he said. “In Source: krvn.com to us we kind of put that on its head and say order to give taxpayers the best value for you say 40% aren’t ready to enter the com- their dollars, we need to build for the future.” munity and that is not a success story to us.” Petto said building new prisons just Hepatitis & Liver Disease: NDCS Director Scott Frakes assured perpetuated the problem. “Again and again A Guide to Treating & Living the public he would not jeopardize their what we seem to hear is no expectations with Hepatitis & Liver Disease safety. He said they did not plan on releas- that this will reduce overcrowding and that Revised ed. By Dr. Melissa Palmer ing any prisoner who did not meet parole the only solution is building a quarter of a See page 69 for more information. requirements. “There’s been speculation that million dollars’ worth of a prison,” he said. Prison Legal News 23 November 2020 Fourth Circuit: Opening of Detainee’s Legal Mail Outside His Presence Violates Right to Free Speech by David M. Reutter

he Fourth Circuit Court of Ap- That a guard told Haze, “Sue me,” when States Supreme Court have considered the Tpeals upheld on June 8, 2020, that a he complained about showing the defen- question of whether an incarcerated person pretrial detainee’s First Amendment claim dants were not merely negligent. The court has a reasonable expectation of privacy in that officials violated his right to free speech further said “the infringement of Haze’s their legal mail. Finally, as Haze failed to by opening incoming and outgoing legal First Amendment rights itself constitutes raise arguments related to the access to the mail outside his presence. It affirmed judg- an injury.” Finally, it found the right at courts and effective assistance of counsel ment on claims alleging violation of the issue was clearly established, precluding a claims in his informal brief, those issues Fourth and Sixth Amendments. qualified immunity defense. were forfeited on appeal. The district court’s Before the court was an appeal brought The court, however, found qualified -im order was reversed in part and affirmed in by Grant Haze. Haze alleged that while munity applied to the Fourth Amendment part. See: Haze v. Harrison, 961 F.3d. 654 awaiting trial from July 2011 to September claim because neither it nor the United (4th Cir. 2020). 2013 at the Wake County Public Safety Center and the Wake County Detention Center in Raleigh, North Carolina, the Federal Judge Rules Prisoners defendants interfered with his legal mail Eligible for $1,200 Stimulus Checks; on at least 15 occasions. His civil rights complaint alleged violations of the First, Application Deadline Extended Fourth, and Sixth Amendments. The district court granted the defen- to Nov. 21 for Online Filing dants’ motion for summary judgment. It by Derek Gilna found that the defendants acted only neg- ligently on the free speech claim, that Haze n a clear victory for prisoners and utes bar current prisoners from enjoying failed to show injury to support the access Itheir families, a federal judge recently certain government benefits, Judge Hamil- to courts claim, and that Heck v. Humphrey, ordered the U.S. Treasury Department ton noted that the Coronavirus Aid, Relief, 512 U.S. 477 (1994) barred the Fourth and and the Internal Revenue Service (IRS) to and Economic Security (CARES) Act Sixth Amendment claims. make federal stimulus payments previously – passed by Congress in April 2020 as the On appeal, Haze’s principal conten- denied to people in prison and jail. COVID-19 pandemic derailed the global tion was that the defendants violated his The same court has also laid out de- economy – does not. As a result, she said, First Amendment right to free speech. The tailed guidelines for the government to the IRS administrative action blocking the Fourth Circuit recognized that opening a follow to ensure that the incarcerated are payments did not comply with the require- person’s legal mail outside of their presence not misinformed about their right to the ments of the Administrative Procedure Act “strips those protected communications of stimulus. by giving the public or affected individuals their confidentiality,” inhibiting the incar- It also forced the IRS to extend its proper “notice and comment,” thereby cerated person’s “‘ability to speak, protest paper-filing deadline to receive stimulus rendering the agency action unenforceable. and complain openly, directly, and without requests, since most people behind bars The court then granted an injunction reservation with the court.’” don’t have access to a computer and can’t against the IRS, noting that the plaintiff The Fourth Circuit analyzed the claim take advantage of a later deadline previ- members of the class were likely to prevail under the four-prong test in Turner v. Safe- ously granted to online filers. Prisoners and at trial. ly, 482 U.S. 78 (1987). The court rejected the detainees originally had until October 15, The CARES Act provides one-time defendants’ argument that because Haze 2020 to file by mail but that was extended payments of $1,200 to individuals, $2,400 received “contraband — internet printouts until October 30. The deadline to file online, to married couples filing jointly and $500 of cars, phones, and vacation homes — using the portal at irs.gov, is November 21. for each child under age 17 at the end of through non-legal mail; prison officials In her original September 24 order, 2019. The payments are technically a credit suspected that Haze had also received Judge Phyllis J. Hamilton of the 9th Circuit to filers’ 2020 income tax liability. Eligible contraband through legal mail.” U.S. District Court certified a nationwide filers include individuals earning less than While receipt of those materials class of incarcerated individuals denied $75,000 annually, or $112,500 for heads of “justifies the opening of his legal mail to federal stimulus checks and granted them households or $150,000 for married couples check for the presence of contraband,” the a preliminary injunction against the IRS filing jointly. defendants failed to “explain, as they must, and Treasury, stopping the agencies from The IRS sent payments first to people why they did so outside of Haze’s presence.” blocking such payments and expediting who had filed an income tax return for 2018 Thus, they failed to justify their actions with previously denied payments. or 2019. By April 10, 2020, nearly 85,000 a legitimate government interest. Although many federal and state stat- payments totaling about $100 million had November 2020 24 Prison Legal News been made to incarcerated people, according not recently filed a tax return to request the IRS by October 24, 2020, to “reconsider to the Treasury Inspector General for Tax a stimulus payment, also setting up an advance refund payments to those who are Administration (TIGTA). online system for them to do so. The dead- entitled to such payment based on infor- Then, on May 6, 2020, the IRS an- line was later extended to November 21, mation available in the IRS’s records (i.e., nounced that the payments to incarcerated but for online filers only. However, most 2018 or 2019 tax returns), but from whom people had been made in error and directed prisoners lack computer access, throwing benefits have thus far been withheld, inter- those who had received them to pay them them under the earlier deadline to make a cepted, or returned on the sole basis of their back. The agency also advised officials in paper filing. In a follow-up ruling in early incarcerated status.” prisons and jails to intercept and return any October, Judge Hamilton directed the IRS That order set the same deadline for the payments sent to prisoners and detainees. to extend that deadline another 15 days to agency to revive claims filed either through That’s when prisoners began signing on to October 30. the “non-filer” online portal or otherwise the class-action suit. Now “we need to get the word out,” that were previously denied solely on the One of those plaintiffs is Colin Scholl, said Nina Olson, the executive director of basis of the claimant’s incarcerated status. currently serving a sentence at a California the Center for Taxpayer Rights. “It is very The judge gave the agency until November state prison in Salinas Valley. He said the court important people not hesitate to file.” 8, 2020, to “file a declaration confirming “order communicates that we have value, that The judge’s latest ruling ordered the these steps have been implemented, includ- we have rights, and that itself is a win. All of IRS immediately to instruct employees ing data regarding the number and amount us are hurting during the pandemic, like our staffing the agency’s hotline to cease tell- of benefits that have been disbursed.” friends and family on the outside.” ing the incarcerated they are ineligible for The national prisoner class is repre- Another California plaintiff, Lisa a stimulus payment. She also told the IRS sented by the San Francisco law firm of Strawn, was exposed to COVID-19 before to retract its instruction to intercept and Leiff Cabraser. For specific information on her release from San Quentin State Prison return payments with a new letter to of- how prisoners can get their stimulus check, in July 2020. She said the “money means ficials at prisons and jails – and the letter visit this website: https://www.lieffcabraser. so much more” to trans women, “who do must affirmatively state that incarcerated com/cares-act-relief/ not receive the same services once out of people are permitted to file for and receive See: Scholl v. Mnuchin, Case No. 20-cv- prison as others.” stimulus payments. 05309-PJH (N.D. Cal. Sep. 24, 2020). Meanwhile the IRS set an October These extra steps the judge found nec- 15 deadline for eligible recipients who had essary to enforce her original order directing Additional source: The Washington Post

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Prison Legal News 25 November 2020 Information for advertisers California Prison Guards Keep Jobs After Aiding Attacks on Sex Offenders by Jayson Hawkins

series of assaults by a group of CDCR, disagreed with the assertion that den in a wall cavity for plumbing pipes. Aprisoners on convicted sex offenders was the department was dismissive of prisoner Only guards had the keys to gain access carried out with the consent and assistance testimony: “We take all allegations of staff to that area, and four additional prisoners of 10 officers at an unnamed California cor- misconduct very seriously and are com- verified that the weapons stashed there had rectional facility. After an investigation, the mitted to providing thorough and fair been used in the assaults. prison’s warden determined that the actions investigations.” The OIG agreed with the warden’s of six of the guards involved were egregious The OIG’s report determined that as- assessment that six of the officers involved enough for them to be fired, yet only four saults had taken place over several months should have been fired. Two were termi- were let go before attorneys for the California in 2017 and were enabled by the guards nated due to unrelated cases, one resigned Department of Corrections and Rehabilita- opening cell doors to give a group of pris- because of an unrelated case, and another tion (CDCR) halted the proceedings. oners access to the sex offenders. Those resigned rather than be let go due to a role The attorneys argued that the allega- convicted of sex crimes are often housed in the prisoner attacks. tions against the officers were substantiated separately for their protection. “The department thoroughly weighed only by the testimony of prisoners and that The administration was made aware all of the evidence in the case against the evidence of that sort would not hold up of the employees’ role in the assaults when two remaining officers before the decision before the State Personnel Board. one of the prisoners perpetrating the vio- to not sustain misconduct allegations was A parallel investigation by the state lence stepped forward. For reasons that are made,” said Simas. Office of the Inspector General (OIG), unclear, he had grown concerned that, ac- The OIG pointed out that, in the which is tasked with overseeing the con- cording to the report, “other inmates would past, judges had only thrown out cases duct of corrections department employees, attack him, and he knew there was a variety that hinged on prisoner testimony if those concluded on January 10, 2020 that the of weapons in the housing unit.” prisoners had specific credibility issues. evidence in this particular case was adequate The prisoner backed up his statement to pursue the termination of the six guards by revealing where the weapons were hid- Source: sacbee.com identified by the warden. Inspector General Roy Wesley, however, expressed concern that it might set a dangerous precedent Texas: Prison Air Conditioning when it came to firing officers based solely on the word of prisoners. Needs Revisiting Dana Simas, a spokesperson for by Ed Lyon

n 1855, young General Philip H. from Texas to points east, those states are

Are Phone Companies Taking Money ISheridan was a second lieutenant at known as the Bible Belt. from You and Your Loved Ones? Fort Clark, located in present-day Kin- One would think that a state with such HRDC and PLN are gathering information about ney County, Texas. When someone asked a reference would practice forgiveness, love the business practices of telephone companies him how he liked the state, he replied “If and compassion. Texas seems to be mired that connect prisoners with their friends and I owned Texas and Hell, I would rent out firmly in the Old Testament’s “eye for an family members on the outside. Texas and live in Hell.” eye and tooth for a tooth,” strict retributive Does the phone company at a jail or prison at There are, without a doubt, many tens doctrine where penology is concerned. Year which you have been incarcerated overcharge of thousands of former and current Texas after year, blisteringly hot summer after by disconnecting calls? Do they charge excessive prisoners who would gladly room with blisteringly hot summer, Texas prisoners fees to fund accounts? Do they take money left over in the account if it is not used within a the General in his preferred lodgings after suffer and die in red brick and concrete certain period of time? spending one summer in a typical Texas behemoths. They are actually lucky com- prison. pared to prisoners living in tin buildings We want details on the ways in which prison and jail phone companies take money from Texas currently operates 102 prisons and dorms where temperatures have been customers. Please contact us, or have the per- across a state covering more land than some known to approach 150 degrees at times, a son whose money was taken contact us, by European countries. It is smack in the geo- full 15 degrees hotter than those recorded email or postal mail: graphic center of the traditionally hottest at Palestine, Texas’ Coffield Unit in 1998. [email protected]@humanrightsdefensecenter.org states in the country from California on the Some lawsuits challenging the lack of West coast to Georgia and the Carolinas in air conditioning in the hellishly hot Bible Prison Legal News Attn: Kathy Carrie Moses Moses Wilkinson the East. Some of the commonalities these Belt states have succeeded, only to be PO BoxBox 1151 1151 states share is a lack of air conditioning in struck down on appeal. The first of these Lake WorthWorth, Beach, Florida FL 33460 33460 their prisons, excessive summer heat and, suits to win and survive on appeal was the November 2020 26 Prison Legal News one brought by attorney Jeff Edwards and p. 54] By the numbers, this means that air condition the prison and be done with the Texas Civil Rights Project on behalf of 27,700 of TDCJ’s total census are elderly it. [PLN, February 2019, p. 45] prisoners at the Wallace Pack Unit. It was and 15,910 of its parole-eligible popula- Experts have pointed out that excessive the first case where highly educated, cre- tion are elderly and at an elevated risk of heat makes it more difficult for a person to dentialed and experienced experts testified COVID-19 contagion. fend off a virus like COVID-19, exponen- to the adverse effects of excessive heat on Yet, according to a July 16, 2020 census tially more so to deal with COVID-19 once people and the ineffectual measures taken report by the Dallas Morning News, TDCJ a person contracts it. Dr. Catherine Toms to mitigate it by prisoncrats presented an still has 126,000 prisoners, down by a paltry pointed out, “When you have an infection unshakable, irreversible platform to support 12,500. Age and parole status at release [like COVID-19], that also makes you a judgment that even the ultraconservative times were not stated. Release procedures vulnerable to heat-related illnesses.” U.S. Fifth Circuit Court of Appeals af- have been streamlined and simplified dur- The best way to deal with the ongoing firmed on review. See: Yates v. Collier, 868 ing the pandemic with releasees leaving pandemic is releasing the many parole- F.3d 354 (5th Cir. 2017). from their assigned units instead of being eligible prisoners that TDCJ’s has barely Among the many problems excessive bused to the Huntsville Unit or a designated made a dent in so far. Depopulating would heat aggravates are medical conditions. At regional release center. More prisoners allow for plenty of social distancing and this time, a pandemic is spanning the globe, could easily and quickly be released without more effective mitigation measures. Further, taking millions of lives and leaving many straining the system. air conditioning units would assist in air survivors with permanent lung and organ Treating COVID-19 — with so many circulation and cooler temperatures to help damage. Elderly persons are at an elevated patients requiring intensive medical care keep COVID-19 at bay and mitigate it in risk of contracting the COVID-19 virus. and ventilator treatment — in many cases afflicted prisoners. When COVID-19 was declared a national is proving to be a budget buster, especially So far, Texas, its parole board and emergency in March, the Texas Depart- in prisons. This does not even take into prison system chooses to do neither. If the ment of Criminal Justice’s (TDCJ) census account the after-care expenses for many predicted, even more virulent second wave was at 138,500 prisoners, 79,552 of whom COVID-19 survivors. of COVID-19 arrives in tandem with the were eligible for parole release. [PLN, July Air conditioning prison units would flu season, Texas may well find many of its 2020, p. 23] be cheap by any comparison. It cost Texas 126,000 prisoners sitting on death row. On average, 20 percent of U.S. pris- over $7 million to fight the Pack lawsuit oners are elderly. [PLN, November 2019, when it would have cost only $4 million to Source: dallasnews.com, workers.com

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Prison Legal News 27 November 2020 Efforts to Keep COVID-19 Out of Montana Prisons Fuels Outbreaks in County Jails by Alex Sakariassen, Kaiser Health News, September 29, 2020

hen Joshua Martz tested posi- California, Texas and New Jersey are among rections spokesperson Annie Skinner said. Wtive for COVID-19 this summer in the states that suspended inmate intakes There, inmates are tested and quarantined in a Montana jail, guards moved him and nine from county jails in the spring. single cells for 14 days before being relocated other inmates with the disease into a pod But it’s also shifted the problem. Space to other state facilities. so cramped that some slept on mattresses was already a rare commodity in these lo- Outbreaks are also occurring in county on the floor. cal jails, and some sheriffs see the halting jails in states that never stopped transfer- Martz, 44, said he suffered through symp- of transfers as giving the prisons room to ring inmates to state prison. Several jails toms that included achy joints, a sore throat, improve the health and safety of their in- in Missouri have experienced significant fever and an unbearable headache. Jail officials mates at the expense of those in jail, who outbreaks, with Greene County reporting in largely avoided interacting with the COVID often haven’t been convicted. mid-August that 83 inmates and 29 staffers patients other than by handing out over-the- The Cascade County jail was built to had tested positive. Missouri Department of counter painkillers and cough syrup, he said. hold a maximum of 372 inmates, but the Corrections spokesperson Karen Pojmann Inmates sanitized their hands with a spray population has regularly exceeded that since said the state never opted to stop transfers bottle containing a blue liquid that Martz the pandemic began, including dozens of from county jails, likely because of a robust suspected was also used to mop the floors. Montana Department of Corrections in- screening and quarantine procedure imple- A shivering inmate was denied a request for mates awaiting transfer. mented early in the pandemic. an extra blanket, so Martz gave him his own. “I’m getting criticized from various At least 1,590 inmates and 440 “None of us expected to be treated like judges and citizens saying, ‘Why aren’t you staff members have tested positive for we were in a hospital, like we’re a paying quarantining everybody appropriately and COVID-19 in Missouri’s 22 prison facili- customer. That’s just not how it’s going to why aren’t you social-distancing them?’” ties since March, according to state data. be,” said Martz, who has since been released Cascade County Sheriff Jesse Slaughter The COVID Prison Project ranks Mis- on bail while his case is pending in court. said. “The truth is, if I didn’t have 40 DOC souri’s case rate 25th among the states “But we also thought we should have been inmates in my facility I could better do that.” — better than some states that halted treated with respect.” Unlike convicted offenders in state inmate transfers, including Colorado, Texas The overcrowded Cascade County De- prisons, most jail inmates are only accused and California. tention Center in Great Falls, where Martz of a crime. They include a disproportion- The halting of transfers was a critical was held, is one of three Montana jails ex- ately high number of poor people who part of the response by officials in Califor- periencing COVID outbreaks. In the Great cannot afford to post bail to secure their nia, whose prisons have been among the Falls jail alone, 140 cases have been confirmed release before trial or the resolution of their hardest hit by COVID-19. An outbreak among inmates and guards since spring, with cases. If they do post bail or are released at San Quentin State Prison this summer 60 active cases as of mid-September. after spending time in a jail with a COVID helped spur Democratic Gov. Gavin New- By contrast, the Montana state prison outbreak, they risk bringing the disease som to order the early release of 10,000 system has the second-lowest infection rate home with them. inmates from prisons statewide. in the nation, according to the COVID Andrew Harris, a professor of crimi- Stefano Bertozzi, dean emeritus at the Prison Project. No confirmed coronavirus nology and justice studies at the University University of California-Berkeley School of cases have been reported at the men’s prison of Massachusetts Lowell, said he finds it Public Health, visited San Quentin before out of 595 inmates tested. The women’s troubling that more attention is not paid the outbreak, and afterward helped pen an prison had just one confirmed case out of to the conditions that lead to COVID urgent memo outlining immediate actions 305 inmates tested, according to Montana outbreaks in jails. needed to avert disaster. He recommended Department of Corrections data. “Jails are part of our communities,” halting all intakes at the prison and slashing One reason for the high COVID Harris said. “We have people who work its population of 3,547 inmates in half. At count in jails and the low count in prisons in these jails who go back to their families that point, the California Department of is that Montana for months halted “county every night, we have people who go in and Corrections and Rehabilitation was already intakes,” or the transfer of people from out of these jails on very short notice, and more than two months into an intake freeze. county jails to the state prison system after we have to think about jail populations as Overcrowding has long been an issue conviction. Sheriffs in charge of the county community members first and foremost.” for criminal justice reform advocates. But for jails blame their outbreaks on overcrowding Some states have tried other ways to en- Bertozzi, the term “overcrowding” needs to partly caused by that state policy. sure county inmates don’t bring COVID-19 be redefined in the context of COVID-19, Restricting transfers into state prisons into prisons. In Colorado, for example, offi- with an emphasis on exposure risk. Three is a practice that’s also been instituted else- cials lifted their suspension on county intakes inmates sharing a cell designed for two is a where in the U.S. as a measure to prevent and are transferring inmates first to a single bad way to live, he said, “especially for the the spread of the coronavirus. Colorado, prison in Canon City, Department of Cor- guy who’s on the floor.” But if those cells November 2020 28 Prison Legal News are enclosed, they offer far better protection Montana and county officials butted three counties with outbreaks: Cascade, from COVID-19 than 20 inmates sharing heads over delays in inmate transfers be- Yellowstone and Big Horn. a congregate dorm designed for 20. fore the coronavirus, but the pandemic has Martz dreaded the thought of CO- “It’s how many people are breathing increased the stakes. VID-19 following him out of jail. So much the same air,” Bertozzi said. “Once we had the issue with the pan- so that, after his release in early September, Some California county jails struggled. demic and we had to maintain space for he walked to an RV park, where his wife In July, inmates in Tulare County’s facility, quarantining and isolating inmates, then it met him with a tent. where 22 cases had been reported, filed a became even more critical because the space Despite having tested negative for the class action suit against Sheriff Mike Bou- wasn’t really available,” Yellowstone County virus prior to his release, he self-quarantined dreaux alleging he’d failed to provide face Sheriff Mike Linder said. for a week before going home. The hardest masks and other safeguards. U.S. District Montana Department of Corrections part, he said, was not being able to imme- Court Judge Dale Drozd ruled in favor of Director Reginald Michael acknowledged diately hug his 5-year-old stepdaughter. It the inmates in early September, directing to state lawmakers in August that halting “sucked,” but it’s what he felt he had to do. Boudreaux to implement official policies -re county intakes places a strain on counties “If somebody’s grandpa or grand- quiring face coverings and social distancing. but said it was “the right thing to do.” mother had gotten it because I was careless California resumed county intakes “This is one of the reasons why I think and they ended up dying because of it, I’d on Aug. 24 following the development of our prisons are not inundated with the virus feel horrible,” said Martz, who has returned guidelines designed to control transmission spread,” he told the Law and Justice Interim home. “That’d be a horrible thing to do.” risk and prioritize counties with the greatest Committee. need for space. But a huge backlog remains: Committee Chairman Rep. Barry KHN (Kaiser Health News) is a nonprofit 6,552 state inmates were still being held in Usher, a Republican, gave Michael his news service covering health issues. It is an county jails as of mid-September, according endorsement: “Sounds like you guys are editorially independent program of KFF to corrections officials. doing a good job keeping it controlled and (Kaiser Family Foundation), which is not af- In Montana, the number of inmates at out of our prison systems, and everybody in filiated with Kaiser Permanente. This article is county jails awaiting transfer to prisons and Montana appreciates that.” republished under the Attribution-Non-Com- other state corrections facilities was 238 at the Since then, Montana officials have mercial-Non-Derivatives 4.0 International beginning of September, according to state transferred up to 25 inmates a week, but (CC BY-NC-ND 4.0) license. Subscribe to data obtained through a public records request. they continue to block transfers from the KHN’s free Morning Briefing.

