The Toughest Love for Nearly 50 Years, the Delancey Street Foundation Has Offered an Alternative to Prison

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VOL. 31 No. 10 October 2020 ISSN 1075-7678 Dedicated to Protecting Human Rights The Toughest Love For Nearly 50 Years, the Delancey Street Foundation Has Offered an Alternative to Prison. But Does the Celebrated Program Really Work? by Julia Lurie, Mother Jones

he headquarters of the Delancey On a third-floor wall hang dozens of locations nationwide and more than $119 TStreet Foundation occupies a piece of framed photos of “hot shots who like us”—a million in the bank. Delancey’s facilities prime real estate near the base of San Fran- who’s who of California’s Democratic elite defy the stereotype of a gloomy halfway cisco’s Bay Bridge, tucked between luxury and celebrities of a certain vintage, posing house: There’s a Mission-style former hotel condominiums and ritzy waterfront eater- with Delancey’s co-founder and CEO, in Los Angeles, a ranch in New Mexico, ies. The 400,000-square-foot, four-story Mimi Silbert. With her big auburn hair and and a turreted manor in New York. Resi- complex looks like a Disneyfied Mediterra- infectious smile, she’s pictured with Hillary dents, most of whom live in the California nean villa, with red tile roofs, flower boxes, and Bill Clinton, Kamala Harris, former facilities, stay for a minimum of two years and sun-filled windows overlooking the Mayor Willie Brown, Colin Powell, Tony while working for—and eventually man- bustling waterfront. Inside are 177 dorms, a Blair, Clint Eastwood, and Jane Fonda. The aging—the program’s many enterprises, pool, a movie theater, and an unpretentious grip-and-grins are a tribute to Delancey’s which include moving companies, catering restaurant known as a hangout for local reputation as one of the nation’s highest- services, and bustling eateries. The program dignitaries. Rep. Nancy Pelosi described profile self-help organizations, known for is predominantly funded by profit from its the facility as “the living room of the city.” bringing countless lives back from the brink. businesses; residents receive free room and The photos are also a testament to board. During the holiday season, Delancey the 78-year-old Silbert’s influence. Pelosi runs dozens of Christmas tree lots, inviting INSIDE has likened Silbert to Mother Teresa and customers to “Buy A Tree Save A Life!!” recently called her “the queen of redemption Over nearly half a century, more than From the Editor 14 in all of America.” Sen. Dianne Feinstein 23,000 people have completed the program. COVID: Overcrowding in PA Leads to Outbreak 16 once urged “anyone, anywhere in the United Yet as Delancey has become a beloved States that has an interest in replicating a fixture in San Francisco and a model for NY: Female Prisoners Accuse Jail of Discrimination 20 program to rehabilitate American drug ad- rehabs and prison diversion programs House Passes Bill to Protect Attorney-Client Emails 22 dicts that works to go to San Francisco, to around the world, it has been subject to call Mimi Silbert.” California Gov. Gavin little oversight or scrutiny. Interviews with Private Prisons Lose Critical Financial Support 24 Newsom became close with Silbert during dozens of Delancey graduates, lawyers, MI: $80 Million Settlement Over Juvenile Sex Abuse 28 his own efforts to get sober more than a de- judges, and criminologists paint a picture cade ago. “I never went to rehab,” he told the of an eccentric program with a number of Criminal Justice: Trump v. Biden 32 San Francisco Chronicle. “I went to Mimi.” long-standing practices that are rarely dis- CA: Psychiatrists Decline Prison Work Even for 300K 38 Delancey is a bit like a kibbutz where cussed in public. New participants are cut people go instead of prison. With the excep- off from the outside world and required to CA: Lawsuit by Mother of Decapitated Prisoner 42 tion of Silbert, the program is run entirely spend hours doing monotonous jobs. They 11th Circuit: Ex-Felons in FL Must Pay Fines to Vote 46 by people recovering from addiction, and must participate in “Games,” in which they former prisoners, nearly all of whom were receive and dish out intense criticism, often GA Jail Settles Opioid Withdrawal Death for 420K 52 sent to the program by judges as an alterna- in the form of yelling and cursing. Until a Lawsuit Over TX Prisoner’s Death Can Proceed 60 tive to incarceration or as part of probation few years ago, residents were required to or parole. Since it was founded in a cramped stay awake for two-day sessions; sometimes News in Brief 62 apartment in the early ’70s, it has grown those who nodded off were awoken with a into an operation with 1,000 residents in six spritz of water. They work long hours for 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 prisoners who seek to further their education while incarcerated and to help them prepare for life and work following their release.

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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 October 2020 2 Prison Legal News The Toughest Love (cont.) waterfront headquarters, where she lives. Prison Legal News “Drop out of school? They all dropped out a publication of the of school for the most part. Violent? We Human Rights Defense Center no pay, sometimes at events for the politi- go for violent people instead of just taking www.humanrightsdefensecenter.org cians who praise the program. Delancey somebody who just made a mistake. We’re doesn’t offer mental health services and it happy to take them. They too can change.” EDITOR Paul Wright forbids psychiatric medications. In private Yet Delancey’s critics say it’s often pre- conversations, some public defenders in sented as the only alternative to prison for MANAGING EDITOR Ken Silverstein San Francisco liken the program to a cult. people facing long sentences. “Delancey’s EDITORIAL ASSISTANT There is loads of anecdotal evidence of considered the be-all and end-all: If you Betty Nelander the program’s successes, but there is little can’t make it there, then you don’t deserve COLUMNISTS scientific evidence to support Delancey’s to be out any longer,” said Sangeeta Sinha, Michael Cohen, Mumia Abu-Jamal tough-love methods, some of which were who was an attorney in the San Francisco CONTRIBUTING WRITERS inherited from the notorious rehab group Public Defender’s Office for 15 years, until Anthony Accurso, Douglas Ankney, Synanon. Even though nearly all of Delanc- 2017. In 2006, her client Leyon Barner Bill Barton, Kevin Bliss, ey’s residents come through the criminal was sent to Delancey in lieu of a long sen- Dale Chappell, Matthew Clarke, justice system, no state or local agency tence. Barner buckled under the program’s Michael Fortino, Derek Gilna, oversees the program, and its recidivism relentless demands. “You have isolation, Scott Grammer, Ed Lyon, Chad Marks, David Reutter, rates haven’t been studied in three decades. you have sleep deprivation, you have this Mark Wilson, Christopher Zoukis It’s hard to question the appeal Delanc- constant pressure of having to go to these ADVERTISING DIRECTOR ey holds for judges and DAs trying to figure Games three times a week where you’re Susan Schwartzkopf out what to do with a specific kind of of- being attacked and insulted and verbally ADVERTISING COORDINATOR fender: someone ineligible or unsuited for abused,” he recalled. Eventually, he was Judith Cohen a typical rehab but deserving of one more sent back to prison to serve a lengthy sen- LAYOUT chance before prison. Delancey checks a lot tence. More than a decade after attending Lansing Scott of boxes: It’s tougher and longer than most the program, he still has bad dreams about HRDC LITIGATION PROJECT addiction treatment programs; it takes vio- it; he requested that this article be titled Daniel Marshall – General Counsel lent offenders; it’s not prison; and it’s free. “Nightmare on Delancey Street.” Eric Taylor – Staff Attorney “Most judges don’t relish the opportunity As California attempts to reduce its PLN is a monthly publication. to send people to prison,” said one deputy swollen prison population, and policymak- public defender in San Francisco. “It’s kind ers increasingly agree that the addiction A one year subscription is $30 for prisoners, $35 of like, ‘Delancey will fix it.’” crisis can’t be solved with incarceration, for individuals, and $90 for lawyers and institu- During a 2014 sentencing hearing for taking a look inside Delancey seems more tions. Prisoner donations of less than $30 will be pro-rated at $3.00/issue. Do not send less than Christina Williams, who was convicted important than ever. But the questions $18.00 at a time. All foreign subscriptions are of counterfeiting money to fuel a drug about its methods and effectiveness resonate $100 sent via airmail. PLN accepts credit card habit, federal Judge Lawrence O’Neill said, beyond the program itself: Does anyone orders by phone. New subscribers please allow four to six weeks for the delivery of your first is- “I would have loved to have packed her and really know the best way to set someone sue. Confirmation of receipt of donations cannot every other person that’s appeared before me struggling with addiction and criminal be made without an SASE. PLN is a section 501 in the last year into my car and driven them activity on a path to recovery and stability? (c)(3) non-profit organization. Donations are tax deductible. Send contributions to: up to Delancey Street.” The deal he struck Silbert is first to acknowledge that Prison Legal News with Williams was typical: If she made it Delancey is not for everyone; 4 out of 10 new PO Box 1151 through the program, she would be put on residents quit before they graduate. But she Lake Worth Beach, FL 33460 probation. Fail out of Delancey and she insisted that its achievements can’t be boiled 561-360-2523 would serve time in prison. O’Neill warned down to statistics. “There’s just too many [email protected] www.prisonlegalnews.org her, “It is going to take everything that you people and too many places and the numbers have. Every physical, every mental, every end up never meaning as much to me as the PLN reports on legal cases and news stories related emotional drop of energy that you have.” people themselves,” she said. She told me, to prisoner rights and prison conditions of confinement. PLN welcomes all news clippings, legal Today, Williams is thriving, with a pleadingly, to remember the alternatives as summaries and leads on people to contact related full-time job, a fiance whom she met at I wrote this story: “These people would end to those issues. Delancey, a dog, and years of sobriety. She up in prison if they didn’t come here.” Article submissions should be sent to - The was one of several former residents I spoke Editor - at the above address. We cannot return • • • submissions without an SASE. Check our website with who credit the program with literally or send an SASE for writer guidelines. saving their lives. Lifting up the “bottom 2 A stay at Delancey typically begins Advertising offers are void where prohibited by percent,” as Silbert puts it, through a hybrid by waiting on “the bench,” a nod to the law and constitutional detention facility rules. of old-fashioned bootstraps and self-actu- wooden seats on Ellis Island where new- PLN is indexed by the Alternative Press Index, alization is the essence of Delancey. “Name comers waited to be screened. Journeying Criminal Justice Periodicals Index and the Depart- ment of Justice Index. a problem, they have the problem,” Silbert to a new way of life is a central theme at told me when I met her at Delancey’s Delancey, which is named after the street on Prison Legal News 3 October 2020 The Toughest Love (cont.) from your fucking own children? for hours, wiping the same spot on the wall. During her many stints in rehab, Ci- “It was like an episode of Black Mirror,” said polla had never experienced an intake like one former resident. New York’s Lower East Side where many this. “The whole interview process, I was Delancey imposes a blackout period of Eastern Europeans settled at the turn of the like, ‘These bitches want to fight. I’m -go a few months, during which new residents 20th century. The first phase of the program ing to have to fuck up three big bitches.’” are prohibited from contacting family or is called “Immigration.” By the time Cipolla left the room so the friends. Blackouts for a few weeks are com- Chesley Cipolla arrived on the bench interviewers could confer, she was shaking, mon at residential rehabs; the idea is to start in San Francisco in 2012. At 40, she had strategizing which of the three she would with a blank slate, without the stresses and spent more than half of her life floundering take down first. At the same time, the pro- temptations of home. (There’s not much between prison, rehab, and homelessness. cess had been such a jolt that it was almost evidence about whether blackouts work— When the three residents who screened her refreshing. “You’ve got a few women just California bans them in the transitional asked why she was there, Cipolla repeated in calling you on your shit,” Cipolla remem- housing programs it contracts with.) But a low, raspy voice what she’d told countless bers. “It seems harsh, but it’s all true, you Delancey’s first few months are far stricter therapists and social workers over the years: know?” than the typical rehab’s. Residents are for- She grew up in a violent household, started Cipolla was admitted, and she en- bidden from talking about their pasts or the drinking heavily as a teenager, and never tered “Maintenance,” the grueling first outside world. Male residents have distilled finished school. One thing led to the next, part of “Immigration,” which is focused the rules of “Maintenance” into the “three and here she was, just out of prison, having on repetitive cleaning. Residents assigned Ws”: no flirting with women, no working never successfully completed a parole. to cafeteria duty awake at 6 a.m. to scrub out, and no gazing out the windows— “Oh, so you think you’re hot shit, just tables, stack chairs, sweep and mop, and which, in San Francisco, provide sweeping dropping out of school?” Cipolla recalls one put the chairs back on the floor—and then views of the bay. (Silbert told me new resi- of the screeners snapping at her. “How did keep doing this routine on the already clean dents are welcome to look out the windows you treat your mom?” another asked. “I bet surfaces until the next meal. “I’ve heard it’s as long as they don’t catcall women, but can’t you treated your mom real fucking good, so we can learn how to work with others’ use the gym because “they have not earned huh? What about your kids? Are you a personalities,” said former resident Anthony that right.” At Delancey, she said, “You need mom? How’d you treat your kids? How’s it Regino, who started at Delancey in 2017. to feel you’ve earned things—and the more feel being a mom like that, just walked away Those on bathroom duty may stand in place correct things you do, the more you earn.”)

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October 2020 4 Prison Legal News From the get-go, the program has a After dinner, groups of about 20 are called ances ranging from minor slights (“You do-it-yourself ethos that extends to every off to rooms where they sit in a circle. There bumped into me yesterday, you bitch”) to aspect of life. There are no outside staffers— are a few ground rules: no threatening, no general gripes (“You piece of shit moth- no nurses or psychiatrists or social workers getting out of your seat. Some topics—like erfucker, who the fuck do you think you on-site for the hundreds of residents. a person’s appearance and family—are are?”). The “Game” serves as an emotional Delancey portrays its lack of clinicians as a off-limits. Most swear words are allowed, dumping ground from 7:30 to 10 p.m. Af- selling point. “Rather than hire experts to but some offensive epithets like “cunt” and terward, everyone trickles into the cafeteria help the people with problems, we decided “fag” are not. The focus then turns to pil- for snacks. As a former resident in Los to run Delancey Street with no staff and ing criticism on one member of the group, Angeles put it, “The joke used to be ‘Yell at no funding,” its website reads. A letter sent while, ideally, pointing out how to fix their each other, then go share a pizza.’” to jail inmates who request an interview problematic behavior—before moving on “There’s a lot of yelling in Delancey warns, “Remember, we aren’t a counseling to the next participant. Street for certain things, but it’s because a program. We’ll expect you to learn a differ- Former residents recall hearing griev- lot of people are angry,” Williams said. “And ent way of doing things by doing them and helping others along the way.” Though the vast majority of residents have a history of addiction, Delancey isn’t monitored by the state health department because it isn’t registered as an addiction CATHOLIC PRIEST AND CHILD SEX ABUSER treatment facility and doesn’t take public funding. Silbert sees Delancey’s mission as transcending addiction: She’s called it a “re-education organization.” Usually, if prospective residents are detoxing, Silbert said, “We give you our chicken soup, some SCOUT LEADER AND CHILD SEX ABUSER chocolate, and a broom.” At least three nights a week, new residents participate in “Games,” con- frontational group sessions where they’re encouraged to let out the anger and irrita- TEAM COACH AND CHILD SEX ABUSER tion built up over long days of tedious work. Beforehand, they request to “play” with those who have gotten on their nerves by submitting forms in a box in the cafeteria. If a person of trust violated you,

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Prison Legal News 5 October 2020 The Toughest Love (cont.) and efficacy of any treatment that requires that,” Regino said over the phone from the them to undergo more trauma.” Another California Institution for Men in Chino, lawyer in the San Francisco Public De- California. After five months at Delancey, part of our counseling is to release that in a fender’s Office recounted checking in with he walked out and enrolled in a different healthy way.” Many residents have just come a client at Delancey. “This is a grown man program, violating the terms of his proba- from correctional facilities, where a simple in his early 50s, a tough guy. He sat there tion. A judge sent him back to jail. disagreement could erupt into violence. and said, ‘I’ve gotta tell you, I’ve been crying Until a few years ago, residents who But at Delancey, you’re taught to “just go with my head in my hands. Can you arrange had spent several months at Delancey put their name in the Game box, and you for me to go back to jail?’” underwent a rite of passage called “Dis- can hash it out in the Game and yell until Some residents do just that. In 2017, sipation.” Groups of 18 would gather in your heart’s content,” Williams said. “You Regino, then in his late 20s, arrived at a room and stay awake for more than 48 basically get a PhD in how to argue,” said Delancey in San Francisco. He was hopeful hours, talking through their childhoods and Cameron Bilbrey, a now-26-year-old who that Delancey would give him the oppor- the mistakes that led them to the program. attended the Los Angeles facility from tunity to get back on track and avoid the The marathon sessions, which sometimes 2013 to 2015. “It teaches you how to solve four-year prison sentence he was facing for featured the questioning and grilling of your problems with words—and if you can’t stealing a car while he was using meth. He’d “Games,” plus role-playing, consoling, and solve your problems, you can at least keep heard good things about the program— weeping, were supposed to be a cathartic yourself from getting up and beating the how it helps you get bank credit, a driver’s turning point. “It’s just letting it all out. It’s Jesus out of the person that you’re having license, a job. “It’s a way of a new life,” he out and it’s done,” Cipolla said. “It doesn’t a problem with.” recalled. “That’s something that I was really need to come back. We’re not going to talk The verbal sparring is helpful for some looking forward to.” Regino, who is bipolar, about it later.” Designated “squirters” kept residents but painful for others. “If words weaned himself off his psych meds in jail people up with cold water, remembers Bil- could cut, they’d have a trauma unit in so he could attend the program. Naturally brey. “They focused on stressing out people Delancey Street,” one former resident told conflict-averse, he contends that he didn’t who probably or definitely had more things me. “Most of our clients come to us with know about “Games” until he arrived. “You to let go of.” a degree of PTSD. A lot of them suffered have 10 guys yelling at the top of their Overall, it felt like “a useful experience greatly as children,” said Sinha, the former lungs and cussing at you and all ganging but it’s sometimes very weird,” he said. public defender. “I question the necessity up on you. I just shut down when they did Some “Dissipation” sessions concluded with

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October 2020 6 Prison Legal News a “coffin ceremony,” in which residents were dorms and wear frumpy donated clothes. that Delancey’s workers aren’t paid. All of encouraged to mourn deaths that they may Women are forbidden from wearing make- the profits from its enterprises—technically not have previously processed, in front of up, and men are required to shave facial called “training schools”—are funneled back a coffin surrounded by candles as ambient hair. With time, they earn more freedom, into the nonprofit. “You don’t get rewarded music played in the background. graduating to two-bedroom apartments with money—you get rewarded with re- Today, instead of “Dissipation,” resi- and donated designer clothes. Technically, sponsibility,” Cipolla said. “You’re the shit dents talk about their personal histories residents graduate after two years, but many, if you have a ton of responsibilities.” (This during “12-hour Games.” Silbert was dubbed “explorers,” choose to stay longer. A model isn’t altogether unique: As a recent opaque about exactly when or why she handful of “lifers” pledge to stay at Delancey investigation by Reveal reports, Delancey ended “Dissipation.” (One resident recalls until their final days. is among at least 300 rehab facilities across the practice continuing as recently as 2017.) After a few months, residents graduate the country requiring participants to work She suggested the process sometimes stirred from “Maintenance” and begin working in long hours with no pay.) up past hardships rather than enabling one of the organization’s many enterprises. Cipolla first worked for the catering participants to let them go. “It2.3. wasn’t really Residentsx 7.1 train each other, and with time, what I felt was helpful,” but “I felt it was rise in the ranks—from line cook to restau- terrific while we did it.” rant manager, or mover to crew boss. Some • • • of the enterprises are major operations. Delancey Moving and Trucking completes National The flip side of the long days and thousands of jobs annually; recent corporate nights is the many perks that come with contracts include transporting the Macy’s Federal Legal residence at Delancey, where the atmo- flower show and moving the San Francisco sphere can feel camplike. Every morning, Giants’ operations to Arizona for spring Services residents perform a skit and present a word training. The entire Delancey organization of the day. Every week, there’s a social “func- kicks into high gear during the holiday tion” like a fair or treasure hunt. Over the season, when other enterprises shrink to  Federal summer, residents go camping. Holidays skeleton crews so residents can focus on Appellate are huge events featuring elaborate meals. selling Christmas trees. In Los Angeles, “I ate my first shrimp, lobster, bisque at residents deck out downtown buildings. Representation D-Street,” said Brandon Ingram, a former Last year, Silbert says, Delancey sold 50,000 all Circuits and Los Angeles resident. At Christmas, Silbert trees, bringing in almost $3 million in net Supreme Court becomes Delancey’s “Mrs. Claus,” she told revenue in the four weeks before Christmas.  Admitted to all Federal me. “I make them practice: ‘When we open “Everybody is working night and day,” Circuits and Supreme Court it, what do we say?’ And we all go, ‘Ooooh!’ Silbert said.  Over 150 Appeals Filed and And then we say, ‘Aaaah!’” The most obvious difference between a represented New residents live in spartan, nine-bed Delancey business and a regular business is  Federal 2255 Habeas Petitions  Representation  Pro Se review and Assistance  Over 200 Habeas filed and Represented