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Prison Legal News 29 November 2020 Denial of Recruitment of Counsel for Wisconsin Prisoner Affirmed by Seventh Circuit by David M. Reutter

he Seventh Circuit Court of Ap- and persuasive opinion” that explained why in the district.” The district court said “it is Tpeals affirmed a district court’s order the court believed “this was not an appro- incredibly difficult to convince local lawyers denying a prisoner’s motion for recruitment priate case for attempting recruitment of to take” prisoner cases. The Seventh Circuit of counsel. counsel.” recognized it has an easier time at recruit- This was the second appeal brought Two reasons were given for that con- ment because appeals have “paper records by Wisconsin prisoner Randy McCaa. His clusion. First, McCaa failed to renew his and limited scope.” District court cases, civil rights action alleged that the defen- own efforts to recruit counsel. Second, on the other hand, “are often longer-term dants were deliberately indifferent to his McCaa’s ability to “send and receive corre- and more expensive commitments.” These threats to commit suicide or harm himself spondence, make copies, write motions and factors said this put district courts “in the in other ways. The first appeal came after briefs, and perform legal research” suggested business of rationing a limited supply of the district court granted the defendants’ he could adequately litigate his case. free lawyer time.” motion for summary judgment. Because the record supported the It was found that the district court’s The Seventh Circuit found the district second finding, the Seventh Circuit did detailed order considered all factors sur- court’s denial of McCaa’s fourth motion for not address the first. In the first appeal, rounding McCaa’s ability or inability to recruitment failed to sufficiently address the Seventh Circuit was greatly concerned litigate his case. The Seventh Circuit found McCaa’s ability to present his case himself. with McCaa’s fifth-grade reading level. no abuse of discretion in the court’s finding It remanded for reconsideration of the re- Since then, he earned a GED and reached that recruitment of counsel was not appro- cruitment of counsel, but it did not require a ninth-grade reading level. priate in McCaa’s case. It is well settled that such appointment. [See PLN, December The court further said a “decision to there is no right to court-appointed counsel 2018, p.56.] try to recruit counsel can and should be in- in federal civil litigation. See: McCaa v. On remand, the district court again formed by the realities of recruiting counsel Hamilton, 959 F.3d 842 (7th Cir. 2020). denied McCaa’s motion to recruit counsel. In this second appeal, McCaa asserted the district refused to comply with the Seventh DOJ Finds Frequent Use of Excessive Circuit’s mandate. The Seventh Circuit disagreed. Force in Alabama Prisons It noted that on remand the district by David M. Reutter court “took a fresh look at the issue” and reached the same conclusion in “a detailed he U.S. Department of Justice sive. It interviewed 55 staff members and T(DOJ) issued a report that found 270 prisoners during on-site visits at four the Alabama Department of Correc- prisons, conducted over 800 telephone tions (ADOC) violates prisoners’ Eighth interviews with prisoners and family Amendment rights by frequently using members, and received and reviewed over excessive force. The report found over- 400 letters from prisoners. It also received crowding and understaffing are major hundreds of emails from prisoners and contributors to the improper use of force. family members. The DOJ’s July 23, 2020, report is the ADOC houses about 16,600 prison- second one it has issued that found sys- ers at 13 prisons. The report “identified tematic constitutional violations exist in frequent uses of excessive force in 12 of the ADOC prisons. In April 2019, the DOJ 13 Alabama prisons” DOJ reviewed. issued notice that it had reason to believe As it reported in the April 2019 report, that ADOC violates prisoners’ Eighth DOJ found “severe overcrowding and un- The Best 500+ Non-Profit Amendment rights by “failing to protect derstaffing present in Alabama’s contribute Organizations for Prisoners them from prisoner-on-prisoner violence to the patterns or practices of use of exces- & Their Families (6th edition) and prisoner-on-prisoner sexual abuse, sive force.” The overcrowding “increases Only $19.99 and by failing to provide safe and sanitary tensions and escalates episodes of violence conditions.” That report found the “serious between prisoners’ which lead to uses of Order from: Prison Legal News, POB 1151 deficiencies in staffing and supervision, and force.” Understaffing prevents guards from Lake Worth Beach, FL 33460 overcrowding, contribute to and exacerbate “us[ing] a show of force and command[ing 561-360-2523 these constitutional violations.” [See PLN, a] presence to discourage fighting among Add $6 shipping for all book orders under $50. September 2019, p. 44.] prisoners or to quickly end fighting through DOJ’s latest investigation was exten- sheer force of their numbers.” November 2020 30 Prison Legal News The report detailed 10 incidents since rectional officers.” number of cases early, it sometimes takes few 2017 where guards used excessive force All too often, a use-of-force investiga- steps to interview potential witnesses as part on prisoners who were either restrained tion is handled on the institution’s level, of its investigation, and when it conducts or compliant. In each case, the prisoner which limits any action taken to adminis- an investigation, there is often minimal suffered severe injuries. ADOC records trative sanctions or discipline rather than documentation. DOJ found Intelligence & showed that only in one case were the review by ADOC’s Intelligence and Intel- Division’s review standard problematic. Its guards prosecuted and in another a sergeant ligence & Division. reviews for “potential criminal liability and was terminated. It was unclear whether any Guards often fail to report or accurately requires proof beyond a reasonable doubt action was taken in the other cases, even document the use of force. Some instances in order to refer a use of excessive force for where it was concluded by ADOC that the were only uncovered after reviewing video. criminal prosecution.” That standard “limits use of force was excessive or unnecessary. “We also found evidence that following a the number of uses of force that are reviewed The report detailed five cases of guards use of force, officers sometimes placed pris- by outside prosecutors.” unlawfully using force as punishment or oners in segregation for extended periods, The DOJ said that since its April 2019 retribution. so that any injuries can heal unobserved notice of unconstitutional conditions within Two examples of guards inappropri- and undocumented,” the report stated. It the ADOC, overcrowding has actually in- ately using chemical spray were detailed. also found the Intelligence & Division did creased. Staffing levels are below 50% and The DOJ noted the number of examples not open a use of force investigation when some prisons are well below that number. it detailed was not indicative of the depth a case was referred to it by a warden. ADOC needs to hire about 2,000 guards of the problem or number of cases. It was The DOJ found “ADOC rarely sus- to adequately staff its men’s prisons, the merely trying to detail the egregious use of pends or dismisses correctional officers for DOJ said. excessive force. uses of excessive force where such action The report outlined remedial measures The investigators further found that would be warranted.” Over a two-year required to meet the state’s constitutional the ADOC lacks accountability in review- period, “ADOC considered suspending or obligations, and said a lawsuit may be filed if ing uses of force. “While ADOC’s use of dismissing only one employee for excessive the deficiencies were not cured. See: Investi- force regulation is relatively robust, it is force.” gation of Alabama’s State Prison’s for Men, U.S. not effectively implemented or consistently The DOJ further determined that use of Department of Justice. enforced by correctional supervisors,” the force investigations are inadequate. It found report stated. “It is often ignored by cor- Intelligence & Division closed a significant Additional source: nytimes.com

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Prison Legal News 31 November 2020 Third Circuit: District Court Erred in Ruling Against Pennsylvania Prisoner’s Civil Rights Complaint by David M. Reutter

he Third Circuit Court of Appeals D Stability Code or failed to take action “frivolous, malicious, or fails to state a claim” Theld on April 27, 2020 that a district to treat his serious medical need, a claim cannot proceed informa pauperis unless court erred when ruling against a Pennsyl- could be stated. the prisoner is under imminent danger of vania prisoner’s civil rights complaint and The Third Circuit noted that it has pre- serious physical injury. Such dismissals are allowed the case to proceed viously held that “outright refusal to grant deemed strikes. Prisoner Casey Dooley, pro se, filed a the leave without any justifying reason [i.e., The Third Circuit held that the des- civil rights action in state court that the inequity or futility] . . . is not an exercise of ignation of a dismissal counting a strike is defendants removed to federal court. His discretion; it is merely an abuse of discre- for a future court, not the dismissing court, -complaint alleged an Eighth Amendment tion.” It found an amendment would not to make. Te issue was not ripe for adjudi violation resulted from the Pennsylvania have been clearly futile and leave to amend cation. As such, the district court lacked Department of Corrections’ (PDOC) should have been granted. determination to declare the dismissal as refusal to assign him the mental health The court turned to the strike ques- a strike. classification associated with the greatest tion. It noted that 28 U.S.C. § 1915(g) The district court’s order was vacated mental health resources. prohibits a prisoner who has on three or and the matter remanded for further pro- Dooley argued that because the jury more occasions brought an action or ap- ceedings. See: Dooley v. Wetzel, 957 F.3d 366 found him guilty but mentally ill (GBMI), peal in federal court that was dismissed as (3d Cir. 2020). he should be designated as a D Stability Code under PDOC’s regulations. Under Two-Thirds of Nevada Prisoners that regulation, prisoners who have been found GBMI are to be assigned the D Sta- Confined in Arizona Private Prison bility Code. During the grievance process, PDOC officials denied relief because the Test Positive for COVID-19 trial court documents allegedly no longer by Mark Wilson identified him as GMBI. They argued the judge determined after an evaluation that e said since day one, prisons, 1,926-bed Saguaro Correctional Center, in Dooley was not GMBI. Dooley countered “Wespecially private prisons shielded Eloy, Arizona, was not so lucky. that the sentencing court noted he “needs from transparency and oversight, are a hot As of July 16, 2020, four CoreCivic some psychiatric assistance.” spot for COVID-19 transmission.” staff members and 69 of the Nevada prison- In his complaint, Dooley alleged the That’s what the American Civil Liber- ers had tested positive at the facility, which failure to designate him as D Stability Code ties Union (ACLU) of Nevada said in a July houses primarily Hawaiian prisoners. The caused him to “suffer” agonizing mental 2020 statement criticizing the “outrageous outbreak among Nevada prisoners was first health pain and trauma and serious depres- and disturbing” infection of 69.7 percent of reported in Hawaiian media and later con- sion, lack of sleep, paranoia throughout Nevada prisoners confined within an Ari- firmed by NDOC officials on July 18, 2020. the day, nightmares, and physical abuse zona prison operated by Tennessee-based “At the time of testing, none of the because of his mental illness. The district CoreCivic, one of the largest private prison offenders exhibited any symptoms of court dismissed the complaint for failure to firms in the country. COVID-19 and they currently remain state a cause of action and held the action The novel coronavirus that causes the asymptomatic,” said Dr. Michael Minev, was frivolous, counting as a strike under disease ravaged Arizona like a wildfire NDOC’s medical director, who also said Section 1915. in the summer of 2020, with one in five that no one in the group had required The Third Circuit agreed that Dooley’s Arizonans testing positive. On a single hospitalization. complaint, as pleaded, failed to state a cause day, July 18, 2020, the state reported 147 He added that the infected Nevada of action. It found that he failed to “specifi- new deaths to COVID-19, versus just nine prisoners “are housed together in the same cally allege personal involvement by any of deaths in Nevada the same day. Arizona has unit, with offenders who tested positive the defendants.” Yet, a complaint is “not no statewide mask mandate like Nevada’s in separate cells than those who tested automatically frivolous . . . because it fails to combat the pandemic. negative.” to state a claim.” Thanks, in part, to a comprehensive “Nevada offenders do not have any The court found Dooley “advanced a testing initiative, just 18 (less than 0.15%) contact with offenders from other states,” valid legal theory, particularly given our of Nevada’s 12,000-plus state prisoners, as he concluded. liberal pro se pleading standards.” If he well as 54 guards, had tested positive for Hawaiian corrections officials beg to can plead that the defendants “were actu- COVID-19 by July 2020. But a group of 99 differ. Quoting Hawaii Department of ally aware or knew of a substantial risk of prisoners that the Nevada Department of Public Safety spokeswoman Toni Schwartz, serious harm” in failing to designate as a Corrections (NOOC) sent to CoreCivic’s the Honolulu Star-Advertiser reported that November 2020 32 Prison Legal News 28 Hawaiian prisoners may have had con- of the Nevada prisoners at Saguaro went on in Arizona as being characterized as having tact with the infected Nevada prisoners record to claim there are more symptomatic zero COVID cases so that they can con- from a group of 80 Hawaiian prisoners in cases of the disease among the group than tinue to take in more contracts and money quarantine at Saguaro. CoreCivic will admit. from other states,” he said. “Because obvi- NDOC officials promised that the “There are [a] few inmates who have ously no state really wants to send inmates infected prisoners would be retested by complained that it feels like there’s fluid to a prison that has COVID cases.” Saguaro staff every 21 days until all test on their lungs, and they’re having trouble During the 2019 legislative session, negative for the virus. breathing,” Rickie Slaughter told the Ne- Nevada lawmakers passed a law prohibit- “They will remain under medical ob- vada Independent. “There are quite a few ing the state from using private prisons. servation twice­daily,” said Minev. inmates suffering from fatigue and differ- But the ban does not take effect until As of August 11, 2020, just 13 of the ent spine aches or abdominal tenderness in mid-2022. Nevertheless, NDOC plans to original 69 infected prisoners still tested their stomach.” return the Nevada prisoners from Saguaro positive for the disease. The remaining CoreCivic claims that it is taking pre- later this year, if not sooner. Facing a $1.2 56 Nevada prisoners who were originally cautions to prevent the spread of COVID-19. billion budget shortfall, Nevada lawmakers infected – as well as the other 30 from the Yet other CoreCivic facilities in Eloy that are debating a proposal to accelerate that state who did not test positive in the previ- house ICE detainees have seen major out- timeline in order to save an estimated $1.5 ous month – all tested negative. breaks. As of July 13, 2020, positive tests million in fees it will owe CoreCivic under “CoreCivic is working with NDOC for the disease had been recorded for 250 its contract, currently not set to expire until medical and programming staff to monitor, detainees and 128 guards — more than 40 mid-2021. assess, and treat Nevada offenders in their percent of the staff — at the Eloy Detention The ACLU of Nevada cheered the custody,” said NDOC Director Charles Center, according to The Arizona Republic. expedited return proposal. Daniels. “Their plans now align with our According to Slaughter, “The running “We will reach out to the dozens of security and medical-related protocols and joke amongst [Saguaro guards] and inmates Nevada families with impacted loved ones procedures.” was that, ‘Well ... just about everybody’s and fight for fair medical conditions so they But the number of positive tests among got it now. As long as nobody dies, we’re can recover and swiftly return to Nevada,” CoreCivic guards at Saguaro shot up in Au- alright.’” the group said. gust to 15, though 13 had already recovered “I believe their goal was to keep this and were cleared to return to work. And one prison as one of the few CoreCivic prisons Source: thenevadaindependent.com

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Prison Legal News 33 November 2020 New Jersey Guard Acquitted in Sex Scandal by David M. Reutter

New Jersey prison guard was A class action lawsuit filed in July and a half years of unpaid leave. “That’s a Aacquitted on charges of official mis- 2018 by Marianne Brown alleged she was lot of lost wages,” he said. conduct and conspiracy to commit sexual subjected to sexual abuse while at the prison A New Jersey Department of Correc- assault. It is the second acquittal for guard and that sexual harassment and assaults at tions spokeswoman said Ambroise will have Brian Y. Ambroise, who worked at Edna the prison date back to 1997. It further al- to go through an internal review process Mahan Correctional Facility, New Jersey’s leged prison staff attempted to cover up at before he can return to work. In such cases, only women’s prison. least 10 incidents of employee misconduct. as PLN has reported, guards are typically The March 13, 2020, verdict by a [See: PLN, April 2019, p. 40]. returned to work and often promoted to Hunterdon County Superior Court jury Ambroise was “ecstatic” about the jury’s supervisory positions as time passes. See: resolves all of the criminal charges against verdict, said his attorney, James Wronko. He Owens v. Ambroise, Case No. 3:17-cv- Ambroise. He was charged in two other said Ambrose looks forward to returning to 07159, USDC (D.N.J.). cases alleging he sexually assaulted prison- work as a prison guard and that he may have ers. Prosecutors dropped charges in one case to sue to receive earnings for nearly three Additional source: correctionsone.com against Ambroise, 36, and in November 2018 a jury acquitted Ambroise in the Washington Prisoner’s State Public second case. The latest acquittal came in a case Records Act Lawsuit Results in His alleging Ambroise allowed two female prisoners into an area of the prison where Freedom and $111,194 Award guard Ronald Coleman allegedly sexually by Matt Clarke assaulted them. Coleman, 40, was sched- uled to go to trial in May 2020 on charges n January 17, 2020, a Washington this was his “third strike” under state law, that he sexually assaulted two women Ojudge awarded over $110,000 in penalties Hamilton was facing life in prison. prisoners on separate occasions in 2015 and attorney fees to a former state prisoner He got a temporary reprieve when a and 2016. whom another state judge had already freed, state appeals court tossed the conviction in Ambroise is the only guard to be all because Snohomish County officials’ 2017 for improper questioning at trial of acquitted in a sexual abuse scandal at the clumsy handling of public records requests the only expert witness called on Hamilton’s prison. It was uncovered as the result of had threatened his rights, as well as those of behalf. While awaiting a retrial in 2018, a 2017 NJ Advance Media investigation 127 other county inmates seeking records. he made a public records request for video that found a pattern of sexual exploitation Jimi Hamilton had already gained no- files from the county jail on the day of the and assault at the prison. Guards Thomas toriety when he married a former jail guard alleged assault. Seguine, Ahnwar Dixon, Joel Herscap, and in nearby Pierce County while awaiting The county instructed him to complete Joel Mercado took plea deals while guard sentencing for bank robbery in 2007. Then, and sign a form that said the request was Jason Mays was convicted at trial. Mays was while serving a 14-year term for that crime, being made pursuant to the “Jail Records sentenced to 16 years in prison. [See PLN, Hamilton was charged with a second- Act.” But that is, in fact, a non-existent April 2019, p. 40]. Herscap and Seguine degree assault that left another guard with statute. And if Hamilton had signed it, received three year-prison terms. [See PLN, broken bones in his cheek and jaw. A jury he might have then forfeited his right to Dec. 2018, p. 44]. convicted him in October 2014, and since the material under the state’s actual Public

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November 2020 34 Prison Legal News Records Act (PRA). Since Hamilton’s case, the county has Snohomish County, Case No. 18-2-575598- Hamilton refused to sign the form found not only the improperly handled SEA, King Co. Sup. Ct., Wash. and instead filed a complaint under the PRA requests for the other 127 prison- real PRA to compel Snohomish County ers but also 233 more. See: Hamilton v. Additional source: heraldnet.com to provide the video material. The county refused and stood by its demand for a signed North Carolina Temporarily Closes Three request form. That’s when Seattle attorney William John Crittenden joined the fray, Prisons for Lack of Guards; Final One representing Hamilton. Before King County Superior Court Reopens During COVID-19 Pandemic Judge Ken Schubert, he argued that the by Ed Lyon reference to the nonexistent law was in- tentionally misleading. The county replied he North Carolina Department doubt cause an economic slowdown for his that the term “Jail Records Act” should be Tof Public Safety’s (DPS) Division of constituents. Steinburg issued a statement understood as shorthand for the City and Adult Correction and Juvenile Justice saying that “Secretary Moose and senior staff County Jail Act and that any misleading (DACJJ) has been in a severe crisis mode at the Division of Adult Corrections have was unintentional. But the judge wasn’t regarding prison guard understaffing. The agreed to appear before the Senate Select buying it. August 2019 vacancy rate was 21 percent, Committee of Prison Safety so that other “The county acted in bad faith,” causing prisons to be unable to safely. Senators may ask questions.” Schubert ruled. DPS and DACJJ administrators There were multiple delays. However, By August 2019, the county’s website decided to close three of their minimum- by August 2020 all three prisons had been had been scrubbed of any reference to the security facilities, on a temporary basis, reopened. On August 10, State Treasurer nonexistent law. to allow them to operate their remaining Dale Folwell stated that more than 100 “We learned our lesson,” said County prisons at a constitutionally acceptable level. prisoners would be sent to the Tyrrell Prosecutor Adam Cornell. Yet prisoner Scott Whitmeyer was stabbed Prison Work Farm. “Not only will it help Yet the county still failed to provide to death on the evening of September 28, the economy of the area, but it will help Hamilton with all the requested records 2019. He was assigned to Whiteville’s Co- alleviate the overcrowding in other pris- – because some had been destroyed. In lumbus Correctional Institution and was ons that could help prevent the spread of November 2019, Superior Court Judge living in a dormitory within the medium- COVID-19 to inmates and employees of Eric Lucas dismissed Hamilton’s criminal security prison. the prisons,” he said. He thanked Steinburg charges after finding the state failed to Republican state Senator Bob Steinburg and other senators for pushing for the three preserve evidence useful to the defense. questioned the closing of the three prisons. prisons to be reopened. Hamilton was freed from jail. One of them is in Steinburg’s district and Two months later, at the conclusion of another is not far away, which would no Source: nsjonline.com his PRA case, Judge Schubert awarded him a penalty of $7 per day that each page of material was denied in all seven of Ham- ilton’s PRA requests – 60 pages, denied nearly 130 days, for a total of $55,034. It also granted attorney fees of $450 per hour for 124 hours for a total of $55,800, adding an additional award of $360.45 in costs.

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Prison Legal News 35 November 2020 Second Circuit Reverses Summary Dismissal of Connecticut Prisoner’s Failure-to-Protect Lawsuit by Matt Clarke

n April 15, 2020, the Second Cir- against Chapdelaine, Godding, Maldanado, visory liability. Ocuit Court of Appeals reversed a and Lindsay remained, along with pendent However, Morgan did not seek to hold district court’s granting of summary judg- state torts against all defendants. them responsible under that doctrine, but ment to prison officials in a Connecticut The district court appointed Morgan rather for actions they themselves com- prisoner’s lawsuit over their failure to pro- counsel. Then defendants were granted mitted. Since they acknowledged receiving tect him from retaliation by gang members summary judgment on the federal claims. IRFs that were “detailed and explicit regard- after he assisted in an investigation. The court also dismissed the state claims ing the threat Morgan believed Rodriguez Lloyd George Morgan, Jr., was without prejudice. Morgan was represented posed,” there was a question of material fact transferred to the Osborn Correctional on appeal by New Haven attorney Sherwin as to whether they had actual knowledge of Institution after he cooperated with prison M. Yoder of Carmody Torrance Sandak & the risk rendering summary judgment inap- officials investigating gang activity at an- Hennessey LLP. propriate. Therefore, the court vacated the other prison. Upon his arrival at Osborn, he The Court of Appeals noted that the grant of summary judgment to Chapdelaine was immediately threatened and harassed district court dismissed the claims against and Godding on the Eighth Amendment for being a snitch and a homosexual. Chapdelaine and Godding based on claims and affirmed summary judgment for Morgan sent an Inmate Request Form Morgan’s failure to show their “personal all other defendants, remanding for further (IRF) to Unit Manager Captain K. God- involvement” in the alleged constitutional proceedings. See: Morgan v. Dzurenda, 956 ding stating that he had worked with prison deprivations under the doctrine of super- F.3d 84 (2d Cir. 2020). intelligence officials and had been called a snitch by Los Solidos gang member Gabriel Rodriguez, who had threatened to “beat $225,000 Windfall in Lehigh County, Pa., [Morgan] really bad and snap [his] neck for being a ‘snitch’” and feared Rodriguez But Officials Don’t Cut Jail Phone Costs would harm him. He reiterated this to God- by David M. Reutter ding verbally on at least three occasions, but Godding would not take him seriously and enegotiation of its jail telephone without providing details, that they had told him to “stop being a snitch” and “learn Rcontract netted Pennsylvania’s Lehigh bolstered efforts to reduce recidivism. Un- to fight like a man.” County an unbudgeted $225,000 windfall. der the new contract, jail detainees still pay Morgan then sent a similar IRF to Mark Pinsley, the county comptroller, the same amount for calls. The cost ranges Osborn Warden Carol Chapdelaine. He urged county officials to put that “revenue from 21 cents to 25 cents per minute for also spoke with Chapdelaine about the IRF back into efforts to aid those held in the interstate calls and 19 cents for local calls. when she toured his cell block. county jail.” “We’re doing everything he brought On the evening of January 5, 2014, Pinsley’s March 5, 2020, letter noted up, and we’re not charging more for calls,” Morgan told guards Maritza Maldanado that research shows “that contact with fami- Armstrong said. and Jeremy Lindsay, who were assigned to lies during incarceration is closely associated According to a 2019 study by the Prison his cell block, that Rodriguez had threat- with a more successful reentry and a reduc- Policy Initiative, the national average cost of ened him, he feared for his safety, and was tion in reoffending.” He noted that prisoners a 15-minute call from jail is $5.74. A jail in especially fearful of “recreation time.” Hours face “enormous social and economic chal- Arkansas had the highest cost at $24.82. These later, he was let out of his cell for recreation lenges resulting from their time behind bars.” high costs put a burden on persons already and went to the shower. Rodriguez and Pinsley recommended “the county facing financial difficulty — often a factor another prisoner were there and they beat use these funds to either reduce the cost in the reason for the incarceration or the in- and choked him. His screams for guards to of calls or provide additional assistance.” ability to post bond. Dallas County, Texas, set help him were unheard or ignored. The county also could “invest in preven- an example in February 2019. Its new phone Morgan reported the beating to Malda- tive measures that reduce the likelihood of call cut costs to 1 cent per minute, reducing nado, but she was dismissive and refused to incarceration and violence in our commu- the cost of a 15-minute call to $3.60. call an emergency code or lock down the cell nities. The scourge of violence, particularly Pinsley said Lehigh County has a block. An investigation resulted in Rodriguez which afflicts our inner-city communities “unique opportunity among the counties of being disciplined for the assault. Morgan has had a devastating impact on families Pennsylvania to set a precedent for investing brought a pro se federal civil rights action and neighborhoods,” he wrote. in our incarcerated communities.” Instead, pursuant to 42 U.S.C. § 1983 with numerous County Executive Phillips Armstrong county officials elected to invest in the mass claims against prison officials. Claims and and Director of General Services Rick Mol- incarceration of the community. defendants were dismissed until only Eight chany said revenue the jail generates goes Amendment claims of deliberate indifference back into its operations. They also noted, Source: McCall.com November 2020 36 Prison Legal News Introducing the latest in the Citebook Series from Prison Legal News Publishing The Habeas Citebook: Prosecutorial Misconduct By Alissa Hull Edited by Richard Resch

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Prison Legal News PO Box 1151 • Lake Worth Beach, FL 33460 Dedicated to Protecting Human Rights Tel 561-360-2523 • www.prisonlegalnews.org Prison Legal News 37 November 2020 Private Prison Industry Ramped Up Campaign Contributions, Favoring Republicans by Derek Gilna

he volatile 2020 presidential bipartisan interest in prison reform and CoreCivic spokesman Ryan Gustin Telection campaign led private prison reducing mass incarceration, the industry also denied party favoritism in its political operators, dominated by CoreCivic and appeared to be hoping to at least maintain contributions, stating that such assertions, GEO Group, to open their wallets, with a a status quo by favoring Trump and the “are misleading and portray our company vast percentage of their approximately $2 GOP. in a false light.” Nonetheless, CoreCivic million in combined contributions going to GEO Group spokesman Pablo Paez, CEO Damon Hininger donated $26,300 the Republicans, according to the nonprofit when questioned about the preponderance to Republicans during this election season. Center for Responsive Politics. of money flowing to Republicans, said it People and groups linked to the company With a sitting president who has cam- “should not be construed as an endorse- have given $228,000, mostly to the Re- paigned against illegal immigration and in ment of all policies or positions adopted by publicans. favor of strict enforcement of immigration any individual candidate.” He added that, Regardless of the election outcome, laws, the industry clearly wants to maintain “The services we provide today are in no the Department of Justice and Immigra- its profit stream from facilities holding im- way different from the high quality, profes- tion and Customs Enforcement will still be migration detainees. sional services we provided for eight years required to honor the contracts signed by However, whether or not President under President Obama’s administration,” their departments, meaning that any serious Donald Trump is reelected, or his Demo- when detentions and deportation initially reduction in private prison detentions will cratic challenger Joe Biden prevails [Editor’s spiked, and then tapered off. Nonetheless, remain firmly in the future. note: This story is being written shortly GEO Group’s founder and CEO gave over before the election], the private prison con- $500,000 to Republicans this past year, and Sources: npr.org, wsj.com, foxbusiness.com, cerns will not likely be going out of business only $10,000 to Democrats. motherjones.com any time soon, for a reason that transcends party politics: There is insufficient space in federal prisons or immigration-holding Pennsylvania Prisoner Loses Part facilities to house all detainees. There also is no support in Congress for increasing of Leg, Wins Appeal in Precedential bed space. In a little-reported development, the Grievance Process Case Department of Justice quietly transferred by David M. Reutter the last immigration detainees from its prisons in 2018. n May 20, 2020, the U.S. Court normal orientation given new prisoners, As a result, DOJ and immigration of- Oof Appeals for the Third Circuit in nor was he issued a copy of the Camp Hill ficials were left with no other option but to Philadelphia, Pennsylvania, issued a prec- Inmate Handbook. Nevertheless, staff as- use private facilities to house them. Both edent-setting ruling that clarified when a sured him that a handbook copy would be major companies made about $1.3 billion “misrepresentation” to a prisoner renders a waiting for him in his cellblock, so Hardy from contracts with U.S. Immigration and grievance process “unavailable” as a matter agreed to sign an acknowledgment he had Customs Enforcement in 2019 alone, rep- of law under the federal Prison Litigation received it. But, in fact, the handbook was resenting 30 percent of their income. Reform Act (PLRA). not awaiting him when he finally arrived Private prison companies’ stock ini- When the plaintiff in the case, Steven on the cellblock. tially rose upon President Trump’s election, Patrick Hardy, entered the State Correctional Hardy requested a copy from a guard, but generally slumped thereafter. With Institute at Camp Hill in July 2017, he was who said he “should have already gotten the Democratic platform calling for the in urgent need of medical care. Part of a leg one” and that obtaining one was now “[his] abolition of private prisons, and with the amputated due to diabetes had developed an problem.” He was twice denied access to infected open wound the library, which was the best “place to get Poete Maudit Publishing House as a result of an ill- a handbook,” because the facility was full. Poete Maudit: Accursed poet; a writer dogged by misfortune or lack of recognition. Mission Statement: Providing an outlet for aspiring authors to have their voices heard. fitting prosthesis. Meanwhile his leg wound festered, and At Poete Maudit Publishing we’re dedicated to serving the incarcerated writing community. We offer a wide range of services including traditional publishing, self-publishing assistance, typing, and editing. For Because of his con- his complaints to medical staff were an- more information, send S.A.S.E. to: Poete Maudit P.O. Box 216 Farmersville, CA 93223. We also dition, he was sent swered with advice to file a grievance. Hardy operate a writer’s workshop and post prisoners’ work online and in our Review. To participate in our workshop, send poems, essays, short stories, ect to Larry Coonradt, Postal Annex 40485 Murrieta Hot directly to the prison did so, but without the handbook to guide Springs Rd, Ste B4 PMB 201 Murrieta, CA 92563. *We incite you to submit essays for publication in the Poete Maudit: Essay Collection, Vol I, to be released infirmary rather than him through the three-level grievance- spring 2020. You will be notified if your essay is selected. to a cellblock. review process, his complaint was rejected Also, we’ll be slashing ALL typing/scanning fees by 50% from June-Aug. Use code 2691 for discount. Check us out online at: poetemaudit.net As a result, he for not being “legible, understandable, and did not receive the presented in a courteous manner.”

November 2020 38 Prison Legal News “Between December 27, 2017, and misrepresentation is ‘clear’ but whether The court then applied that test to March 30, 2018, Hardy filed no less than that misrepresentation amounts to ‘inter- Hardy’s case. It found the advice he received twelve grievances seeking medical care for ference with an inmate’s pursuit of relief to file another grievance met both prongs. his worsening condition, all of which were [that] renders the administrative process First, it had interfered with his ability to denied on varying grounds,” the court found. unavailable.” The Third Circuit concluded navigate the grievance process. Also, as a “A few months after the last rejection, Hardy’s that “it is imperative that prisons refrain result of the misrepresentation, Hardy was fears came to pass and medical staff found it from not only clear misrepresentations, but never informed that there was more than necessary to amputate more of his leg.” also misleading statements.” one step to the process and that he needed That was when Hardy filed his federal The court then considered what a to write “appeal” somewhere on the form to civil rights action. But the district court prisoner must show to establish that the take the next step. There was no evidence granted the state’s motion for summary misrepresentation thwarted his ability to that Hardy was ever informed of the appeal judgment, finding that Hardy had failed take advantage of the grievance process, requirement. to exhaust his administrative remedies as establishing a two-part test. As a result, the court found that the required by the PLRA and concluding First, as an objective matter, the prison had “provided misleading instruc- that prison staff ’s advice was not a “clear instruction must be of the sort that a tions on which a reasonable inmate would misrepresentation” that made the grievance reasonable prisoner would be “entitled to rely.” The district court’s order was reversed, process unavailable. rely on” it even though it is “at odds with and Hardy’s complaint was remanded for When he appealed, the Third Circuit the wording” of the grievance process. It reconsideration consistent with the newly noted that no other Court of Appeals had also must be so misleading to a reasonable established two-part test. See: Hardy v. articulated a clear test to establish whether prisoner that it interferes with his use of Shaikh, 959 F.3d. 578 (3d Cir. 2020). a grievance process is unavailable to a pris- that process. oner because a misrepresentation thwarted Second, as a subjective matter, the the use of that process. prisoner must persuade the court that he Roget’s Thesaurus In establishing a test for that purpose, did in fact rely on the misrepresentation to Can’t think of the right word? the court first considered the meaning of his detriment, though this can be overcome Let Roget’s help you! Over 11,000 “misrepresentation.” with circumstantial evidence showing the words listed alphabetically. Under Ross v. Blake, 136 S.Ct. 1850 prisoner actually knew how to navigate the See page 69 for more information. (2016), the critical test “is not whether a grievance process.

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Prison Legal News 39 November 2020 Florida Spent $1.7 Million, and Counting, to Impede Felon Voting Rights by David M. Reutter

lorida’s legal battle to defend a tax. 2020 U.S. App. LEXIS 28851. [See $1.1 million by August. The amount of costs F2019 law that requires felons to pay PLN, October 2020, p. 46.] incurred by taxpayers for executive branch all “legal financial obligations” (LFOs) to A week before DeSantis signed SB staff-related costs and fees is unknown. be eligible to vote has cost taxpayers over 7066 into law, the Florida Department With the Eleventh Circuit’s Septem- $1.7 million, according to state records as of State (DOS) entered into an $800,000 ber ruling, the only litigation possibility of August 2020. [See PLN, July 2020, p.54.] contract with the Hopping Green & Sams that remained was to seek review in the In November 2018, Florida voters over- law firm “to provide litigation services in U.S. Supreme Court. whelming approved Amendment 4, which matters concerning the implementation of “I do think the governor will spend restored voting rights to felons, except those Amendment 4 and SB 7066.” whatever it takes to prevent people from convicted of murder and sex offenses, “after Less than a month later, DOS signed voting,” said Howard Simon, former execu- they complete all terms of their sentences a $1.275 million contract with Holland & tive director of the American Civil Liberties including parole and probation.” Knight “to provide litigation services and Union of Florida. “But if he’s going to pre- Florida’s Republican Legislature re- assistance with expedited discovery” in the vent people from voting because they owe sponded to that public mandate by passing SB voting rights litigation. money, boy it would be nice if he spent a 7066. That law required felons to pay all court As of August 2020, Hopping Green little bit of money creating some system tell- ordered fines, fees, costs and restitution associ- & Sams was paid $572,135.65. Florida’s ing people how much they have to pay.” ated with their convictions to be eligible to vote. Department of Financial Services website Legislators “knew going into the also showed Holland & Knight was paid Source: sunsentinel.com [2019] legislative session that they were going to be sued for it,” said Leah Aden of the NAACP Legal Defense Fund. Investment Firm Buys Corizon Gov. Ron DeSantis authorized $2.34 by Matt Clarke million in contracts with private law firms to represent the State in defending against n June 30, 2020, Flacks Group, a Unmentioned in the press releases that litigation, which resulted in a Sep- OMiami-based global investment firm, were Corizon’s numerous litigation issues tember 11, 2020, en banc decision from the announced that it had purchased Brentwood, and the collapse of its business. In 2018, Eleventh Circuit Court of Appeals that Tennessee-based Corizon Health, one of the Corizon contracted with 534 facilities in 27 reversed the district court’s judgment that nation’s largest private providers·of health states to provide prisoner health care. That found SB 7066 was an unconstitutional poll care services in prisons and jails. The pur- meant about 15% of U.S. prisoners received chase price was not disclosed. their health care from Corizon. Currently, Flacks Group specializes in “oper- Corizon contracts with 149 facilities in 16 ational-turn-around of under-utilized states, a severe contraction in business. The LITT Group, LLC companies.” “Our debt was coming for maturity at the Executive Clemency and Pardon Experts In other words, it purchases companies end of the second quarter,” Corizon Health that have good prospects, but are perform- CEO James Hyman said in a press release. “As Sentence reduction and other ing poorly and improves their performance. we started to talk to people in the industry … sentence modification through It has over 7,500 employees and manages we realized that we were going to face other executive clemency or a pardon. in excess of $2.5 billion in assets. It had types of investors that might be better than Please contact our offices or have a recently announced that it was looking for our previous investors. Our previous investors family member contact our offices: bargain-price purchases of companies that were basically banks and the private equity The LITT Group, LLC had been stressed by the pandemic. firms. They have a pretty clear mandate of PO Box 358 Corizon employees number more than rapid growth, rapid exit. … What we got Nellysford, VA 22958 5,000 and the company’s annual revenue is [instead] was someone who could take a www.LITTfreedom.com around $800 million. A Corizon spokes- longer-term view … and they were willing to [email protected] person said the transaction was not related substantially reduce our debt burden.” 917-940-8055 to the pandemic but caused by Corizon’s So, what caused the collapse of Cori- maturing debt. Corizon’s debt had reached zon? It could be the numerous lawsuits the Serving inmates in all fifty states as $300 million before Blue Mountain Capital company lost for providing substandard well as federal inmates. Management became its majority owner in health care as reported on page 20 of the Unsolicited documents not returned. 2017. In November 2018, Blue Mountain in- March 2020 PLN. That article also men- Not a pro bono group. jected another $100 million into the company, tioned several states that had fined Corizon reducing its debt load to less than $90 million. millions of dollars for substandard perfor- November 2020 40 Prison Legal News mance and short-staffing. It is unlikely that Group promotes a business model that and die because of Corizon’s unethical facilities receiving such poor performance includes actually delivering the health-care practices. and possibly incurring liability themselves services Corizon contracts to provide. If were eager to renew contracts with Corizon. that happens, the buyout will be a boon for Sources: bizjournals.com, nashvillepost.com, Between July 2015 and December all. If not, prisoners will continue to suffer corizonhealth.com, williamsonhomepage.com 2018, Kansas fined Corizon $1 million for under performance and $6.4 million for understaffing in its prison system. Yet -Co $1.25 Million Settlement Against Tennessee rizon continued to short-staff and provide County Over Sheriff’s Violations of Labor Law substandard health care. “Corizon is simply writing off the liq- by Douglas Ankney uidated damages they’re having to pay as the cost of doing business in [Kansas] without n December 10, 2019, the U.S. compensated for that time at a rate of one doing anything meaningful to improve,’’ ODistrict Court for the Western Dis- and one-half times their regular hourly rate. said Eric Balaban, a senior staff attorney trict of Tennessee approved a class action Sheriff Mehr attempted to evade with the American Civil Liberties Union’s settlement in which Madison County responsibility by claiming the practice Nation Prison Project. agreed to pay $1.25 million over claims al- of requiring employees to show up early That seems to be Corizon’s business leging that Sheriff John Mehr violated the and stay late was in place long before he plan — write off the fines and court awards Fair Labor Standards Act (“FLSA”). became sheriff. But Madison County as business expenses but spend nothing Natasha Grayson, an employee of the Commissioner Doug Stephenson said the to correct the problems. According to the Madison County Criminal Justice Complex sheriff “is a constitutional officer and he’s American Civil Liberties Union, Corizon (“MCCJC”), was the named plaintiff in the responsible for this department — even was sued for malpractice 660 times in the lawsuit, which was filed on July 2, 2019. if he has decided to whitewash it and not preceding five years. The most recent court The suit named Madison County as the take responsibility for his mismanagement.” award was $10 million in an Oregon federal Defendant and sought to recover unpaid The Madison County Commission lawsuit over Corizon employees ignoring a wages, overtime wages, liquefied damages, amended the settlement to provide that young woman’s pleas for medical attention attorney’s fees, and statutory penalties un- $1 million of the payout will come from while she died of heroin withdrawal. The der the FLSA on behalf of Grayson and the sheriff ’s budget. Plaintiffs were repre- contract non-performance fines and court other similarly situated current and former sented by attorney Michael L. Weinman of awards may well explain Corizon’s debt employees (Plaintiffs) of the Defendant. Weinman & Associates. The court awarded problem and shrinking customer base. The suit alleged that Plaintiffs were hourly $375,000 in attorney’s fees. “From a customer’s perspective, they employees who worked eight-hour shifts, In a pending, unrelated suit, Mehr are seeing their municipal and state budgets five days per week. But Defendant’s policies sued the Madison County Commission to under extraordinary pressure, and the health required Plaintiffs to arrive at the MCCJC get $2.8 million added to his $22.2 million care for detainees and inmates is one of the and be ready for work 15 minutes before budget. The Commission says Mehr doesn’t only things in health care that is constitu- their shift began and to remain another need the additional money because he cre- tionally mandated,” Hyman said in the press 15 minutes after their shift ended. The ated unnecessary high-paying jobs for his release. “So helping our customers through Plaintiffs were not compensated for this wife and others. See: Grayson v. Madison that process, helping our patients through time, and Defendant failed to log this time. County, Case No. 1:19-cv-1136-STA-tmp, that process is going to be all consuming Since this period of 30 minutes each U.S.D.C. (W.D. Tenn.). for the next 12 months.” day was in excess of their 40 hour each week, One can only hope that the Flacks Plaintiffs alleged the FLSA required they be Additional source: jacksonsun.com

Prison Legal News 41 November 2020 Ankle Monitor Shortage at Chicago Jail Put Prisoner Releases During COVID in Limbo by David M. Reutter

hicago’s Cook County Jail expand- “But if there are no ankle shackles available, Despite the dangers of COVID-19 Ced its electronic monitoring program the person remains in jail. It’s a pretend de- and the impossibility of social distancing (EM) and moved detainees to home con- cision with a de facto result of incarceration within the confines of jail, State Attorney finement in response to COVID-19. As but without the court having to meet any of Kim Foxx’s office continued to argue officials ran out of ankle monitors, at least the standards required to justify someone’s against release in 80% of the 2,366 motions 10 detainees who were ordered released on pretrial incarceration.” for bond reduction filed between March EM were held in jail when it was one of the As of June 2, 2020, the EM population 23 and April 22. The rate of opposition country’s hot spots for the disease. included “30 people charged with cannabis was between 70% and 80%, from April 22 Civil rights groups had filed a federal felony, 139 people charged with driving through May 6, the Chicago Appleseed lawsuit on April 9, 2020 that sought the with a revoked or suspended license, 11 Fund for Justice found. release of medically vulnerable people from charged with misdemeanor theft, 180 with In the face of that opposition, judges the jail during the pandemic. A federal felony theft, 17 with criminal damage to often ordered conditional release. “They judge ordered Sheriff Thomas Dart to in- property, and 150 with DUI,” The Appeal granted a bond reduction to let someone crease testing and keep detainees apart from reported. out of custody, but they mandated that one another. Dart appealed, and his motion Sarah Staudt, senior policy analyst and the person be on electronic monitoring,” to stay was denied. [See: Mays v. Dart, Case staff attorney at the Chicago Appleseed Staudt said. No. 20 C 2134, U.S.D.C. (N.D. Ill.)] Fund for Justice, said many of these people As of May 31, 2020, 542 detainees Reduction of the jail population came should not be on EM when stay-at-home had tested positive for COVID-19, and through electronic monitoring releases. orders are in place and crime rates have seven detainees and three sheriff ’s office The jail population dropped from 5,604 on dropped significantly. “There’s very little employees had died from the disease. No March 1 to 4,281 on May 29. That increased reason to believe EM is effective, which further deaths had been reported since. the EM population from 2,417 on March 1 means that nobody needs to be on the to 3,205. It was a move Dart criticized due monitor,” she said. Source: theappeal.org to a lack of resources. The surge in the need for devices Violence at New York City’s Rikers caught sheriff officials off-guard. There were 10 detainees who could not be released on Island Jail Increasing Even May 7 due to a shortage in ankle monitors, said Allison Peters’ assistant press secretary as Population Falls for the Cook County Sheriff ’s Office. They by Ed Lyon were processed on May 9 when equipment was received. or decades, New York City’s Rikes civil rights lawsuit challenging confinement “By ordering someone to electronic FIsland Jail Complex (RIJC) has been conditions at RIJC. When the Civil Rights monitoring, it’s considered a release deci- the largest urban lock-up in the United Division of the United States Department sion,” said Sharlyn Grace, executive director States. It has also been infamous as among of Justice (DOJ) joined the suit as plaintiff- of the Chicago Community Bond Fund. the most violent jails regarding assaultive intervenor, the city quickly entered into behavior by guards toward prisoners, even a settlement largely favoring the plaintiff extending at times to citizens who visit class. (See: Nunez v. City of New York, Case prisoners. [PLN, February 2019, p. 34] No. 1:11-cv05845-LTS-JCF, U.S.D.C. PAROLE NEWS! PAROLE NEWS! Despite the jail’s population being (S.D. NY). Have you read what the Oregon Supreme Court lower than any time since 1945, constant The original Nunez agreement allowed ruled regarding multiple years parole denials? How monitoring by federal authorities and for thousands of wall-mounted video sur- about the new challenge drafted against the Texas agreements by city government to regulate veillance cameras as well as major policy Parole Board’s use of denial reasons which are the jail’s violent culture, uses of force have revisions aimed at reducing uses of force by psychological in nature? This and so much more is coming soon with the bi-monthly newsletter “Parole risen since 2016 — from 390 incidents jailers. Another segment of the agreement News” This newsletter highlights important parole per month to 600, a whopping 54 percent allows for court-approved monitors to be cases, parole decisions, parole reform articles, as increase. The numbers were reported on physically present at RIJC to report on staff well as parole court cases and rulings on parole re- August 6, 2020 by a federal appointee who compliance and any noncompliance to the lease/denials from around the Nation. Full year sub- monitors the jail system court and attorneys. scription is only $19.95. ORDER at: Parole News, Prior to 2015, New York City’s Le- Because of some jailers’ determined re- newsletter, P.O. Box 8363, FT. Worth, TX 76124. gal Aid office, assisted by several private sistance to court-approved reforms, coupled law firms, had prosecuted a class action with the steady rise of violence against November 2020 42 Prison Legal News prisoners, federal intervention has shifted from the civil rights division to the DOJ’s Failed Michigan Jail Site to prosecutorial arm, the United States Attor- ney for the Southern District of New York. Host Innovation Center U.S. Attorney Audrey Strauss stated the by David M. Reutter city and RIJC “have failed to fulfill [their] core obligations” outlined in the original he University of Michigan (UM) company demolished the half-built jail with settlement. Strauss and the city have signed Tis building a graduate campus on the plans to build a soccer stadium if Major onto a new, even more stringent agreement, grounds of the former site for a new Wayne League Soccer awarded Detroit an expan- which is pending court approval. County Jail (WCJ). The 190,000 square-foot sion team. Instead, teams were awarded to The Correction Officers’ Benevolent research and graduate education building Cincinnati and Nashville. Association is a union that represents for UM students will focus on automotive UM announced in October 2019 plans RIJC’s jailers and their interests. They mobility, artificial intelligence, sustainability, to partner with Gilbert and billionaire real stated the new agreement’s provisions cybersecurity and financial education. estate mogul and UM alum Stephen Ross “are straight out of the Legal Aid play- As PLN reported, construction was to build the $300 million Detroit Center for book, one-sided and only concerned with halted in 2013 on the WCJ after it was Innovation on the former 15-acre jail site. compromising the safety of our officers by discovered the project was running tens The facility will serve up to 1,000 graduate treating them like the criminals they are of millions of dollars over its $300 million and senior-level undergrads. It will focus on charged to supervise.” budget. [See: PLN, April 2016, p.58.] high-tech research, education and innovation, Legal Aid attorney Mary Lynne Werl- At least $150 million in 2010 bond with the goal of supporting the economic was pleased with the latest agreement. She funds were spent on the half-built jail. development of Detroit and the state with “a stated that after the court issues its approval, Since construction was halted, taxpayers pipeline of talent,” mlive.com reports. “we will vigorously enforce it.” paid nearly $1.2 million per month in costs The Center will also include incubator Four smaller jails are planned to replace for debt financing, security, and other fees and startup services, collaboration space for Rikers. They are scheduled for completion related to the site. established companies, residential units, a hotel by 2026. In early 2018, the site was sold to Dan and conference center and event space. Gilbert, who owns the Rock Ventures de- Source: nytimes.com velopment company, for $21.8 million. His Source: mlive.com