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Prison Legal News 7 October 2020 The Toughest Love (cont.) geles County Museum of Art exhibitions; literature and theoretical geometry. Nancy he said they also packed up the mansions Pelosi’s daughter Christine has taught of celebrities like Flea, the Red Hot Chili several criminal justice classes there over company and as a secretary in Silbert’s Peppers bassist. The company rarely used the years. In 2017, she tweeted a photo of a office, eventually becoming her personal dollies—workers carried every box by hand. whiteboard from her lesson on slavery and assistant. Cipolla learned to type, dress On the way back to the truck or the house sweatshops that listed the characteristics professionally, and make eye contact when for another load, they were expected to run. of “exploitation”: low wages, long hours, no shaking hands. She fielded dozens of phone “It’s abusive physically, and sometimes hav- health care. Bilbrey described Delancey as calls in a singsong voice each day, taking ing to work a 16-hour day sucks,” he told “basically indentured servitude or slavery, messages for Silbert—a particularly big me. But the jobs get done, he said, and you whatever you want to call it.” responsibility because Silbert, who admits get a lot of freedom. “I never saw somebody Still, Bilbrey is among the many resi- that she is “old-, old-fashioned,” doesn’t give up.” dents who believe that Delancey has given have a cellphone or email address. For Bilbrey, who describes himself as them a gift far more valuable than wages. Because using Delancey’s services is a former drug addict with “sticky fingers,” “I wouldn’t be here if Delancey Street didn’t seen as virtuous, and because Silbert is there was something empowering about exist,” he told me. Both Cipolla and Wil- extraordinarily well connected, residents packing up ritzy houses and not stealing. liams were moved to tears as they told me have often worked as caterers and servers “I would flip over a mattress and there’s about their personal transformations from at functions for politicians and celebrities. nobody around me, I’m alone by myself… drug users to working professionals. “I’m Williams spoke about them on a first- and there’s a spilled half a prescription of telling you, I was a junkie,” Cipolla said. name basis. “Gavin was cool because he Xanax under the bed.” Something like this “Needle in my neck, abscesses everywhere, just hung out in the back with us,” she happened dozens of times, and Bilbrey dirty hair, in and out of jail and prison and said. “Nancy”—as in Pelosi—was “nice…I never took a pill. “That’s all that I wanted nowhere to live.” I met both women at the don’t know, I’ll just leave it at that.” Cipolla in the whole world: to know I wasn’t some offices of Hornblower Classic Cable Cars, a helped arrange flowers for a personal event thief,” he said. tour company where a number of Delancey for Kamala Harris and catered functions for Silbert said she instructs movers not grads work. Until a recent move, Cipolla political bigwigs. It was, as Cipolla put it, to run but acknowledged that some crew was the director of operations, overseeing “a bunch of ghetto-ass motherfuckers” at bosses might have told them otherwise. To dozens of people. Williams is a sales man- Delancey serving “supermillionaire people.” nitpick about things like running, in her ager. “It is amazing and I am telling you: It’s (The culture clash led to some memorable view, misses the bigger point: “They do re- Delancey Street,” Cipolla said. moments—like when Cipolla, unfamiliar markable things, even if sometimes they’re During the last few months of their with the cornmeal dish she was serving, not perfect,” she said. “They’re running a stay, residents are required to find outside offered “placenta and mushrooms” to guests moving company! Please hear that.” jobs. During this transitional period, called at a party.) After hours, some residents take classes “work out,” they pay rent to Delancey. Many Bilbrey, who worked on the moving taught by other residents and friends of work for moving or construction compa- team in 2014, recalled hauling Los An- Silbert. Recent courses include feminist nies. Some work at a high-end grocery store at the base of Twitter’s headquarters. Delancey graduates have gone on to become Updated 8th Edition Are Phone Companies Taking Money “WINNING HABEAS CORPUS & EMTs, medical examiners, firefighters, -so POST CONVICTION RELIEF” from You and Your Loved Ones? cial workers, sales managers, and real estate Attorney Kent Russell writes: “Now that I’ve HRDC and PLN are gathering information about contractors. Rick Mariano, who attended been turned on to Winning Habeas Corpus, the business practices of telephone companies the program in the ’70s and married Judge I always make sure it’s close at hand.” that connect prisoners with their friends and Katherine Feinstein (Dianne’s daughter), Best Winning Cases – 636 pages family members on the outside. 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October 2020 8 Prison Legal News became a Bay Area real estate magnate. no medical background, college experience, There’s no way to measure if Delancey’s Bill Maher (not the TV host), who lived or even CPR training. Silbert explained residents have more medical or mental at Delancey Street in the organization’s that doctors come for regular checkups at health issues than residents of a typical early years, went on to become a member the San Francisco facility, and if a resident rehab. Public records show the Los An- of the San Francisco Board of Supervisors. is in serious need of medical care, they’ll geles Police Department received three “I would have been dead in prison 40 years see a doctor. Yet she acknowledged that calls regarding overdoses at the address of ago without Delancey Street,” he told me. the person deciding whether to let them Delancey’s Los Angeles facility between A common refrain at Delancey is “Act go may not have medical training. In every 2018 and the summer of 2019. (It’s unclear as if,” a variation of “Fake it till you make family, “somebody has to make that deci- if Delancey residents were involved; the it.” You may not know how to be a restau- sion,” she said. “‘Am I going to send you to facility shares an address with a Denny’s.) rant server, or a mover, or a Christmas tree the doctor, or am I not going to send you Silbert recalled one fatal overdose in Los salesperson, but act as if you do—and after to the doctor?’” Angeles in recent years, and said that such enough acting, you’ll have convinced every- Delancey doesn’t advertise as a mental events are very rare. one, including yourself. This philosophy has health treatment facility. Yet many of its The program’s emphasis on self-reli- carried many residents through the program residents come with substance use problems ance extends to discipline: Residents are and beyond, but this ethos is also applied and psychiatric diagnoses. Former residents responsible for policing each other. Some- to health care and mental health services, recalled that Delancey’s lack of counseling times this can result in seemingly arbitrary putting Delancey at odds with best practices was reflected in an unofficial motto: “Fuck punishments. When Bilbrey cracked an for addiction treatment and prison diver- your feelings, get to work.” Bilbrey’s diaries off-color joke, other residents made him sit sion programs. from his time there show signs that mental on a wooden bench for more than 24 hours “The only medicine you’re going to get health practitioners would likely have found before putting him on “contract,” meaning at Delancey Street is literally ibuprofen,” troubling. In March 2014, he wrote, “I’m he was instructed not to talk to others and Bilbrey said. Other former residents cor- struggling with how to control my thoughts had to clean the floors for 60 hours. After roborated this, adding that they were given and emotions. I’m obsessing…I’ve been Bilbrey’s girlfriend came to see him at a a hard time when they asked for medication thinking those old suicidal thoughts.” He court hearing, his peers put him on contract or treatment. When he was with Delancey continued, “Helping other people is all that for two weeks for not telling his higher-ups in Los Angeles, Bilbrey said, the Delancey keeps me moving onward. I fear going to that she was coming. “18 hours a day, work- resident in charge of medical services had my room at night. To be alone with myself.” ing from 6 am to 11:30 pm,” he wrote in his

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Prison Legal News 9 October 2020 The Toughest Love (cont.) Even successful Delancey graduates that!” she exclaimed. The tale went like this: acknowledge it doesn’t work out for ev- Years ago, Silbert was in Italy, walking by eryone. Bilbrey showed me a photo of his a beautiful building, when she spotted an journal. Regino says he was put on contract former moving crew: more than two dozen elderly woman in a narrow alley chasing a for weeks after a dispute with a roommate, strapping guys in green work shirts. “Out child with what looked like a cast-iron pan. made to quietly clean and reclean dishes of about 30 people there, I think only seven “And she is literally chasing a child and I in the scullery. or eight of them are now what I would call said, ‘That’s exactly what I want,’” she said. Occasionally, not fitting in with well-adjusted taxpayers, working jobs, back “I like it to look beautiful. But it’s also ex- other residents can have life-altering con- to their families, not selling drugs.” When I tremely real and everybody says everything sequences. Leyon Barner, who attended mentioned to Cipolla that former residents they feel because that’s really important. Delancey instead of going to prison for have called Delancey’s practices abusive, she We’re angry, not angry, happy, not happy. armed robbery, was instructed to leave bristled. “If you think it’s abusive, then fuck That’s why it’s set up that way,” she said. the program after seven months even off and don’t do it,” she said. “You choose: “Isn’t that hilarious?” though, according to court records, he You can go to prison or you can do what (When we spoke again in March, hadn’t broken any rules. At a court hear- has worked for thousands and thousands of Silbert said the coronavirus had thrown ing, a higher-up at Delancey named Teri people and not cry like a little bitch.” a wrench into Delancey’s usual routine, Delane said Barner seemed paranoid and • • • particularly at the restaurant, which started posed a safety threat. “Do I have particular offering contactless delivery. Still, she examples? No, I really don’t,” she told the When we first met more than two seemed unfazed. “We have so many other judge. “You need to understand when we years ago, I had not been prepared to be horrible things that we have to handle in do an interview, we have no professional so completely charmed by Silbert, who everybody’s life that our people are probably staff at Delancey Street. There is no way is 5 feet tall and speaks with a booming, less stressed than most people,” she said.) to determine whether or not someone will gravelly Boston accent. She buzzes with Delancey began in 1971, when a self- really make it in our environment.” Delane, energy—a chatty, constantly gesticulating described ex-junkie named John Maher a long-term Delancey resident, had earned bubbe obsessed with changing the way rented out an apartment in San Francisco a doctorate in psychology during her time society treats people who are addicted to with friends who were sobering up. It quick- there—“but not to practice therapy in drugs or have been convicted of crimes. ly filled with people sleeping on couches Delancey Street, because it’s not what we We met at the Delancey Street Restaurant, and sprawled across the floors. They all do,” she testified. She suggested that Barner billed as an “ethnic American bistro” where worked and pooled their earnings in a group would be a better fit with another rehabili- residents in slacks and bow ties serve homey fund. Maher first called the flat Ellis Island, tative program. But Barner’s plea deal had fare like chicken soup, grilled cheese, and and then settled on Delancey Street. “We specifically stipulated that he would go to crab cakes. Silbert came up with many of wanted to get back to the original concept Delancey, and the prosecutor, who reported the recipes herself. She hugged me—“I’m of a bunch of wild-eyed fanatics who came to then–San Francisco District Attorney so excited!” she practically yelled—before over here to build the New Jerusalem and Kamala Harris, didn’t want Barner to go asking, “Are you a vegetarian?” And, when not ask Uncle Nixon for another handout,” to another program. “Unfortunately, this I said no, “Oh good, thank heavens.” She he told Grover Sales in the 1976 book John is a situation that was contingent upon seemed genuinely unfiltered: “I actually say Maher of Delancey Street. the successful completion of the two-year everything I think,” she announced. Almost a decade earlier, Maher had Delancey Street program,” said a reluctant She let out a yelp when I asked about sobered up at Synanon, the alternative Judge Charlotte Walter Woolard before the architectural inspiration for the head- community founded in 1958 that went remanding Barner to custody. Ultimately, quarters, constructed by Delancey residents on to spawn dozens of tough-love rehabs Barner was sent to prison for seven years. and completed in 1990. “No one asks me and treatment programs. Synanon sought

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October 2020 10 Prison Legal News to cure addiction by breaking down users criminology at the University of Califor- counties started sending recovering drug through isolation, attack therapy sessions, nia, Berkeley. She was waiflike compared users to Delancey on probation. “We tried and hard labor. It was Synanon that first de- to the broad-shouldered Maher, but she to make friends with the district attorneys veloped “Games”; founder Chuck Dederich commanded a room with her brassy charm. and the nasty judges as opposed to public said that a “Game” wasn’t “worth diddly shit “John and I talked, talked, talked, talked, defenders, who were naturally on our side, unless every player is either screaming with talked—two total opposites,” Silbert told because we were trying to get the people laughter, bawling like a child, hugging each me. “Stunningly, we had the exact same re- nobody wants to give a chance to,” Silbert other—or on the verge of physical violence.” sponses to everything.” Like Maher, Silbert, told me. Delancey residents started going to Synanon also developed the 48-hour “Dis- who was working as a prison psychologist, jails and prisons to screen potential recruits; sipations,” complete with coffins. also rejected constant talk about feelings by 2002, most initial interviews with pro- Maher joined Synanon in 1962 and and thought the power differential between spective residents were done behind bars. instantly took to it. The “little old Red her as an “expert” and inmates as “victims” Silbert and Maher proved to be gifted Cross ladies cried a lot and told me what a obscured their potential to help themselves political hobnobbers. Residents provided hard life I had, or in jail, guards would beat and each other. security at the food giveaway organized me and scream what a dirty sonofa I was,” Silbert left her husband to move in by the Hearst Corporation to free news- Maher told Sales. Synanon offered another with Maher and build Delancey together. paper heir Patty Hearst in 1974. Maher way: The onus was on the individuals ad- Their new rehab group grew quickly, even- was a frequent speaker at Cesar Chavez’s dicted to drugs to change their lives, with tually buying what had been the Russian rallies throughout the Central Valley. A no help from professionals. When Maher Consulate in the tony Pacific Heights 1976 article in the Chronicle posited that left Synanon and started Delancey, he drew neighborhood. After complaints from Delancey was “the most powerful single the analogy of a son building an extension neighbors, then-Supervisor Dianne Fein- organization in the city today.” (A “slightly on his father’s house. “Let’s get one thing stein became an ally, pushing for Delancey awed” Feinstein told the reporter that Ma- straight—Synanon does nothing but good,” to be allowed to stay. In 1973, the San Fran- her “can mobilize people like that,” with he told Sales. (Widespread violence and cisco Chronicle ran an article headlined a snap of her fingers.) Residents were not abuse in the group was exposed in the “Delancey Street Is Big Business,” describ- forced to engage in political activity, but 1970s, and it shut down for good in 1991.) ing 250 residents who ran a restaurant, when, say, a local politician stopped by while Silbert told me that Delancey is worlds moving company, construction business, walking precincts, they were encouraged to away from Synanon and Dederich. “Who- florist, and credit union. Maher energeti- tag along. Most Delancey residents were ever he is, whatever he did, has nothing to cally sought donations—“I never in my life “people for whom the American Dream do with us,” she insisted. ran into anyone with this much know-how hadn’t produced a particularly good result,” Maher met Silbert soon after he found- about bartering, trading, and hustling free recalled Bill Maher, John Maher’s younger ed Delancey. They couldn’t have seemed goods and services,” said then–state Assem- brother. Getting involved in local politics more different: He was an ex-con from the bly member Willie Brown—but Delancey “was an opportunity for folks to be part Bronx who’d dropped out of eighth grade; eschewed money from the government, as of society.” she was a Boston intellectual who had stud- it continues to do today. John Maher sounded almost like a ied with Jean-Paul Sartre in Paris before Delancey did, however, work with the political boss as he described Delancey’s completing a doctorate in psychology and government in a different way: California civic role. “There will be no Republican or

Prison Legal News 11 October 2020 The Toughest Love (cont.) Brown have held political events and town “Who said that to you?” she asked. halls. Its restaurant became known as a place “Everybody!” Will said. to network, a place where, as a promotional Silbert conceded that she may be fuzzy Democratic conventions in our congres- flyer put it, “the schmoozing reaches world on some details in part because, a decade sional district in which Delancey Street’s problem solving levels.” ago, she fell ill, first with cancer, then two political clubs are not the deciding factor,” In 1986, the governor appointed Silbert strokes. During her six years convalescing, he told Sales. “Delancey Street will also to California’s Board of State and Commu- when she was less involved with the pro- determine the swing vote in San Francisco’s nity Corrections, the advisory committee gram, some residents “had their own version next race for mayor…I have 600 fanatical that develops standards for training proof Delancey Street,” she said. Now that she’s volunteers waiting in the wings, and the bation and corrections officers; she served back to her healthy, mile-a-minute self, candidate for mayor who promises the best until last year. In 1997, she helped rewrite she’s piecing together what happened. “I for the people will get our support.” San Francisco’s juvenile justice protocols, keep going, ‘Huh? When did that happen? Maher didn’t survive to see most of devising a program that provided young And how?’” Delancey’s growth. In the early ’80s, he offenders with an alternative to juvenile • • • quietly relapsed into alcohol abuse. After hall. A year later, she opened Life Learning a drunken car crash in 1985, he was sent Academy, a school for juvenile offenders When Silbert learns that a Delancey to Delancey’s New Mexico ranch. He con- on San Francisco’s Treasure Island. Today, resident or graduate has gone back into ad- tinued drinking, eventually resigned from Delane is its principal. Feinstein called it the diction or crime, she goes up to her room, Delancey, and made his way to New York, “single most important social experiment closes the door, flings herself on the bed, where he suffered a series of heart attacks. there has been in this area.” Delancey has and cries. “It doesn’t matter if they’ve done He died in 1988 at the age of 48. Silbert also joined forces with Solano State Prison something wrong and I kick them out, or doesn’t like to talk about this chapter of her to form the Delancey Street Honors Pro- if they’re out there six years and fine and life. “This is not helpful to me or him,” she gram, a unit whose 100 inmates learn the then something happens, or if they leave said when I asked about it, sounding weary program’s ethos from residents who travel and fail,” she said. “It doesn’t matter: They for a moment. “It’s more important to know up from San Francisco. The participants go from somebody you know well to some that he was brilliant. He was brilliant, and hope to open the first-ever restaurant based person that you’ve never seen before.” then he drank, and then he died.” in a prison. Yet Silbert doesn’t seem concerned Silbert soldiered on, and her profile Delancey grads have gone on to start about the program’s lack of hard evidence. and influence grew. As mayor, Feinstein their own rehabs, often with a tough-love “Quite frankly, if we have one person that’s helped secure the waterfront property for bent, in Salt Lake City and Alaska. In the totally changed and the whole time they’re Delancey’s headquarters, wielding a shovel same hall as the “hot shots” photos, a wall here, they’re fine—and they go out and at the groundbreaking ceremony in 1987. of “Replications abroad” displays photos something happens, it makes me worry The complex, now worth at least $40 mil- of smiling job crews in Singapore, South about society,” she said. “No one knows lion, became a hub for liberal politicians, Africa, and New Zealand, participating in what recidivism is because recidivism gets a spot where Feinstein, Pelosi, Harris, and programs inspired by Delancey. changed every minute of every day.” Silbert is still intimately involved in In a way, she’s right: There is hardly the day to day at Delancey, but during our any data on programs like hers. Delancey conversations, she sometimes compressed occupies a unique spot—it’s a diversion timelines and glossed over details. She was program, where would-be inmates, many of adamant that she was the only person who whom struggle with addiction, go instead had the power to kick someone out, and was of prison, and it’s a reentry program, where shocked to learn that Teri Delane had gone residents transition after doing time. In to court requesting that Leyon Barner be many states, there are few licensing require- removed from the program. When I asked ments for diversion programs, so judges Silbert about Bilbrey, who said he was made have wide discretion in deciding who gets to sit on a bench for more than a day, her treatment and where they’ll be sent for eyes widened and jaw dropped. She asked, it. “Judges can pretty much do what they urgently, “Is he okay?” want,” said Marc Mauer, executive director The Best 500+ Non-Profit When I asked about the three Ws of of the Sentencing Project, a prison reform Organizations for Prisoners “Maintenance,” she said she’d never heard advocacy group. “The reality is that there are & Their Families (6th edition) of the saying. So she asked our server, no experts,” said Jeff Tauber, a retired trial Only $19.99 Will, who had been standing outside the court judge in Alameda County who helped private room where we’d been talking develop the nation’s first drug courts. “And Order from: Prison Legal News, POB 1151 for several hours: “So when you were on this is what makes this field so difficult, and Lake Worth Beach, FL 33460 ‘Maintenance,’ did you say the three Ws?” so perplexing.” 561-360-2523 Will smiled. “The workout, the windows, Even reentry programs that contract Add $6 shipping for all book orders under $50. and women,” he replied. Silbert, shocked, with the state have limited oversight. In squealed with laughter. California, these programs, which range October 2020 12 Prison Legal News from residential facilities to day-reporting That its practices aren’t evidence-based or terfront lot in the 1980s, Silbert put its centers, serve 4,000 parolees each day. In subject to official oversight isn’t a secret to residents in charge of building the new exchange for state funding, these facilities the prosecutors or judges who send partici- headquarters. Residents with no con- are, in theory, obligated to comply with pants there. “If you had a chance to not go struction experience had to figure out basic standards for the number of trained to prison by going to this program, are you how to construct a massive complex that staff on-site and the services provided. But going to really care that it’s not regulated wouldn’t crumble in an earthquake. “We in practice, oversight appears minimal. by the state that much?” said Sacramento had everybody working on it,” she recalled. Reentry facilities that don’t receive state Deputy District Attorney Chris Carlson. “Literally, we had 300 and something funding—like Delancey—are not subject Plus, it’s free. “This guy that doesn’t have a people who knew nothing working on to any oversight. It’s unknown how many pot to piss in, I know we can send him” to this building.” A resident who’d poured programs like it exist, what services they Delancey, said Carlson. “And if they accept concrete for the handball court at San offer, or how many parolees participate. As him, they’ll take him and he’s not going to Quentin Prison became the head of the UC Berkeley public policy researchers put have to pay anything. What are your other concrete crew. Silbert took a test to become it in a recent report, they “do not appear to options?” the contractor and developer. “We would be regulated at all.” Therein lies the problem. What every- do a wall and then we would look at each In San Francisco, reentry options one—lawyers, criminologists, and mental other and say, ‘Is that wall crooked?’” If the include facilities run by GEO Group, one health practitioners alike—seems to agree wall wasn’t straight, Silbert would tell her of the nation’s largest private prison com- on is that, as Tauber put it, “treatment is workers, “Fixing your mistakes takes a lot panies, and a Salvation Army residential a very individual thing.” What pulls one of courage. You have to go through your program called Harbor Light. Many law- person out of a life of addiction and crime mistakes sometimes.” Then they’d take yers in the public defender’s office opposed may not work for another. Silbert agrees: down the wall and put it back up, over and the city signing the multimillion-dollar She doesn’t relish Delancey’s status as an over, until it was right. Harbor Light contract in 2017. “They’re not exceptional prison-alternative program, or queer-friendly. It’s a tough, Christian-based the knowledge that, if someone doesn’t fit This article was originally published in the organization,” a deputy public defender in there, they could be headed straight back May/June 2020 issue of Mother Jones maga- told me. But, she said, “Everyone stopped to a life behind bars. zine (motherjones.com); reprinted with objecting because housing is housing.” Three years ago, when I first learned permission. Copyright, Mother Jones and the (Salvation Army disputes those allegations, about Delancey’s odd practices—“Games,” Foundation for National Progress 2020. contending that the program doesn’t ask “Dissipation,” unpaid labor—I couldn’t participants about their sexual orientation decide if the program was a myth or a or beliefs.) miracle. Now, I think of Delancey as one In this context, a program like Delanc- big exercise in “Act as if ”: Act as if you’re a ey—with nearly 50 years of history, a credible alternative to prison, and the rest charismatic leader, and many notable will follow. success stories—looks awfully promising. After Delancey purchased its wa- Has the Illinois Department of Corrections kept you past your out-date?

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Prison Legal News 13 October 2020

From the Editor by Paul Wright

his month’s cover story reports COVID in their facility. Human Rights Defense Center, and more Ton Delancey Street, the Bay Area PLN’s managing editor Ken and I read about everything else it does besides publish Foundation that has gained fame for all the letters related to COVID that readers and distribute our magazines. its programs that rehabilitate prisoners. have sent us and they paint a dismal picture We only do one annual fundraiser, and Its success has allowed it to grow into a at every level. With winter coming, and with we rely on support from readers like you to large operation with facilities in six cities. it “cold and flu season,” we expect things to help pay for things like advocacy and liti- Readers can make up their own minds worsen even more. gation that subscriptions alone do not pay about the article. Over the past 20 years, As if COVID were not enough, pris- for. Please donate and support HRDC and I have noticed the huge efforts spent on oners in the Southeast are dealing with the work we do if you can afford to do so. “reentry” or “rehabilitation” yet since 1971, hurricanes while prisoners on the West All donations, large and small, help. Please we have seen the number of prisoners rise Coast are subjected to forest fires. The wis- consider becoming a monthly sustaining from 198,061 to around 2.5 million today. dom of building all these prisons in remote donor. A number of people donate $10 a This leads me to believe we suffer from a rural areas may now be in doubt. Upcoming month to HRDC on a recurring basis, and mass incarceration problem in the U.S., issues will report on these events as well. A while the donations seem small, they add not a rehabilitation deficit. Of course, the pandemic, coupled with natural disasters in up and do make a difference in the work budgets for caging people compared to the prisons, would seem like the topic of a very we are able to do. money spent on reentry is barely worth bad grade B movie, but sadly it is becoming This is the last issue of PLN read- noting, with the latter a small fraction of all too common across the U.S. ers will receive before the election. For criminal justice budgets. A lot of new subscribers have joined most presidential elections since 1992, we We seem to be settling in for the long us as part of our COVID special trial sub- have run comparisons between the major haul on COVID in American prisons and scriptions. As the six-issue trial subscription party candidates and their track records on jails. The big takeaway is that the govern- ends, I hope readers decide to renew their criminal justice issues. For the past 30 years, ment’s attitude is to pretty much keep subscriptions to continue receiving PLN. these have been comparisons in cruelty everyone locked up and hope for the best, Please renew early so we can cut down on and brutality as candidates tried to outdo and if a bunch of prisoners die, it’s not the renewal mailings — and it frees our staff themselves in terms of who can serve the that big of a deal. The number of state and up for other issues, like reading prisoner police state better. After John Kerry and federal prisoners who have been released mail. We have also sent subscribers sample John Edwards ran for president in 2004 on due to COVID concerns is quite small. copies of our other monthly magazine, a platform calling for more rural prisons, I The second takeaway is that in class action Criminal Legal News, so they will be aware thought that would be tough to beat. lawsuits over COVID conditions, whatever of it as it is a newer publication. Subscrib- But Joe Biden, with over five decades prisoners gain at the trial court level they are ing to PLN and CLN will ensure you are dedicated to more cops, more prisons, losing on appeal with every single appellate well informed on all aspects of the criminal more cages and less freedom for everyone, decision to date being in favor of prison and justice system. Subscribe now and encour- has managed to do so. He is truly a major jail officials. PLN will continue reporting age others to subscribe as well! and proud architect of mass incarceration the news and the litigation and releases oc- We have launched our annual fun- and the modern American police state. curring around COVID at all levels. Thanks draiser, and readers will soon receive our When Obama and Biden took office in to our many writers who have written and fundraiser packet, which includes our an- 2008 amid the mortgage industry melt- sent us updates on what is happening with nual report and media articles about the down, they immediately sent billions of dollars to police, prisons and jails to prop up the repressive core of the American government at the local and state levels. UNITED CONSULTING APPEAL LAWYER Most likely why every police and guard SERVICE LLC union endorsed Obama and Biden for of- FOR HIRE. Over 20 years of service fice in 2008. The article with more details We have been in business since 1999 assisting is in this issue. Appeal lawyer with over fifteen federal and state Inmates in all fifty states. We From the day we first started pub- years of appellate experience, can help you navigate through the system. We lishing PLN on May 1, 1990, we have including as a former staff attorney provide the following; Legal typing (only), coro- and judicial clerk for the appellate navirus pandemic guidance, A-Z custom pro-se supported felon/prisoner voting and have court, now accepting clients with legal forms, visitation restoration, case finder and long opposed felon disenfranchisement. But research. We also offer a one of a kind self-help cases in any federal appellate court, the bigger issue is not whether prisoners, case book with (only) positive cases. And more. nationwide. For a free consultation, felons or anyone else can vote, but who do contact 312-517-3877 or email inquiry Send a S.A.S.E. to 1 Research Court, Suite 450 we have to vote for? Not having candidates to [email protected]. Rockville, MD 20850 For our free brochure. that differ from each other in any significant sense much less on any policy or practical October 2020 14 Prison Legal News issues is a major problem and most likely the Enjoy this issue of PLN, and please multiple renewal notices. Please donate to one that causes 40 to 45 percent of eligible subscribe or renew your subscription as our fundraiser and encourage others to do voters to exercise their right not to vote. early as possible so we do not have to send so as well. $400,000 Settlement in Lawsuit over Kentucky Prisoner’s Starvation Death by Matt Clarke

n February 2020, WDRB News re- the fact that he told them he wanted to psychiatric medications for prisoners who Ivealed a previously undisclosed $400,000 hurt himself, banged his head on the cell entered segregation off such meds. settlement paid by the Kentucky Depart- door, and said he did not have “anything Embry’s two surviving sons and his ment of Corrections (DOC) to the family to live for.” daughter filed a federal civil rights action, of a state prisoner who starved to death Embry refused 35 of his last 36 meals pursuant to 42 U.S.C. § 1983, against while in segregation at the Kentucky State (and many meals prior to that), yet he was CC-IH, company personnel, and KSP Penitentiary (KSP). not even considered to be on hunger strike staff, alleging violations of Embry’s civil James Kenneth Embry, 57, died of because, once in a while, he would accept rights and various state torts. They were starvation and dehydration at KSP on Janu- the tea that went with the meal. Medical represented by Tulsa, Oklahoma, attorney ary 13, 2014. He had served four years of personnel considered accepting tea to signal Daniel Smolen of Smolen Smolen & Royt- a nine-year sentence for drug and assault- the end of a hunger strike. man; Prospect, Kentucky attorney Gregory related charges. Medical personnel reportedly refused A. Belzley of Belzley Brathurst Attorneys; Embry had asked to be placed in to provide mental health treatment. Se- Owensboro, Kentucky attorney Bradley P. segregation five weeks earlier, saying he curity personnel repeatedly wrote Embry Rhoads of Rhoads & Rhoads; and Paducah, feared for his safety, according to WDRB disciplinary cases for refusing (at least four Kentucky attorney Daryl T. Dixon. and court records from a lawsuit his fam- consecutive) meals, twice placed him in The $400,000 settlement paid by ily filed in 2016. He had a long history of a restraint chair, and pepper-sprayed him DOC was reached in March 2019, but did mental illness. Despite this, KSP medical for scratching himself on the wrist with a not become public until WDRB reported staff from CorrectCare-Integrated Health plastic utensil. No one tried to help him as it on February 17, 2020. CC-IH report- (CC-IH) took him off his medications at his his psychotic state intensified. edly also settled its part of the lawsuit, request four months before he was placed An internal investigation by the state but details were not available under the in segregation. DOC determined that his death “occurred state’s open records laws. The prison staff Medical and security staff decided Em- as the result of a systemic failure at the Ken- involved in the case no longer work for bry must owe money, and fear of the people tucky State Penitentiary involving many the DOC. One contract medical em- he owed caused him to ask to be placed in interacting issues,” which included medi- ployee had his access to DOC institutions segregation. When he repeatedly asked to cal and security personnel scheduling their revoked. KSP currently contracts with be placed back on his mediations because rounds for extremely early hours, “walking” Wellpath for prisoner health care. See: he was feeling “anxious and paranoid,” they their rounds without actually looking into Burke v. CorrectCare-Integrated Health, ignored his requests. the cells, placing burdensome restrictions on U.S.D.C. (W.D. Ky.), Case No. 5:15-cv- Likewise, they decided that he was just the request for medical services, not know- 00007-TBR. angling for a change in housing when he ing what constituted a hunger strike, and stopped accepting meals. This was despite having an unwritten policy of not starting Additional source: WDRB.com

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Prison Legal News 15 October 2020 Why Did 77 Ohio Prisoners Die of COVID-19, but Just 10 in Pennsylvania? A look at how overcrowding and poor design contributed to two of the worst national outbreaks by Cid Standifer and Brie Zeltner, Eye on Ohio, Aug. 21, 2020

This article was provided by Eye on Ohio, the when Pennsylvania fared far better? late 1800’s and has cells with open bars, nonprofit, nonpartisan Ohio Center for Jour- No state has had a model approach for and four-story housing units with open nalism. Please join our free mailing list as this controlling the virus in prisons. All have air shafts to all of the cells,” said Claire helps us provide more public service reporting. made missteps that put inmates’ and staff Shubik-Richards, executive director of the members’ lives at risk, according to prisoners Pennsylvania Prison Society, a non-profit or the first two months after and prisoner advocates. Prison outbreaks inmate advocacy organization. “So when Fthe COVID-19 pandemic hit the U.S., have also spread into the communities the virus came in it spread like wildfire.” Ohio’s response set an example. Thanks to outside their walls. But, whether through In other, newer Pennsylvania prisons an early shutdown order, the state’s per- foresight or luck, factors in some states have with significant outbreaks, such as SCI capita deaths from the virus as of late April kept the virus from running rampant as it Phoenix, the virus proved easier to control. were less than half of those in neighboring has in Ohio prisons. As the country faces Only 49 inmates at Phoenix, which opened Pennsylvania, a state with similar demo- new waves of cases, corrections departments about two years ago, have tested positive graphics. may be able to learn from what helped or and four have died, despite being located But inside the two states’ prison sys- harmed some states during the first stage in hotspot Montgomery County, just north tems, it was a different story. of the pandemic. of Philadelphia. By late April, the death rate from While advocates for incarcerated “The thing about that facility was COVID-19 in Ohio prisons was 22 per people in Pennsylvania caution against that the outbreak went up and then went 100,000, a rate more than 4 ½ times the holding that state’s experience as a model down pretty quickly because it’s a facil- overall Ohio rate and nearly twice the for how to respond to the pandemic, they ity where isolating people is pretty easy,” national rate. agree that the answer may lie both in how Shubik-Richards said, because it has more As of August 14, there have been 77 crowded the prisons are, and how inmates single- and double-occupancy cells than inmate deaths known to be caused by are housed. open dorm units. COVID-19, and another 10 suspected— Crowded Prisons Spread Disease In Ohio’s more crowded prison system, a rate of 160 deaths per 100,000 people. the virus was first detected in a staff member Ohio’s prisons have incubated two of the Controlling an outbreak of infec- in the 66-year-old Marion Correctional four largest COVID outbreaks in the na- tious disease in a prison is never easy. As Institution on March 29. Less than a month tion. with other communal living facilities such later, nearly 4,000 inmates across the state In Pennsylvania’s prison system, as nursing homes, once a respiratory illness had tested positive for the virus; 10 were which houses about 44,000 inmates at 25 enters, close quarters gives a virus ample dead, as was one staff member. facilities, the death rate was comparatively opportunity to spread. Now, the death count is approaching low— 10 incarcerated people have died as Overcrowding only makes the situation 80. Ohio’s prison system is home to two of mid-August, for a death rate of 23 per worse. In Ohio, where the prisons were of the four largest COVID-19 outbreaks 100,000 people, despite the virus showing 32% above capacity in February, the virus in the nation, with 2,440 cases at Marion up in each state just a few days apart. In spread rapidly. Correctional Institution in rural central fact, a Pennsylvania …inmate is less than In Pennsylvania’s prisons, at 95% of Ohio, and 1,792 at Pickaway Correctional half as likely to die of COVID-19 as a free capacity in February, there were outbreaks Institution outside Columbus. Pennsylvanian. in several prisons, but far fewer deaths. Pickaway, built in the 1920s as a mental Why have Ohio’s prisons failed so thor- That state’s biggest outbreak to date hospital and converted to a prison in 1984, oughly to control the spread of COVID-19 –183 infections and five deaths among was designed to hold 1,328 people. As the inmates – hap- pandemic began in Mid-March, it held Poete Maudit Publishing House pened at its oldest 2,047– 54% over capacity. 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. prison facility, the In one cell phone video that pur- 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 131-year-old State portedly shows the inside of Pickaway, more information, send S.A.S.E. to: Poete Maudit P.O. Box 216 Farmersville, CA 93223. We also Correctional In- seemingly endless racks of double-bunked 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 stitution (SCI) beds are visible, with no barriers and little 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 Huntingdon in cen- space between. spring 2020. You will be notified if your essay is selected. tral Pennsylvania. “Everybody’s stacked on top of each 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 “SCI Hunting- other, man,” says the person wielding the don dates from the camera. “Ain’t no social distancing in here.

October 2020 16 Prison Legal News … They’re playing with our lives, man.” Ellen Smith said that some of the plan’s noted that “isolation” meant keeping in- Virus Runs Amok in Dorms recommendations for Pickaway have been fected inmates away from those who weren’t implemented. The Orient Correctional sick, while “quarantine” meant “limiting the Pickaway was designed to have 87% Institution, a prison adjoining Pickaway movements” of someone who may have of its beds in open double-bunk dorms, that hasn’t been used since 2001, was de- been exposed to the virus. Guidance issued described in a 2015 state prison renova- molished, as was Pickaway’s dilapidated E by the DRC early in the pandemic said it tion plan as “barrack-style” (sic), where Block of dorms. But construction of a new was preferable to quarantine inmates in the beds were typically three feet apart. When unit with over 1,000 beds is on hold due to infirmary, but if not enough cells were avail- prisons are overcrowded, staff often squeeze the pandemic. able, they could be “quarantined” in “an area even more beds into the dorms than they Around March 29, leadership at large enough to hold beds and equipment were designed to hold, said Meghan No- Marion – designed to hold 73% of its in- for a minimum of 50 patients.” visky, a Cleveland State University professor mates in dorms – declared that prisoners in Marion was designed to hold 450 in- who studies how prisons impact health. dorms would sleep arranged head-to-foot. mates in cells. On April 16, 2,417 inmates In the 2015 master plan, state officials That way their faces would be more than there were listed as “in quarantine.” acknowledged that the prison’s dorm-style three feet apart, according to an email The close quarters of dorm-style hous- housing was a problem, not because of between the prison’s medical services direc- ing is a problem in other Ohio prisons, too, disease, but because it elevated prisoners’ tor and the Marion County public health inmates reported. stress, setting the stage for unrest. department, obtained by the Documenting Javalen Wolfe, an inmate incarcerated “A critical need is to improve the dor- COVID-19 project at The Brown Institute in dormitory-style housing at Belmont mitory living conditions and reduce the for Media Innovation. Correctional Institution in southeastern very high levels of crowding,” the report According to daily statistics released Ohio, said that every time a flu or a cold said. “The [Strategic Capital Master Plan] from Ohio DRC, on April 21, more than enters the prison, there’s no stopping it. recommends the phased conversion of all 28,000 of the state’s 48,396 inmates were “This is how it works because we live dormitory living units to a cubicle-type either “isolated” or “quarantined.” But in so close together. If one person gets sick, configuration where inmates will have a overcrowded prisons where most inmates everybody gets sick,” he said. “We are lit- higher degree of personal space and privacy.” lived in dorms, both happened in groups, erally two feet, maybe two and a half feet Ohio Department of Rehabilitation according to numerous inmates. between the next person, and there’s no and Correction (DRC) spokesperson Jo- Daily coronavirus reports from DRC divider, no wall.”

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Prison Legal News 17 October 2020 COVID Outbreaks (cont.) tory beds at most of its prisons to reduce Even in places where prison populations transmission. have dropped by double-digit percentages, Reducing Overcrowding advocates say it’s not enough. At least nine Belmont inmates had – Release of Prisoners “They need to release those that are died of COVID-19 as of Aug. 10. Belmont medically vulnerable,” based on the CDC’s was designed to have 1,855 beds, over 90% Pennsylvania started the pandemic in criteria, not just those who are close to the of which would be in dorms. As of March a relatively good position in terms of space end of their sentences or incarcerated for 17, near the beginning of the outbreak in after years of modest, gradual population non-violent offenses, said Nyssa Taylor, Ohio, 2,719 inmates were crammed into reduction. They freed up more space after criminal justice policy counsel for the Ameri- the prison— 146% of the population it was the pandemic hit by giving 3,500 people can Civil Liberties Union of Pennsylvania. meant to hold. sentence reprieves and shutting down the The state is home to about 4,000 older adults Of the 77 confirmed COVID-19 county court system. serving life sentences, she said, one of the deaths in Ohio prisons as of mid-July, 67 Several other states have taken steps highest such populations in the country. of them were in prisons that were designed to free up space in their prisons since the “I don’t think we should be politicizing to hold at least half their inmates in dorms. pandemic began, with 15 reducing their who to release,” she said. “I think it’s really Of the deaths in prisons made up mostly of prison populations 10% or more between important to look at how to save lives, not cells, 10 were in Franklin Medical Center, March and June, according to data from just ‘release all the non-violent.”’ a small prison dedicated to caring for the The Marshall Project. Meanwhile, Ohio’s prison population system’s most seriously ill inmates. Connecticut has taken the most drastic fell by about 5.2% between March and June. The worst Pennsylvania outbreaks were measures, cutting its inmate population by By Aug. 11, it had fallen 9%. at two prisons where inmates were housed more than 22%, from 12,364 on March 8, “I think part of the problem that they’re almost exclusively in cells – Huntingdon the day the virus was first detected in a Con- running into is we really haven’t taken ad- and Phoenix. But the system overall houses necticut prison, to 9,604 on Aug. 12. Six vantage of options to reduce our population just 19% of its inmates in dorms. Roughly inmates have died so far in the Connecticut size,” said Novisky. 60% of Ohio’s inmates live in dorms, ac- system, which houses only 12,000 inmates On April 15, Ohio Gov. Mike DeWine cording to Department of Rehabilitation thanks to a decade-long pre-pandemic announced he was invoking an overcrowd- and Corrections Director Annette Cham- decarceration effort that reduced the popu- ing statute to release some prisoners early. bers-Smith. Each dorm can hold anywhere lation from about 20,000 in 2008. Inmates who were within 90 days of their from 40 to 300 inmates. Compared to the state’s prison popula- planned release date could be eligible for And even Pennsylvania’s worst prison tion in March, its per-capita death rate has early release, but only if they met a list of outbreaks paled in comparison to Ohio’s. been less than half that of Ohio’s prisons. criteria. That excluded people convicted of At Huntingdon, the prison with the That’s despite the fact that, according most types of violent crime, who had served most deaths, 359 coronavirus cases were to prisoner advocate groups in Connecticut, more than one sentence, who had previously confirmed, out of 1,835 inmates. Phoenix the state made many of the same missteps been denied judicial release, or who had com- housed 2,825 inmates as of late July, 89 of as Ohio in their attempts to quarantine and mitted a serious infraction while in prison. whom tested positive for COVID-19 at isolate inmates. “It basically eliminated everyone,” some point. Melvin Medina, public policy and advo- Novisky said. Since mass testing wasn’t conducted at cacy director for the ACLU of Connecticut, Chambers-Smith said the department any of the Pennsylvania prisons, the death said that the CDC has recommended has taken multiple steps to reduce the popu- toll is probably a more faithful indicator of isolating people with laboratory-confirmed lation, including reviewing cases of elderly the spread of the disease. The inmate death COVID-19 together and quarantining inmates or those with health conditions rate at Huntingdon was 272 COVID-19 close contacts together as a group due to that make them especially vulnerable to deaths per 100,000 people. At Pickaway, it limited space in prisons, but did not indicate COVID-19. The list of crimes that disqualify was 1,709, and at Franklin Medical Center, how large these groups can or should be. inmates for early release under Ohio’s emer- it was over 2,000. “Our [Department of Corrections] gency overcrowding law, she noted, is set by In an interview with Eye on Ohio, took that to say that in dorm-style settings the Ohio legislature. The law would have to DRC Director Annette Chambers-Smith if there was one sick person in a dorm of be amended to loosen those criteria. acknowledged that the open bays make it 100 people, that meant that whole block “There are more serious crimes where difficult to control the virus. She said they was quarantined together,” he said. “They you wouldn’t want to think about people have attempted to mitigate dorm crowding locked sick and healthy people in together getting out before they’re ready,” she said. by spreading inmates out in other areas that and let the virus run its course. In hindsight, “There’s a balancing act here between keep- aren’t normally used for housing, such as I’m deeply thankful that our death count ing the public safe and keeping the people gymnasiums and classrooms. was really low. We could have had a disaster, in prisons safe.” ”They literally installed lavatories and and we got very lucky.” Of the 77 Ohio inmates who have died facilities in a building so that it could be Advocates like Novisky say releasing of COVID-19, 34 – more than half – were used overnight to house people,” she said. inmates is the best way to protect them from in prison for sex offenses. Another 18 had And administrators are experimenting COVID-19, since any group housing makes been convicted of murder. The average with makeshift barriers between dormi- it hard to control the spread of disease. sentences for rape or murder are more than October 2020 18 Prison Legal News 20 years. Many of the men killed by the in prisons. But the Marion outbreak dem- Public Health Department with cases all coronavirus had grown old in prison. onstrated otherwise. County health officials at once, and at first officials in various But most Ohio inmates are serving and residents voiced concerns in emails that departments struggled with contact trac- time for lesser crimes. Only about 12% of both staff and inmates who finished their ing. They were able to contact most of the Ohio’s inmates were convicted of murder, sentences were capable of spreading the infected people who were released, though, and 16% were sex offenders. Meanwhile, virus across multiple counties. and alerted the county health departments 15% of Ohio’s inmates were in prison for In one email obtained by the Docu- where they settled. drug offenses, with 10% serving time for menting COVID-19 project, Traci Kinsler, Ultimately, most of the 2,532 people burglary. the Marion County health commissioner, known to be connected to the outbreak at But almost a third of Ohio’s inmates noted that the Marion prison was not Marion Correctional were either inmates released in 2014 ended up back in prison isolating inmates before releasing them. or staff. But the virus made its way to an within three years, according to the most Marion released at least one inmate who additional 58 people outside the prison, recent recidivism study published by the was known to be infected with COVID-19. including family members, health care state. All of those prisoners would have He moved to Ashland County. workers and food workers. been disqualified by DeWine’s exemptions. Marion staff members who contracted And there could be other cases where And with the prisons packed full of repeat COVID-19 lived in at least 20 different health workers simply forgot to label the offenders, even low-level ones, it would have counties, according to one message. Two infection as related to the Marion prison been difficult to keep older, more vulnerable were from out of state. outbreak in the database. inmates serving long sentences for more Chambers-Smith said the department Chambers-Smith said the danger serious crimes isolated. initially offered staff members the option of works both ways. A spokesperson clarified that it was a staying at the facility where they worked to “If there’s COVID out in the com- joint decision of the governor’s office and avoid infecting their families. When that munity, there’s COVID in the prisons,” the DRC to disqualify repeat offenders, not offer had few takers, they contracted with she said. a stipulation of the emergency overcrowd- hotels to give prison workers a place to sleep, ing law. or at least shower before they went home. This story is The day of his announcement, DeWine Inmates are tested before their re- sponsored by said he had found 105 people who were lease dates, she said, and those who were the North- eligible for early release, though he noted selected for early release have their release east Ohio that more would be considered as they came dates pushed back if they test positive until Solutions within 90 days of the end of their sentence. they are considered recovered— officially Journalism Since then, the number of inmates has defined by the department as 14 days past Collaborative, composed of 16-plus Greater declined slightly, but more due to court the onset of symptoms, and 72 hours Cleveland news outlets including Eye on Ohio, shutdowns meaning fewer people sentenced symptom-free. If they reach their regularly which covers the whole state. Eye on Ohio is than the slow trickle of early releases. As of scheduled release date, the department republished here under a Creative Commons Aug. 11, Ohio’s prison population was still has no authority to keep them incarcer- NoDerivatives 4.0 International license. nearly 8,000 people over capacity. ated, but will release COVID-positive Putting the Community at Risk people with a quarantine order. She said the department collaborates with health Ohio’s prison pandemics also put departments and religious organizations The LITT Group, LLC those outside of prison walls at risk. to give them a place to live and supplies Executive Clemency and Pardon Experts As prisons were cut off from visitors, it so they can self-isolate. may have created the false impression that Kinsler told Eye on Ohio that the Sentence reduction and other sentence modification through diseases that spread in prisons would stay Marion prison outbreak flooded the Marion executive clemency or a pardon. Please contact our offices or have a Kravis, Graham, & Zucker LLP family member contact our offices: A California PostConviction Law Firm The LITT Group, LLC PO Box 358 Criminal Appeals Nellysford, VA 22958 Habeas Corpus Writs www.LITTfreedom.com Parole Hearings [email protected] 917-940-8055 ReSentencing Serving inmates in all fifty states as Prisoners’ Rights well as federal inmates. Randy Kravis, Esq. Ian Graham, Esq. Bruce Zucker, Esq. Unsolicited documents not returned. 401 Wilshire Blvd. * 12th Floor Penthouse * Santa Monica, CA 90401 * (310) 9757040 Not a pro bono group. www.kgzlaw.net * This is an Advertisement for Legal Services