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Prison Legal News 43 November 2020 Second Circuit: Denial of Exercise Over Four Months Defeats Summary Judgment by David M. Reutter

n June 18, 2020, the Second Circuit months” was sufficient to state an Eighth going,” wrote the court. Reasonable prison OCourt of Appeals reversed the grant Amendment claim.” officials “understand that climatic features of summary judgment to prison officials In holding the defendants were not may necessitate responsive measures to in a 42 U.S.C. § 1983 action alleging the entitled to qualified immunity, the Second ensure that the right … not be denied.” officials’ failure to clear snow and ice from Circuit noted the district court improperly The Second Circuit vacated summary outdoor exercise yards for an entire winter narrowed the level of specify for the right. judgment on McCray’s monetary damages violated the prisoner’s Eight Amendment “[T]he right to a meaningful opportunity claim as to the right to exercise and ordered right to physical exercise. for exercise is not confined to a particular reinstatement of his state law claims. See: Mc- Before the court was the appeal of New season; though not constant, the right is on- Cray v. Lee, 963 F.3d 110 (2d Cir. 2020). York prisoner Lionel McCray. Proceeding pro se, McCray alleged that while at Green Haven Correctional Facility (GHCF) in Report: Screening Failures Cited in 2013-2014, he was on “keeplock” status, which allowed him out of his cell for one COVID-19 Outbreak in California Prisons hour of daily exercise. GHCF had several by Kevin Bliss outdoor exercise yards and one indoor gym- nasium that was restricted to prisoners in alifornia’s Office of Inspector showed that 5% of prison employees statewide other categories. CGeneral released a 47-page report admitted that they were not screened. In ad- McCray alleged that in the winter of in August 2020, which stated that vague dition, screeners said they had never received 2014, one or more of GHCF’s outdoor testing guidelines, faulty thermometers any formal training, compounding the risks recreation yards was closed, which when com- and inadequate training contributed to the of allowing the virus onto prison grounds. bined with the prison’s maximum capacity COVID-19 outbreak in the state’s prisons, In addition, investigations revealed population and the waist-high snow and ice killing 54 prisoners and nine guards while malfunctioning thermometers, registering accumulations that blocked access to exercise infecting 9,500 others. inaccurate temperatures — sometimes equipment, “prevented McCray from moving “Nine is an extraordinary number of because of weak batteries. sufficiently freely to be able to exercise” for staff deaths,” stated attorney Michael Bien. Prison officials reported all information four months. McCray also alleged he was “I cannot recall anything like that in any on prisoners who had tested positive for injured during a slip and fall on the ice. year. Right now it is very dangerous for COVID-19 but not staff. They stated that After the district court granted the those in custody and those working there.” release of this information violated employ- defendants’ motion for summary judgment, The California Department of Cor- ees’ right to privacy. The report noted that McCray appealed. rections and Rehabilitation (Department) this withholding of information hindered The Second District affirmed dismissal instituted mandatory screening for visitors the review board’s ability to fulfill its mission. of the Eighth Amendment claim related and employees at all of its 35 prisons last Corrections Secretary Ralph Diaz stat- to the slip and fall, finding McCray failed March. One month later, the Office of the ed that the department was taking steps to to make any claims of circumstances that Inspector General examined the prisons and address all of these situations. Nonetheless, would elevate GHCF’s “yard conditions found that the directive that all the staff and the report criticized the Department for its beyond the typical level of danger presented visitors would be screened for COVID-19 initial improper handling of COVID-19 by a slippery sidewalk or a wet floor.” was being inconsistently applied. screening and for withholding information It reversed, however, judgment on the Some of the prisons screened incom- pertinent to the investigation. monetary claim on the denial of exercise ing personnel in the parking lot before Prison Law Office attorney Don Spec- claim. As McCray had been transferred to the person could even get out of their car. ter called the inspector general’s findings another prison, his declaratory and injunc- Others did not screen until the person was disturbing. “Since staff are the main way the tive relief claims were moot. somewhere on prison grounds. “We found virus is able to enter the prison, the failure to On the merits, the Second Circuit that this second approach increased the risk properly screen and test staff to determine agreed with the district court that depriva- that staff or visitors may have walked into or whether they are infected may have led to tions of physical exercise for short periods through other work spaces without having an increase in infections and illness among are not unconstitutional, but it cited cases been screened,” said the report. “By that those incarcerated, other staff and members that periods of less than four months were point, although our staff were eventually of the community,” he said. viable. McCray’s claim that “more than 75 screened, the screening failed to accomplish As of October 8, 14,870 California pris- percent of yard space with snow and ice its purpose: our staff could have already oners had been infected with the coronavirus, at waist high” prevented him from “any infected departmental staff.” according to data gathered by The Marshall meaningful exercise opportunity for four A survey conducted for the report Project. Sixty-nine had died along with 10 staff. November 2020 44 Prison Legal News “By their very nature, prisons operate growing to global pandemic proportions, Source: latimes.com, California Of- as controlled environments in which every- and is now impacting congregate living fice of Inspector General, Inconsistent one’s movements and activities are closely situations, such as prisons, especially hard Screening Practices May Have In- monitored,” the Inspector General’s report … The lives of all those who interact within creased the Risk of COVID-19 Within said. “In 2020, the novel coronavirus disease, the system—hundreds of thousands—are California’s Prison System, August known as COVID-19, swept the world, literally at stake. 2020 Rikers Island Death Case Against City of New York Settles for $5.5 Million by Derek Gilna

wrongful death action filed by negligence for failure to prescribe needed Expert medical testimony had noted Athe decedent’s estate of a Rikers Island medication, but also the dismissal of Sec- that Luckey had been on prescription asthma prisoner against the City of New York, the tion 1983 civil rights and negligence claims medication for two weeks prior to her arrest, New York City Health and Hospitals Corp., against other defendants. Luckey’s attorney, but that upon her admission she was only Prison Health Services, and individual Richard Gross of the New York law firm provided rescue medication by the jail. prison guard defendants, has settled for of Rubert & Gross, P.C., appealed, and Jail personnel and medical staff failed $5.5 million. the court reinstated the dismissed counts, to note that she suffered from a low peak Eva Luckey, a prisoner at Rikers Island, setting the stage for the settlement. expiratory flow rate, which was a departure New York, jailed for petit larceny, died in As noted by Prison Legal News in April from good and accepted medical practice. It April 2002, because of negligence on the 2015, the appellate court’s decision found also was established that there was a failure part of jail staff to provide her with the that New York could be held liable for to properly train and supervise personnel, as prescription medication needed to control failure “to protect decedent from reasonably well as the failure to promptly initiate CPR. her asthma, and failed to perform CPR on foreseeable harm in providing emergency Luckey died from her asthma attack her when she went into respiratory distress. medical assistance once she complained of the day before she was scheduled for a The December 2019 settlement ended difficulty breathing and otherwise exhibited court appearance. She had six children. See: a multiyear legal odyssey, which initially signs of an asthma attack.” Luckey had been Luckey v. City of New York, 177 A.D.3d 460 saw the medical providers found guilty of jailed after she could not post a $500 bond. (N.Y. App. Div. 2019) Is someone skimming money or otherwise charging you and your loved ones high fees to deposit money into your account? Prison Legal News (PLN) is collecting information about the ways that family members of incarcerated people get cheated by the high cost of sending money to fund inmate accounts. Please write to PLN, and have your people on the outside contact us as well, to let us know specific details about the way that the system is ripping them off, including:

• Fees to deposit money on prisoners’ accounts or delays in receiving Friends and families of prisoners can follow this effort, which no-fee money orders is part of the Nation Inside network, at www.StopPrisonProfiteers.org • Costly fees to use pre-paid debit cards upon release from custody • Fees charged to submit payment for parole supervision, etc. Please direct all related correspondence to [email protected]@humanrightsdefensecenter. org This effort is part of the Human Rights Defense Center’sStop Prison Call (561) 360-2523, or send mail to PLN Profiteering campaign, aimed at exposing business practices that Prison Legal News result in money being diverted away from the friends and family Attn: KathyPanagioti Moses Tsolkas PO BoxBox 1151 members of prisoners. Lake WorthWorth, Beach, Florida FL 33460 33460

Prison Legal News 45 November 2020 Families of 4 Alabama Prisoners Who Committed Suicide File Federal Lawsuit Against Prison Officials by Matt Clarke

n February 24, 2020, the families F.Supp.3d 1171 (M.D. Ala. June 27, 2017). According to court documents, the Oof four Alabama state prisoners who With the assistance of Montgomery DOC is overcrowded at 175% of design committed suicide as they languished in attorney Joseph Mitchell McGuire of Mc- capacity and understaffed by as much as isolation cells in the Alabama Depart- Guire & Associates and Chicago, Illinois 68% at some prisons. MHM and Wexford ment of Corrections (DOC) filed a federal attorneys Nicolette A. Ward and Antonio mental health care staff also was under- civil rights lawsuit against DOC officials, Romanucci of Romanucci & Baldwin, the staffed despite the 25% increase in the Wexford Health Sources and MHM Cor- families of the four prisoners filed a federal mental health caseload between 2008 and rectional Services, the DOC’s contract civil rights lawsuit alleging the DOC ig- 2016. Further, DOC officials denied -re providers of medical and mental health nored the remedial court order and allowed quests to increase the number of approved services. They alleged that a lack of mental understaffing, overcrowding, and the use mental health care positions. health treatment and use of untrained and of untrained and unlicensed mental health As of September 2016, the DOC had unsupervised mental health workers in the care providers to effectively deny the prison- only half of its security positions filled. This DOC led to their family members’ deaths. ers in isolation mental-health care. resulted in the cancellation of mental health Billy Lee Thornton, Ryan Rust, Mat- “The Alabama corrections officials appointments and group activities—espe- thew Holmes, and Paul Ford were DOC named as defendants along with the mental cially for segregation prisoners. Further, a prisoners suffering from severe mental healthcare providers even failed to comply lack of proper training led to many prisoners illness who were incarcerated in segrega- with remedial mental health procedures to with serious mental illness being improp- tion cells prior to their suicides. During which they consented and agreed to have erly classified as not mentally ill during their incarceration, mental-health care for memorialized in federal court orders,” Mc- intake, leading to them being segregated DOC prisoners was provided by MHM Guire said. “The defendants can no longer and disciplined. and Wexford (after mid-2018). rely on excuses such as staffing shortages and All four prisoners had histories of Prior to the four suicides, an Alabama poor administrative discipline. They must serious mental illness and multiple suicide federal court issued a remedial order and now be held accountable for the deaths of attempts. None were given treatment prior opinion in a civil rights lawsuit brought humans who suffered so greatly from the to their successful suicide attempts. One by the Southern Poverty Law Center over state’s failure to provide adequate mental can only hope this lawsuit helps prevent conditions in the DOC, calling the provi- health care, that suicide appeared to them to further tragedies. See: Head v. Dunn, Case sion of mental health services “simply put ... be the only option. Meanwhile, these state No. 2:20-cv-00132-SMD, U.S.D.C. (N.D. horrendously inadequate” and in violation of defendants effectively stood idle—indif- Ala.). the Eighth Amendment. Briggs v. Dunn, 257 ferent to the mental health needs of these desperate inmates—and over and over again, Additional sources: montgomeryadviser.com, suicide was indeed the tragic result.” abcnews.go.com Cadmus Publishing Make your voice heard. ICE Detainees Pepper-Sprayed Publish Over Hunger Strike your by Daniel A. Rosen book with ease. All igrants in ICE custody in New the incident took place. Ryan Gustin said on you need MMexico were attacked with pepper the company’s behalf that officers pepper- to do is spray on May 14, 2020, to end a days-long sprayed “a group of detainees who became write it - hunger strike. The detainees, housed at disruptive by refusing to comply with verbal we do all Torrance County Detention Facility, pri- directives provided by staff.” Gustin referred the rest. vately run by CoreCivic, were protesting further questions to ICE, which had no We are able to accept emails from most institutions. the food quality and lack of protection from response to requests for comment. We are also happy to take your calls, but COVID-19. Torrance County Manager Wayne cannot accept charges. “Suddenly they just started gassing us. Johnson was skeptical of inmate accounts, It’s time to share your story. You could just hear everyone screaming saying he had no confirmation that the for help,” Yandy Bacallao, a 34-year-old incident had even happened, but suspects Call, write, or email for more information. Cuban asylum claimant, told Searchlight “there’s more to it than what you’ve been [email protected] 651-302-2539 New Mexico. told.” PO Box 532, Port Angeles, WA 98362 A CoreCivic spokesman confirmed that The county recorded $90,000 in in- November 2020 46 Prison Legal News come from CoreCivic last fiscal year, when going to die.” fected, and induces coughing, increasing the site started housing migrants, and ex- Bacallao said following the attack, the the spread of the disease. pects annual revenue from the arrangement men were handcuffed and placed in holding ICE policy allows for the use of pepper to climb to about $130,000 per year. cells, after nurses did a cursory check. Some spray to “gain control” of detainees, as long Bacallao and two other detainees were carried out on stretchers or in wheel- as detention facilities keep records of any provided additional details. After almost chairs, one with a head wound, according such uses of force. ICE declined to share three dozen cases of the coronavirus were to witnesses. Trying to wash out their eyes any records from the May 14 incident. identified at the facility, the men began ask- with water from the sink made the effects This is the third time Bacallao has ing for community release while awaiting of the irritants worse, they said. sought political asylum in the United States, resolution of their cases, and about policies Said the Searchlight story: “Bacallao according to the article: “He first tried to to control the virus. was briefly checked by a nurse before be- flee Cuba about five years ago with about The hunger strike over food conditions ing placed in a holding cell with one other a dozen others on a makeshift boat a little was already underway when COVID-19 migrant. The two could barely see – pepper smaller than two king-sized mattresses. cases started to rise, and detainees’ fears of spray can cause temporary blindness – but They were headed toward Cancún, Mexico, the virus spread increased their determina- they managed to navigate their way to a and planned to make the rest of the journey tion to press their case. sink in the cell where they tried to wash by land. At the time, the United States was Instead of answering the migrants’ in- themselves off. The water only made it operating under the ‘wet foot, dry foot’ quiries, Bacallao says a prison official came worse. Bacallao stood still for an hour with policy: Cuban migrants caught at sea were into their dorm on May 14 to warn them his arms outstretched; it was too painful to turned away, while those who arrived by that “it was going to get ugly,” unless the let anything touch his skin.” land were allowed to stay… Bacallao wanted men ended their strike. According to Gustin, the CoreCivic to join them. But after a week in the open The migrants were told they could exit spokesman, medical staff reviewed everyone water, his boat ran out of gas, and the crew the dorm and a couple of them did before after the protest and “no injuries occurred.” jettisoned the motor to stay afloat. The craft guards entered in gas masks and full riot According to medical experts, chemical drifted toward American waters, and after a gear, corralling the remaining men. irritants like pepper spray are exceedingly few weeks, Bacallao was apprehended wet- “It felt like I had been burned with problematic when respiratory diseases like footed and sent back home. gasoline,” said another Cuban asylum COVID-19 are involved. Pepper spray seeker. “I couldn’t breathe. I thought I was worsens symptoms for those already in- Source: searchlightnm.org

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Prison Legal News 47 November 2020 Connecticut: Summary Judgment Denied in Deliberate Indifference Case Where Facial Lesion Turned Out To Be Skin Cancer by Chad Marks

effrey Bardo was a state of Con- lesion was a basal cell carcinoma. With this in mind, the court consid- Jnecticut prisoner at the Willard Cybulski The cancerous cells required surgical ered Salahuddin v. Goord, 467 F.3d 263 (2d Correctional Institution in Enfield when he removal. Cir. 2006), which states that “the cruel and submitted a medical request to have an odd In 2017, Bardo brought a civil rights unusual punishment clause of the Eighth spot on his face checked out. action pursuant to 42 U.S.C. § 1983 against Amendment imposes a duty upon prison Two days after Bardo submitted that Dr. Wright, arguing that he had violated his officials to ensure the inmates receive ad- request, on December 18, 2012, Dr. Michael Eighth Amendment rights and acted with equate medical care.” The court found that Clements examined Bardo, diagnosing the deliberate indifference toward his facial reasonable jurors could conclude based on spot as a “two-centimeter sebaceous cyst.” lesion. In response, Dr. Wright moved for the facts that the doctor was sufficiently On June 18, 2013, while at the Osborn summary judgment. callous about Bardo’s health in the face of Correctional Institution, Bardo complained After weighing the Eighth Amend- actual awareness of Bardo’s risk of untreated again about a medical issue — a bump ment deliberate indifference accusations, skin cancer as to support a finding of delib- under the skin of his abdomen and an old the court found that the record taken in a erate indifference. scar on his face that would not go away, light most favorable to Bardo permitted the Accordingly, the motion for summary according to court records. inference that the risk of skin cancer was judgment was denied on November 8, 2019. Two months later, Bardo was trans- sufficiently obvious that Dr. Wright should See: Bardo v. Wright, Case No. 3:17-cv- ferred to the Carl Robinson Correctional have been aware of it. 1430 ( JBA), USDC (D. Conn.). Institution, where he met with Dr. Carson Wright after complaining about the spot on his face and the lump on his stomach. Bardo Eleventh Circuit: Florida’s Treatment Plan for suggested to the physician that he might have skin cancer, which Wright said was not Hepatitis C-Positive Prisoners Constitutional the case. Bardo was eventually told that the by David M. Reutter spot was likely ringworm and prescribed an antifungal cream. he Eleventh Circuit Court of with F0 (no fibrosis) and F1 (mild fibrosis) Upon his release from the Department TAppeals held that the Florida Depart- with DAAs within two years. of Corrections, Bardo went to meet with ment of Corrections’ (FDC) treatment On appeal, FDC conceded that chronic a primary care physician in 2015. After a satisfies constitutional requirements even HCV is a serious medical need. The Eleventh biopsy, it was determined that the facial though it does not require that Hepatitis C Circuit began its analysis by pointing to the (HCV)-positive prisoners be treated with “stringency of the deliberate indifference” expensive antiviral drugs during early stages standard to sustain an Eighth Amendment of the disease. violation. It believed the district court lost The court’s August 31, 2020, opin- track of that standard and “impermissibly BURLESON ion was issued in an appeal brought by evaluated” FDC’s “treatment plan against a FDC. The appeal challenged a district negligence (or perhaps even more lenient) court’s order requiring FDC to treat all benchmark.” The proper standard required LAW GROUP HCV-positive prisoners with direct acting the prisoners to show FDC’s “approach to Ashley Burleson antiviral (DAA) drugs within two years of the treatment of F0- and F1-level inmates is Attorney at Law their diagnosis. so reckless — so conscience shocking — that 955 Dairy Ashford Rd. Suite 110 HCV attacks the liver, causing scarring it violates the Constitution.” Houston, Texas 77079 or fibrosis that is scored from F0 to F4. FDC’s plan for F0 and F1 level pris- [email protected] The district court, after a five-day hearing oners is to monitor their conditions and in October 2017, granted a preliminary provide DAA treatment to those who Texas State Habeas Applications injunction that required FDC to treat have either (1) have an exacerbating ill- Texas State Appeals prisoners with F2 (moderate fibrosis), F3 ness, such as HIV, (2) exhibit signs of rapid (severe fibrosis), and F4 (cirrhosis) with fibrosis progression, or (3) advance to F2. Texas State Parole Representation DAAs. (See PLN, December 2017, p.24.) The Eleventh Circuit said FDC was not Texas Federal Habeas Applications The district court subsequently granted denying care, it just was not providing “the the prisoner class motion for summary particular course of treatment that they Texas Federal Appeals to the Fifth judgment that included, but expanded upon, and their experts want — or as quickly as Circuit Court of Appeals its preliminary injunction. The permanent they want it.” injunction required FDC to treat prisoners The court noted the experts differed November 2020 48 Prison Legal News on whether DAA treatment should be pro- vided regardless of underlying condition or Sixth Circuit Reverses and Allows Ohio Prisoner’s disease progression. As the F0 and F1-level prisoners are receiving medical care and Civil Rights Lawsuit to Proceed “the adequacy treatment is the subject of by David M. Reutter genuine, good-faith disagreement between health care professionals,” the court said it he Sixth Circuit Court of Appeals enjoined its enforcement. was “hard-pressed” to find FDC acted reck- Treversed the grant of summary judg- Koger argued his dreadlocks naturally lessly and in a conscience shocking manner. ment to Ohio prison officials in a civil rights grow thicker than the allowed half-inch The district court’s order found FDC action alleging a prisoner’s rights were vio- under the new policy. “Koger, however, has put forth no other reason for denying lated because he was denied a religious diet not alleged or offered evidence demonstrat- DAAs to F0 and F1-level prisoners other and fasting. The grant of judgment on his ing that his hair is unsearchable, naturally than cost, which it found is “per se deliber- claims related to the wearing of dreadlocks grows to be unsearchable, or that ODRC ate indifference.” The Eleventh Circuit said and communing with others was affirmed. has or will deem it to be unsearchable,” the “the Eighth Amendment does not prohibit The court’s July 7, 2020, opinion was Sixth Circuit wrote in affirming judgment prison officials from considering cost in issued in an appeal brought by prisoner on the issue. determining what type (or level) of medical Cecil Koger, who is a practicing Rastafarian. As to Koger’s claim that his religion care inmates should receive.” Courts, cor- Between 2006 and 2018, Koger submitted requires an Ital diet and fasting, the court relatively, reviewing claims such those at numerous requests, appeals, and letters to found there was no dispute those requests issue cannot consider cost “considerations the Ohio Department of Rehabilitation and were grounded in seriously held religious off-limits” in determining whether prison Correction (ODRC) asking for religious belief. For years, Koger detailed his di- officials acted recklessly and in a conscience accommodations and exemptions. All were etary needs and the fasting requirement shocking manner.” Prison officials, however, denied. He filed suit on November 16, 2017, to ODRC. The court found he sufficiently cannot plead poverty as an excuse for pro- alleging violations of the Religious Land Use showed ODRC “burdened his religious viding minimally adequate care, the court and Institutionalized Persons Act (RLUIPA) practices of fasting and keeping an Ital diet.” said. As FDC’s treatment plan provides and the First Amendment. The district court It also concluded that Koger sufficiently minimally adequate care for F0 and F1- granted summary judgment to the defendants. alleged an equal protection claim because level prisoners, the issue of a cost “defense” Koger was subjected to four forced other religions’ fasting needs were accom- never arises. cuttings of his dreadlocks. but that was not modated but Koger’s was not because he The district court’s order requiring at issue. Instead, the issue was the validity practices Rastafarianism. DAA treatment for those prisoners was of ODRC’s grooming policy, which went The district court’s order was affirmed vacated. The other portions of the order into effect on October 22, 2018. That policy in part and reversed in part. See: Koger v. were reversed for the district court to make was in response to a declaration in Glenn Mohr, 964 F.3d 532 (6th Cir. 2020). specific findings that the relief ordered is v. Ohio Dep’t of Rehab. & Corr., 2018 WL narrowly tailored as required by the Prison 2197884 (N.D. Ohio 2018), which chal- Dictionary of the Law Litigation Reform Act. See: Hoffer v. Secre- lenged ODRC’s policy of categorically Thousands of clear, concise definitions. tary, Florida Department of Corrections, 973 denying dreadlocks, that found ODRC’s See page 69 for ordering information. F.3d 1263 (11th Cir. 2020). grooming policy violated RLUIPA and