Prison Legal News 19 October 2020 New York Jail Accused of Discrimination by Female Prisoners by Kevin Bliss

n March 2020, the Oneida County prisoners in the jail. the video chats. ICorrectional Facility in New York was ac- A Freedom of Information Law re- Staff responsible for responding to cused of discrimination against the women quest filed by the Observer-Dispatch showed grievances answered the loss of privileges who are housed there. Two months prior to that several of the female prisoners filed with: “Privledges (sic) aren’t a need they are that, all the women were moved from pods grievances over the move. They claimed not a necessity. You are receiving the same that offered the same privileges as men to that the loss of certain privileges created a rights as other inmates in the facility. Due two wings of a unit last used for disciplinary disparity between them and the men pris- to the different classifications in the pod, segregation. oners. They said they endured housing far all of the females were moved to a different The reasons stated for the move by worse than the men and were being denied unit to seperate (sic) the different types of county Sheriff Rob Maciol were a declining the ability to video-chat with loved ones. classifications.” female population and a state order requir- Maciol said that all grievances had ing the separation of “at-risk” women from been addressed except the one concerning Source: uticaod.com the general population. Guards came into the women’s pod on January 22 and told them to pack their BOP Inspector General Rips State for Failure property. Prisoners stated that they were then moved to an older section of the jail to Control COVID-19 at Lompoc in California that still had the surfaces “covered with by Derek Gilna toilet paper, feces, and urine.” It contained a closed-in recreation yard ederal Bureau of Prisons (BOP) In- to a previous story in Prison Legal News that they were given access to only one Fspector General (IG) Michael Horowitz [PLN, June 2020, p.32], “Federal Correc- hour per day, smaller living spaces with no has issued a report itemizing the multitude tional Institution (FCI) Lompoc, located privacy for the toilets; tainted water; only of mistakes and mismanagement that ag- in Santa Barbara County, holds 1,162 low- one shower, and no access to video-chat gravated the troubled agency’s response to security prisoners, of whom 911 had tested services on facility tablets. the COVID-19 hotspot at the Lompoc, positive for the novel Coronavirus that Upon entering Henry Block unit, the California, federal prison complex. causes the disease … the highest number of women were split up. Those considered to The 36-page, July 23, 2020 report cases in any BOP prison.” As of mid-July, have medical or mental health issues or guilty found that continuing medical staff short- more than 1,000 inmates had tested positive of serious offenses were housed in Henry ages and failure to follow BOP national and four had died. Left and all the others in Henry Right. guidelines for detection and treatment of All of this came after March 2020 when Maciol said the move was permanent. COVID-19 put the Lompoc prison com- Attorney General William Barr directed the The original women’s unit cost much more plex in a state of crisis, which had been BOP to make liberal use of home confine- to operate with three times the number of beginning to abate in summer. ment, but this did not happen at Lompoc, cells, which were simultaneously powered After two guards apparently intro- the report said. “Despite this admonition, and heated, and the need for an additional duced the virus into the prisons in February the data does not reflect that the BOP took guard (who received overtime pay). He or March of 2020, it spread rapidly, and at immediate action at Lompoc,” it said. In said the move was based on population and one point over 75% of the prisoners at the mid-May, only 34 prisoners had been moved not gender. There are currently 230 male FCI were found to be infected. According out of the complex, a fact that the acting war-

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October 2020 20 Prison Legal News

den blamed on a lack of halfway house space, number of infected individuals only be- reports are intended to assist the BOP and although he did not explain why vulnerable came known when health officials in Santa the Justice Department in identifying strat- prisoners had not been transferred to home Barbara County, concerned about a spread egies to most effectively contain current and confinement instead. of the virus from the prisons into their potential future COVID-19 outbreaks.” He The report further noted that, “Based communities, offered to test all prisoners promised, however, to review “the Depart- on the available data, the (OIG) estimated and staff, as the BOP maintains a policy of ment’s and the BOP’s use of early release that, as of April 12, approximately 957 of only testing prisoners and staff if they show authorities, especially home confinement, to the 1,775 prisoners in Lompoc’s low and obvious signs of infection. manage the spread of COVID-19 within minimum security facilities were potentially As is his custom in his reports, Horow- BOP facilities.” eligible for home confinement under exist- itz said that he would make no specific ing authorities and BOP guidance. recommendations. “Rather,” he said, “our Sources: apnew.com, bop.gov, oig.justice.gov By comparison, as detailed above, the BOP Central Office included 509 prisoners in the nine rosters it provided to FCC Lom- Dark Web Creator Petitions poc for home confinement consideration between April 4 and May 15, illustrating President Trump for Clemency the BOP failed to follow its own guidelines. by Ed Lyon The OIG, in an earlier report, had criticized the BOP for failure to properly oung Ross Ulbricht (aka Dread Pi- As Ulbricht’s 2015 trial for money laun- staff the medical departments of its prisons, Yrate Roberts) was an Eagle Scout, held dering, conspiracy and computer hacking and this problem was especially acute at scholarships throughout college, earned a progressed, allegations of six murder-for-hire Lompoc. master’s degree, worked in science, and be- plots were brought up. During final argu- According to the report, “prior to came a self-described peaceful entrepreneur. ments, the prosecutor told the jury none of the COVID-19 outbreak the institution’s A supporter of liberty, personal privacy and the alleged contract murders ever happened. medical staffing was at only 62 percent. free markets, Ulbricht founded the website Why then bring unadjudicated offenses We found that this preexisting shortage of Silk Road when he was 26. before a petit jury to support the charged medical staff may have negatively impacted Somewhat analogous to Star Wars’ offenses that culminated in two life-without- ... Lompoc’s ability to conduct screenings of young Aniken Skywalker’s journey to the parole and one 40-year sentence? inmates and staff members for COVID-19 Dark Side of The Force, Ulbricht’s Silk Ross’ parents, Lyn and Kirk Ulbricht, symptoms, a time-consuming process that Road moved to the Dark Web. Silk Road have initiated a clemency petition drive, had to be performed on a regular schedule quickly became a virtual hotspot for sell- requesting President Trump to deliver while also providing routine medical care ing all manner of illegal goods, including their son from what is effectively a death to the institution’s approximately 2,700 narcotics, fake passports and credit card by incarceration sentence. They have gained inmates.” information. support from over 250 organizations and Even when the staff at Lompoc belat- During Silk Road’s short-lived ten- prominent individuals, from the right to edly began to follow BOP guidelines on ure between 2011 and 2013, it reputedly the left of the political spectrum. March 16, 2020, the report said, “its initial became the world’s largest virtual black- His online clemency petition had gar- screening process was not fully effective.” market economy. Paying for the illicit items nered over 340,000 signatures as of early Staffers identified minimal direction from available on Silk Road was accomplished August, but as of publication President senior management and a lack of adequate through Bitcoin, the cryptocurrency. Ul- Trump has not acted. personal protective equipment as a factor bricht had reportedly made more than $100 in the rapid spread of the virus. The high million by the time he was arrested in 2013. Sources: azcentral.com, decrypt.co, freeross.org

Prison Legal News 21 October 2020 Growing Need to Protect Attorney-Client Emails by Jayson Hawkins

ommunication between attorneys Association, as well as the NACDL and change in policy. Cand their clients has long been pro- civil rights advocates. “The government now agrees to request tected by federal law. Technology, however, Jeffries has proposed similar bills before that the BOP exclude from most produc- has changed the way people in the legal field but hopes his persistence will be rewarded tions communications between a defendant communicate in the span of a generation — by the growing momentum of the criminal and his or her attorneys and other legal a pace that has left legal protections behind. reform movement. assistants and paralegals on their staff,” “It’s common attorney sense, a bedrock “Email is the most efficient way for an Rohde stated. of American law: when your attorney com- attorney to communicate with an incar- Several unanswered Freedom of In- municates with you, that’s supposed to be cerated client and should enjoy the same formation Act (FOIA) requests by the privileged,” said Jumana Musa, director protection as telephone calls and other forms NACDL led the group to file a FOIA of the Fourth Amendment Center at the of private communication,” Jeffries said. lawsuit in October 2018 to discover to what National Association of Criminal Defense The Bureau of Prisons had previously extent prison emails were being filtered. Lawyers (NACDL). claimed its system lacked the complexity Proponents of the new bill agree that it Common sense or not, that principle to sort emails to or from specific email would allay fears of government intrusion has not stopped federal prosecutors from addresses. An update in technology by into attorney-client communications to prying into electronic communications to October 2017 prompted then-Acting U.S. rest. pursue convictions. The practice dates to Attorney Bridget Rohde to inform the at least 2011 when an incarcerated former Federal Defenders of New York of the Sources: law360.com, washingtontimes.com Pennsylvania state senator’s emails to his attorneys were used as evidence to length- en his sentence. Prison Postcard: Life in the Time of COVID, An assistant U.S. attorney in New York’s Eastern District warned defense Correctional Center, Virginia lawyers in June 2014 that such communica- by Daniel Rosen tions were fair game, writing that “emails between inmates and their attorneys ... are ’m here at the Greensville Correc- Between May and August rounds of not privileged, and thus the office intends Itional Center in southern Virginia. This testing, in my ‘cluster’ of buildings most to review all emails.” place holds up to 3,000 inmates. On August cellblocks have bounced back and forth A bipartisan bill passed in the U.S. 7, we went on lockdown for the second time between “code green” (clear) and “code House of Representatives on Sept. 21, in four months. There were just too many yellow” (suspected exposure) status. Three 2020 seeks to end this practice by barring virus cases and too few staff for this place have been on code red (total lockdown) emails from prisoners to their lawyers from to function. On August 22, they tested ev- at some point because of numerous con- being monitored. eryone for the second time in three months. firmed cases. The Effective Assistance of Council The first round of testing was done in My block was green almost this whole in the Digital Era Act, co-sponsored by late May, with the National Guard’s help, time — officially, no cases at all. We were Georgia Republican Rep. Doug Collins inmates and staff alike. Everyone was locked manning the kitchen for a few weeks, and New York Democrat Rep. Hakeem down for a week while we awaited results. because all the regular workers couldn’t Jeffries, drew praise from the American Bar Around 250 inmates and 60 staff tested leave their building. We know we were positive, roughly 8 to 10 percent of both lucky — and we also know there were some populations. For a couple of months after people positive in here. They had obvious that, when prisoners developed symptoms, but mild symptoms, and they just laid low PAROLE NEWS! PAROLE NEWS! they were removed from the cellblocks, and toughed it out. Those feeling sick don’t Have you read what the Oregon Supreme Court quarantined, and monitored. want to report it and end up quarantined. ruled regarding multiple years parole denials? How There was an entire building of sick In late July and early August, some about the new challenge drafted against the Texas and quarantined inmates on another part of prisoners in code yellow housing units Parole Board’s use of denial reasons which are the compound, though the official numbers were tested, and scores of new cases were psychological in nature? This and so much more is coming soon with the bi-monthly newsletter “Parole didn’t appear to reflect that. Officially, one found. In one cellblock alone, 60 inmates — News” This newsletter highlights important parole person has died from the virus here, ac- three-fourths of the pod — were infected. cases, parole decisions, parole reform articles, as cording to DOC website — but two other They went code red, and the 19 who came well as parole court cases and rulings on parole re- recent deaths may have been virus-related. up negative were moved to the visitation lease/denials from around the Nation. Full year sub- One of them was wheeled down the walk room. A couple of other blocks soon went scription is only $19.95. ORDER at: Parole News, with CPR being performed on him as many the same way, and the gym was used for newsletter, P.O. Box 8363, FT. Worth, TX 76124. of us watched from the rec yard. He didn’t makeshift housing for negatives, too. make it, we found out. Between the severe staff shortages October 2020 22 Prison Legal News and the rising positive cases, the August day. Short-staffing has often meant that even very elderly, those with underlying medical 9 lockdown was probably inevitable. Over limited rec time was canceled, in practice. conditions — it’s hard to fathom why more 200 new cases were identified among just Workers in the housing units are clean- haven’t left. Virginia must have thousands a few housing units. We went on code ing constantly, and they give us soap and of inmates with less than a year left on their yellow ourselves on August 12 because of disinfectant for our cells. sentence. just one symptomatic inmate. The testing Masks were handed out pretty early This place is dysfunctional even on that followed on August 22 revealed three on, though replacements are hard to get. the best days. With the added chaos of more positive cases on our block, and those Movement of inmates between pods was the virus, everyone — staff and inmates people were moved out to quarantine in the basically eliminated from the beginning. alike — is now just trying to get through segregation building. Many of the others in These changes have been unwelcome, and each day intact. here who’d shown symptoms over the prior people grumble about them, but for the It seems like we are going to be on weeks had recovered enough to test negative most part we understand they’re necessary these restrictions for the long haul, until by then, apparently. to protect everyone. next year is the consensus. Meanwhile, no Things have been going downhill since What hasn’t happened to any seri- one can see their family or go to work or March, when virtually all classes, treat- ous degree is an early release of inmates. school, there’s little to do, and more fights ment programs, religious services, library, Besides the steps described above, thin- are breaking out as frustrations mount. and non-essential work were shut down. ning our ranks is the most effective thing Many of us know that it could be worse Strangely though, the Virginia Correctional VADOC could have done to reduce the though, and understand that things could Enterprises (VCE) furniture shop has been spread of the virus. To that end, the State still go downhill further. We try to stay kept open this whole time. I guess DOC Assembly gave DOC authority to release flexible and roll with the punches. And we considers VCE profits to be essential. 2,000 inmates who were deemed no threat wake up every day hoping our color code Visitation was canceled, of course, and to the community and going home within has gone back to green. outside volunteers no longer allowed. The 12 months anyway. chow hall was closed and meals served in About 575 inmates (or 1.5% of VA’s [Editor’s Note: 655 inmates had tested cells. Outdoor recreation was curtailed to just inmate population) have been released positive for COVID-19 at Greensville a few hours a week, then canceled outright, early so far, and many of those were DOC CC by mid-September. The author’s cell and only recently reinstated. We’ve been inmates held in local jails. Given the high block changed back to code green status restricted to cells for all but an hour or two a number here of probation violators, the on September 5, 2020.] 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 23 October 2020 New York Governor Cuomo Creates Prison Nursing Home During Pandemic by Anthony W. Accurso

recent report by The Intercept the virus due to their age, but their condi- the facility are Black, and many are serving Aoutlined New York Governor Andrew tions of confinement will certainly present extreme sentences as a result of the draco- Cuomo’s plan to move elderly prisoners to the perfect storm for spreading the virus nian Rockefeller-era drug laws. an “isolated” upstate prison to allegedly throughout this vulnerable population. Some prison systems have embraced protect them during the pandemic, and how Several social justice groups have criti- the pandemic as an opportunity to mass this plan may have backfired. cized the move and pointed at the death decarcerate and to address at least some of In June 2020, 96 elderly male prisoners toll in nursing homes throughout the state the most destructive outcomes of a system were transferred to the Adirondack Cor- — over 6,000 dead as of early July. shackled to racism by its history. However, rectional Facility in the mountainous North “If one man is COVID-positive, this Cuomo has refused to release these elderly Country of New York State. Three years ago, could transfer their plan from a prison nurs- men, or even to shorten their sentences so the the facility was converted to house teenagers ing home to a death camp,” said Jose Saldana, parole board could review them for release. prosecuted as adults, but the young prison- director of Release Aging People in Prison It is time for Cuomo to reconsider ers were all transferred out to create a place Campaign and a former prisoner of 38 years. his policies and to begin the process of to house vulnerable prisoners during the These groups have highlighted the healing communities decimated by mass COVID-19 pandemic. fact that elderly prisoners have a negligible incarceration. As Jose Saldana said, “Our While the North Country area has recidivism rate — one which plummets communities need these elders.” seen some of the lowest rates of infection in past age 60 to single digits. Worse still is the state, at least one of the elderly prison- that over half of the prisoners moved to Source: theintercept.com ers was confirmed to have the virus shortly after arriving despite (being at that time) asymptomatic. GEO Group and CoreCivic Lose There are two places that have seen higher than average rates of infections and Critical Financial Support deaths compared to the general popula- by Keith Sanders tion: prisons and nursing homes. At the Adirondack facility, Cuomo has merged the ig business is king in America, and apathetic public with little appetite for ad- worst of both worlds to create an extremely Bthe business of operating correctional dressing issues related to mass incarceration dangerous situation. Not only are these men and detention facilities is no exception. in America. But with the 2018 immigra- at increased risk for severe symptoms of Within the private prison industry, two tion crisis, that began to change. Images of firms stand out for their sheer size: Florida- children being separated from their families based GEO Group, with 2019 revenues of and the abysmal conditions inside some pri- Cadmus Publishing $2.477 billion, and Tennessee-based Core- vately operated detention centers brought a Civic, with $1.981 billion in 2019 revenues. collective gasp from many Americans, who Make your voice heard. But they also stand out for another were appalled by what they saw, and they reason: Like other corporations accused Publish demanded action. of prioritizing profits over people, both Galvanized by the public backlash, your firms have been plagued by allegations of opponents of the private prison industry book with controversial business practices. Critics renewed their efforts. This time they sought ease. All claim that the public-private partnerships to affect the industry’s bottom line by you need through which the companies take over bringing the fight to a new battlefield: Wall to do is prison operations actually serve to line Street. Using #FamiliesBelongTogether write it - the pockets of politicians in exchange for and #BackersOfHate as their rallying cry, we do all regulatory concessions that curb oversight a coalition of prison reform advocates cir- the rest. and protect the industry’s financial bottom culated petitions, pressured stockholders, We are able to accept emails from most institutions. line – all at the expense of the prisoners they and organized protests to demand that Wall We are also happy to take your calls, but are charged to oversee. Street sever its financial ties with private cannot accept charges. That, however, may soon be coming prison companies. And they succeeded. In It’s time to share your story. to an end. 2019, eight banks — JP Morgan Chase, Criminal justice activists have long Wells Fargo, Bank of America, to name a Call, write, or email for more information. sought, without success, to dismantle the few — announced they would no longer [email protected] 651-302-2539 private prison industry. Their efforts have finance the operations of GEO Group, PO Box 532, Port Angeles, WA 98362 been thwarted, in large measure, by an CoreCivic, and others. October 2020 24 Prison Legal News The effect on the private prison indus- rectional and detention challenges in the that regularly gouges American taxpayers try was severe. GEO Group and CoreCivic United States,” according to its published and take attention away from the conditions lost a reported $2.35 billion in credit lines mission statement. in these jails.” and term loans, lowering their credit ratings To perform this task, D1A hired She said D1A’s published talking and significantly curtailing their ability to Alexandra Wilkes, the former executive points are designed to rehabilitate the obtain new contracts, finance their debt, director of the America Rising SuperPAC, industry’s tarnished public image, but they and maintain their long-term operating a conservative opposition research firm that may not reflect any actual changes in GEO budgets. GEO Group’s March 2019 quar- has also faced accusations of using question- Group, CoreCivic, or MTC’s business terly report stated that the loss “could have able tactics to discredit Democratic political practices. Some claims made by Wilkes a material adverse effect on our business, fi- opponents. on behalf of D1A are refuted by numerous nancial condition, and results of operation.” “We launched D1A because of the reports citing privately run prison facilities Now there are 22 states with bans on huge gap that has opened up between the for inhumane living conditions and imple- contracts with private prison operators. The false, distorted rhetoric that activists and menting cost-cutting security measures that federal Bureau of Prisons uses them – as some politicians use against this industry put the safety of prisoners at risk. According does federal Immigration and Customs and the facts on the ground,” Wilkes said. to a study by The Public Interest, recidivism Enforcement (ICE). From a 2012 peak of With her at the helm, D1A went on rates at private prisons are higher because more than 136,000, the number of prisoners the offensive. Wilkes crafted op-eds and prisoners are exposed to “higher rates of housed by industry firms has shrunk to about press releases to recast the private prison violence and [are] housed at facilities far 122,000 – just over 8 percent of the people industry as “private contractors [who] lead from their communities.” incarcerated in America. through innovative programs that reduce Will the Day 1 Alliance help the GEO Group and CoreCivic responded recidivism, help prevent humanitarian cri- private-prison industry recover? Only time by teaming with Management and Train- ses…and provide cost-effective solutions will tell. As Wall Street and others have ing Corporation (MTC), another company to government partners in order to achieve abandoned GEO Group, CoreCivic, and that operates correctional facilities, to form vital public safety needs.” MTC, it remains to be seen if the politicians Day 1 Alliance (D1A). Launched in Oc- “Don’t be fooled,” warned Jess Morales who have staunchly supported the industry tober 2019, D1A’s mandate is to “educate Rocketto, chairwoman of the nonprofit in the past will abandon them, too. America on the small but valued role the Families Belong Together. “This is an effort private sector plays in addressing cor- to defend a multi-billion-dollar industry Source: news.littlesis.org, vox.com

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Prison Legal News 25 October 2020 Danish Funds Invest In American Private Prisons by David M. Reutter

hen one thinks of financial sup- issued an executive order to phase out fed- principles on corporate social responsibility Wport for America’s privatized prisons, eral use of private prisons, but that order and sustainability which must, among other one assumes it primarily comes from enti- was reversed by President Trump. Both things, ensure that companies do not con- ties in the United States. But that is not CoreCivic and GEO Group were donors tribute to human rights violations,” PKA always the case. to the Trump campaign. press officer Nicholas Rindahl said in an A February 18, 2020 story by Dan- “This is an industry that profits from email to Danwatch. “We do not believe that watch, a Danish investigative website, human suffering,” said David C. Fathi, these companies live up to these principles, uncovered three Danish pension funds that director of the National Prison Project at and that is why we have recommended that had invested into two of America’s biggest the American Civil Liberties Union. “This they be excluded from our investments at prison profiteers: CoreCivic and the GEO is an industry that allows the United States the earliest opportunity.” Group. PKA, Villiv, and Lærernes Pension to maintain the largest prison population in The problem is that investors see profit are pension funds for Danish social educa- the world, and to detain tens of thousands in privatized prisons. To dissuade such in- tors, social workers, nurses, and medical of immigrants and asylum seekers.” vestors, media and other organizations must secretaries. Following the Danwatch investigation, highlight how profits come at the expense PKA invested the equivalent of about PKA announced it was divesting all of its of human suffering. $8.5 million in the two private prison shares in the two companies. “We invest companies. Lrernes Pension has invested in accordance with UN Global Compact’s Source: danwatch.dk about $1.1 million in CoreCivic, and Villi invested about $160,000 in the two $12.5 Million Settlement for companies. The Denmark pension fund invest- Oklahoma Prisoner’s In-Custody ments come as America’s largest pension funds and banks have increasingly divested Death Riled Sheriff’s Race themselves from these prison profiteers. by Kevin Bliss Politically, the companies are becoming pariahs, as some state Democratic parties t a June 23, 2020, forum with the Huff ’s arrest on June 4, 2016, was not and political groups are refusing to accept Athree candidates for sheriff in Garfield his first visit to Garfield County Detention donations from private prison companies. County, Oklahoma, questions arose about a Center (GCDC), so guards and staff were American public opinion of private $12.5 million 2019 settlement of a wrong- familiar with him and his medical needs. prison companies has been trending against ful death suit filed by the family of former They had records that showed Huff suffered the profiteers. The Obama administration detainee Anthony Huff, who died at the from heart disease, insomnia, hypertension, county jail in Enid in June 2016. and depression. But Huff did not receive an Sheriff Jody Helm, Deputy Darrell initial medical screening at intake. He was Momsen and their fellow candidate Cory booked into GCDC without any of his pre- Rink all promised more training and scriptions. He also suffered from alcoholism BURLESON transparency. Helm was appointed after and was at high risk for withdrawal. the April 2018 death of acting Sheriff Rick Huff began experiencing delusions and Fagan, who had been tapped for the job hallucinations and was placed in a restraint LAW GROUP when former Sheriff Jerry Niles went on chair on June 6, where he remained until Ashley Burleson administrative leave during the investiga- he died 55 hours later. The suit alleged that Attorney at Law tion into Huff ’s death. proper protocol was not followed in the 955 Dairy Ashford Rd. Suite 110 Niles and his daughter-in-law, Jennifer, decision to place Huff in the chair. He was Houston, Texas 77079 the jail’s former administrator, together with not filmed nor under observation for the [email protected] Turn Key Health Clinic employee Lela June entire time in the chair. He was not properly Goatley, allegedly left Huff in a restraint hydrated and did not receive any bathroom Texas State Habeas Applications chair for two-and-a-half days without ac- breaks and was purposefully taunted with Texas State Appeals cess to medication or medical treatment. his meals. The suit states that at one point, The 58-year-old, who had been arrested on “Defendant Goatley was told Mr. Huff was Texas State Parole Representation a public intoxication charge, died on June 8, in bad physical shape, looked through a win- Texas Federal Habeas Applications 2016, of chronic alcoholism. Jennifer Niles, dow of the door at Mr. Huff and stated she along with jailers Shawn Caleb Galusha was not going to do anything and was not Texas Federal Appeals to the Fifth and John Robert Markus, later pleaded going to call a physician for any more help.” Circuit Court of Appeals guilty to first-degree manslaughter charges The suit held county Sheriff Jerry Niles, and served 55 hours in jail. county Jail Administrator Jennifer Niles, October 2020 26 Prison Legal News and the Board of County Commissioners sheriff. The 33-year-old previously Det. Ctr., 2018 U.S. Dist. LEXIS 143514. liable for creating a culture of abuse that served as chief of police in Covington, allowed the restraint chair to be used against Oklahoma. See: Graham v. Garfield, Cty. Additional source: enidnews.com Huff as punishment rather than management — and left Huff restrained for over 55 consecutive hours, violating all manner Philadelphia Jails to Release of medical and safety regulations, resulting in his death. Prisoners Earlier in the Day The filing of the complaint in June by Bill Barton 2017 sparked the investigation that led to the criminal charges. Sheriff Niles took ndependently obtained and ana- Philly jails’ spokesperson Mallie Saler- leave, retiring in June 2019 after charges Ilyzed data from April 2017 to April 2018 no stated that every person released from were filed against his wife and the two showed that 73 percent of all prisoners — jail will receive their possessions at the guards – but not the sheriff — by specially more than 16,000 in total — were released facility in which they were incarcerated, appointed District Attorney Chris Boring. after Philadelphia jail facilities’ cashier of- regardless of time. And those who require The Board of Commissioners of Gar- fices were closed, which left them without cash will be driven to Philadelphia’s largest field County, whose population is about phone, other possessions, identification and jail, Curran-Fromhold Correctional Facility, 60,000, voted to settle the suit for $12.5 cash for hours, or in some cases days, as to retrieve their money from a prison staff million paid over three years to Huff ’s those offices are closed on weekends. member, regardless of the time of day. family. Their attorneys, Wyant Law Firm, The information was revealed in a In terms of releasing prisoners at reasonable Long Claypole & Blakley Law and Durbin, series of stories in August 2020 by The hours when public transportation is available, Larimore & Bialick, released the following Philadelphia Inquirer. Following publica- things aren’t so straightforward. Shawn Hawes, statement concerning the settlement: tion, Prison Commissioner Blanche Carney a spokesperson for the Philadelphia Depart- “The Federal Civil Rights lawsuit on said, “Anyone released after the close of ment of Prisons, said, ‘‘We cannot legally hold behalf of our client, Anthony Huff, has been their facility’s Cashier’s Office will now anyone beyond a court-ordered release.” The resolved in an amicable fashion which won’t receive their property at their facility.” department has a policy of not releasing female require further litigation. As our client’s fam- Ann Jacobs, director of the Prisoner prisoners after 1 a.m., but it was found that, ily will never be made whole by any amount Reentry Institute at New York City’s John according to the Inquirer, in a recent year 273 of money for the loss of a loved one, they do Jay College of Criminal Justice, said, “This female prisoners were released between 1 and appreciate the Board of County Commis- is a good example of a system listening and 5 a.m., when there were no city buses running. sioners resolving this matter in a way that responding in a way that looks like it will ‘‘We try to discourage it, but we can’t protects Garfield County from the potential make a big difference.” Making sure that hold them,” said Hawes. of a much larger verdict and acknowledges the changes are permanent will require “These women by design are vulner- the severity of this horrific death while also “collaborative vigilance,” said Jacobs. able,” Jacobs said. “They are going to be providing some level of justice and closure ‘‘You can’t rest on your laurels. What we preyed upon at best for sex; at worst it puts for the family.” know about any kind of systems change is their lives in jeopardy.” In a runoff election August 25, 2020, that it changes as long as it’s being observed voters chose Rink to take over as county and measured.” Source: inquirer.com

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Prison Legal News 27 October 2020 Wisconsin Supreme Court Reverses “Dangerousness” Finding in Involuntary Commitment of Schizophrenic Man by David M. Reutter

n April 24, 2020, the Wisconsin peal of the recommitment order, there were “danger in my opinion is not suicidal or OSupreme Court held that the evi- conflicting messages from the county and homicidal ideations. Although those are dence to support a petitioner’s involuntary court of appeals regarding the statutory possibilities. There is an increased risk of commitment was insufficient to support a basis for the commitment. suicide in people with schizophrenia.” conclusion the petitioner was “dangerous” “In order to avoid this problem in the The court, however, cited O’Conner under state law. In reversing the circuit future, we determine that going forward v. Donaldson, 422 U.S. 563 (1975), which court’s order, it was held that going forward circuit courts in recommitment proceedings determined that “a State cannot con- lower courts must make specific findings are to make specific factual findings with stitutionally confine without more a with reference to the subdivision of law that reference to the subdivision of paragraph non-dangerous individual who is capable the recommitment is based upon. of § 51.20(1)(a)2. on which the recommit- of surviving safely in freedom by himself D.J.W. was subjected to a January ment is based,” the majority’s opinion said. or with the help of willing or responsible 30, 2017, commitment order from the Further, it found an erroneous standard was family members or friends.” Langlade County Circuit Court to the used below. “A determination of dangerous- The evidence failed to show prove “dan- custody of the County for six months. The ness is not a factual determination, but a gerousness,” the court held. Additionally, the court also ordered involuntary psychotropic legal one based on underlying facts.” County’s alternative argument that there was medication and treatment. The County In looking at the facts, it found that Dr. a “substantial probability” of physical impair- sought recommitment for one year as the Coates provided no evidence that “death, ment or injury if D.J.W.’s treatment was expiration of the initial commitment period serious physical injury, serious physical discontinued. “A diagnosis of schizophrenia, approached. Dr. John T. Coates was ap- debilitation, or serious physical disease” by itself, does not” meet that statutory stan- pointed to examine D.J.W. He and D.J.W would ensue if treatment were withdrawn. dard. The evidence failed to show D.J.W. is were the only witnesses at the hearing. He testified only that D.J.W. “can’t care dangerous under § 51.20. The decisions of The Circuit Court determined that for himself ” because he was unable to hold the court of appeals and circuit court were D.J.W. was a danger to himself and was a job, had to rely on disability for income reversed. See: Langlade County v. D.J.W. (In incapable of making an informed choice and live with family. He further indicated re D.J.W.), 2020 WI 41. to accept or refuse medication. It granted recommitment and involuntary medication Michigan Settles Sex Abuse Claims by for one year. D.J.W. appealed. The court of appeals affirmed, conclud- 1,300 Former Juvenile Offenders Housed ing the finding of D.J.W.’s dangerousness “was not clearly erroneous.” The Wisconsin With Adults for $80 Million Supreme Court granted D.J.W.’s petition by David M. Reutter for review. In Wisconsin, involuntary commit- n January 29, 2020, the Michigan coerced to engage in anal or oral sex, some- ment is regulated by Wis. Stat. § 51.20. ODepartment of Corrections (MDOC) times by guards but most often by adult It requires three elements be fulfilled: the agreed to pay $80 million to resolve a class prisoners with whom the juveniles were individual must be (1) mentally ill; (2) a action lawsuit filed by juveniles who were housed and left to fend for themselves. The proper subject for treatment; and (3) dan- housed in adult facilities where they were events they described read like lurid movie gerous to themselves or others. allegedly subjected to sexual assault and portrayals of new prisoners being “fresh In an initial commitment proceed- other harms. meat.” [See PLN, April 2020, p.50.] ing, there are five different means to The action consolidated in state court John Doe #2 reported a physical assault demonstrate a person is dangerous. A numerous lawsuits filed against MDOC and sexual harassment while at Oaks Cor- recommitment proceeding requires proof in both state and federal courts. The class rectional Facility in 2011. He was placed in of these elements. While the standard is a included persons incarcerated in MDOC solitary confinement and issued disciplinary bit relaxed because the subject’s behavior while younger than 18 at any time during misconduct tickets for making his abuse may be altered due to treatment, “each the period from October 15, 2010 to Feb- report. Once released from solitary, he was extension hearing requires proof of current ruary 24, 2020. All of these juveniles were physically assaulted with a blade, “resulting dangerousness.” charged, convicted, and sentenced as adults, in a scar across his face and marking him as At the initial hearing, it was deter- and MDOC placed them in adult facilities a victim and ongoing target for other pris- mined that D.J.W. was a danger to himself upon receiving them. oners.” That incident again led to placement because he could not “satisfy his basic needs The complaint contained allegations in solitary confinement. for nourishment, shelter, or safety without related to 12 “John Doe” prisoners, all of Another plaintiff refused to leave prompt and adequate treatment.” On ap- whom alleged they were anally raped or solitary confinement after making a report October 2020 28 Prison Legal News of sexual abuse. He also was subject to will address “youth-specific policies for sel, Deborah LaBelle. “We started this suit disciplinary action for that refusal. Two ju- segregation, discipline, use of force, staff six years ago to try to get the state to see venile plaintiffs alleged they were routinely training, and the reporting and tracking of the harm done to these children. We hope sexually and physically assaulted by guards sexual abuse and harassment and allegations through the settlement that the state rec- who grabbed and pulled on their genitals of retaliation for reporting the same.” ognizes the harm and will do this no more.” during body searches. MDOC also agreed to eliminate its MDOC Director Heidi Washington The parties sealed details of the settle- grievance process under the federal Prison agreed. ment on February 26, 2020. The $80 million Rape Elimination Act (PREA) and to allow “Though this settlement brings finality was to be paid in three installments: $25 for sexual abuse and harassment claims to to this case,” she said, “we call on the Leg- million within two business days of the settle- be exhausted through the normal grievance islature to bring this issue to an end once ment’s effective date, another $15 million on process. MDOC’s PREA Grievance Process and for all and prohibit youthful offenders October 15, 2020, and the final installment of was found by the Sixth Circuit Court of Ap- from being placed in adult prison.” See: Does $25 million due on October 15, 2021. peals in December 2019 to be so impractical v. Michigan Department of Corrections, 2020 Incarcerated class members can main- that it was effectively unavailable to prisoners. Mich. LEXIS 131. tain an outside bank account to receive Since 2016, MDOC has housed juve- settlement funds, but they can only have nile prisoners in areas separated from adults. Additional source: Detroit News, Courthouse money from that account if it is sent to As of early 2020, just 28 juveniles remained News Service their prisoner accounts. Only settlement in housing with the funds can be placed in the account. The system’s 38,000 adult settlement requires class members to pay prisoners. any victim restitution, court costs and fees, “These youths institutional debt, and child support arrears. spoke out at great With nearly 1,300 plaintiffs, it remained risk to themselves to be determined how the settlement funds about the abuse that would be distributed. But MDOC also happened to them agreed to implement a “Youthful Offender while in the care of Policy Directive” within 180 days of final the MDOC,” said approval of the settlement agreement that plaintiffs’ lead coun-