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Prison Legal News 49 November 2020 Mental Health Crisis in California’s Lock-Ups Worsens With COVID-19 by Ed Lyon

he California Department of Cor- than treat[ing] their mental health,” the que to The Washington Post. “They are scared Trections and Rehabilitation (CDCR) pandemic has led the prison health care of the treatment of isolation,” she added. has been challenged regarding care for its industry “to basically just [try] to keep Suicide attempts appeared nearly im- mentally ill prisoners for decades. Rather people alive.” mediately after the first COVID-19 case at than improve under a class action lawsuit As onerous as isolation is to a mentally CIW. The first was not successful. Another dating back to 1990 (now Plata v. Newsom) healthy prisoner, it is exponentially worse attempt followed soon after. During May and seeking constitutionally acceptable for someone suffering mental illness. Once 2020, a transgender man was isolated with mental health care for prisoners, conditions a prisoner becomes symptomatic with or COVID-19. He asked to see a mental continue to slide, exacerbated by the ongo- tests positive for COVID-19 and remains health care provider. He tried to slit his ing COVID-19 crisis. asymptomatic, isolation is the next step. wrist, then set his room on fire. Mental health problems are especially Once the infected person is removed from Counselor Bien with co-counsel are egregious at CDCR’s California Institute the housing area, the individual remains on pushing the state through their lawsuit for Women (CIW) in Chino. This is a medical restriction for 14 to 30 days. to reduce CDCR’s mentally ill prisoner 1,398-bed prison, currently operating at Many CIW residents are refusing population with an overall prisoner re- a slight overcapacity with 1,500 prisoners. COVID-19 tests to avoid the specter of iso- duction. Although females currently make up only lation. “People aren’t scared of COVID-19,” 4 percent of CDCR’s population, they stated prisoner April Harris in a communi- Source: washingtonpost.com represent a disproportionate 11 percent of the suicide rate. Fourth Circuit Orders Sealing of Prior to COVID-19, a group of CIW prisoners receiving mental health treatment North Carolina Court’s Order to had dayroom access 23 hours a day. By mid-March, the women found themselves “Protect Defendant from Harm” confined to their cells for 23 hours a day, by David M. Reutter sometimes longer. They stated that prison staff told them nothing about lockdown n June 17, 2020, the Fourth Cir- In denying the motion for resentenc- procedures, when they would be allowed Ocuit Court of Appeals ordered the ing in July 2018, the district court referred recreation and phone calls to family mem- sealing of a North Carolina federal district to the government’s § 5K1.1 motion. bers or even when they would be allowed court’s order. That order denied a Defen- Concerned about that reference, Doe in to shower. dant’s motion for resentencing because that November 2018 moved to seal the district On April 6, 2020 three major events order referred to “Defendant’s substantial court’s order and remove it from online occurred at CIW. Staff there began wearing assistance,” and there exists a compelling legal research services. He contended that masks, the prison received its first positive interest under the First Amendment “to the “district court’s reference to his coopera- result on a COVID-19 test and housing protect Defendant from harm.” tion threatened his safety because the order wings were quarantined as a result. No “John Doe” moved a North Carolina was available to other inmates through the information about or reasons for these federal district court in 2016 “for a sentence prison law library,” wrote the Fourth Cir- measures were shared with the prisoners. reduction under 18 U.S.C. § 3582(c)(2) cuit. Doe appealed after the district court Sudden deviations from routine op- and Guidelines Amendment 782, which denied the motion in a text order issued in erations are unsettling for prisoners not lowered base offense levels for federal December 2018. experiencing mental health problems. drug crimes.” Doe pleaded guilty in 2012 The Fourth Circuit noted it has held They can be, and frequently are, terrifying to conspiracy to distribute and possession that the “First Amendment right applies to for prisoners suffering from mental illness. with intent to distribute 28 grams or more sentencing and plea hearings, as well as to Newly isolated mental health patients of cocaine base and 500 grams or more of documents filed in connection with those responded with screaming and banging cocaine. proceedings.” It concluded it did not need on doors for many hours before prison At sentencing, the government moved to decide if an order for sentence reduction staff explained that the changes to their for a downward departure under U.S. is encompassed by the First Amendment, routines and circumstances were because Sentencing Guidelines § 5K1.1 in light of but it assumed it applied because “the De- of COVID-19. Doe’s substantial assistance to state authori- fendant’s compelling interests in sealing the Michael Bien is the lead attorney in ties before he was federally indicted. As a district court’s order outweighs the public’s the ongoing 30-year-old mental health class result, the district court sentenced Doe to interest in accessing it either under common action lawsuit against CDCR. He acknowl- 252 months’ imprisonment, which was well law or the more rigorous First Amendment edged that because of COVID-19, “Rather below his 292 to 365 Guideline range. standard.” November 2020 50 Prison Legal News The order could be sealed “only if (1) as well as in federal sentencing.” does not require districts to implement closure serves a compelling interest; (2) The court noted that Eastern District automatic sealing procedures, but where a there is a ‘substantial probability’ that, in the of North Carolina Standing Order No. district has taken such “blanket measures, absence of closure, that compelling interest 09-SO-02 (Feb. 12, 2012) requires the courts within the district should act con- would be harmed; and (3) there are no al- automatic sealing of motions related to a sistently with the concerns underlying the ternatives to closure that would adequately defendant’s substantial assistance. policy.” See: United States v. Doe, 962 F.3d protect the compelling interest.” In re Wash Additionally, a 2016 report by the 139 (4th Cir. 2020). Post Co., 807 F.2d 383 (4th Cir. 1986). Committee on Court Administration and The court found that precedent estab- Case Management of the Judicial Con- lished that sealing is appropriate to protect ference of the United States presented Writing to Win the “physical and psychological well-being “alarming findings” of 571 instances of Need to write better? Writing to Win will of individuals related to the litigation.” harms or threats, including 31 murders, teach you the basics of how to compose This “is even more elevated if judicial re- between spring 2012 and spring 2015. clear and convincing written and oral cords suggest that the defendant may have As a result, it recommended that “courts legal arguments! 270 pages packed cooperated with law enforcement.” It was restructure their practices so that docu- with solid, practical advice and tips. noted that five other “sister circuits have ments or transcripts that typically contain $19.95 from PLN’s Book Store! held that protecting cooperating inmates cooperation information” are automatically See page 69 for more information. serves a compelling interest under the First placed in a sealed compartment. Amendment.” The Fourth The Fourth Circuit found the record Circuit found that demonstrated that Doe faced a heightened sealing the order at risk of being physically harmed. “To start, issue “is the nar- Defendant was involved with, and provided rowest means of information about, members of an interstate protecting the com- drug-trafficking organization and individu- pelling interest in als committing home invasion robberies,” this case.” In order- the court wrote. “The information he pro- ing that relief, the vided was used in multiple investigations, court said its opinion

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Prison Legal News 51 November 2020 Native Americans Protest Theft of Alcatraz Island by Ed Lyon

he dubious history of agreement, a large group of Native Americans calling bers of the IAT occupiers from The Rock. Tcontract and treaty breaking by the themselves the Indians of All Tribes (IAT) It remains in the federal inventory to this United States and its state governments was repeated that page in history by entering day and is a popular tourist spot. briefly addressed in the February 2019 issue and seizing Alcatraz Island, reclaiming On the third Thursday of November of Criminal Legal News [p. 33]. what was, and is, rightfully theirs. 2019, a group of 4,500 IAT descendants with The federal government has been in The 21-acre island soon sported a clin- some of their original number, gathered at continuous violation of one of its treaties ic, a media broadcasting station and a school Alcatraz. They call that day “Unthanksgiv- with Native Americans that it agreed to for children, all assisted by donations from ing.” They now commemorate the 1969 in 1868 called the Treaty of Fort Laramie around the globe. Long-term dreams and reoccupation of their island and call attention for years. In essence, the U.S. government plans included a cultural center, museum to their ill treatment by the federal govern- agreed that unused federal lands would be and university. As time passed, the occu- ment on a yearly basis. They remain today, open for ownership claims by certain Native piers grew weary, resolve faltered, college much as they were then, largely unheard, American tribes. students left to return to their studies and ignored and impoverished as a people. The Pacific island off the nation’s West the numbers of IAT continued dwindling. coast across from San Francisco, Califor- On June 11, 1971, some 19 months Sources: cronkitenews.azpbs.org, mercu- nia, where the Alcatraz prison was built later, federal officials removed the last mem- rynews.com, vogue.com originally belonged to the Ohlone tribe. In 1850, the federal government seized it for Temporary Halt of Federal Prison Labor use as a military base. It eventually became a military prison before its 1934 transforma- at National Parks, but New Policy tion as the forerunner of today’s supermax prisons. It housed such notorious prisoners Proposed To Resume It as Al Capone, along with 19 Hopi tribes- by Jayson Hawkins men charged for the “crime” of refusing to assimilate into Anglo culture. n internal investigation con- to inmates gaining access to contraband Alcatraz, known as “The Rock,” was Aducted by the inspector general’s office such as tools and knives. permanently shuttered in 1963. The federal of the Department of the Interior found The investigation also uncovered that government declared the defunct federal pen- a surprising lack of procedures or policies the rules relating to prisoner work details itentiary “surplus property,” a legal precursor governing the use of federal prisoners by varied from one park to the next and re- under the Fort Laramie Treaty to returning the National Park Service (NPS). quired no approval beyond the local level. it to its rightful owners, the Ohlone people. According to the report: At one un- No structure for oversight has been in place Except ... the island was never returned to the named national park—the prisoners, whose from the Interior Department. Ohlone tribe. Another treaty broken. criminal histories included firearms and Interior Secretary David Bernhardt History teaches that the single biggest drug related convictions—were found with responded to the report by putting a tem- factor in George Custer’s defeat at the Little contraband after they had been left work- porary hold on allowing prisoners to work Big Horn was the various Native American ing unsupervised in a park campground in national parks effective April 2, 2020. tribes’ decision to put aside their differences for about two hours. NPS employees were “I hereby order and direct NPS to and fight together. On November 20, 1969, overseeing the work detail program without immediately cease the use of prison labor,” any formal training or guidance, which led stated Bernhardt. “Any agreements in place

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November 2020 52 Prison Legal News regarding the same are hereby rendered null Interior released a memorandum outlining to avoid future problems Interior should and void.” it on July 9, 2020. “employ standardized agreement templates Bernhardt noted that NPS officials “The NPS has successfully utilized and language” between the NPS and prisons had known about the potential deficiencies prison work details for decades,” it said. it works with. The memorandum outlined that the absence of formal policies could “Prison work details have served as a critical a series of requirements to improve “NPS create for over a year, but he was moti- resource in wildland fire crews, and landscap- employee training, the transportation vated to momentarily halt the prison work ing, maintenance and public work projects of prisoners to and from NPS units, the program only after the inspector general’s crews, across the National Park System. In oversight of work performed, and other report pointed out “disturbing information addition to aiding the conservation mission important considerations necessary to fa- regarding questionable practices” by NPS of the NPS, these details have the added cilitate these arrangements. administrators. societal benefit of preparing prison laborers The memorandum lacked “the force The Inspector General report said: “We for post-incarceration life by teaching them and effect of law,” and as of press time the also found that prison work detail agree- important, marketable job skills.” new proposed policy had not been fully ments differed from park to park, because The new proposed policy, which applies implemented. they were coordinated and approved at the to prisoners’ help in federal, state, tribal and park level between the local NPS superin- privately run prisons, recommends that Sources: thehill.com, doioig.gov tendent and the supporting prison facility. When we asked the NPS for documenta- $70,000 Settlement in Private tion on these prison work details, the NPS identified five memoranda of understand- Firm’s Failure to Treat Arizona ing, three cooperative agreements, and three task agreements being used Service-wide. Prisoner’s Broken Wrist We also found that two national parks used by David M. Reutter prison work details without any written agreement in place at all.” orizon Health, Inc. agreed to pay jumping exercises and reinjured his wrist. “The absence of NPS policies and over- C$70,000 to settle a civil rights action al- Pesqueira was seen by a Corizon doctor in sight regarding prison work details at NPS leging it failed to properly treat an Arizona August 2018, and it was found “the fracture properties creates risks to NPS employees, prisoner’s wrist injury. healed with some displacement of the third park visitors, and the prison community, Eric Kevin Pesqueira incurred a wrist finger and wrist, and arthritis of the wrist.” and may expose the U.S. Department of the injury on October 17, 2013. He alleged it Pesquiera underwent two surgeries to repair Interior to liability,” the report continued. “was not promptly treated with medical his right third finger in September 2018. It was hoped that the recommenda- devices or surgery.” When he had an outside Represented by attorneys from the Law tions from the inspector general’s report evaluation, “he was told that his wrist was Office of Stacy Scheff, a settlement demand would “improve the safety and security of deformed with a limited range of motion of $220,000 was made on February 17, NPS employees and park visitors,” as well that is likely permanent.” He was diagnosed 2020. The parties agreed on March 23, 2020, as enable the prison work details to proceed. in June 2014 with “SLAC wrist.” to a settlement of $70,000. See: Pesqueira Bernhardt instructed officials in his -de In May 2016, Pesqueira reinjured his v. Corizon Health, Case No. 2:18-cv-4063- partment to develop a standardized federal wrist by falling from his bunk “due to the DWL ( JZB), USDC (D. Arizona). protocol and policy within 60 days so that failure to properly the NPS prison work program could be re- treat his wrist.” Then, The Columbia Human Rights Law Review instated. The coronavirus pandemic delayed in September 2017 Presents the establishment of the new policy, but he fell while doing A Jailhouse Lawyer’s Manual New Eleventh Edition The JLM is a self-help litigation manual that offers guidance for pursuing post-conviction appeals and Post Conviction Relief for Virginia Only enforcing civil rights while incarcerated. The new edition has been completely revised and updated by members of the Columbia Human Rights Law Review to Services We Offer: thoroughly address topics of importance to incarcerated Law Office of Dale Jensen, PLC persons and practitioners. 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Prison Legal News 53 November 2020 Guard Violates Eighth Amendment by Brandishing Knife and Threatening Prisoner’s Life by David M. Reutter

n June 26, 2020, the Sixth Cir- alleged was de minimis. It, however, said its found that a clearly established right can be Ocuit Court of Appeals ruled in a holding did “not mean that Small’s right based on unanimous out-of-circuit prec- case in which “a prisoner states an Eighth was clearly established for the purpose of edent. Brown v. Battle Creek Police Dep’t., Amendment claim by alleging that, without qualified immunity.” 844 F.3d 556 (6th Cir. 2016). provocation, a prison official threatened the The Sixth Circuit noted that unlike Finally, the Sixth Circuit’s order said prisoner’s life on multiple occasions and other circuits, it has not yet adopted a rule Small may only be able to seek nominal took concrete steps, such as aggressively that allows a court to sua sponte dismiss a damages for his psychological injuries, but brandishing a deadly weapon, to make those prisoner or indigent plaintiff ’s claim if it he could pursue compensatory damages threats credible.” believes it is barred by qualified immunity. on the constitutional claim. He also can Michigan prisoner Fletcher Darnell In finding the district court should make seek declaratory and injunctive relief. The Small alleged in his 42 U.S.C. § 1983 the qualified immunity decision in the district court’s order was vacated. See: Small complaint that on several occasions “Of- first instance, the Sixth Circuit noted it has v. Brock, 963 F.3d 539 (6th Cir. 2020). ficer Brock brandished a knife, threatened to kill Small, and motioned in a manner Seventh Circuit Dismisses Summary suggesting how Brock would use the knife to kill Small.” Those actions allegedly caused Judgment for Defendants in Illinois Prisoner’s Small to seek “treatment and counseling” for “paranoia, mental distress, [and] psy- Lawsuit Over Beating, Choking chological distress.” by David M. Reutter The district court dismissed the action for failure to state a claim. After it denied he Federal Reporter is replete dants to file any summary judgment motion Small’s motion to alter or amend the judg- “Twith examples of prisoners losing on exhaustion within 30 days. No such ment, Small, acting pro se, appealed. cases because they missed litigation dead- motion was filed. The Sixth Circuit noted it had never lines and courts extended little forgiveness,” Three months after discovery closed, addressed the circumstances as Small pre- the Seventh Circuit Court of Appeals wrote the defendants moved for summary judg- sented. “[A] prisoner has ‘the right to be free on June 25, 2020, in vacating a federal dis- ment. In that motion, they not only did from the terror of instant and unexpected trict court’s grant of summary judgment not raise the exhaustion issue, one of their death at the whim’ of his jailors,” wrote the of prison officials. Error was found in the arguments assumed Bowman had. court. “A threat of loss, when made credible granting of defendants’ motion to file a The district court found Bowman ex- by the aggressive brandishing of a deadly belated second motion arguing a prisoner hausted his administrative remedies when weapon, is beyond the type of ‘unpleasant failed to exhaust administrative remedies. denying the motion. The case was set for experience’ that prisoners must endure.” Western Illinois Correctional Center trial in May 2018. Citing Hudson v. McMillan, 503 U.S. prisoner Carlos Bowman’s civil rights action Two months before trial, defendants’ 1 (1992), the court found that neither the arose from events that occurred on April new counsel moved to file a second mo- force threatened by Brock nor the resulting 14, 2014, during a “tactical shakedown” at tion for summary judgment on exhaustion paranoia and psychological distress Small the prison. Bowman alleged guards beat grounds. The motion relied on Federal Rule and choked him and forced him and other of Civil Procedure 6(b)(1)(B), which per- prisoners to stand so close together that mits extension of deadlines even if they have their hands were on or near each other’s expired if there is good cause and the party APPEAL LAWYER genitals for hours. “failed to act because of excusable neglect.” Bowman timely pursued the two- The district court granted that motion. FOR HIRE. stage prison grievance system. After those It also granted the second summary remedies were denied, he brought Eighth judgment motion, finding that Bowman Appeal lawyer with over fifteen Amendment claims for excessive force and failed to exhaust available remedies. The years of appellate experience, including as a former staff attorney failing to intervene against multiple guards grievances failed “to name the defendants or and judicial clerk for the appellate and supervisors. He proceed in the district allege a failure to intervene in his grievance.” court, now accepting clients with court and on appeal pro se after making sev- Bowman opposed the motion as being too cases in any federal appellate court, eral requests for the appointment of counsel. late — almost two years so — and urged the nationwide. For a free consultation, Early in the proceedings, the defen- bald assertion of negligence did not amount contact 312-517-3877 or email inquiry dants flagged the exhaustion issue. In to “excusable neglect.” to [email protected]. March 2016, the district court entered a On appeal, the Seventh Circuit agreed scheduling order that required the defen- with Bowman. “We could fill page after November 2020 54 Prison Legal News page” with citations to cases where pris- courts to consider all relevant circumstances The Seventh Circuit’s opinion found oners’ cases “were dismissed for failing to surrounding the party’s neglect, including the defendants’ failure to provide a “meaningful follow court rules or deadlines,” the court prejudice to the non-movant, length of delay, explanation” for the delay was a fatal error. wrote. “If prisoners are held to that stan- and reason for delay. In Bowman’s case, the The district court’s judgment was vacated. dard, their opponents should be too.” defendants attributed their failure to timely See: Bowman v. Korte, 962 F.3d 995 (7th An excusable neglect analysis requires raise the exhaustion to “unknown reasons.” Cir. 2020). HRDC Files Civil Rights Lawsuit Against Colorado Sheriff for Censorship of Prisoner Publications by Derek Gilna

he Human Rights Defense Center States and abroad, including incarcerated to the defendant jail’s written policy, “The T(HRDC), parent company of Prison persons, attorneys, judges, journalists, libraries, ONLY books that are allowed to be sent into Legal News, (PLN) and Criminal Legal and members of the public (and) has sent its the facility are paperback Bibles, Quran etc. News (CLN), on September 1, 2020, filed publications to prisoners and law librarians in or religious study guides,” and further bans a federal civil rights case alleging violations more than 3,000 correctional facilities across “recreation (sic) and leisure” reading materials, of its federal civil rights statutes. the United States, including death row units and labels everything else as “contraband.” HRDC alleged in its complaint that and institutions within the Federal Bureau of HRDC is seeking compensatory and Adams County, Colorado; its sheriff, Richard Prisons, such as the federal Administrative punitive damages, “and an award of costs, Reigenborn and the jail chief, Chris Laws, Maximum Facility ... in Florence, Colorado — including reasonable attorneys’ fees, under “since June 2019 ... have refused to deliver the most secure prison in the United States.” 42 U.S.C. § 1988 and other applicable law.” dozens of HRDC’s mailings to incarcerated “Prison Legal News is distributed to persons, directly violating HRDC’s First prisons and jails within the correctional See: Human Rights Defense Center v. Board Amendment right to freedom of speech (and systems of all 50 states, including to dozens of County Commissioners for Adams County, its) Fourteenth Amendment rights to notice of incarcerated persons housed in facilities Colorado, et. al., Case No. 1:20-cv-02665, and an opportunity to challenge censorship.” in the State of Colorado,” it said. According USDC (D-Colo.). “Although the Jail has an official mail policy in place, PLN Needs Your Photos, Videos, its correctional of- $$$ ATTENTION $$$ ficers arbitrarily Verdicts and Settlements! enforce that policy,” Mushfakers, Artists, and Craftsmen We are expanding the multimedia section on PLN’s website, and need it further alleged. more prison and jail-related content! We know many of our readers Our company, “Sticks From the Yard”, is seeking to purchase a “HRDC respectful- have pictures and videos related to prison and criminal justice topics, variety of items made by prison inmates. We are looking for ly requests that the and we’d like to post them on our site. We are seeking original content anything handmade and built with those materials your prison only – photos or video clips that you have taken yourself. Court order the Jail has made available for you to purchase and use. We are inter- and its employees to Please note that we are not seeking articles, editorials, poems or other ested in all items (example: wood boats, picture frames, light cease and desist from written works; only photos and videos. They can be taken inside or outside houses, cars, jewelry boxes, planes, ships, cars, motorcycles, continuing their of prison, but must relate to prisons, jails or criminal justice-related topics. By sending us multimedia content, you are granting us permission to post it animals, clocks, banks, etc.) We ask that you take a picture of ongoing violation, on our website. Please send all submissions via email to: your item via the JPay kiosk or other means and send it to: under color of State [email protected] Sticks From the Yard law, of HRDC’s 2283 Sunset Drive rights (and those of Please confirm in your email that the photos or videos are your original content, which you produced. Also please provide some context, such as where and Wickliffe, Ohio 44092 its would-be read- when they were taken. Your name will not be posted online or otherwise dis- Don’t forget to include your own name and number and your ers) …and to award closed. Please spread the word that PLN needs photos and videos for our website. HRDC damages for ______prison address along with your asking price for your item. If we find there is enough interest in your item we will accept your the injuries it has We also need verdicts and settlements in cases won by the plaintiff. Note sustained as a result that we are only seeking verdicts, final judgments or settlements – not price or make an alternative offer. When a price is agreed on of Defendants’ un- complaints or interim orders in cases that are still pending. If you’ve pre- we will make arrangements for you to mail the item to us and lawful conduct.” vailed in court against prison or jail staff, please send us a copy of the verdict, we will deposit the funds. Along with the item, you will send judgment or settlement and last complaint so we can post them on our site the name and address you want your funds directed to. Some PLN noted in and potentially report the case in PLN. If possible, please e-mail your submis- prisons allow for deposit directly into your prison account but its complaint that sions; we cannot return any hard copy documents. Send to: that would be your decision. All funds would be paid out by our HRDC “has thou- Prison Legal News sands of subscribers POP.O. Box Box 1151 1151 attorney. Please address any questions to the address above Lake Worth,Worth Beach,FL 33460 FL 33460 and allow two weeks for a response. to its monthly maga- [email protected] zines in the United Prison Legal News 55 November 2020 Captain Accused of Abusing Mentally Ill Prisoners Cleared in Internal Investigation by Kevin Bliss

captain with the St. Louis County ances was placed in the “hole” to discourage mismanagement, lax training, and poor AJustice Services Center in Clayton, them. She said that several other prisoners’ performance.” But he said that with “the Missouri was under investigation for al- family members have contacted her on help of many, including our Justice Services legedly abusing prisoners with histories of similar issues of abuse Advisory Board, we have made significant mental health problems. The captain had County Executive Sam Page said he progress in improving the treatment of been accused of assaulting a prisoner with found the accusations disturbing but said those in our custody.” a mental health issue on June 1, 2020 and the investigation showed no wrongdoing. then confining him to a restraint chair for He said the jail had “experienced years of Source: KSDK.com 18 hours; as well as tasing a Black female prisoner while she was restrained in the infirmary on June 10. New York City BOP Prisoner Dies The captain (whose name has been withheld since he has not been charged After Being Pepper-Sprayed with a crime) has since been demoted to a by Kevin Bliss lieutenant, but the Clayton Police Depart- ment and the Department of Corrections amel Floyd, a 35-year-old Black were aware of his condition. “They maced Internal Affairs have both concluded Jmale held at the federal Bureau of my son.” said Mays. “They murdered my son.” their investigation, finding no evidence of Prison’s (BOP) Metropolitan Detention BOP Director Michael Carvajal said wrongdoing. Center (MDC) in Brooklyn, died after be- the incident was being investigated by the Clayton Police Corporal Jenny ing pepper sprayed by guards June 3, 2020. Justice Department’s Inspector General, Schwartz said the only report in evidence Floyd was serving a 12- to 15-year Michael Horowitz. The medical examiner’s about the ex-captain was filed on June 2, sentence for a Long Island home invasion office will perform an autopsy and notifica- which said that a prisoner assaulted the committed in 2007. He was being held tion has been given to the federal Bureau ex-captain by spitting on him. She said the at the state-run Sing Sing Correctional of Investigation and the U.S. Marshals investigation concluded with an applica- Facility when he was transferred to MDC Service for any possible criminal respon- tion for a warrant for the prisoner’s arrest in relation to an ongoing case. Associated sibility. Horowitz stated that he would being sent to prosecuting attorney Wesley Press reporters Michael Sisak and Michael issue a public report of his investigations, Bell’s office. Balsamo said that court records showed that but only after those investigations were St. Louis County NAACP Chapter Floyd was not a defendant in any pending concluded. President John Bowman said the ex-captain federal cases when transferred. Prisoner rights advocates state that should be held accountable and is critical MDC was on lockdown due to protests pepper spray is more dangerous when used of the county for not doing enough. He over the death of George Floyd May 25 on people with respiratory problems. And, said the ex-captain should be fired for his and internal aggravation concerning new that its use in prisons lowers the bar when actions. Comparing the administration to a coronavirus protective measures such as considering whether the use of force is slave ship from 1619, Bowman said, “We’re requiring all detainees and prisoners to wear necessary. They want to limit its use and find dealing with two pandemics, COVID-19 personal protective masks all day. Floyd alternative means of deescalating volatile and COVID-1619, we find ourselves to- became aggressive and barricaded himself situations. tally disrespected and treated with a lack of inside his cell, breaking out the cell door’s The BOP has issued more pepper spray dignity simply because you are vulnerable window with a piece of metal. In a state- to its guards since a prisoner ambushed and and cannot speak up to defend yourself.” ment released by the BOP, they said, “He killed a Pennsylvania guard in 2010. Prior to Toshonda Troupe — mother of Lamar [Floyd] became increasingly disruptive and that, all guards had for protection were keys, Catchings who died in the jail in 2019 of potentially harmful to himself and others. handcuffs and a radio. The BOP said guards leukemia — said the jail’s culture needed Pepper spray was deployed and Floyd was were trained to use their pepper spray only if to change before the abuse could stop. “I’ve removed from his cell.” staff or prisoners were in immediate danger, been pushing for them to change the culture Medical staff later found Floyd un- and then only after attempting to diffuse the in this jail,” she said. “They have not yet done responsive in his cell. They attempted to situation with verbal commands. so completely. How can you have a captain resuscitate and called for an ambulance. MDC had previously been in the that’s abusing inmates and he’s supposedly Floyd was pronounced dead at the hospital. news as the institution that housed the first a captain? You lead by example. So if that’s The BOP stated that Floyd’s death was not death attributed to coronavirus in federal what he’s showing his people up under him, related to the coronavirus. Floyd’s mother, prisons. then that’s what’s going to happen.” Donna Mays, said Floyd suffered from She said any prisoner who filed griev- asthma and diabetes. She said jail officials Source: chron.com November 2020 56 Prison Legal News Former Pennsylvania Prison All Solitary with Silence Mandatory by Ed Lyon