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Prison Legal News 29 October 2020 Report: New Jersey Women’s Prison Promoted Culture of Abuse by Kevin Bliss

he Department of Justice (DOJ) of a senior official who was being investi- abuse, adding more cameras to areas not Tand the United States Attorney’s gated for marrying a former prisoner. The otherwise visible, and hiring more female Office (USAO) concluded a two-year report said, “If Edna Mahan investigators guards. investigation April 12, 2020 of allegations continue to investigate staff with whom DOC spokesman Matthew Schuman of continued sexual abuse against prison- they have personal relationships, Edna said a task force had been formed imple- ers at Edna Mahan Correctional Facility Mahan investigations are likely to continue menting many of the recommendations, for Women (EMCFW). A 29-page report to be tainted.” including more cameras, gender-restricted was published that found the institution The report recommended 19 changes posts, and creating a prisoner advocacy promoted a culture of acceptance, allowing necessary to correct the “problematic and board. multiple instances of abuse, violating the emblematic” dysfunctional system respon- U.S. Attorney Craig Carpenito said, prisoners’ Eighth Amendment right from sible for the continued culture of abuse. “We have been encouraged by the state’s cruel and unusual punishment. The New Some changes included compliance with cooperation throughout the investigation, Jersey Department of Corrections (DOC) national reporting standards, ensuring and stated commitment to ending sexual was provided a list of 19 remedial measures confidentiality and anonymity if requested, abuse at Edna Mahan.” to be implemented within the next 49 days ceasing the automatic transfer of prisoners to address the problems or be liable for to segregated housing after reporting sexual Sources: mycentraljersey.com, nytimes.com civil action. After years of allegations of sexual assault against prisoners, the Civil Rights Missouri Downsizing Prisons to Save Cash Division of the DOJ and the USAO initi- by Bill Barton ated an investigation April 26, 2018 under the Civil Rights of Institutionalized Persons issouri Governor Mike Parson changes also can reduce staff stress and Act (CRIPA). The Act was designed to Mon Wednesday, January 15, 2020, improve retention.” protect prisoners from facilities exhibiting announced a plan to close a number of In addition to removing 1,756 beds for a pattern or practice that resulted in viola- housing units at prisons throughout the prisoners, the plan will also obviate the need tions of the prisoners’ civil rights. The report state. for filling 131 currently vacant staff posi- investigated 70 separate instances of alleged Budget director Dan Haug said, ‘‘What tions. It will save the state approximately sexual abuse at EMCFW over several years, they are doing is they are consolidating $6.5 million and help it avoid more than $6 with many guards and employees being space within various prisons around the million in pending repair and maintenance charged, suspended or fired. Between 2016 state, closing certain housing units and projects. and 2019, seven EMCFW guards and “one those types of things.” The DOC plans to use $3 million to civilian employee” had been convicted or The Missouri Department of Correc- add more radios in all of its facilities, in ad- pleaded guilty to charges of sexual abuse. tions (DOC) housed 33,000 prisoners in dition to repairing security cameras. Other Officials of EMCFW were found to 2017; the January 2020 prison population upgrades scheduled include the vehicle have “evinced a deliberate indifference to stood at 26,000. Changes in the state’s fleet used by probation and parole officers, prisoners’ constitutional rights.” Prisoners criminal code, replacing incarceration with plus work on building repairs throughout who reported abuse were ignored, retaliated probation in many cases, accounts for the the prison system. Also to be addressed is against or locked up in confinement. The drop in population. long-running understaffing in the DOC, report further stated that the Special In- DOC spokesperson Karen Pojmann which as of January 2020 had 823 guard vestigation Division (SID) was inadequate noted that the plan will close housing vacancies, many of them purportedly due when handling allegations from prisoners units at Northeast Correctional Center in to harsh working conditions and low pay. at EMCFW. “SID conducted insufficient Bowling Green, Farmington Correctional Parson’s recent closure of the Cross- investigations, closed investigations as Center, Boonville Correctional Center, Al- roads Correctional Center in Cameron, unsubstantiated without applying the ap- goa Correctional Center in Jefferson City, combined with the plan’s proposed changes, propriate standard of evidence, and failed Tipton Correctional Center, and Western will account for a reduction of more than to investigate some incidents at all,” the Reception, Diagnostic and Correctional 2,600 DOC beds over a one-year period. report read. Center in St. Joseph. Pojmann said, “If approved, these upgrades The DOJ found that some SID in- “Closing housing units reduces staffing will make our worksites safer, support field vestigators were involved in personal needs and enables the department to more staff and ensure more efficient use of tax- relationships with the suspects of their effectively and efficiently staff facilities, payer dollars.” inquiries. One SID investigator failed to boost safety and reduce mandatory over- report that he had been a guest in the home time,” Pojmann said. “We’re hoping these Sources: ky3.com, stltoday.com October 2020 30 Prison Legal News AREGreetings & Respects, YOU IN PRISON? This is your homie, the KSK, and I too was once where you are now. I did 11 years in Texas prison from ‘05 to ‘16 and I know ALL about taking bird baths in my toilet. I also know all about KSK Starter Kits Johnny Sacks 3 meals a day for months in a row. I know all about cell searches and SILVER Kit $15 GOLD KiT $35 PLATINUM KiT $65 getting your stuff thrown on the fl oor and LATEST 10 (ten) KSK LATEST 25 (twenty-five) KSK EVERY SINGLE KSK stepped on. I know all about feeling pow- CATALOGS IN COLOR PLUS 10 (ten) CATALOGS IN COLOR PLUS 50 (fifty) CATALOG (over 40) IN COLOR PLUS erless due to being incarcerated. People RANDOM MAILROOM SAFE SHOTS RANDOM MAILROOM SAFE SHOTS 100 (one hundred) RANDOM MAIL- out here don’t have ANY idea about what (not samples) FROM OUR LATEST (not samples) FROM OUR LATEST ROOM SAFE SHOTS FROM OUR it’s like to live in a box. They don’t know KSK CATALOGS!!! KSK CATALOGS!!! LATEST KSK CATALOGS!!! how it feels to be counted 7 times a day TAX & SHIPPING IS ALWAYS INCLUDED IN ALL KSK PRICES (but all photos will come in one package) and to have ask for permission to spend their own money. They don’t know how it feels when you fi nally get to go to store IMPORTANT NEW KSK INFO AS OF OCTOBER 2020 and they are out of coff ee and every oth- ◆FREE Rapid Shipping Noti cations are “OLD STYLE” Cts: I am very sorry to say this but as of now Old Style catalogs 1-15 er damn thing. They don’t know how it now being sent to almost all customers!!! are now dead and gone. All brand new condition KSK catalogs 1-15 can now be sent in and “swapped feels to “crave” photos and words from ◆FREE Order Tracking on all photo orders!!! out” for New Style KSK catalogs. We will NOT swap out old worn out catalogs so don’t bother try- the outside world, but like I said: I know We can now tell you the day your package was all about it, bro! I do all I can to make pris- ing to send them in. I’m only doing the swap outs for all the dudes who bought “old style cat packs” on time a little easier and I will always be delivered and the address it was delivered to in in the last few months. There were many “blurry” photos in most of my old style 1-15 catalogs and here if you need me! the event you have a delivery issue!!! You may have heard of my ◆No refunds, returns or swaps so please order I made the choice to get rid of the old and move on with the new, feel me? ONWARD!!! So once company before. You may have even with care to avoid mail-room denials. again to be clear: Old Style KSK catalogs 1 through 15 can no longer be ordered from and will no seen me in PLN, Urban Ink, Hip Hop I’m very sorry for all the “blurry” shots that longer be sold. If you would like to purchase old style KSK catalogs: #16, #17, #18, #19, #20, Weekly and other mags back in the day, ◆ (if you’ve been down that long). I’m just were sold by KSK in the past and I promise all #21, #22, #23, #24 and #25 you can send $20.00 for a copy of EACH in color. The price another guy who went to prison, but that blurry stuff is over with!!! for individual color catalogs is $4.00 and each of the above “old style” cats has 396 images in it. while I was there I “saw” the need for a When ordering Starter Kits and/or Grab Bags biz like KSK... and so... I started one! Way new “split” Prices new Kill Shot Prices please note that ALL photos will come in one (1) back in 2008 when I placed my fi rst order for photos from a photo company called 5 to 10 shots = $3.00 EACH 5 to 10 shots = $1.00 EACH envelope or package. If you need your order split “Butter Water.” The pics were mostly up due to mail room rules then you will need to trash and I paid $1.00 each pic! Crazy 11 to 25 shots = $6.00 EACH 11-49 shots = 65¢ EACH pay extra OR you can just shoot them all to your prices, lol! people so that they can then mail them to you as From that point on I did ev- 26 and up shots = $12.00 EACH 50-999 shots = 40¢ EACH needed. It takes time and money to address sev- erything in my power to bring KSK out of my mind and into reality. I ran my fi rst Price is PER ENVELOPE. If you 1000 shots and up = 25¢ EACH eral envelopes rather than one and it also costs ad in PLN way back in 2012 and then in much more to send several smaller envelopes some other mags. Very quickly KSK grew have any questions about order Tax + Shipping is always rather than just one large one. For these reasons to 5 employees and we were sending we are forced to charge extra for order splits. out over 80,000 photos each month to splits just shoot me a kite. INCLUDED in all KSK prices clients in all 50 states. Today we are the These Grab Bags come in ACTION as well as biggest inmate photo company in Amer- 50 PHOTO NON-ACTION but please let us know one way 10 PHOTO ica. We have the best and latest photos of the hottest stars in the industry. Each GRAB BAGS or the other. Each GB is different and put to-GRAB BAGS month I personally make new catalogs to gether according to your personal tastes. Just ensure KSK is the most up to date source for shots. lace us up on what you like and we will put I was recently able to start $15.00 together a FIRE 50 or 10 pack for you today!$5.00 sending most clients Rapid Shipping And now to change topics for If you really want to think If you would like to hear more Notifi cations so from now on you will be a moment... It is September as I write about a hard life try to imagine being in about this topic as well as others, please getting a kite from us THE DAY we pro- this... but it will not be until October that prison in China or Russia. Sad times. ask for a “Philosophy Pack” when you cess your order! This way you can KNOW you read it... In the past several months It’s very easy to “play” the shoot us your SASE. This way we will that your stuff is on the way and if you our nation (and the world) has been hit games that others do. It’s easy to “pick know you’re interested in more than just don’t get it then you can shoot us a kite with a massive amount of hardships. a side” and join a team. The problem is kill shots and we will bless your game so we can check on it for you! FREE! Yes, Never before in my lifetime (I’m 37) have that we humans LOVE to be in groups. with some good reading! bro, you read that right: KSK sends out I seen this much HATE and division on And once we are in those groups we Well, bro, I hate to cut this so notifi cations for FREE the day we pro- full display. Never have I seen this much LOVE to HATE other groups. We LOVE short but I’m running out of room! Don’t cess your order! What other photo com- racism! Crime is skyrocketing, bro. Mur- to say that our group is the best group. worry: I talk a lot in my kites and fl yers, pany does that? And we will now check ders are insane high all over the US. That our group is the one true and right lol! If you would like to place an order TO- on your order in the event you have a de- Rapes and robberies are also way up all group. That our words on paper and true DAY with KSK you can do so by purchas- livery issue at your unit, also FOR FREE! over. There is so much hate and evil and and the words of other groups are false. ing a Starter Kit and/or a Grab Bag. This We can tell you the day it was delivered anger everywhere today. But it could al- WE are right and THEY are wrong. is currently the fastest way to “get start- and often the name of the person who ways be worse! REMEMBER THAT SH*T! I personally feel that many ed” with KSK. That being said you should “signed” for the package(s). I learned that looooong ago. cops are bullies and are racist. Not most, ALWAYS send a Self Addressed Stamped With the Grab Bags you can No matter how bad your situation is, it but many for sure, not just “a few.” How- Envelope for the latest Info Sheet BE- get a quick idea of the quality of KSK could always be made worse. For exam- ever, even though I feel that way I also FORE SENDING US ANY MONEY! The photos for a low price. You can not pick ple, let’s say you’re on lock-down. Now feel that every single offi cer has a RIGHT date at the top of the Info Sheet will al- the exact shots that come in GBs but what happens if your power goes out to shoot a m#ther f#cker who is fi ght- ways let you know if what you’re holding you can give us an idea of what you like and it’s 137 degrees inside in the cell? ing with them and/or reaching into their is the latest. And once again: MENTION and we will look out for you. The current Well your situation just got worse, lol! car or clothes. If people are making the THIS AD FOR FREE CATALOGS AND 5 “wait time” for all KSK orders is 5 to 8 And if your water then goes out, well choice to fi ght with cops then they are (FiVE!) FREE SAMPLE PHOTOS!!! No days from the date you get your RSN. you’re dead. D-E-A-D, dead. Nothing making a choice to MAYBE get smoked! SASE=No free stuff and no response. All KSK sales are now over worse than no power and no water in the But like I said, many cops are Also, PLEASE put 2 stamps on your SASE but thousands of guys took advantage middle of a summer lock-down, right? bad, BUT NOT MOST! Most are good if you can, bro, that helps me out a lot! while they were here. Don’t worry, I’ll Actually yeah, there is... You could be people just trying to do their jobs. Now See you at mail call!!! have sales again one day :) but it won’t sitting in a holding tank in county! See all these idiots are out here defunding Your Homie, John The KSK Morgan be until next year. You may have heard what I mean? If you just think for a sec- the police and trying to shut them down. PS: R�� A�� about my sales and the prices I once ond or two you I’m sure you can come up Talking about we need “mental health �� ! S� �� $ �� gave my 30,000+ customers. I sold 1000’s with several ways your situation could professionals” to deal with crazy violent �� 2016 �� ! and 1000’s of photos at 12.5 cents each be worse, and doing that always helped people in the streets. LOL! That’s like try- in the last 9 months. If you didn’t get in me get through some really hard times. ing to get the nurses to stop a riot! That on that deal I’m sorry but maybe you can Maybe it can help you too? Only you can shit will just not work. We NEED law and Kill Shot King get in on the next one! All you need to do decide if it does or not though. All I can order and we need people to enforce is keep in touch with me and always be do is share, feel me? And holy moly do I that law and maintain that order. With- P.O. Box 81074 sending me SASEs to see what I’m up to! have a lot to share, bro! out them we will all be worse off . Corpus Christi, TX 78468

Prison Legal News 31 October 2020 Trump v. Biden on Criminal Justice by Christopher Zoukis and Charles Sloan-Hillier

“If we catch a drug dealer – death penalty.” – the other hand, while Republicans have party’s position on criminal justice, Mr. President Donald J. Trump, 2018 frequently based their politics on tough- Biden rather unfortunately stated, “[Presi- “Lock the S.O.B.s up.” – Former Senator Joe on-crime policies, they have taken some dent George H. W. Bush’s policies don’t] Biden, 1994 positive steps on criminal justice but ones include enough police officers to catch the that are extremely minimal and tokenistic violent thugs, not enough prosecutors to s protests and calls for police at best and that have done nothing to give convict them, not enough judges to sen- Areforms continue in response to police prisoners enforceable rights or shrink the tence them, and not enough prison cells to shootings of unarmed suspects, both the police state. put them away for a long time.” In a 1994 Republican and Democratic parties seem to The Context of Speech Senate floor debate about aggressive crimi- be on the same page: How do we maintain and the Era of Crime nal justice policies and how to deal with the status quo and strengthen the police convicted criminals, he remarked: “Lock state while pacifying the population. But Part of the problem is that each the S.O.B.s up.” even with these views in mind, the question candidate’s political speech has to be placed For anyone who believes in a fair, even, of how each candidate, if elected, would deal in context. For example, when President and decent criminal justice system. Mr. with criminal justice reform needs to be Trump suggested that we may learn a les- Biden’s record is atrocious. examined. Since 1992 PLN has compared son from China and Singapore in executing As early as 1977, Mr. Biden advanced presidential candidates track records on drug dealers, was he really suggesting that mandatory minimum sentences. In 1989, in criminal justice issues and the consistent we execute drug dealers? It’s more likely response to George H. W. Bush’s criminal result is two empty bottles with different that he was arguing that drug dealers who justice policies, Mr. Biden advanced an ap- labels. One reason the U.S. has a mass in- sell drugs that subsequent users die from proach to putting “violent thugs” in prison. carceration problem and an overwhelming should be executed – which is still an alarm- In 1993, he warned about “predators on police state is the bipartisan consensus in ing position. our streets.” creating and sustaining it. This election is Former Vice President Joe Biden has What can be said for Mr. Biden is that no different. an equally sordid history with criminal he followed his words with action. In 1984, The problem starts for each candidate justice reform, albeit from a different era. he spearheaded the Comprehensive Crime at different points in time, in different eras, Elected to the Senate in 1973, Mr. Biden Control Act, which expanded penalties for and with divergent factors contributing to has significantly contributed to the current federal drug traffickers and supported civil their positions. While it would be nice to mass incarceration problem. The difference asset forfeiture laws, allowing police depart- say that one party is better for criminal between the two is that for decades, before ments to seize property used during the justice reform, this isn’t possible. The only being elected President, Trump talked about commission of a crime. In 1986, he spon- difference is asking whether it is better to criminal justice issues a lot. With 50 years in sored and partially drafted the Anti-Drug be beaten to death with a 2 x 4 or a baseball public office, during which time he became Abuse Act, which increased the sentences bat. The result is the same. a multi-millionaire, Biden has acted on his for drug crimes, including instituting the Recently, the Democratic Party has talk. Trump talked about killing drug deal- now-infamous 100 to 1 powder cocaine talked a good game about supporting crimi- ers. Biden authored the biggest expansion to crack cocaine disparity for mandatory nal justice reform, but for at least the last of the federal death penalty in American minimum sentencing. Then came the Anti- 35 years it has been the primary architect history in the 1994 crime bill and followed Drug Abuse Act of 1988, which further of the modern American police state. On up by gutting all American prisoners’ access increased penalties for drug offenders. It to federal habeas corpus review with the also included the death penalty for drug 1996 Antiterrorism and Effective Death dealers and life without parole sentences Penalty Act (AEDPA). If there are federal for minor drug offenders. prisoners for Trump to execute in 2020 it’s But Mr. Biden’s darkest criminal justice in large part because Biden helped create reform hour perhaps came in 1994, with his the legal framework to make it possible. co-authorship of the Violent Crime Con- CAGED-IN CUISINE History of Biden’s Criminal trol and Law Enforcement Act followed, in Justice Reform 1996, by the Prison Litigation Reform Act Unique prison recipes and the Antiterrorism and Effective Death so delicious you might In a 1993 speech on the Senate floor, Penalty Act. These acts not only further want to make them Mr. Biden exclaimed, “The truth is, every created the perfect statutory scheme for at home. Makes a major crime bill since 1976 that’s come out today’s mass incarceration epidemic but also wonderful gift for of this Congress, every minor crime bill, has drastically restricted how prisoners could your favorite cook! had the name of the Democratic senator challenge their sentences and conditions Available on Amazon $12.99 from the State of Delaware: Joe Biden.” In of confinement. It also gave states billions support of this, and the then-Democratic of dollars to build new prisons and encour- October 2020 32 Prison Legal News aged them to change their sentencing laws Trump’s criminal justice reform history is what he would achieve, President Trump requiring prisoners to serve at least 85% of that it is often punctuated with absurd off- has surpassed President Obama in terms their sentences to get federal money. the-cuff statements and tweets. It’s difficult of achieving some tiny amount of criminal While the above is a strong rebuke of at best to discern President Trump’s thinking justice reform. Prison reform is a separate Mr. Biden’s history of criminal justice poli- 140 characters at a time. topic that no one in American politics is cies, these must be viewed in the lens of the This is one factor that must be con- willing or able to address. Tough on Crime and War on Drugs of the sidered when evaluating another four-year For example, he did sign the First Step ’70s, ’80s, and ’90s. These do not necessarily Trump presidency. While Trump says many Act of 2018. This bipartisan Act, which indicate a modern-day Biden presidency, things, and many of these off-the-cuff quips corrected an existing computation error and probably do not indicate what we would are ill-advised, his most decisive action in with how good conduct time is awarded to receive if Mr. Biden were elected president. the criminal justice reform arena focuses on federal prisoners, resulting in small reduc- It just shows what Mr. Biden has done for spontaneity. And basing a criminal justice tions in sentences (i.e., seven additional the past 50 years he has been in elected of- platform on spontaneity is, well, ill-advised. days per year for good conduct). This Act fice. Mr. Biden was vice president as recently Before his 2016 election, Mr. Trump also reformed several mandatory minimum as 4 years ago and progressive criminal frequently espoused pro-police sentiments sentencing laws, directed the federal prison justice reform was not on his agenda. (It and voiced his ardent support for the system to house prisoners closer to home should be noted that President Trump has death penalty. In recent years President where practicable, expanded home confine- done little to challenge the worst impacts of Trump has continued his death penalty ment placement, significantly reformed Biden’s record and his court appointments rhetoric, suggesting a lesson in the ap- compassionate release processes, and, most have vigorously supported, and worsened, proach taken in China and Singapore important, put in a new structure where the Prison Litigation Reform Act.) where drug dealers are executed. And low-risk federal prisoners can earn time Alas, Mr. Biden has shown nowhere while not directly on-point with criminal off their sentence for recidivism reduction near the resolve, vigor and decisive action justice policy analysis, President Trump’s programming. to help undo the very laws he drafted, leg- continued racist colonialism approach does While the First Step Act is a good first islated, enacted and enforced. In 2008, he not bode well for minorities or other non- step, it should be highlighted that this piece backed the Second Chance Act, legislation American criminal defendants. His most of legislation did not blow federal prisons’ designed to help with prisoner reentry by famous episode was calling for the death doors open. Instead, while many federal giving $100 million a year to prisons and penalty for the Central Park Five in 1989. prisoners benefited from some provisions, religious organizations. That pales with the Five Black teens were convicted of assault- a significant number of federal prison- tens of billions doled out to build prisons ing and raping a white woman jogger in ers are not eligible for the highly touted and lock people up. In 2010, he supported New York City. Later, the five men were earning of additional good conduct time the Fair Sentencing Act, which reduced released from prison having been wrong- through recidivism reduction program- the crack-to-powder cocaine disparity from fully convicted. Trump does not appear ming as many were excluded based on 100-to-1 to 18-to-1. While not equity, this to have apologized for seeking the death their conviction offenses. The First Step was a substantial step in the right direction. penalty against innocent defendants. Act stands out as one of the very, very few Trump’s Criminal Justice During the Trump presidency, the federal laws that actually benefit prisoners Policy History president has made modest strides in in the past century. criminal justice reform that seem significant President Trump also has to his credit While not nearly as long as Mr. only in comparison to the past 50 years of the awarding of select clemency applica- Biden’s criminal justice reform history, Presi- police state expansion. While President tions, most notably Alice Johnson, whose dent Trump also comes with several black Barack Obama was a more sympathetic case was advanced by Kim Kardashian. marks. But one problem with evaluating Mr. voice, and many had greater hopes for He has also commuted other sentences.