o be penitent is generally defined positively contributing members of society the nation’s first, true penitentiary; it was Tto be sorry for the wrongs, sins, mis- when released. the forerunner of what is known today as deeds or offenses a person has committed. Construction on Eastern State Peni- administrative segregation — a practice The word penitent is actually the root of the tentiary began in 1821 and was completed being ruled on by more and more courts as word penitentiary, which is another word in 1829. The cells were huge in comparison cruel and unusual punishment. for prison — places of confinement where to most of today’s 6-by-9 footers, measuring African American Charles Williams prisoners are involuntarily housed after be- a full 7 and a half by 12 feet. Since the only was this penitentiary’s very first prisoner, ing found guilty of wrongs, sins, misdeeds time a convict would leave his cell was for admitted on October 25, 1829. or offenses deemed to be criminal acts by one hour of recreation each day, running As great expectations and grand the government. water was piped into each cell for a sink experiments sometimes go, the Eastern The thought progression is that prison- and flush toilet. The White House did not State Penitentiary went. By 1945, it was ers become penitent as a result of spending even have flush toilets until 1833! clear this was not the way to go in felony time in a penitentiary after being found Each cell had its own skylight to allow imprisonment, and the Pennsylvania guilty of committing crimes. Bible reading. Legislature recommended its closure. In early-1800s Pennsylvania, the Recreation took place in small out- This process took 25 years with the doors Society of Friends or Quakers, strongly side enclosures isolated from each other. closing in 1970. The facility briefly housed disagreed with then-existing prisons and Prisoners were fed in their cells. A closable prisoners from a county prison until its penology concepts and practices. They slot in each door allowed food trays to be final closure in 1971. envisioned a place of solitude where con- passed. Heat was piped to each cell during Certified as a historical site, the East- victs would spend all day, every day, by cold weather. ern State Penitentiary is now a Philadelphia themselves with nothing but a Holy Bible All talking was forbidden, with silence tourist attraction. It is open to the public for to read. In such circumstances of penitent ruling. Prison guards walked their rounds tours seven days a week. meditation, the convicts would see the er- with socks on the outside of their shoes to ror of their ways and become redeemed, muffle their footsteps. Not only was this Sources: easternstate.org, governing.com

THE AMERICAN PRISON WRITING ARCHIVE Calling for Essays by Incarcerated Americans, Prison Workers, and Prison Volunteers

he American Prison Writing Archive (APWA) is an in- Tprogress, internet-based, non-profit archive of first-hand testimony to the living and working conditions experienced by incarcerated people, prison employees, and prison volunteers. Anyone who lives, works, or volunteers inside American prisons can contribute non-fiction essays, based on first-hand experi- ence: 5,000 word limit (15 double-spaced pages); a signed APWA permission-questionnaire must be included in order to post work on the APWA. All posted work will be accessible to anyone in the world with Internet access. Hand-written contributions are welcome. There are no reading fees. We will read all work submitted. For more information and to request the permissions-questionnaire, write to: APWA, c/o Hamilton College, 198 College Hill Road, Clinton, NY 13323- 1218; or go to https://apw.dhinitiative.org/ Do not send added stamps. Sincerely—The APWA Editors. PLN

Prison Legal News 57 November 2020 Alabama Executes Non-Shooter in Police Killings by David M. Reutter

he death penalty is advocated a brief administrative delay, Owen and Spencer was found hiding in a neigh- Tboth for punishing the most atro- Harley, along with fellow officer Charles bor’s attic. Woods was apprehended while cious cases of murder and for its alleged Robert Bennet and Sgt. Michael Collins, “sitting on a nearby porch, apparently ‘very deterrent effect. Yet on March 5, 2020, returned the same day to the apartment to relaxed’ and carrying two .22 caliber bullets Alabama executed a 44-year-old man, serve the warrant. in his pocket,” Marshall wrote in a letter to not for committing murder but instead Collins and Spencer gave differing Gov. Kay Ivey (R). because he did not “try to stop the gun- accounts at trial of what happened next. “Although Woods was not the shooter, man from” killing three Birmingham According to the sergeant, Woods sur- he was hardly an innocent bystander,” the police officers. rendered to police and was standing upright Attorney General added. “Nathaniel Woods is 100% innocent,” and not yet handcuffed when Spencer fired Spencer disagreed. said his co-defendant, Kerry Spencer. on the four officers. Collins testified that “Nate is absolutely innocent. That man “I know this to be fact because I’m the he “knew it wasn’t Nathaniel” that fired didn’t know I was going to shoot anybody person that shot and killed all three of the weapon, adding that Woods yelled, “I just like I didn’t know I was going to shoot the officers.” give up. I give up. Just don’t spray me with anybody that day, period,” he said. “Nate is The story behind Woods’ execution that mace.” a good guy. Nate ain’t no killer. The reason involves corrupt police officers, police Spencer, however, said he awoke to a Nate was down there in the dope house intimidation of witnesses, the ineffective commotion in the apartment. with us is because he needed money.” assistance of trial counsel, and an Alabama “When I woke up, I had the chopper In fact, Spencer said, Woods was so law that allows a defendant to qualify for on my lap,” he said, referring to the SKS soft-hearted that he had to be supervised the death sentence as a result of his co- automatic rifle police found outside the because he would give drugs away for free. defendant’s murderous actions. apartment after the shootings. “When I Nevertheless, the jury in his 2005 trial Early in this century, Woods and Spen- got up, I got up with the rifle. I’m in a crack found Woods guilty of four counts of capital cer were in cahoots with Tyran “Bubba” house. We sell dope. This is what we do. murder: three counts of intentionally kill- Cooper. The three shared a Birmingham You always have to have your gun on you ing a police officer in the line of duty and apartment from which they sold drugs. A at the ready if you’re inside that fucking one count of killing two or more people “doorman” at the drug house testified at the apartment.” while pursuant to a scheme or course of 2005 trial that Woods and Spencer sold Spencer saw police cars when he conduct. The vote was 10-2 in favor of the mostly crack cocaine, serving 100 to 150 looked out the window, so he thought police death penalty. people a day. were outside. When he exited the bedroom, But his post-conviction attorneys According to a 2012 affidavit from he saw Woods holding his face in pain and noted several problems with the case. Cooper, back in 2002 he was paying $300 thought he had been beaten by police. That’s Woods’ girlfriend had testified that to $400 a week to police officers Carlos when he said one of the officers pointed a he made comments demonstrating hatred Owen and Harley Chisholm III “to pro- weapon at him. of police, but she then tried to recant at a tect my drug business and to make sure “When I looked to the side, there was pretrial hearing, saying “I made that up. I that no one else sold drugs in my area of two police officers trying to train their guns told y’all what you wanted to hear.” Woods’ Birmingham.” on me, so I opened fire with the fucking appeal also alleged she was threatened with Then in 2004, Cooper was charged rifle,” Spencer said. “I wasn’t trying to get a parole violation if she refused to testify with attempted murder. The officers decided shot period. I got a rifle in my hand. They’re against him. to raise their price. Cooper had problems going to shoot me. You point a gun at me, Cooper did not testify at trial, alleg- meeting that demand and began avoiding bitch, I’m fixing to shoot.” ing police threatened him into silence. the officers. Whenever they came looking According to Attorney General Steve The trial court also refused to allow for him at the apartment, Woods got into Marshall (R), Woods called to the police evidence of police misconduct to be pre- arguments with them. outside, “If you come in here, we’ll fuck you sented at trial. The officers went to the apartment to up,” adding as he tried to escape and saw Leading up to trial, Woods was ap- look for Cooper three times on June 17, Collins outside, “There’s someone else. We pointed – despite obvious conflict of interest 2004, the last a solo visit from Owen. The got another one right here.” – the same attorney as Spencer. That lawyer officer and Woods argued. Spencer said he Spencer opened fire, hitting Collins missed filing deadlines and prematurely and Woods then planned to wait until the in the thigh as he sought cover and called presented claims, which barred their later officers went off-duty before heading out, for back-up. When help arrived, Bennett consideration after supporting evidence was in hopes of avoiding trouble. was found outside the front door, shot in developed. On the eve of trial, an attorney The officers, however, had a different the head. Chisholm and Owen were found with no experience in capital cases was as- plan. They ran Woods’ name through a inside. Both had been shot in the back signed as Woods’ attorney. criminal database and learned he had an through their bulletproof vests. All three The theme that Woods hated cops outstanding misdemeanor warrant. After officers died. was used extensively during his appeals. November 2020 58 Prison Legal News As evidence, the state presented a song he As Woods’ execution date neared, had “apparently written” with lyrics that ex- advocates made efforts to stop the death pressed his lack of remorse. The song begins: warrant from being carried out. However, Seven execution-style murders. the Supreme Court denied his final appeal. I have no remorse because I’m the fucking Woods v. Stewart, 140 S. Ct. 67 (2019) murderer. Martin Luther King, III, son of the VOICEMAIL FOR PRISONERS While the jury bought the state’s argu- slain civil rights icon, and Bart Starr, Jr., ment, the lyrics actually come from the song whose father was a legendary quarterback High Powered on Dr. Dre’s 1992 album The for the Green Bay Packers, each wrote let-  Chronic. ters to Gov. Ivey asking her to grant Woods   Prosecutors knew Woods was not the clemency.      shooter, and they offered him a plea deal “Simply being in the wrong place      for 20 to 25 years. His trial lawyer wrongly where someone else shows up and then informed Woods that he could not be con- starts firing at police officers is not a reason   victed of capital murder as an accomplice. to assign culpability to someone,” Starr After he was convicted and then appealed, wrote.   the state argued there was no evidence that Ivey disagreed. a plea offer was ever made. In fact, once “Under Alabama law, someone who  

  he turned down the plea offer, prosecutors helps kill a police officer is just as guilty as 
   ­ claimed at trial that Woods, who was Black, the person who directly commits the crime,” was the mastermind of the plot to kill the she said. “Since 1983, Alabama has executed  €  ‚€    three white police officers two individuals for being an accomplice to “[Woods’] case has just been so mis- capital murder.”    handled that it’s just a shame that we’re at In other words, that’s just how justice  ƒ  the point of executing a man who was not is administered in Alabama.   the triggerman, whose case has so many issues that no court has considered,” said Sources: CNN, theroot.com, deathpenaltyinfo. J.D. Lloyd, Woods’ third appellate attorney. org You have 1 new message.

Disciplinary Self-Help Litigation Manual, Second Edition, by Dan Manville By the co-author of the Prisoners’ Self- Help Litigation Manual, this book provides detailed information about prisoners’ rights in disciplinary hearings and how to enforce those rights in court. Now available from Prison Legal News Publishing.       $49.95, shipping included                             
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Prison Legal News 59 November 2020 Former Angola Warden Burl Cain Appointed Head of Mississippi Prison System by Matt Clarke

ormer Louisiana State Peniten- eat, therefore do what I say. So, therefore, graduates with above-average grades. This Ftiary Warden Burl Cain’s 21-year tenure that is absolutely contrary to the adminis- “model minority myth” is unsubstantiated running the prison complex at Angola was tration, the rule books, and so forth. He’s by research and harms Asians. both long and controversial. His critics trying to give us ultimatums. Ultimatums is Cain was reprimanded by the commis- accused him of religious bias, blatant ra- what they give you when they take hostages. sion’s director who told him he did not “care cial prejudice and excessive use of solitary Ultimatums are not what we do in prison. ... about the color of the skin or the slant of the confinement. He is known for forcing his There is no peaceful demonstration.” eyes,” but about finding “the best person to brand of Baptist faith on prisoners, while Cain’s resignation from Angola came work for the state of Louisiana.” But Cain preventing those of other faiths from prac- amid an investigation of a land deal he shook it off, saying that Asians had put ticing their religion. His supporters counter made with the friends and family of an Americans out of business in the fishing that he took the most violent and infamous Angola prisoner. The Baton Rouge Advo- industry and seemed to be given preference prison in America and changed its culture cate reported on the land deal in 2015. The by the commission. for the better. Many states, including Texas, reporting sparked a 2016 probe that found Cain’s alleged racism and religious big- were so pleased with his methods that they no improprieties and a 2017 legislative otry influenced his treatment of prisoners enacted a modified version of the Angola auditor’s report that found Cain had used who belonged to the Black Panther Party, model in their own state prisons. 10 prison employees to perform services at which he referred to as a “religion.” Albert Mississippi Governor Tate Reeves is his private residence. Woodfox spend 44 years and 10 months another supporter and in May 2020 he an- Cain’s reputation for stabilizing Angola in solitary confinement — longer than any nounced the appointment of Cain, 77, to the is widespread. The prison was known in the other prisoner in U.S. history — because of top position in the Mississippi Department 1970s for violence and a thriving inmate sex- his party affiliation. of Corrections, an overcrowded and under- slave trade. But several prison staff members In a 2008 deposition, Cain admitted funded prison system that has seen dozens of told the Mississippi Free Press that many of to keeping Woodfox, Robert King, and prisoners die violently or due to inadequate the reforms Cain is credited with enacting Herman Wallace — members of the Black health care over the past year, as PLN has were started under earlier administrations. Panther Party who became known as the previously reported. [PLN, June 2020, p. 1.] Cain believes much of the positive change “Angola Three” after being convicted of the “We need a strong, experienced leader in the prison is due to the arrival of a New 1973 murder of a prison guard—isolated that Mississippians can trust, and I believe Orleans Baptist Seminary campus at Angola based on flimsy evidence. When Woodfox’s that person is Burl,” said Reeves. “I do not at his behest, the year he became warden. attorney pointed out that Cain had admit- make this decision lightly. The safety and Cain says he enforces a Christian cul- ted Woodfox did not cause much trouble, dignity of all within our system is at stake. ture among the prisoners, regardless of their Cain compared him to a lion in a cage who Burl’s impressive decades-long career in faith. Critics say the culture he imposes is causes little trouble because of the cage. Us- corrections, leading prison facilities and Southern Baptist and that he suppresses all ing that perspective, no segregated prisoner ushering in progressive measures to improve other faiths. For instance, in 2007, the prison could ever be credited with good behavior. conditions is exactly what we need.” settled a lawsuit brought by a Mormon Of course, there is ample, if limited, Progressives may balk at this charac- prisoner and the American Civil Liberties opportunity for a segregated prisoner to terization of Cain’s policies. His tenure at Union (ACLU) over Cain’s administration cause trouble. Angola was marked by his introduction of denying him access to Mormon publica- Attorney Nicholas Trenticosta men- a Baptist theological seminary, favoring that tions. Two years later, the ACLU helped a tioned that after King was released from denomination while allegedly suppressing Catholic prisoner and a Muslim prisoner prison, he stayed out of trouble. That was other faiths, as well as racial prejudice and file another lawsuit over denial of religious deception, said Cain, who believed that the overuse of punishment — especially rights, including making Baptist services the King was only waiting for other members of solitary confinement. His style is authori- only television available on Sunday mornings the “Angola Three” to get out so they could tarian, not progressive, and he did not and denying Muslims religious literature and reunite and return to their violent ways. tolerate dissent of any kind — character- the right to meet for religious worship. Cain also said that, even if he knew izing peaceful protest as “violence.” Cain also has a documented history of King was innocent of the guard’s murder, he “The prison operates with one authen- racist remarks. As far back as 1993, when would still keep him in isolation because he tic authoritarian figure, the warden and he was a member of the Louisiana Civil was “still trying to practice Black Panther- the rule book,” said Cain. “And so if you’re Service Commission, he voiced fears that ism,” and would try to organize younger going to be defiant and be belligerent and Asians living in Louisiana could take state prisoners, causing “chaos and conflict. He do a hunger strike, then you’re giving me an jobs away from other residents because has to stay in a cell while he’s in Angola.” ultimatum. If you don’t give me what I want, “they make real good grades,” as he opposed I’m going to starve myself to death and not a waiver of the civil-service tests for college Sources: djournal.com, mississippifreepress.org November 2020 60 Prison Legal News Prison Legal News 61 November 2020 Massachusetts Jail Phone Cost Reductions Under Attack by Ed Lyon

t least two Massachusetts sher- They claim to be severely underfunded their incarcerated loved ones. Aiffs offer rehabilitative programs to by lawmakers and cannot continue reha- The sheriffs countered that the pro- prisoners in their jails. Hampden County bilitative programming without phone grams in their jails are equally if not more Sheriff Nick Cocchi’s jail holds anger provider “commissions.” Nonetheless, the important to societal reintegration, with management, domestic violence classes state legislature in October 2020 was con- particular attention to substance abuse and employment seminars while providing sidering Senate Bill 2846 (previously Senate classes. Cocci stated that if phone revenues bus service to and from the jail for visitors. Bill 1372) that would require prisons and lost are not offset by legislative apportions Worcester County Sheriff Lewis Evange- jails to provide free phone calls to “prisoners “those programs are getting cut.” lidis’ jail holds mental health, education, and receiving parties.” Staff attorney Bonnie Tenneriello of substance abuse and music programs. Executive Director Bianca Tylek of Prisoners’ Legal Service of Massachusetts These programs are funded through Worth Rises testified before the legislature said it’s “heartless” for financially vulner- telephone revenue “commissions” paid to that families accepting collect calls must able relatives of prisoners to be required to Cocchi by ICSolutions and to Evangelidis first pay hefty security deposits, then 36¢ pay for mental health and substance abuse by Securus. per minute. programming. Phone rates in Cocchi’s jail are 12¢ Yearly deposits, fees and taxes total “They’re asking poor people to pay for per minute with “commissions” totaling about $7.4 million annually with actual the costs of these needs, and let’s just be about $820,000 annually. Phone rates in total minute amounts of $16.8 million. The clear, why do people need substance abuse Evangelidis’ jail are $3 for the first minute three phone service providers in the state are treatment? Why do they need mental health and 15¢ per each subsequent minute, with Global Tel*Link, ICSolutions and Securus. treatment? Look at the communities they “commissions” totaling about $300,000 She stressed that phone contact be- come from. Look at the socioeconomic annually. tween prisoners and their families keeps stressors. You’re going to ask these people Both sheriffs say they allow for free their relationships strong and help prisoners to bear the costs of treatment for problems phone calls because of the pandemic. They to successfully reintegrate back into society that society has created. That is unconscio- are having to run three and four classes after their release from jails or prisons. She nable.” per program each week in order to meet further testified that phone rates were so At press time, there were indications distancing requirements, adding costs to onerous that families often found them- that Senate Bill 2846 would be enacted. keep them ongoing. They state phone “com- selves juggling household expenses and missions” pay the costs for these programs. utility and food bills in order to speak with Source: masslive.com News in Brief

Alabama: The Birmingham News re- County Jail, Verdugo resigned his position assault of a child under 14. Watson’s letter ported that an Alabama prison guard had with the state Department of Corrections, claims he confessed to clinical staff he was been arrested for drug trafficking after a which issued a statement insisting it “does on the verge of violence and asked them to search of his vehicle when he arrived for not tolerate the unjustified use of force move him from the housing unit, but the work at the St. Clair County prison turned against an inmate.” request was ignored. up 138 grams of methamphetamine and 16 California: In an unusual turn of California: Known as the voice of grams of heroin. Ivan Caldwell, 26, was then events, a prisoner serving a life term at Cali- Charlie Brown in the Peanuts TV specials booked into the county jail. He resigned in fornia State Prison and Substance Abuse of the 1960s, Peter Robbins is also a former October 2019 from the state Department Treatment Facility in Corcoran published felon, according to an October 2019 report of Corrections (DOC), for which he had his confession to the brutal murder in Janu- by Fox affiliate Fox 8 in Ohio. Now the worked since 2017. DOC is “deeply com- ary 2020 of two convicted child molesters 63-year-old actor, who was convicted of a mitted to eliminating contraband” in its with whom he was housed. Jonathan Wat- felony under California’s two-strike law for facilities, said the director of its Investiga- son, 41, sent a letter in February 2020 to the criminal threats made to San Diego County tions and Intelligence Division, Arnaldo San Jose Mercury News, which detailed how Sheriff William Gore, among others, plans Mercado. he used a cane belonging to fellow prisoner to write a book titled, Confessions of A Block- Arizona: A guard at Arizona’s Eyman David Babb, 48, and beat him to death, after head, about the bipolar disorder that fueled state prison complex in Florence was ar- becoming enraged that Babb was watching the manic behavior that eventually landed rested in October 2019 and charged with children’s TV programming in the prison him at the California Institution for Men aggravated assault on a prisoner. Sgt. Jose common area. Using the same weapon, in Chino. From there, he was transferred to Verdugo, 38, allegedly beat up the prisoner, Watson then clubbed to death Graham De a state mental health hospital in Atascadero whose name was not released, in August Luis Conti, 62. All three men were serving before being released to a sober-living home 2019, according to a report in the Arizona life sentences, Watson for first-degree mur- in northern San Diego County in October Republic. After he was booked into the Pinal der and the other two for aggravated sexual 2019 to complete the last year of his five-year November 2020 62 Prison Legal News sentence. He advises anyone who “has bipo- Macon, Georgia, federal Judge Tillman alleging sexual and physical abuse by guards lar disorder to take it seriously because your E. Self dismissed a clutch of lawsuits filed and retaliation for her complaints about life can turn around in a span of a month.” against the state Department of Corrections them while held at Pinckneyville Cor- Colorado: Two Denver County Sher- (DOC) by eight prisoners who claimed rectional Center and Menard Correctional iff ’s Office deputies were fired in June 2020 they were injured when the transport bus Center. A spokesman for the guards’ union, after a reckless driving incident the preced- they were riding was commandeered by two Anders Lindell, said that while his group ing January, while carrying three prisoners other prisoners making an escape. The eight doesn’t condone inmate abuse, every one of in a transport van. According to a report said DOC’s lax policies and procedures had its members deserves “fair representation by Denver TV station KDVR, Deputy contributed to the June 2017 incident in and due process.” Hampton’s attorney, Van- Jason Martinez was riding shotgun in the Putnam County. But Judge Self ruled the essa Del Valle, claimed the posts reflect the van when Colorado State Police clocked state was immune because any harm had “horrid” way transgender women are treated Deputy James Grimes driving the van at not been directly caused by its employees. by DOC. The agency has recently intro- 100 mph on I-25 in a construction zone The escapees, Ricky Dubose and Donnie duced mandatory training for its employees with a 60-mph speed limit. When stopped, Rowe, overpowered two guards on the bus, on transgender-related issues, according to Grimes claimed he was speeding to a toilet shooting and killing them. Both prison- acting DOC Director Rob Jeffreys. so that one of the prisoners could relieve ers were recaptured and charged with the Illinois: Millions of dollars in sur- himself, denying eyewitness reports that he murder of the guards, Curtis Billue and plus military gear became available when was drag-racing a pickup whose driver was Christopher Monica. President Trump erased restrictions on an charged with DUI. In 2010, Grimes was Georgia: In June 2020, the Board Obama-era federal surplus program run one of five guards at Denver’s Downtown of Commissioners of Gwinnett County, by the Department of Defense, according Detention Center involved in a use-of- Georgia, voted to pay $202,500 to for- to the Chicago Tribune in August 2020. excessive-force incident that resulted in the mer detainee Shelby Clark for injuries For Illinois lawmen alone, that means gear death of Marvin Booker, a homeless street she received at the County Jail in August such as armored vehicles and assault rifles preacher. Denver paid Booker’s estate $6 2018. The then-26-year-old, whose father and apparel. But not everyone agrees this million to settle a wrongful death lawsuit claimed she is mentally ill, had been jailed is a good public relations move in light of in 2014, but no deputy was charged by on a battery charge when she was punched the May police killing of George Floyd then-District Attorney Mitch Morrisey. in the face by Deputy Aaron S. Masters, and others. “Since August 2017, Illinois According to attorney Mari Newman, all who allegedly lied about the incident in law enforcement agencies have obtained five continued to work in law enforcement his official report, according to the Atlanta 1,319 items worth $4.7 million through the until Grimes’ arrest and termination. Journal-Constitution and TV station WSB. program, according to a Tribune analysis of Florida: A demeaning Twitter post has Masters, 27, was fired from the county federal data,” the newspaper reports. Aislinn stirred up controversy for the sheriff ’s office sheriff ’s office and indicted by a federal Pulley, co-founder of the Chicago chapter in Pasco County, Florida. According to an grand jury in January 2020 for using exces- of Black Lives Matter, told the newspaper: October 2019 report in Orlando Weekly, the sive force in the incident. The jail’s Rapid “It’s a message of intimidation and terror. It’s image of a work crew from the county jail Response Team, of which he was a part, was the same message that is used overseas when was accompanied by the caption, “Never also being investigated by another federal our military occupies someone else’s country. give up on your dreams!” The sheriff ’s- of grand jury for use of excessive force by And what is that message? The message is fice said the men in the work crew were holding inmates in “restraint chairs” that we will destroy you; we will kill you if you “volunteers” filling sandbags for use during improperly immobilize them. step out of line.” Crystal Lake police Chief Hurricane Dorian in August 2019. Sheriff Illinois: Transgender prisoners held James Black said if the equipment is “ being Chris Nocco did not explain why he or his by the Illinois Department of Corrections used properly ... if you’re using it for things staff might consider that a dream task. (DOC) had been routinely mocked in so- to keep people safe, it’s a positive.” Florida: Mia Martinez-Welch, 22, a cial media posts made by about 25 DOC Kentucky: In October 2019, a Sheriff ’s former guard at Santa Rosa Correctional employees, resulting in an investigation of deputy employed at the McCraken County Institution in Milton, Florida, was sen- at least half of them and disciplinary ac- Jail in Paducah, Kentucky, was fired and tenced in October 2019 to an 18-month tion against some of those, according to an charged along with two women and two prison term for smuggling tobacco, meth- October 2019 report by CNN. A review of prisoners in a scheme to smuggle tobacco, amphetamine and other drugs to a prisoner two private Facebook groups by Injustice marijuana, prescription pills, cellphones under her watch, according to a report by Watch, a nonprofit journalism group, found and other contraband into the lockup. Ac- Tampa cable TV station Bay News 9. The posts by DOC guards, a counselor and a cording to a report by TV station WPSD, felony was revealed when her cellphone was parole officer that referred to transgender the former guard, Raheem Tenner, 23, ac- found inside the prisoner’s cell in November prisoners as “it” and “a f****** joke.” The cepted bribes to smuggle the contraband 2018, and she was fired by the state Depart- groups, “Behind the Walls – Illinois Dep’t from the women, Savannah Sutton, 19, ment of Corrections. Five other women of Corrections” and “Behind the Walls – and Ricosha Young, 27, to inmates Shawn who worked at the prison also were fired Illinois Department of Corrections,” have Sutton and Epionn Lee-McCampbell. and charged with introducing contraband. over 4,000 members each. Many of the Tenner was apprehended after a tip from Georgia: According to an October posts referenced Strawberry Hampton, a fellow jailer David McKnight. Young and 2019 report by TV station WMAZ in transgender prisoner who has sued DOC, Savannah Sutton were then captured in the Prison Legal News 63 November 2020 News In Brief (cont.) working at Pugsley Correctional Facility 2019 by New Jersey prisoner Raymond in Kingsley until it closed in 2016 and Skelton seeks class-action status to extend they moved to Oaks Correctional Facility to all of the 12,000-plus inmates held in the jail parking lot in a sting operation when near Manistee. Both women “were valued state’s six prisons by its Department of Cor- they allegedly attempted to deliver more members of the team at the Oaks and will rections (DOC), according to a report in The contraband. be missed by many,” said DOC Director Press of Atlantic City. The suit also demands Louisiana: According to an October Heidi Washington. Grand Traverse County that DOC cease substituting high-sugar 2019 report by New Orleans, Louisiana, Sheriff ’s Office Capt. Randy Fewless said and high-sodium processed food for more TV station WWL, a pair of Orleans Parish that Kelley’s body was found close to the nutritious meals. Skelton, 69, is held at Sheriff ’s Office deputies lost their jobs the recliner in which she apparently shot and South Woods State Prison in Bridgeton. He previous August after an investigation re- killed Winn before turning the gun on suffers from diabetes, high blood pressure vealed they had engaged in sex with inmates herself. Police said a text-message exchange and high cholesterol, so he complains that outside the jail on a work-release program. recovered from Winn’s phone – lasting right his Eighth Amendment protection from The prisoners, who were not identified, were up to the moment she died at 10:00 p.m. cruel and unusual punishment has been removed from the program and returned to on October 23, 2019 – indicated she was violated by deprivation of properly nutri- jail. The deputies, Ariel Breaux and Quiera romantically involved with another woman tious food, claiming that “virtually every” Joseph, were not charged because they in the Manistee area. fruit and vegetable has been replaced with were off-duty at the time of the incidents. Missouri: In January 2020, Michael food paste, white flour and low-nutrition Breaux resigned while under investigation. Allen Byrd II, a former guard at the starches like potatoes and rice. In addi- Joseph was fired after a disciplinary hearing. Daviess-DeKalb Regional Jail in Pattons- tion, he alleges that healthy meat and fish A third deputy, Oshen Heilman, was fired burg, Missouri, was sentenced to four years have been replaced with processed meat, in an unrelated 2017 incident for having in state prison for a guilty plea he entered and the commissary stocked with chips, an ongoing relationship with an inmate. in July 2019 to a charge of sexual conduct cookies, pies and other “sodium bombs.” Because her actions happened on-duty, she with a Daviess County prisoner under his He also claims that prison staff have been was criminally charged, pleaded guilty and supervision, a felony under state law. Byrd ordered “to water down vegetables, hot cere- sentenced to three years of probation. had previously pleaded guilty to an identical als, mixed foods, sauces and liquid cheese Michigan: The Michigan State Capitol charge with a Caldwell County prisoner in products, and to load meal products with has seen multiple protests in the past year. April 2019. The warrant for his arrest given expired, old bread scraps and similar fillers.” Last fall, a crowd of more than 100 rallied to the DeKalb County Sheriff ’s Office said As a result, he says, DOC’s menus no longer outside the capitol calling for prison reform he had coerced several women incarcerated accurately portray the meals prisoners are and a reduction in the use of life sentences, at the jail to perform oral sex on him, ac- served. His suit seeks injunctive relief in the according to a report by Lansing TV station cording to a report by radio station KTTN form of a more nutritious menu, as well as WLNS in October 2019. Protestor Patrice in Trenton. His two four-year sentences compensatory and punitive damages. Ferguson said she thought the life sentence will be served consecutively with the state New York: New York’s Museum of that her husband received for a 1984 assault Department of Corrections. Modern Art (MoMA) held a VIP recep- should have been considered complete after Nebraska: Christmas Eve church ser- tion in October 2019 that was promptly 20 years, not the 37-and-counting he has vice attendance was cut short in December crashed by over 200 prominent members served. Another protestor, William Hawkins, 2019 for off-duty guards at the Nebraska of the art world, who gathered outside to said his father has served 30 years on a life state prison in Lincoln, who rushed back to demand the museum and its board member sentence without any chance to prove he work when a disturbance erupted. Accord- Larry Fink disinvest from private prison was, in fact, rehabilitated years ago. The 2.3 ing to a report in the Omaha World-Herald, companies. The New Sanctuary Coalition, million incarcerated Americans counted by the prison went on lockdown when a group which released a statement on behalf of the the federal Bureau of Justice Statistics rep- of 14 prisoners in the Diagnostic and protesters, gathered signatures of such lu- resent a population larger than all but four Evaluation Center disabled surveillance minaries as Cuban-born performance artist U.S. cities, and one of every seven is serving a cameras, broke furniture and cracked a win- Tania Bruguera, German-born filmmaker sentence of life or more than 50 years – called dow after guards confiscated “food items” Hito Stevrl and Princeton-based art critic “virtual life” – according a 2017 report by the and “homemade alcohol” from them. The Hal Foster. Board member Fink is CEO of nonprofit Sentencing Project. state Department of Correctional Services BlackRock, the world’s largest investment Michigan: A pair of veteran Michi- (DCS) said the lockdown had been lifted by firm with $6 trillion in assets, including the gan prison guards who died in October the next morning, with the prison running second-largest stakes in the country’s two 2019 at the Paradise Township home they “modified operations,” meaning prisoner largest private prison operators, Florida- shared were apparently killed in a murder- movement was more closely controlled and based GEO Group and Tennessee-based suicide sparked by jealousy over an affair some prisoners were confined to their cells. CoreCivic. In January 2020, 37 artists con- one was having, according to a December DCS Director Scott Frakes commended nected to a MoMA PS1 exhibition on the 2019 article in the Detroit News. Tara the swift response to the disturbance by Gulf War wrote the show’s curators to call Kelley, 53, and Angelina Winn, 49, served guards from the Corrections Emergency on the museum to cut ties to Fink due to 19 and 20 years, respectively, with the Response Team. his profiting from “the suffering of others.” state Department of Corrections (DOC), New Jersey: A lawsuit filed in October North Carolina: According to a Janu- November 2020 64 Prison Legal News ary 2020 report by TV station WNCT in cording to a report in the Portsmouth Daily Center, 26-year-old Amanda Oatis, has Greenville, North Carolina, a former Press, Jeremy Mooney resigned from the Pike been charged with sexually assaulting at guard at the Craven County Confinement County Sheriff ’s Office in November 2019 least six female prisoners at the jail, accord- Facility has been charged with attempting after he placed handcuffed detainee Thomas ing to a January 2020 report by Oklahoma to smuggle drugs into the jail. The guard, Friend in a restraint chair and punched him City TV station KFOR. The incidents, 28-year-old Terrance Tremayne Outlaw, 11 times in the face before moving him and which allegedly occurred between July 2018 was fired immediately, according to Sheriff his chair to the parking lot, where he then and Oatis’ firing from the state Department Chip Hughes. Charged in the scheme with pepper-sprayed Friend in the face. At the of Corrections (DOC) in February 2019, him were Joshua Joel Duncan, 27, an inmate same time his firing was announced, Sheriff involved kissing inmates and touching their at the jail who allegedly planned to deal the James E. Nelson said he had launched an genitals. One inmate reported that Oatis drugs there, and his girlfriend, 31-year-old investigation into a possible excessive- performed oral sex on her three times and Reba Louise Williams, who delivered the use-of-force charge. He also turned over penetrated her with a finger seven times. contraband to the ironically named Outlaw. surveillance video of the incident to County DOC has also accused Oatis of providing No update on the charges was available, Prosecutor Rob Junk, who told ABC News alcohol and cellphones to one of her victims but Hughes gained notoriety in May 2020 he found it “disturbing.” All of this came just in the lockup. when he publicly announced that his office 11 months after the sheriff praised Mooney Oklahoma: After violence erupted would do nothing at churches that violated for recognizing a Lexus allegedly stolen by in Oklahoma City during racial protests the 10-person limit on indoor gatherings a burglary suspect. In that January 2019 sparked by the May 25, 2020, death of announced by Gov. Roy Cooper (D) in incident, Mooney gave chase by car and on George Floyd – an unarmed Black man response to the coronavirus pandemic. foot until he found the car thief, 25-year- killed by Minneapolis police investigating a Ohio: Less than a year after an Ohio old James Widdig, lying in the grass with reportedly counterfeit $20 bill – four activ- deputy sheriff was lauded for nabbing a bur- a syringe. Widdig admitted he was high on ists who were arrested were then released, glary suspect, he was fired after surveillance drugs, but he denied the syringe was his. using $1.4 million in bail funds posted by video caught him repeatedly punching and Oklahoma: A former guard at the groups affiliated with Black Lives Matter pepper-spraying a handcuffed detainee. Ac- Oklahoma City Community Corrections (BLM), according to Associated Press re-

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Prison Legal News 65 November 2020 News In Brief (cont.) 45-year-old security guard at Delaware in February 2019, but it hung on the ques- County Community College was appar- tions of whether their actions qualified as ently serving a 20-day term handed down simple assault or official oppression. After ports. A $750,000 bail was posted for Eric in August 2019 for a DUI conviction. The deliberating 14 hours in an October 2019 Christopher Ruffin, 26, who was charged night before, three other inmates had been retrial, the jury again hung on two charges under a state anti-terrorism law with inciting hospitalized for drug overdoses, and hours but returned verdicts on nine others, includ- protesters via an enthusiastically-narrated after Mulhern’s death, five more inmates ing guilty verdicts for 35-year-old Gregory Facebook video of a burning bail-bond were hospitalized from a mass overdose of on charges of simple assault and official -op business and a torched Oklahoma County heroin smuggled into the lockup by holi- pression. Former guard Lt. Darrin Collins, Sheriff ’s vehicle on May 30, 2020. The next day visitors. One of those five hospitalized 54, was found guilty of official oppression. day, Adam Warner Hayhurst, 19, Deshayla women apparently was Fatima Musa, 27, The jury acquitted or hung on the remain- Dixon, 24, and James Lovell Holt, 31, were who then died on New Year’s Eve. She had ing charges against the other three jailers. also arrested and released when BLM posted been jailed after a trespassing summons South Carolina: South Carolina grand their bail – $300,000 each for Hayhurst and from the State Police Gaming Enforcement juries indicted 95 people in just a few Dixon and $50,000 for Holt. He was caught triggered a violation of a probation sentence months on charges of smuggling drugs and on video throwing rocks at the Oklahoma she had earlier received for nonviolent other contraband – especially cellphones – City National Memorial, for which Judge drug-related offenses. into state prisons, according to The State. In Ray C. Elliott imposed a daily curfew and Pennsylvania: As previously reported November 2019, indictments were handed an ankle monitor. Still jailed on terrorism by PLN, Derrick Houlihan, a prisoner down to 54 people on 194 charges related charges was Isael Antonio Ortiz, 21, whose with a prosthetic leg, filed suit in federal to a massive drug trafficking operation bail was set at $1 million. court in February 2019 claiming his civil dubbed “Prison Empire” because it was Pennsylvania: Two prisoners died rights were violated by a savage beating run by state prisoners from their cells using and seven others were hospitalized over he received at the hands of guard Alfred contraband cellphones to coordinate with a catastrophic Christmas week in 2019 at Gregory at Pennsylvania’s Montgomery contacts outside. Of the defendants, 14 are the George W. Hill Correctional Facility County Correctional Center in December former prisoners and 12 are current prison- in Thornton, Pennsylvania, according to 2016 (See PLN, December 2019, p. 63). ers, most at high- or medium-security state report in the Philadelphia Inquirer. The That case was dismissed in May 2019. But prisons, though one is now incarcerated in jail in Delaware County, which is run by First Assistant District Attorney Edward F. a privately run Mississippi prison. In ad- Florida-based GEO Group, is the state’s McCann Jr., who called the guard’s behavior dition to tracking illegal drugs with a $20 last privately operated lockup. Late on “unhinged,” filed criminal charges against million street value, investigators also seized Christmas night, prisoner Austin Peter Gregory and four other jail employees who over 40 firearms during the operation. A Mulhern was found dead in his cell after allegedly stood by and watched. A jury similar investigation conducted between hanging himself with a bedsheet. The acquitted all five men of aggravated assault November 2018 and September 2019 re-

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November 2020 66 Prison Legal News sulted in indictments against an additional pleaded guilty in August 2019 to violat- and even whiskey, according to an October 38 defendants. The last three indictments ing the unnamed prisoner’s civil rights. 2019 report in Newsweek. That month, in February 2020 went to a trio of people Tanner Penwell, 22, pleaded guilty in the U.S. Marshals and deputies from the Jef- - a prisoner, a female friend outside and a next month to using unlawful force. Carl ferson County Sheriff ’s Office spotted prison maintenance worker – for conspir- Spurlin, Jr., 42, pleaded guilty in October four prisoners making an escape through ing to bring $350,000 worth of drugs, 2019 to covering the surveillance camera a neighboring ranch and then returning cellphones and other contraband into a during the attack. Cadie McAllister, 21, with contraband: Julian Lemus, 34, Robert state prison. Another scam run by prisoners admitted intentionally failing to docu- Young, 45, Leo Martinez, 25, and Silvestre with contraband cellphones did not involve ment the incident in the jail logbook. The Rico, 35. Another prisoner, 41-year-old drugs but instead lured Army personnel to last of the five, 33-year-old Jonathan York, Anthony Stafford King, did the same the send nude photos that were then used to pleaded guilty in June 2020 to taking part previous month. So did 25-year-old pris- extort money from them. According to state in the assault – he alone landed 30 punches oner Joshua Hansen in January 2019. All six prisons director Bryan Stirling, “An illegal on the inmate – and then lying about it. A prisoners face additional charges. Two other cell phone is the most dangerous weapon supervisor identified in court documents as escapees — Salvador Garcia, 59 and Victor in our prisons today.” Cpl. T.M. allegedly told the guards to claim Luis Pescador, 56 — did not return after Tennessee: All five guards charged in the inmate’s injuries were self-inflicted, but fleeing the prison in June 2019. Both were the vicious beating of a Tennessee prisoner no additional information was available serving 20-year terms for involvement with that they then covered up have pleaded about him or her. guilty to their roles in the February 2019 Texas: Prisoners at the Federal Cor- assault, which occurred in the mental health rectional Complex in Beaumont, Texas, 4 the best pen pal list $ can buy unit of the Northwest County Correctional have been escaping and returning with Send $6 or 1 book of stamps to: Complex in Tiptonville, according to re- contraband, including drugs, cellphones PO Box 2515 Nyssa OR 97913 ports by the Associated Press and Knoxville TV station WVLT. Nathaniel Griffin, 29, Prisoner-Connection Pen Pals Over 1,500 Up-To-Date Resources! www.prisoner-connection.com Legal Help, Sexy Pics, Pen Pals, $5 MAGAZINES Join & start connecting today! Make Money, FREE Books & Mags, Platinum Publications Presents a Enroll online:$46/yr or $4.99/mo Social Media, Advocates, & Much, $5 $5 $5 $5 Or MO, cashier/institute chks to Much More! Too much to list! Mag $ale for a year subscription Kathy Hammond Order NOW! ONLY $17.95 +$7 s/h You must send a SASE for info 9717 E. 6th Ave. #422 Or 4 NEW books of stamps to: PO Box 4234 Oakland, CA 94614 Spokane Valley, WA 99206 TCB2; POB 1025, R.C., CA 95741

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Prison Legal News 67 November 2020 News In Brief (cont.) the unnamed inmate, who then bested the July 26, 2020, at a hotel in Battle Creek. The deputy and held him on the ground until pair had escaped 13 days earlier through he surrendered. Gloeckler was arrested and a hole in the perimeter fence around the a Mexican drug cartel’s operations. Garcia charged with assault and official oppression Bon Air Juvenile Correctional Center near was recaptured in Mexico in December – the same charges dropped in the deal to Richmond after using a cord to choke 2019. Pescador’s status was not available. surrender his license. Neither man suffered a security guard unconscious. They then Texas: A former Texas jail guard who any serious injuries, according to a report in fled in a waiting getaway vehicle. A staff lost his temper with a prisoner and then The Bexar County Jail blog. member at the center is one of three people lost the fight with him gave up his jailer’s Virginia: A pair of prisoners who es- charged with abetting the escape. Williams, license in October 2019, thereby avoiding caped a juvenile prison in Virginia in July of Washington, D.C., had been convicted prosecution in the September 2018 inci- 2020 were recaptured in Michigan almost of malicious wounding and robbery. Tay- dent. Bexar County Sheriff Javier Salazar two weeks later, according to a report in lor, from Spotsylvania County, carries said that surveillance video captured the the Detroit Free Press. U.S. Marshals ap- convictions for second-degree murder and former guard, Ta-Vian Gloeckler, as he prehended Rashad E. Williams, 18, and aggravated malicious assault. Both were took off his uniform shirt and fought with Jabar Ali Taylor, 20, without incident on returned to Virginia on August 12, 2020.