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Prison Legal News 33 October 2020 Trump v. Biden (cont.) Biden says he supports repealing federal issue for the states to determine. President mandatory minimums he helped pass and Trump’s policies on heroin are somewhat will incentivize states to do the same, Mr. similar to Biden’s in that he has supported Unfortunately, it is difficult to anticipate Trump hasn’t made a clear position on this treatment. President Trump has also sug- what another four years under President matter, instead, relying on the First Step gested that drug dealers should be executed Trump would look like given the stark Act’s shortening of some mandatory mini- if it is shown that a death resulted from the contrast between the draconian views mum sentences. drugs sold. he has embraced and the policies he has • Commutations. While Mr. Trump • Prisoner Reentry. Both President passed while in office. He has also pardoned has granted a select few commutation pe- Trump and Mr. Biden have supported notorious criminals like Maricopa county titions, and the administration has vowed prisoner reentry initiatives. For example, sheriff Joe Arpaio and war criminals like to “build on [its] success,” Mr. Biden has Mr. Biden has stated that he wants to Navy SEAL Eddie Gallagher. vaguely stated that he will use the vehicle expand “ban the box” initiatives, where Under Trump, the BOP’s response of commutations to commute “unduly companies are restricted from asking if an to the COVID-19 pandemic has been long” sentences, but only for non-violent applicant has been convicted of a felony. He abysmal. Soon after it publicly erupted in offenders. has also proposed eliminating restrictions March, the Justice Department announced • Solitary Confinement. The candi- on felons receiving federal assistance, such that federal prisons would release medically dates also differ on their stance to solitary as Pell grants, food stamps, and federally vulnerable, nonviolent prisoners to home confinement. While Mr. Biden says that subsidized housing. These restrictions were confinement to minimize deaths. Mean- he is calling for “an overhaul of inhumane all put in place in laws he authored or spon- while, the BOP secretly drafted a policy prison practices” and that it should be sored as a Senator. document that made it harder for prisoners used only in highly limited situations, President Trump’s crowning achieve- to qualify for release and only a tiny fraction Mr. Trump does not have a stated policy ment here is the First Step Act, which have been freed. The BOP has also failed position. It should be highlighted that the created additional recidivism reduction to take effective steps to protect those still Trump administration did remove a policy programs designed to help current federal behind bars, which has led to 122 deaths (as provision on the Office of Juvenile Justice prisoners. He also created the “Ready to of mid-September) and several thousand and Delinquency Prevention’s website stat- Work Initiative,” designed to assist formerly cases of COVID-19 among federal prison- ing that juveniles should not be placed in incarcerated persons with potential employ- ers, according to official statistics. We can solitary confinement. Of course, neither has ers, including nonprofits. note that none of the states have done any done anything about the BOP’s super max • Prison Profiteering. President better and Biden has been silent on the issue prison in Florence, Colorado or the BOP’s Trump and Mr. Biden’s platform positions of COVID-19 deaths in prisons and jails. segregation units around the country, so we on prison profiteering directly conflict. Trump and Biden’s Election can likely expect no actual change there. It is Mr. Biden now supports ending cash bail, Platforms also an open question as to whether anyone shutting down private prisons, and incentiv- really controls or has oversight of the BOP. izing the states to not participate in other The real question for voters, and the • Drug Policy. The candidates’ policies privatizing criminal justice activities, such millions of Americans who have lost their on drug laws are also starkly different. Mr. as commercial bail, electronic monitoring, right to vote because of felon disenfran- Biden supports the decriminalization of and diversion programs. Mr. Biden and the chisement, is what would each candidate marijuana and the retroactive application Clinton administration helped bail out the bring to the table if elected or reelected of expungements. His platform also sup- private prison industry in 1999 with sweet- president. ports rehabilitation instead of prisons, and heart immigration contracts. However, in • Death Penalty. The death penalty is incentivizes the states to treat, not incarcer- 2016 the Obama administration announced one area where there is a strong contrast ate, drug offenders. (“End all incarceration it would phase out the use of some private between Mr. Biden and President Trump. for drug use alone and instead divert prisons holding federal prisoners, which While Mr. Biden says he will work to individuals to drug courts and treatment,” tanked the companies’ stock shares. Trump eliminate the federal death penalty and in- says his website.) This, after half a century quickly reversed that after taking office. centivize states to follow, President Trump of criminalizing drugs and the people who President Trump is opposed to abol- is a staunch advocate of the death penalty use them and caging millions of drug us- ishing cash bail and strongly supports and federal executions restarted this year. ers. And, in a turn Biden has also pledged the private prison industry, which in turn He has “already carried out more federal to correct the disparity between crack and strongly supports him with campaign dona- executions in 2020 than his predecessors powder cocaine. Biden remains opposed to tions and contributions. had in the previous 57 years combined,” The legalizing marijuana. Policing. While both Mr. Biden and Intercept reported, and more executions are President Trump has presented mixed President Trump support increasing the scheduled this year. Biden has been silent as messages with marijuana law reform. His number of police, Biden’s platform focuses Trump carries out executions and of course, administration has repeatedly targeted on collecting data to make more informed only two federal prisoners saw their death state marijuana protections through federal decisions, while Trump is more concerned sentences commuted to life without parole budget proposals. At least in his first presi- with protecting police officers. Whereas under the 8 year Obama presidency. dential run, his administration suggested Biden has supported investigating police • Mandatory Minimums. While Mr. that recreational marijuana policy was an and prosecutor misconduct, Trump has October 2020 34 Prison Legal News advanced the Community Reform Initia- prisoners and their families pay for phone gorge their coffers and give kickbacks to tive, which supports funding for police calls. Working with Federal Communica- their government collaborators. departments to purchase bulletproof vests. tions Commissioner Mignon Clyburn, Politicians and Their Promises Biden has long been supported by police HRDC achieved significant regulation of and guard unions and has also long been a prison phone rates nationally. Every one of The problem with politicians is that big supporter of giving police and prisons these reforms was opposed by FCC Com- they will say just about anything to get billions of dollars in federal money to hire missioner Ajit Pai and the prison telecom elected. Just because presidential candi- more cops and guards. industry. dates say they will do something, it does However, this year most major police Securus and Global Tel Link filed suit not mean anything will come to fruition. unions have backed Trump. In September, challenging the order capping intrastate Sometimes, this is more the result of the the Fraternal Order of Police, the coun- prison calls, which make up 85% of all House and Senate’s political makeup than try’s biggest police union with 355,000 prison calls. Shortly after the 2016 election, the president’s desires or objectives. members, endorsed Trump. “President Trump appointed Pai as the commissioner While it is easy to look to Mr. Biden’s Trump has shown time after time that he of the FCC, which gave Republicans a history in the Senate and the majority of supports our law enforcement officers and 3-member majority. Two days before oral his political career and view him as an op- understands the issues our members face argument in the prison phone rate case, ponent of criminal justice reform, his more every day,” said Patrick Yoes, the union’s Chairman Pai ordered FCC lawyers not to recent talk on the campaign trail shows he president. “The FOP is proud to endorse a defend the FCC’s order, a situation that is could seek it. And while President Trump candidate who calls for law and order across virtually unheard of in regulatory circles. did sign into law the First Step Act – a our nation.” The endorsement came after The appeals court reversed the FCC. bipartisan effort, mind you – he has also Trump dispatched National Guard troops Trump has remained silent about the suggested that we execute drug dealers and federal units to crack down on protests issue of Prison Phone Justice as has Biden. and is presiding over more federal execu- that erupted following the police killing of The only potential difference between the tions than any other president in the past George Floyd. two is that FCC commissioners appointed 60 years. Prison Phone Rates: In 2012, the by a President Biden might be more recep- The choice between these two can- Human Rights Defense Center (HRDC), tive to the notion that prisoners and their didates is hard, especially considering which publishes PLN, launched its Prison families should not be viewed as profit the Democratic Party’s dismal history on Phone Justice Campaign to reduce the rates centers for hedge-fund owned telecoms to criminal justice reform and the Republican

PLN Needs Your Photos, Videos, THE AMERICAN PRISON Verdicts and Settlements! WRITING ARCHIVE We are expanding the multimedia section on PLN’s website, and need Calling for Essays by Incarcerated Americans, more prison and jail-related content! We know many of our readers have pictures and videos related to prison and criminal justice topics, Prison Workers, and Prison Volunteers and we’d like to post them on our site. We are seeking original content only – photos or video clips that you have taken yourself. he American Prison Writing Archive (APWA) is an in- Please note that we are not seeking articles, editorials, poems or other Tprogress, internet-based, non-profit archive of first-hand written works; only photos and videos. They can be taken inside or outside testimony to the living and working conditions experienced by 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 incarcerated people, prison employees, and prison volunteers. on our website. Please send all submissions via email to: Anyone who lives, works, or volunteers inside American prisons [email protected] can contribute non-fiction essays, based on first-hand experi- Please confirm in your email that the photos or videos are your original content, ence: 5,000 word limit (15 double-spaced pages); which you produced. Also please provide some context, such as where and a signed when they were taken. Your name will not be posted online or otherwise dis- APWA permission-questionnaire must be included closed. Please spread the word that PLN needs photos and videos for our website. in order to post work on the APWA. All posted work ______will be accessible to anyone in the world with Internet access. We also need verdicts and settlements in cases won by the plaintiff. Note that we are only seeking verdicts, final judgments or settlements – not Hand-written contributions are welcome. There are no reading complaints or interim orders in cases that are still pending. If you’ve pre- fees. We will read all work submitted. For more information and vailed in court against prison or jail staff, please send us a copy of the verdict, judgment or settlement and last complaint so we can post them on our site to request the permissions-questionnaire, write to: APWA, c/o and potentially report the case in PLN. If possible, please e-mail your submis- Hamilton College, 198 College Hill Road, Clinton, NY 13323- sions; we cannot return any hard copy documents. Send to: 1218; or go to https://apw.dhinitiative.org/ Do not send added Prison Legal News POP.O. Box Box 1151 1151 stamps. Sincerely—The APWA Editors. Lake Worth,Worth Beach,FL 33460 FL 33460 [email protected]

Prison Legal News 35 October 2020 Trump v. Biden (cont.) Pick your poison. California, Davis School of Law, where he is a member of the UC Davis Law Review and Sources: NYTimes.com, Reuters.com, vice president of the Criminal Law Association Party’s more recent successes in this arena. Politico.com, Vox.com, Slate.com, NPR. and Students Against Mass Incarceration. He In the end, it comes down to a choice org, NewsWeek.com, WashingtonPost.com, can be found online at https://www.prisoner- between a sporadic, reality TV president USNews.com, Reason.com, WhiteHouse.gov, resource.com. and one who calls for change but has a 50 BallotPedia.org, JoeBiden.com, Famm.org, Charles Sloan-Hillier is also a law stu- year history of enacting policies that led to PromisesKept.com. dent at the University of California Davis, today’s mass incarceration problem. Two About the Authors: Christopher Zoukis, and a member of the UC Davis Law Review empty bottles with slightly different labels. MBA, is a law student at the University of and Students Against Mass Incarceration. Alaska Supreme Court Upholds Dismissal of Delusional Prisoner’s Medical Malpractice Claim by Dale Chappell

n March 20, 2020, Alaska’s Su- resulting from family inbreeding. foreclosed his malpractice claim. Opreme Court shut down a state Israel asked the court to allow him to On what did the Court base its finding? prisoner’s argument that his diagnosis as demonstrate, but Superior Court Judge Because “Israel provided no psychiatric expert a schizophrenic was incorrect because he Frank Pfiffner called his testimony “bizarre testimony to raise a genuine issue of material claims he can actually see ghosts due to a and, at least from a lay perspective, consis- fact that the DOC’s psychiatrist’s diagnosis genetic mutation. tent with that of someone suffering from was incorrect.” In other words, despite granting Adam Israel had been in custody paranoid schizophrenia.” He concluded Israel the assumption that he didn’t need an of the state Department of Corrections that Israel’s explanation about his reported expert to be convinced, the Court did. It said (DOC) since 2005 for the stabbing death delusions “does not reflect reality.” it was unable to accept his argument – that he of his mother. Based on a clinical diagnosis The court then granted the state’s mo- was not delusional, just exceptional – without of schizophrenia – he claimed that fam- tion for summary judgment, finding that hearing from an expert who agreed. Without ily members, possibly including comedian Israel had failed to provide expert testimony providing that testimony, Israel failed to over- Steve Martin, had conspired to keep him in to support his claims in the face of summary come summary judgment, since the Court said state custody to prevent him from testifying judgment. it had no choice but to conclude that Judge to rapes and murders they had committed – Under Alaska law, anyone claiming Pfiffner’s determination – that Israel’s visions he was held in a mental institution. medical malpractice usually provides an ex- were really delusions - was proper, given the In October 2014, he filed a pro se medi- pert’s testimony in support of their claims, facts before the court. cal malpractice lawsuit, claiming that he was most often by attaching an affidavit to their The Court also affirmed Judge -Pfiff “fraudulently diagnosed” as schizophrenic, complaint. But when the negligence is evi- ner’s denial of Israel’s motion to “compel” and that this had prevented him from dent to a lay person, no expert is needed, discovery from DOC, since he didn’t make release on parole and other rehabilitative because the claim is then not considered any efforts to contact DOC for discovery progress. He said the delusions he suffers one of a technical nature. Israel provided before filing the motion to compel it. are actually real, claiming that he could no such expert testimony, arguing that his Though allowing that judges are required see electro-magnetic fields emitted from claim to extra-normal perception could to construe pro se filings “liberally” in order “poltergeists” because of a genetic mutation not be disproved using current technology to do justice, the Court said that “a self- anyway. The court found that it could not represented litigant must make a good-faith accept his claim without proof – or at least effort to comply with the Civil Rules or in- corroboration from an expert – and dis- form the court of difficulties in complying.” Locked up in the Fed? missed his motion. Israel appealed. The Court wrapped up its ruling by Services available include In its review of the case, the state affirming the Superior Court’s order that legal research, word processing, Supreme Court concluded that summary Israel must reimburse the state for its at- internet search, case law prints, judgment was proper because the defendant torney fees, in this case $5,600.00, since he typing of briefs and writs, (the state in this case) had shown an absence did not file his claim as a constitutional issue obtaining your court or driving of a factual dispute on a “material fact,” and but only as a malpractice issue — leaving records, Pacer research, Social that this absence constituted failure of proof him liable for the state’s requested attorneys’ Security benefit eligibility. IRS of an “essential element” to support Israel’s fees as the losing party. forms, and tort claims. lawsuit. The Court allowed that it “assumed Accordingly, the Supreme Court af- Visit inmateassist.com or add without deciding” that Israel was correct firmed the Superior Court’s rulings in all [email protected] to your that he didn’t need an expert, but then it respects in dismissing Israel’s case. See: email contacts in Trulincs found that the “unrebutted correctness of Israel v. Department of Correction, 460 P.3d Israel’s diagnosis of paranoid schizophrenia” 777 (Alaska 2020). October 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

The Habeas Citebook: Prosecutorial Misconduct is part of the series of books by Prison Legal News Publishing designed to help pro se prisoner litigants and their attorneys identify, raise and litigate viable claims for potential habeas corpus relief. This easy-to-use book is an essential resource for anyone with a potential claim based upon prosecutorial misconduct. It provides citations to over 1,700 helpful and instructive cases on the topic from the federal courts, all 50 states, and Washington, D.C. It’ll save litigants hundreds of hours of research in identifying relevant issues, targeting potentially successful strategies to challenge their conviction, and locating supporting case law.

The Habeas Citebook: Prosecutorial Misconduct is an excellent resource for anyone seriously interested in making a claim of prosecutorial misconduct to their conviction. The book explains complex procedural and substantive issues concerning prosecutorial misconduct in a way that will enable you to identify and argue potentially meritorious claims. The deck is already stacked against prisoners who represent themselves in habeas. This book will help you level the playing field in your quest for justice. —Brandon Sample, Esq., Federal criminal defense lawyer, author, and criminal justice reform activist

The Habeas Citebook: Order by mail, phone, or online. Amount enclosed ______Prosecutorial Misconduct By: r check r credit card r money order Paperback, 300 pages Name ______

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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 October 2020 $300,000 a Year Not Enough to Convince Psychiatrists to Work in California Prisons by Dale Chappell

uicides in California prisons agencies, such as loan forgiveness and zero- prisoners with serious mental health issues. Sreached a record high last year, with 38 interest home loans. Since the 1995 trial in that case, CDCR recorded. According to prison and union “We’ve got a serious issue,” said has been under a judge’s supervision to officials, a lack of psychiatrists and other Assemblywoman Shirley Weber at a make changes. In 2018, a whistleblower problems in the state’s prison system con- budget hearing in March of 2020. “What- complaint by Dr. Michael Golding, the tributed to the high number. ever we’re doing is supposed to make life chief psychiatrist at CDCR headquarters, Despite an offer of a $300,000 an- better for folks, not worse. These are folks alleged that prison officials falsified data nual salary plus government benefits, the who walking the street wouldn’t commit to cover up problems with psychiatric care California Department of Corrections and suicide, but they go into our place [the Cali- in California’s prisons. Rehabilitation (CDCR) has yet to convince fornia prison system] and they do.” CDCR “The environment that we’re putting psychiatrists to fill the vacancies in the has also struggled with increasing rates of folks in is really toxic for everyone,” Weber prison system. About 40 percent of the suicide among its prison guards. said at the budget hearing. Dr. Bussey said state’s psychiatry jobs are empty, including California’s prison system has strug- the union is working on a resolution with those at the state’s prison and mental health gled for 30 years to provide adequate the state legislature. institutions, according to data from 2018, mental health care to prisoners. In 1990, the last year the numbers were available a class action lawsuit was filed on behalf of Source: sacbee.com from CDCR Elizabeth Gransee, a spokesperson DC Federal Court Enters Partial for California Correctional Healthcare Services, said the vacancy rate is 28 per- Preliminary Injunction Against District cent if accounting for contract psychiatrists, including those who treat via telepsychiatry Jails For COVID-19 Deficiencies video conferencing. “We are continuously by Derek Gilna improving recruitment of health care staff including mental health care providers,” she n an order entered June 18, 2020, tests which had been done on those who responded in an email to the Sacramento Bee. IJudge Colleen Kollar-Kotelly of the were incarcerated prior to the date on which “[CDCR] continues to make substantial federal district court of the District of Defendants began testing all incoming in- improvements in the delivery of health care Columbia entered a preliminary injunction mates; (and) all relevant written procedures and we will continue to ensure our popula- against the district’s Department of Cor- and practices concerning COVID-19.” tion has access to the care they need.” rections (“DOC”), its Central Detention The judge then considered the argu- Dr. Stuart Bussey disagrees. He is the Facility (“CDF”), and the Correctional ments of the plaintiffs, especially those president of the Union of American Physi- Treatment Facility (“CTF”), finding de- concerning pre-trial detainees, noting that cians and Dentists, and says that in addition ficiencies in its social-distancing, sick-call subjecting them to hazardous conditions to pay increases, CDCR needs to improve procedures and treatment options for CO- did not require them to meet the higher the working conditions for staff psychia- VID-19 cases. standard of “deliberate indifference” but trists. Right now, a psychiatrist’s treatment However, the court concluded, “the rather just establish a violation of due decisions can be overridden by prison work- Court finds that some of the relief requested process. ers with far less medical training, and the by Plaintiffs, such as the immediate release “The rights of pre-trial detainees are doctors face other frustrations and disrup- of inmates and the appointment of a down- different than the rights of post-conviction tions in the treatment of prisoners. sizing expert, is inappropriate at this time detainees,” the court said. “Because pre-trial CDCR has tried to fill the vacancies on the current factual record.” detainees are presumed innocent, they are with contract psychiatrists, due to the lack The court had initially ordered the “entitled to more considerate treatment of interest in full-time positions, but it costs jail “to provide a list of the names of the and conditions of confinement than crimi- the state much more to do that. According approximately 94 prisoners who had been nals whose conditions of confinement are to the doctors’ union, contract psychiatrists sentenced to misdemeanors and who could designed to punish.” Youngberg v. Romeo, cost the state about $36 million for the sev- be released; the numbers of people who had 457 U.S. 307, 322 (1982). “While a con- en-month period that ended January 2019. been tested for COVID-19 and a break- victed prisoner is entitled to protection While prison psychiatrists are better paid down of the identities of those individuals only against ‘cruel and unusual’ punishment than their private-sector counterparts, ac- ... and the results of those tests; the date [under the Eighth Amendment], a pretrial cording to CDCR, union president Bussey on which Defendants began testing people detainee, not yet found guilty of any crime, said that does not account for other benefits coming into the jails; the number and a may not be subjected to punishment of any in the private sector and other government breakdown of the results of COVID-19 description.” Hardy v. District of Columbia, October 2020 38 Prison Legal News 601 F. Supp. 2d 182, 188 (D.D.C. 2009), population at large. Plaintiffs’ argument is quoting Hill v. Nicodemus, 979 F.2d 987, supported by statistical evidence, Plaintiffs’ 991 (4th Cir. 1992). Her granting of the expert evidence, the declarations of DOC temporary restraining order set the stage for inmates and staff, and the amici reports. the more thorough supervised investigation Accordingly, based on the limited record of the defendant’s health-care practices before the Court, the Court finds that VOICEMAIL FOR PRISONERS related to COVID-19. Plaintiffs have established a likelihood that After reviewing the findings of a they will be able to show that they have been court-appointed team of experts agreed exposed to an unreasonable risk of damage to by both parties, and also the written to their health.” complaints of many prisoners at the Although the judge agreed that there district’s correctional facilities, the court was serious risk of infection for jail pris- found that even prisoners suffering from oners, the court declined to take decisive signs of the highly contagious virus often action, such as ordering a reduction in pris- waited up to one week before being seen oners, that would effectively reduce the risk by a doctor or other medical profes- of infection. The court noted, however, that sional, and that sick-call requests were jail officials had voluntarily reduced the jail not closely monitored. population by approximately one-quarter In granting the preliminary injunc- since the start of the proceedings. tion, the court said it “recognizes that The granting of the preliminary injunc- Defendants’ response to this sudden and tion does not conclude the litigation, which unprecedented pandemic is ongoing. And, continues under court supervision, and the Court recognizes that additional evi- further investigation will continue while the dence will likely be provided as litigation parties decide to either go to trial or reach proceeds. But, based on the current record, a final settlement. See: Banks v. Booth, 2020 the Court credits Plaintiffs’ argument that U.S. Dist. LEXIS 107762. they experience a significantly higher rate of infection and risk of harm than the Additional source: courthousenews.com 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 Order by mail, phone or on-line. By: p check p credit card p money order Name DOC/BOP Number Institution/Agency Address City State Zip Prison Legal News • PO Box 1151, Lake Worth Beach, FL 33460 Tel. 561-360-2523 • www.prisonlegalnews.org