Criminal Justice Resources Amnesty International Critical Resistance and how and why they occur. Their content is Campaigns for the worldwide abolition of the Seeks to build an international movement to available online, which includes all back issues death penalty. Publishes information on torture, abolish the Prison Industrial Complex, with offices of the Justice Denied magazine and a database gun violence, counter-terrorism, refugees’ rights in California, New York, and Portland, Oregon. Pub- of more than 4,500 wrongfully convicted people. and other human rights issues. No legal services lishes The Abolitionist newsletter. Contact: Critical Contact: Justice Denied, P.O. Box 66291, Seattle, are provided. Reports on the U.S. and other coun- Resistance, 1904 Franklin Street #504, Oakland, CA WA 98166. www.justicedenied.org tries are available online at: www.amnesty.org. 94612 (510) 444-0484. www.criticalresistance.org National CURE Black and Pink FAMM Citizens United for Rehabilitation of Errants (CURE) FAMM (Families Against Mandatory Minimums) is a national organization with state and special Black and Pink is an open family of lesbian, gay, interest chapters (such as federal prisoners and bisexual, transgender and queer prisoners and advocates against mandatory minimum sentenc- ing laws with an emphasis on federal laws, and sex offenders) that advocates for rehabilitative “free world” allies who support each other. A opportunities for prisoners and less reliance on national organization, Black and Pink reaches works to “shift resources from excessive incarcera- tion to law enforcement and other programs incarceration. Publishes the CURE Newsletter, $2 thousands of prisoners across the country and annual membership for prisoners. Contact: CURE, provides a free monthly newspaper of prisoner- proven to reduce crime and recidivism.” Contact: FAMM, 1100 H Street, NW #1000, Washington, DC P.O. Box 2310, Washington, DC 20013-2310 (202) generated content, a free (non-sexual) pen-pal 789-2126. www.curenational.org program and connections with anti-prison 20005 (202) 822-6700. www.famm.org movement organizing. Contact: Black and Pink, The Fortune Society National Resource Center on Children 6223 Maple St. #4600, Omaha, NE 68104 (531) Provides post-release services and programs for and Families of the Incarcerated 600-9089. www.blackandpink.org prisoners in the New York City area and occasion- Primarily provides research, fact sheets and a program directory related to families of prisoners, Center for Health Justice ally publishes Fortune News, a free publication for prisoners that deals with criminal justice issues, parenting, children of prisoners, prison visitation, Formerly CorrectHELP. Provides information primarily in New York. Contact: The Fortune mothers and fathers in prison, etc. Contact: NRC- related to HIV in prison – contact them if you Society, 29-76 Northern Blvd., Long Island City, NY CFI at Rutgers-Camden, 405-7 Cooper St. Room, are not receiving proper HIV medication or are 11101 (212) 691-7554. www.fortunesociety.org 103, Camden, NJ 08102 (856) 225-2718. https:// denied access to programs due to your HIV sta- nrccfi.camden.rutgers.edu. tus. Contact: CHJ, 900 Avila Street, Suite 301, Los Innocence Project Angeles, CA 90012 (213) 229-0985; HIV Hotline: Provides advocacy for wrongfully convicted November Coalition (213) 229-0985 (collect calls from prisoners OK). prisoners whose cases involve DNA evidence and Advocates against the war on drugs and previ- www.centerforhealthjustice.org are at the post-conviction appeal stage. Maintains ously published the Razor Wire, a bi-annual news- letter on drug war-related issues, releasing drug Centurion Ministries an online list of state-by-state innocence projects. Contact: Innocence Project, 40 Worth St., Suite war prisoners and restoring civil rights. No longer Centurion is an investigative and advocacy 701, New York, NY 10013 (212) 364-5340. www. published, back issues are available online. Con- organization that considers cases of factual in- innocenceproject.org tact: November Coalition, 282 West Astor, Colville, nocence. Centurion does not take on accidental WA 99114 (509) 680-4679. www.november.org death or self-defense cases or cases where the Just Detention International defendant had any involvement whatsoever in Formerly Stop Prisoner Rape, JDI seeks to end sex- Prison Activist Resource Center the crime. In cases involving sexual assault, a ual violence against prisoners. Provides resources PARC is a prison abolitionist group committed to forensic component is required. Cases that meet for imprisoned and released rape survivors and exposing and challenging all forms of institution- this criteria may send a 2-4 page letter outlining activists for almost every state. Contact: JDI, 3325 alized racism, sexism, able-ism, heterosexism and the facts of the case, including the crime you Wilshire Blvd. #340, Los Angeles, CA 90010 (213) classism, specifically within the Prison Industrial were convicted of, the evidence against you and 384-1400. www.justdetention.org Complex. PARC produces a free resource direc- why you were arrested. You will receive a return tory for prisoners and supports activists working letter of acknowledgement. Contact: Centurion, Justice Denied to expose and end the abuses of the Prison 1000 Herrontown Rd., Clock Bldg. 2nd Fl., Princ- Although no longer publishing a print magazine, Industrial Complex and mass incarceration. eton, NJ 08540. www.centurion.org Justice Denied continues to provide the most Contact: PARC, P.O. Box 70447, Oakland, CA 94612 comprehensive coverage of wrongful convictions (510) 893-4648. www.prisonactivist.org

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Protecting Your Health and Safety, by Robert E. Toone, Southern Prison Profiteers: Who Makes Money from Mass Incarceration, Poverty Law Center, 325 pages. $10.00. This book explains basic rights edited by Paul Wright and Tara Herivel, 323 pages. $24.95. This is the that prisoners have in a jail or prison in the U.S. It deals mainly with third book in a series of Prison Legal News anthologies that examines rights related to health and safety, such as communicable diseases and abuse by prison officials; it also explains how to enforce the reality of mass imprisonment in America. Prison Profiteers is unique from other books because it exposes and discusses who profits and your rights, including through litigation. 1060 benefits from mass imprisonment, rather than who is

harmed by it and how. 1063 Spanish-English/English-Spanish Dictionary, 2nd ed., Random House. 694 pages. . Has 145,000+ entries from A to Z; includes $15.95 Prison Education Guide, by Christopher Zoukis, PLN Publishing (2016), Western Hemisphere usage. 1034a 269 pages. $49.95. This book includes up-to-date information on pursuing educational coursework by correspondence, including high Writing to Win: The Legal Writer, by Steven D. Stark, Broadway Books/Random school, college, paralegal and religious studies. 2019 House, 303 pages. $19.95. Explains the writing of effective com- plaints, responses, briefs, motions and other legal papers. 1035 The Habeas Citebook: Ineffective Assistance of Counsel, 2nd Ed. Roget’s Thesaurus, 709 pages. $9.95. Helps you find the right word for (2016) by Brandon Sample, PLN Publishing, 275 pages. $49.95. This is an what you want to say. 11,000 words listed alphabetically with over 200,000 updated version of PLN’s second book, by former federal prisoner Bran- synonyms and antonyms. Sample sentences and parts of speech shown for don Sample, which extensively covers ineffective assistance of every main word. Covers all levels of vocabulary and identi- counsel issues in federal habeas petitions. 2021 fies informal and slang words. 1045 Prison Nation: The Warehousing of America’s Poor, edited by Tara Beyond Bars, Rejoining Society After Prison, by Jeffrey Ian Ross, Ph.D. Herivel and Paul Wright, 332 pages. . PLN’s second anthology $35.95 and Stephen C. Richards, Ph.D., Alpha, 224 pages. . Beyond Bars is a exposes the dark side of the ‘lock-em-up’ political agenda and $14.95 practical and comprehensive guide for ex-convicts and their families for legal climate in the U.S. 1041 managing successful re-entry into the community, and includes information The Celling of America, An Inside Look at the U.S. Prison Industry, about budgets, job searches, family issues, preparing for edited by Daniel Burton Rose, Dan Pens and Paul Wright, 264 pages. release while still incarcerated, and more. 1080 $22.95. PLN’s first anthology presents a detailed “inside” look at the workings of the American justice system. 1001 The Federal Rules of Civil Procedure, Practitioner’s Desk Reference 2017, by A. Benjamin Spender, 439 pages. $54.95. This concise compilation The Criminal Law Handbook: Know Your Rights, Survive the System, by of the Federal Rules of Civil Procedure and portions of Title 28 of the U.S. Attorneys Paul Bergman & Sara J. Berman-Barrett, Nolo Press, 642 pages. Code most pertinent to federal civil litigation provides attorneys and pro se $39.99. Explains what happens in a criminal case from being arrested to sentenc- litigants with a handy resource that facilitates quick reference ing, and what your rights are at each stage of the process. Uses an to the Rules. 1095 easy to understand question-and-answer format. 1038 Merriam-Webster’s Dictionary of Law, 634 pages. $19.95. Includes defi- Represent Yourself in Court: How to Prepare & Try a Winning Case, by nitions for more than 10,000 legal words and phrases, plus pronunciations, Attorneys Paul Bergman & Sara J. Berman-Barrett, Nolo Press, 536 pages. supplementary notes and special sections on the judicial system, historic $39.99. Breaks down the civil trial process in easy-to-understand laws and selected important cases. Great reference for jail- steps so you can effectively represent yourself in court. 1037 house lawyers who need to learn legal terminology. 2018 The Merriam-Webster Dictionary, 2016 edition, 939 pages. $9.95. This The Best 500+ Non Profit Organizations for Prisoners and Their paperback dictionary is a handy reference for the most com- Families, 5th edition, 170 pages. $19.99. The only comprehensive, up-to- mon English words, with more than 75,000 entries. 2015 date book of non-profit organizations specifically for prisoners and their families. Cross referenced by state, organization name and The Blue Book of Grammar and Punctuation, by Jane Straus, 201 subject area. Find what you want fast! 2020 pages. $19.99. A guide to grammar and punctuation by an ed- ucator with experience teaching English to prisoners. 1046

Legal Research: How to Find and Understand the Law, 17th Ed., by Please Note: Book orders are mailed via the U.S. Postal Stephen Elias and Susan Levinkind, 363 pages. $49.99. Comprehensive and Service with delivery confirmation. PLN does not assume easy to understand guide on researching the law. Explains case responsibility to replace book orders once their delivery to law, statutes and digests, etc. Includes practice exercises. 1059 the destination address (facility) is confirmed by the postal Deposition Handbook, by Paul Bergman and Albert Moore, Nolo Press, 426 service. If you are incarcerated and placed a book order but pages. $34.99. How-to handbook for anyone who conducts a did not receive it, please check with your facility’s mailroom deposition or is going to be deposed. 1054 before checking with us. If books ordered from PLN are cen- Criminal Law in a Nutshell, 5th edition, by Arnold H. Loewy, 387 pages. sored by corrections staff, please file a grievance or appeal $49.95. Provides an overview of criminal law, including pun- the mail rejection, then send us a copy of the grievance ishment, specific crimes, defenses & burden of proof. 1086 and any response you received.

* ALL BOOKS SOLD BY PLN ARE SOFTCOVER / PAPERBACK * Prison Legal News 69 November 2020 Hepatitis and Liver Disease: What You Need to Know, by Melissa Palmer, Federal Prison Handbook, by Christopher Zoukis, 493 pages. $29.95. MD, 471 pages. $19.99. Describes symptoms & treatments of Hepatitis B & C and This leading survival guide to the federal Bureau of Prisons teaches current other liver diseases. Discusses medications to avoid, diets to follow and soon-to-be federal prisoners everything they need to and exercises to perform, plus includes a bibliography. 1031 know about BOP life, policies and operations. 2022 Criminal Procedure: Constitutional Limitations, 8th ed., by Jerold H. Federal Rules of Evidence in a Nutshell, 9th ed., by Paul F. Rothstein, Israel and Wayne R. LaFave, 557 pages. $49.95. This book is intended for Myrna S. Raeder and David Crump, 816 pages. $49.95. This succinct over- view presents accurate law, policy, analysis and insights into use by law students of constitutional criminal procedure, and examines constitutional standards in criminal cases. 1085 the evidentiary process in federal courts. 1093 Prisoners’ Self-Help Litigation Manual, updated 4th ed. (2010), by John Civil Procedure in a Nutshell, 8th edition, by Mary Kay Kane, 334 pages. . This comprehensive guide provides a succinct over- Boston and Daniel Manville, Oxford Univ. Press, 928 pages. $54.95. The $49.95 premiere, must-have “Bible” of prison litigation for current and aspiring view of procedural rules in civil cases. 1094 jail-house lawyers. If you plan to litigate a prison or jail civil suit, this book Nolo’s Plain-English Law Dictionary, by Gerald N. Hill and Kathleen is a must-have. Includes detailed instructions and thousands T. Hill, 477 pages. $29.99. Find terms you can use to understand and access of case citations. Highly recommended! 1077 the law. Contains 3,800 easy-to-read definitions for common How to Win Your Personal Injury Claim, by Atty. Joseph Matthews, 9th (and not so common) legal terms. 3001 edition, NOLO Press, 411 pages. . While not specifically for prison- $34.99 Win Your Case, by Gerry Spence, 287 pages. $21.95. Relying on the suc- related personal injury cases, this book provides comprehensive informa- cessful methods he has developed over more than 50 years, Spence, an tion on how to handle personal injury and property damage attorney who has never lost a criminal case, describes how to claims arising from accidents. 1075 win through a step-by-step process 1092 Sue the Doctor and Win! Victim’s Guide to Secrets of Malpractice Disciplinary Self-Help Litigation Manual, by Daniel Manville, 355 Lawsuits, by Lewis Laska, 336 pages. $39.95. Written for victims of medi- pages. $49.95. By the co-author of the Prisoners’ Self-Help Litigation Manual, cal malpractice/neglect, to prepare for litigation. Note that this book ad- this book provides detailed information about prisoners’ rights in discipli- dresses medical malpractice claims and issues in general, not nary hearings and how to enforce those rights in court. Includes state-by- specifically related to prisoners. 1079 state case law on prison disciplinary issues. This is the third book published by PLN Publishing. 2017 Advanced Criminal Procedure in a Nutshell, by Mark E. Cammack and Norman M. Garland, 3rd edition, 534 pages. $49.95. This text is designed NEW! The Habeas Citebook: Prosecutorial Misconduct, by Alissa for supplemental reading in an advanced criminal procedure course on the Hull, 300 pages. $59.95. This book is designed to help pro se litigants iden- tify and raise viable claims for habeas corpus relief based on prosecutorial post-investigation processing of a criminal case, including prosecution and adjudication. 1090a misconduct. Contains hundreds of useful case citations from all 50 states and on the federal level. 2023 Subscription Rates Subscription Bonuses

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November 2020 70 Prison Legal News Prison Education Guide $49.95 Christopher Zoukis ISBN: 978-0-9819385-3-0 • Paperback, 269 pages Prison Education Guide is the most comprehensive guide to correspondence programs for prisoners available today. This exceptional book provides the reader with step by step instructions to find the right educational program, enroll in courses, and complete classes to meet their academic goals. This book is an invaluable reentry tool for pris- oners who seek to further their education while incarcerated and to help them prepare for life and work following their release.

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Criminal Legal News PUBLISHED BY THE HUMAN RIGHTS DEFENSE CENTER VOL. 1 No. 8 ISSN 2576-9987 (Print) ISSN 2577-0004 (Online) Criminal Legal News Dedicated to Protecting Human Rights Cell-Site Simulators: Police Use Military Technology to Reach out and Spy on You July 2018

Criminal Legal News is the sister publication of Prison Legal News. Both are published monthly aw enforcement agencies nation Lwide are employing technology, designed by Christopher Zoukis for military use in foreign lands, in order to- nated efforts of criminal defense attorneys, is track the location of U.S. citizens on Ameri leading to greater public and judicial aware can soil. And authorities — all the way up to ness of the nature and use of stingrays. the FBI — have gone to great lengths to hide- devices cost law enforcement agencies between by the Human Rights Defense Center, Inc. Same timely, relevant, and practical legal news and the surveillance system from the public, the Courts are beginning to grapple with- $200,000 and $500,000 each. the Fourth Amendment implications of criminal defense bar, and even the judiciary. their usage. Even the Department of Justice According to USASpending.gov, Harris Corporation received $3.6 million in federal Cell-site simulators, also known as sting (“DOJ”) recognizes that their intrusive nature funding and held more than 2,000 federal rays, trick cellphones into connecting to the implicates constitutional privacy protections. contracts in 2017 alone. device instead of an actual cell tower. Police- DOJ policy now requires that all federal law- operating the devices can track the location enforcement agencies obtain a full, probable Law enforcement agencies in 23 states features as PLN, BUT CLN provides legal news you can use about the criminal justice system of all connected cellphones within a certain and the District of Columbia were using cause-supported search warrant prior to em stingray technology as of 2016. And, accord- radius, and also can potentially intercept ploying the devices. metadata about phone calls (the number called ing to a 2017 Cato Institute report, multiple But the DOJ policy is not law, and not- federal agencies in addition to the FBI use Criminaland length of the call), the content of phone allLegal courts require law enforcement to Newsobtain the technology, including the ATF, DHS, calls and text messages, as well as the nature of a warrant prior to using a stingray. Moreover, ICE, DEA, NSA, U.S. Marshals Service, and data usage — including browser information. no legal changes short of an outright ban on prior to confinement and post-conviction relief. Coverage includes: All of this takes place unbeknownst to users even the IRS. The Army, Navy, Marine Corps, the devices will change what they can do: and National Guard use cell-site simulator whose cellphones have been hijacked. hijack a cellphone and force it to report in to The growing use of stingray trackers the government, all while it sits quietly in an has alarmed privacy advocates and criminal unsuspecting user’s pocket. defense attorneys, but concerns over their use have been met with silence from police The Stingray Found Terrorists, INSIDE and prosecutors. Law enforcement in at least Now It Will Find You SCOTUS: Unexplained Habeas Decisions 23 states use the technology, as do a host of CriminalCell-site Legal simulators were first deNewsColumn: SCOTUS and Black Lives federal agencies. • Criminal Law & Procedure • Police Brutality veloped over two decades ago, as military 9 PUBLISHEDIn some cases, prosecutors BY haveTHE gone HUMANso technology. RIGHTS According to a 2016DEFENSE investigative CENTEROH S Ct Limits Inventory Search far as to dismiss criminal charges to avoid - 10 report by The Daily Dot, the original stingray disclosing any information about stingray use. Bail Reform in Alabama was developed by Harris Corporation, in 14 Incredibly, the FBI requires local law enforce VOL. 1 No. 1 conjunction with the Pentagon and federal 6th Cir.:December Anticipatory Search2017 Warrant ment authorities to accept aDedicated comprehensive to Protecting Human Rights 16 intelligence agencies. The technology was de nondisclosure agreement prior to being al Epidemic of Cops Shooting Dogs - signed for use on foreign battlefields in the 17 • Prosecutorial/Police Misconduct • Habeas Corpus Relief lowed to use stingrays. The agreements require 9th Cir.: CJ Not Crime of Violence war on terror and for use in other national police and prosecutors to refuse to hand over - 20 - security-related arenas. information about Absurd,stingray technology Abusive, or and Outrageous:Database of Police Criminality Harris, based in Melbourne, Florida, 23 usage to defense attorneys and judges alike. SCOTUS: Right to Assert Innocence The Creation of Crimeremains andthe leading Criminals manufacturer of cell-site in America 24 Successful Freedom of Information Act simulators. The company makes a variety of litigation, as well as the diligent and coordi Dominant Witness Theory bymodels, Christopher including the Zoukis first-generation Sting 28 WY S Ct ‘Castle Doctrine’ for Cohabitants • Ineffective Counsel • Sentencing Errors & Reform he U.S. is a world leader in the Theray authority and newer to arrest models people such and as HailStorm,en- solutions address symptoms of the illness, 34 - jailing and imprisoning of its own citi- force theArrowHead, criminal law AmberJack, at the initial and stage KingFish. is but The not- theCA illness Man Awarded itself. An $10 examination Million of T 37 zens. The FBI estimates that local, state, and vested almost exclusively within the broad some of the various outrageous and absurd News in Brief federal authorities have carried out more than discretion of the police. Police exercise their practices in the modern criminal justice system 38 a quarter-billion arrests in the past 20 years. authority to arrest liberally; statistics show illustrates just how far we have to go. 42 As a result, the American criminal justice that police arrest more than 11.5 million Crime Creation: • Militarization of Police • Surveillance State system is a robust behemoth that, across the people each year. country, costs taxpayers billions of dollars While the initial arrest decision is Legislatures at Work each year. important, the charging decisions made by The creation of law is the work of fed- The American criminal justice system prosecutors are, arguably, much more conse- eral and state legislatures. A significant change and the criminal law have their roots in Eng- quential. The power of the prosecutor in the to the criminal law in almost every American lish common law. Developed over hundreds modern American criminal justice system can jurisdiction in the last quarter century is the • Junk Science • Wrongful Convictions of years, the criminal law reflected what hardly be overstated, given the inordinately legislative manufacturing of habitual offender conduct English society and government high percentage of criminal cases that are charges and sentencing enhancements. These would not tolerate. Crimes developed either disposed of through plea agreements. The laws allow for significantly longer sentences as malum in se—criminal because of the prosecutorial discretion to charge the crimes innate wrongfulness of the act—or malum and enhancements deemed appropriate drives prohibitum—criminal because the govern- plea negotiations and ultimately convictions. INSIDE • False Confessions • Search & Seizure Violations ment decreed it. Mala in se crimes include Legislators, police, and prosecutors are murder and rape. Mala prohibita crimes powerful agents of crime creation, enforce- include everything from traffic tickets to drug ment, and control. As the criminal justice and gambling offenses. system has grown at the hands of this influen- Modern American criminal law has seen tial triad, it has crept even further into the lives an exponentialCriminal increase in mala prohibita of everyday Americans.Legal They include children News June 2018 crimes createdPUBLISHED by various legislatures. BY TheTHE who HUMAN are being pulled RIGHTS into the criminal DEFENSEjustice CENTER • Witness Misidentification • Paid/Incentivized Informants natural result of creating more and more system at an alarming rate. They also include crimes has been the filling of more and more the poor and homeless, for whom policies are VOL.jail cells1 No. with 7 newly-minted criminals. SomeDedicated of specifically to Protecting designed and implemented Human to Rightssuck ISSNthese 2576-9987 crimes (Print) are absurd, and some are outra- them into the system and ultimately to jail. ISSN 2577-0004 (Online) geous. Many are subject to shocking abuse in Policies that mandate the jailing of the poor the hands of police officers and prosecutors. simply for being unable to pay fines are alive • Post-Release Supervision • Police State in America The explosive increase in what types of and well in America. behaviorSex have Offender been criminalized is notRegistries: the Asby the Christopher American Common public Zoukis comes toSense grips of the or public, Nonsense? especially children. Congress only reason America arrests and imprisons with the out-of-control, all-consuming passed SORNA, for example, “[i]n order to The Adam Walsh Act repealed and replaced individuals in such large numbers. By design monster that the criminal justice system has protect the public from sex offenders and of- both Jacob’s Law and Megan’s Law. The or not, the criminal justice system in the U.S. become, efforts to address the situation have fenses against children. . . .” 34 U.S.C. § 20901. n October 1989, 11-year-old Jacob comprehensive Adam Walsh Act created a But the “protections” provided by sex has evolved into a relentless machine that is begun. Unfortunately, these efforts rely on IWetterling was kidnapped at gunpoint and national sex offender registry and mandated largely controlled by law enforcement authori- data and crime rate trends that do not tell the - offender registration and restriction laws are • Due Process Rights never seen again. that every state comply with Title I of the Act, based on faulty information and more than ties andWhen prosecutors. the boy’s mother, Patty Wetterling, whole story. Current legislative and executive - the Sex Offender Registration and Notifica one false premise. In passing registry laws, learned that her home state of Minnesota did tion Act (“SORNA”) or risk losing 10 percent- legislators frequently cite the high rates of not have a database of possible suspects—no of federal law enforcement funding. SORNA recidivism among sex offenders.McKune Judges v.do tably convicted sex offenders—she set out to requires, among other things, that states estab the same. In the 2002 opinion make a change. lish a three-tiered sex offender registry system, Lile, U.S. Supreme Court Justice Anthony Wetterling’s efforts led to the passage of with “Tier 3” offenders required to update Kennedy cited a “frightening and high” sex- the Jacob Wetterling Crimes Against Children their registry information every three months, offender recidivism rate of up to 80 percent. and Sexually Violent Offender Registration for life. SORNA also created the National Sex If it were true, that would, indeed, be Between the two publications, every possible interaction with the Act, which was signed into federal law by Offender public website, which had nearly 5 “frightening and high.” However, that figure - President Bill Clinton in 1994. Jacob’s Law million visits and 772 million hits by 2008. is flat-out wrong. Justice Kennedy based that was the first effort to establish a nationwide Full compliance with SORNA has prov registry of convicted sex offenders, but it was en costly, and many states have opted out. As not the last. - of 2014, only 17 states were in full compliance; INSIDE Soon after Jacob’s Law was enacted, the remaining 33 states have foregone their 11 criminal justice system is reported, analyzed, and exposed. 7-year-old Megan Kanka was raped and mur full federal law enforcement funding while NYPD Practice of ‘Testilying’ 12 dered by a neighbor with a previous conviction- remaining partially compliant. for sexual assault of a child. This heinous Despite many states choosing not to Will Dimaya End the Insanity? 14 crime led the state of New Jersey to pass Me comply with SORNA, a tremendous amount SCOTUS Strikes ‘Crime of Violence’ 16 gan’s Law, which required anyone “convicted, of sex-offender registry legislation has been adjudicated delinquent or found not guilty enacted across the country since the 1990s. Book Review: Habeas Handbook 2.0 18 by reason of insanity for commission of a sex These laws have gone well beyond keeping a Column: Habeas Hints 20 offense” to register with local law enforcement registry of convicted sex offenders, and now “STOP RESISTING” and subscribe today! upon release from prison, relocation into the regulate where sex offenders may live and FBI: Hair Analysis Wrong 90% of Time 24 state, or after a conviction that did not include work, with whom they may have contact, and ‘Shaken Baby Syndrome’ Discredited 24 incarceration. even where they may be present. Illinois, for Two years later, Congress enacted a fed- example, created a law enforcement registry ‘Golden State Killer’ Arrested: Ex-Cop 26 eral Megan’s Law. The bill, which passed in the in 1986. Since it was created, the Illinois - Exonerations: 60% Involve Misconduct 34 House by a 418-0 vote and in the Senate by Legislature has amended the registry 23 times, unanimous consent, required that states pro each time adding new offenses, restrictions, or SCOTUS Resolves Circuit Split 38 vide community notification of sex offender requirements. 5th Cir. Extends Prison Mailbox Rule 40 Subscriptions to CLN are $48/year for prisoners/individuals and $96/year for professionals/entities. To subscribe, send payment to: registry information “that is necessary to False Premises, Faulty Numbers, protect the public.” By the end of 1996, every R.I. S Ct Abolishes Shatney 42 state in the nation had some form of public and Unintended Consequences News in Brief notification law for sex offenders in place. There is a laudable and virtually un- In 2006, Congress adopted the Adam assailable goal associated with sex-offender Criminal Legal News, P.O. Box 1151, Lake Worth Beach, FL 33460; (561) 360-2523. www.criminallegalnews.org Walsh Child Protection and Safety Act, registration and restriction laws: protection named in honor of 6-year-old Adam Walsh, who was abducted and murdered in Florida.