Prison Legal News 39 October 2020 Poetry for the Prisoners’ Soul by Ed Lyon

mong the few organizations Danville Correctional Center. It is admin- Wednesday night [after class] I came home Aintrepid enough to reach out to pris- istered by the University of Illinois (UI) completely exhausted.” oners is a group called the Worker Writers through its Education Justice Program. Unfortunately, prisoner poetry books School (WWS). From its beginning as a Like the UHCL’s curriculum, UI’s is also such as Betcha Ain’t: Poems from Attica, poetry workshop for traumatized prisoners humanities-heavy. Recidivism statistics for Mumia Abu-Jamal’s Live from Death Row, in the aftermath of the slaughter of prisoners UI’s graduates are as-yet unavailable, prob- words from the House of the Dead, The Last at New York’s Attica prison in 1971, WWS ably due to the program’s low number of Stop and Folsom Prison: the 52nd State are is now a worldwide program. WWS work- graduates caused by prison guards constantly disappearing and nearly impossible to find shops have spread from the United States interfering with the program. [PLN, October any more. Lending libraries are increasingly to Belgium, Canada, Netherlands, Panama, 2019, p. 59] Also, the UHCL’s programs responding to requests for those works with Puerto Rico and South Africa to the United have been in place continuously since 1988. “WEEDED” and “WITHDRAWN” in an Kingdom, to name just a few locations. The UI’s programs have been in place for eerie modern-day parallel to Ray Bradbury’s Why the focus on poetry? Poetry is a 10 years, only a short time by comparison. Fahrenheit 451. Only in this instance, those major form of literature. Literature is, in Celes Tisdale was the person who began books are not burned but merely allowed turn, one of the humanities’ main disciplines leading poetry workshops in Attica after the to fade into antiquated obscurity, a loss for and involves heavy reading as well as writ- uprising there. She was an assistant professor humanity in general and an effective muzzle ing. Studies by psychologist Raymond Mer at nearby Erie Community College at that to prison poetry writers. at Canada’s York University and cognitive time. She saw first-hand the positive changes psychologist and professor emeritus at the on the prisoners through their immersion Sources: bostonreview.net, earlcarlinstitute. University of Toronto published in 2006 in poetry. “Their sensitivity and perception org, https://coursesite.uhcl.edu, prisoneduca- and 2009 have shown that people with were so intense,” Tisdale recalls, “that each tion.org humanities-centered educations are more receptive to and empathetic where it comes to their fellow humans. Damage to South Carolina Prisons Shifts The University of Houston-Clear Lake offers a humanities-based Behavioral Sci- Prisoners to Lewisburg, Pennsylvania ence bachelor’s degree and master’s degree by Derek Gilna programs to prisoners at the Texas Depart- ment of Criminal Justice’s Ramsey Unit. amage from tornados with winds whereabouts went unacknowledged and Recidivism rates for UHCL’s bachelor’s Din excess of 150 miles per hour in unanswered. degree earners is 5.6 percent and for its April of 2020 forced the immediate trans- BOP staff was also concerned about the master’s degree earners is 0. That’s right, zero fer of 956 low-security federal prisoners abrupt transfer to a prison that was already percent, as opposed to the national rate of from Estill, South Carolina to the maxi- short on staff. Union national president Shane 67.5 percent and Texas’ rate of 30.7 percent. mum-security U.S. Prison in Lewisburg, Fausey of Employees Council 33 said in April All three UHCL curriculums incorporate Pennsylvania. The controversial move by that Lewisburg will have a “serious problem” poetry courses into their requirements. the federal Bureau of Prisons (BOP) was with staffing, and expressed concern that the A similar program is in place at the cloaked in secrecy for “security” reasons, movement of almost 100 prisoners on short Illinois Department of Corrections at its but confirmed by correctional officials in notice will spark a COVID-19 outbreak that Pennsylvania. The move of non-violent could overwhelm the areas small hospitals. prisoners from the relatively safe Estill facil- His concerns were shared by Andy Kline, ity to a United States penitentiary housing Local 148 president, who said, “I’m concerned Stamps more violent offenders did not sit well with about the virus.” prisoners’ family members. Already on edge because of the threat of for CA$H ! Speaking on condition of anonymity to COVID-19, family members said the BOP Great Goods will buy your stamps ! spare loved ones retaliation from the BOP, has made it impossible to keep in touch with 70% of face value: complete, new and perfect books of 20 stamps. the family members were highly critical of their family members, and is now shipping 60% global forever and high denomination the decision, arguing that it put prisoners them hundreds of miles away to an uncer- stamps. at risk. Heightening their anxiety was the tain future. One parent of a prisoner, Kaye, 50% any partials,singles and strips. No quantity of stamps too big. ever-present risk of COVID-19, which has pointed out that “These are medium-low -Please inquire for a complete list of rates- made all prisoner transfers problematic, inmates,” who were now shipped en-masse GREAT GOODS and even before the storm the virus had to a maximum-security prison with a past PO BOX 888 LAKE WORTH , FL. 33460 forced the federal prison system to end all history of violent incidents. Another parent www.easycashforstamps.com [email protected] in-person visits. Inquiries to the BOP by from the Chattanooga, Tennessee area said “ family members as to their family member’s she would still visit her son: I have calcu- October 2020 40 Prison Legal News lated the drive from my home to Lewisburg, had been left behind. He alleged that the down for months , and the subsequent and it is 711 miles away. Over a 10-hour guards at Lewisburg failed to properly open loss of much of those prisoners valuable drive. Will it stop me from visiting him? his property in front of him and inventory documents and many persona items, is No ma’am.” it in his presence, as required under BOP yet another indication that to the federal Lewisburg area Congressman Fred program statements, and that he was taunted Bureau of Prisons, you are often regarded Keller, of the 12th Congressional District, by the guards and told, “that is all of your as merely a number, not a person who is also registered his displeasure at the abrupt property, “and to “file a tort claim,” a labori- entitled to the same humanitarian consid- move of prisoners into his district after the ous undertaking for a confined prisoner. erations and constitutional protections that movement of prisoners in New York and The abrupt transfer of prisoners to other individuals often take for granted. Ohio was blamed for outbreaks at their a strange facility hundreds of miles from new institutions. “Despite this recent suc- home, in the midst of a pandemic that has See: pennlive.com; dailyitem.com; prisonle- cess in stopping inmate movement, (news caused much of the country to be locked galnews.com of Estill inmate transfers) came with little notice and was decided without input from my office or the people of said district,” Offensive Facebook Posts Cost he said. “I am extremely concerned that any Wisconsin Warden His Job rapid increase in USP Lewisburg’s inmate by Kevin Bliss population would create challenges for the prison’s staff, and potentially local hospitals. ichard “Sam” Schneiter, a 65-year- his personal views. He claimed he was USP Lewisburg has been under a reduced Rold Wisconsin deputy prison warden simply stimulating discussion and debate inmate population and staff for several in charge of 14 minimum-security prisons, on the topics. He pointed to his posting years. Also, our local hospitals are on record was fired in November 2019 after posting of the gay pride flag at the Kenosha Cor- expressing concerns about their capacity to offensive memes on his Facebook account. rectional Center in response to Governor handle a COVID-19 outbreak among a large Schneiter posted two memes on Face- Tony Ever’s declaration of June as Pride prison population,” Congressman Keller said. book last July, which were reported in the Month as evidence in support of his claim. Prisoner families who temporarily lost Milwaukee Journal Sentinel. One compared He said Barnes’ comments amounted to track of their incarcerated family members a Muslim woman and child, both in black a premature conclusion that he be fired and were not the only ones who were disrupted burkas, to bags of trash. The other equated prejudiced his case. “As the second-highest by the move. Prisoners who had settled in to the flying of the gay pride rainbow flag with ranking government official in Wisconsin their Estill facility, where they were familiar the flying of the Confederate flag. After the it is not unreasonable to believe that his with staff of the low-security prison, were newspaper story was published, Lt. Gov. comments influenced the investigators and now thrust overnight into a new environ- Mandela Barnes tweeted that Schneiter decision-makers to a point that his comment ment, generally only with the clothes on should not have compared Muslims to became prophecy fulfilled,” he claimed. their back, having hurriedly packed up their garbage and that he was the one who had Schneiter lost an appeal filed last personal property and court documents for “to be taken out.” December to the Wisconsin Employment later shipment from Estill by BOP staff. Schneiter, represented by attorney Nate Relations Commission. He filed a second At least one prisoner who made the Cade, said the Department of Corrections appeal in January 2020. If he loses, he still quick journey to Lewisburg said that the and Rehabilitation did not establish just has the option of pursuing the case in the BOP failed to hand over most of his pur- cause to fire him. Its investigation into the state’s court system. chased clothing and personal toiletries, and incident was not thorough, objective or fair, his box of irreplaceable court documents that he said, and the postings did not represent Sources: nytimes.com, madison.com

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Prison Legal News 41 October 2020 More Than Half of Chicago’s COVID-19 Cases Linked to Cook County Jail by Dale Chappell

lmost 60 percent of COVID-19 communities. These are highly policed them, because that data were not available. Acases in Chicago were linked to police communities resulting in more arrests. In But the authors suggest it’s an additional throwing people in the Cook County Jail Chicago, Blacks make up 30 percent of the source of COVID-19 spread that must be and then releasing them to their home com- population, but make up 75 percent of the considered. munities, according to a Harvard University prisoners in Cook County Jail. The rate of The Cook County Sheriff ’s Office and study published in June 2020. Researchers release was highest in Black-dominated the Chicago Department of Public Health found that “jail cycling” accounted for over ZIP codes, the study found. disputed the study and requested it to be one-third of coronavirus cases in Illinois. The study did not account for the removed. The study examined the relationship be- hundreds of jail staffers returning home to tween jail cycling and community infections their communities, bringing the virus with Source: harvard.edu across different neighborhoods in the state of Illinois, one of the nation’s largest jails. That data showed that as of April 19, 2020, Mother of Decapitated Prisoner almost 1 in 6 coronavirus cases in the state Sues California Prison Officials for were linked to people who cycled through the Cook County Jail in Chicago in March. Housing Her Son with Prisoner Who Jail cycling happens when people are arrested for minor infractions and put Tried to Murder Previous Cellmate in jail for a short time and then released. by Matt Clarke According to studies, about 95 percent of people booked into jails across the country n March 2, 2020, the mother of provided by Osuna’s own lawyers and medi- were arrested for non-violent crimes, and 42 Oa man murdered at the California cal team “warning CDCR of his propensity percent were proven innocent. The numbers State Penitentiary, Corcoran filed a lawsuit for extreme violence, insatiable desire to add up fast. According to the FBI, about against California Department of Correc- kill, and need to be held in a psychiatric 28,000 people are arrested every single day tions and Rehabilitation (CDCR) officials, ward, not in a prison with other inmates.” in this country. That means over 10 million whom she alleged were responsible for the Osuna was serving a no-parole sentence people are arrested and cycled through a murder of her son. Her son was decapitated for the torture-murder of a woman. He county jail every year in the U.S. on March 9, 2019 by his cellmate, who had also was known to collect “trophies” of his Jail cycling has a “multiplier effect,” says previously attempted to murder a cellmate violent acts. Eric Reinhart, one of the study’s authors. and whose lengthy history of violence That night, guards allegedly failed to “For every one person you cycle through the rendered him unsuitable for housing with perform safety checks on Osuna’s cell even jail [whether that person becomes infected another prisoner. He decapitated her son when a sheet was stretched across the bars, or not], in the ZIP code from which they and made a body-parts necklace. blocking their view. have come and which they will return to, CDCR prisoner Luis Romero was During the night, Osuna tortured within a three to four week lag you’re go- transferred from another prison to Corco- and decapitated Romero. He was found in ing to see 2.149 more cases.” When you ran, which has a lengthy history of violence. the blood-covered cell wearing a necklace consider that more than 100,000 people According to a court document, instead of of Romero’s body parts. Romero’s body cycle through the Cook County Jail every following the usual procedure of having a showed signs of extreme torture, all of year, that’s a huge scale, he said. committee of prison administrators find ap- which was done with a weapon Osuna made To be more specific, researchers found propriate housing for Romero, taking into from a small razor blade and string. that the cycling of 2,129 people through consideration whether a potential cellmate With the assistance of Encino at- the Cook County Jail in March alone was was an appropriate fit, and having both torney Justin Sterling and Los Angeles tied to 4,575 additional known COVID-19 prisoners sign forms agreeing to be housed attorney Erin Darling, Romero’s mother cases in the state in mid-April. That’s almost with one another, they simply placed him in filed a federal civil rights lawsuit pursuant 16 percent of all COVID-19 cases in the a cell with Jamie Osuna, a prisoner with a to 42 U.S.C. § 1983, alleging violations entire state linked to the jail. lengthy history of extreme violence. of Romero’s federal civil rights as well as “We forget that these institutions are While in jail, Osuna had attempted to pendent state torts. The matter is pending not simply contained spaces, but part of murder his cellmate. His continuing vio- before the court. See: Solares v. Diaz, USDC our communities,” Reinhart said. “They’re lent misconduct had resulted in his being (E.D. Cal.), Case No. l:20-CV-00158. very porous. People go in and they go out.” housed without a cellmate since his arrival Unsurprisingly, the study found jail at the CDCR seven years earlier. Further, Additional sources: courthousenews.com, cycling disproportionately affected Black the CDCR allegedly had documentation fresnobee.com October 2020 42 Prison Legal News Wisconsin Supreme Court Rules Unconstitutional Statute Authorizing Forcible Medication of Involuntarily Committed Prisoner by Matt Clarke

n April 10, 2020, the Supreme fender Kaitlin A. Lamb, C.S. successfully The court followed the reasoning of OCourt of Wisconsin held unconstitu- petitioned the Wisconsin Supreme Court Washington v. Harper, 494 U.S. 210 (1990) tional a statute permitting an involuntarily for review. The Supreme Court noted that a state could involuntarily medicate committed prisoner to be forcibly medi- that C.S. has since completed his prison a prisoner only if it was in the prisoner’s cated without a court finding that the sentence and was no longer subject to the interest to be medicated and the prisoner prisoner was dangerous. involuntary medication order, but decided was dangerous. Further, the court had pre- C.S. suffers from schizophrenia. He the case because it would affect many other viously determined that the “mere inability was convicted of mayhem as a repeat prisoners in similar circumstances. of a defendant to express an understanding offender and sentenced to 10 years of The court noted that to commit a non- of medication or make an informed choice extended supervision. Then the state filed prisoner requires proof that the person is about it is constitutionally insufficient to a petition to have him involuntarily com- mentally ill, a proper subject for treatment, override a defendant’s ‘significant liberty mitted and medicated. and dangerous; but committing a prisoner interest’” in avoiding involuntary media- Almost a decade later, the state filed to only requires proof that the person is a state tion. State v. Fitzgerald, 929 N.W.2d 165 extend C.S.’s involuntary commitment and prisoner, mentally ill, a proper subject for (Wis. 2019). medication. A jury found that he was men- treatment, and in need of treatment. Thus, a Therefore, “§ 51.6l(l)(g)3 is facially tally ill, a proper subject for treatment, in prisoner’s commitment contains no finding unconstitutional for any prisoner involun- need of treatment, a state prisoner on whom of dangerousness. tarily committed” under § 51.20(l)(ar). The less restrictive forms of appropriate treat- Once committed, a person—whether court of appeals was reversed and the case ment had been unsuccessfully attempted, prisoner or not—retains the right to refuse remanded to the circuit court with an order and fully informed of his treatment needs medication and treatment unless ordered by to vacate the involuntary medication order. and rights. court or necessary to prevent serious physical See: Winnebago County v. C.S. (In re C.S.), This met the requirements of Wis. Stat. harm to the person or another. Section 51.6l(l) 2020 WI 33 (Wis. 2020). § 51.20(l)(ar), permitting commitment (g)3 authorizes the without a determination of dangerousness, committing court which the court did. The court also found to order involuntary Sharing his life story for the first time, renowned psy- that C.S. was incompetent to refuse medi- medication if it deter- chotherapist Dr. Darryl Wheat tells of his early years of cation pursuant to Wis. Stat. § 51.61(1) mines that the person trauma, parental abandonment, and being left to live with and ordered involuntary medication. C.S. is not competent to his grandmother. His defiance led him into numerous jails, appealed, arguing that the involuntary med- refuse medication detention houses, and reform school. Young, brash and ication statute was facially unconstitutional. or treatment. That reckless, Darryl racked up over 40 arrests, 12 institutional The court of appeals affirmed. With is what happened in escapes, and endless parole violations. He is seemingly the assistance of assistant state public de- C.S.’s case. destined for an early death when miraculously, his loving grandmother intervenes. “Nanny” instills wisdom, which, at age 19, results in turning her grandson’s life completely We have the freakiest pixs and stories for around. Darryl then sets out to accomplish what people tell all our incarcerated friends!! We offer gifts him is impossible. This is his unbelievable, yet true story. for all your loved ones! Holiday specials coming up! Please send a SASE with Available at Barnes & Nobel and 2 stamps for your free catalog & info! Amazon: or mail $15.99 plus $3.99 shipping to We offer VIP with special pricing for Words Matter Publishing P. O. Box 531 the year! Specials start at 100 for $25 Salem Il 62881 — you pick the pixs! Please include your shipping address along with prison ID and any shipping in- STREET PIXS – PLN formation for your facility, such as books PO Box 302 must be shipped from Amazon. Humble, TX 77347-0302 Words Matter Publishing is owned by 832-286-8857 Tammy Koelling the CEO of WMP Justice Review, a legal investigative firm. www.wordsmatterpublishing.com www.wmpjusticereview.com

Prison Legal News 43 October 2020 Wildfires Threaten Prisoners in West, While New California Law Helps Prisoner-Firefighters to Continue Work After Release by Dale Chappell

t used to be that specially trained recommended by Cal Fire staff for an said. “The pay is so little, the work is so Iprisoners who worked on the front lines official position in the fire academy, and dangerous.” fighting wildfires couldn’t continue to work he became a fulltime firefighter with Cal “It’s a super imbalanced system; it’s as firefighters after their release. Thanks to Fire. However, he’s limited without an much like the system of slavery,” said Deir- a new law signed by Gov. Gavin Newsom EMT certification. “Without the training, dre Wilson, a Master’s student of social on September 11, 2020, some prisoner- I can’t get certain jobs,” he says. “I can’t do work at the University of Southern Califor- firefighters may find it’s possible to stay what an EMT does, so it limits me and it nia. “There’s a reliance on this population, on the job. would limit me for promotions.” He adds, on this cheap labor.” The new law (designated as AB 2147) “I could be of more help, I could be of more The state runs 44 prison fire camps allows releasees to petition the court to dis- assistance.” He said the new law is huge not with Cal Fire in 27 counties. In a typical miss their convictions after completing their only for himself but also for the community year, the state employs around 200 prisoner- sentences, which would then allow them to he serves. firefighter crews. But as of August, the obtain certification as an emergency medi- They ‘Risked Their Lives’ state employed only 113 of those crews, cal technician (EMT), something most mainly due to the coronavirus. Back in fire departments require to get in the door. “It doesn’t make sense that these July, Newsom said only 94 of those crews It’s not that prisoner-firefighters couldn’t people have risked their lives to save were available. be firefighters after release, but that they Californians,” said Romarilyn Ralston, who Thousands of low-risk prisoners were couldn’t get the additional certifications leads Project Rebound, a California State released to ease overcrowding in the pris- to obtain actual employment after release. University program that supports formerly ons during the pandemic. And some of The state categorically barred anyone with a imprisoned pupils. “They’ve already been the fire camps were locked down because felony conviction from obtaining an EMT doing the job, and they’re barred from of COVID-19. This reduced the available certification. Now that obstacle has been the jobs after release. When there’s a fire prisoner-firefighters to fight the record- removed for some. burning, when your life is in danger and breaking wildfires sweeping through the “Inmates who have stood on the front- you can’t breathe — you’re not going to do state this year. The state says the total lines, battling historic fires should not be a criminal background check before you let prisoner-firefighters able to work has been denied the right to later become a profes- someone save you.” reduced by about a third this year. sional firefighter,” Newsom said as he signed But law enforcement groups and pros- The COVID-19 crisis has highlighted the bill into law. ecutors opposed the new bill, saying that just how dependent the state is on its pris- Assembly member Eloise Gómez the former prisoners pose a danger to the oners to fight fires. Reyes, who sponsored the bill, said the new public. This despite the fact that they did In July 2020, deep in the coronavirus law has a broader purpose. “Rehabilitation the job already and that only minimum- pandemic Newsom announced a plan to without strategies to ensure the formerly security prisoners can qualify. Sex offenders, limit the spread of COVID-19 in state incarcerated have a career is a pathway to murderers, and certain violent felonies are prisons by releasing up to 8,000 non-violent recidivism,” she said in a statement. “We automatically excluded from working as prisoners with less than a year left to serve. must get serious about providing pathways prisoner-firefighters from the outset, and Many of California’s prisoner-firefighters for those that show the determination to they’re also excluded under the new law. met that criteria, but not many were return their lives around.” California has used prisoner-firefight- leased. Michael Gebre was a prisoner-fire- ers for more than 80 years. Like regular “The inmates should have been put fighter for years in the program before firefighters, they work alongside, prisoner- on the fire lines, fighting fires,” said Mike his release. In 2011, he was sentenced to firefighters use chainsaws and other tools to Hampton, a former CDCR prison guard 10 years and during his fourth he learned battle fires, even sleeping with the crews on who worked for decades at a prison fire about the firefighting program. He said it the fireground. They are paid about a dollar camp. “How do you justify releasing all “changed everything” for him. an hour while fighting fires, and $2 a day these inmates in prime fire season with all He wore the bright orange turnout when not on the job. They also receive time these fires going on? gear that identified prisoner-firefighters and off their sentence for the work. “Inmate fire crews are absolutely im- helped at many of the state’s biggest fires, State officials like the prisoner-fire- perative to our ability to create hand line[s] such as the Thomas Fire, the Mendocino fighter program because it saves the state and do arduous work on our fires,” says Complex Fire, the Ferguson Fire, and the about $100 million a year. That would be Brice Bennett, a spokesman for Cal Fire. Carr Fire, among others. He says the Camp the cost to hire fulltime firefighters to fill “They are a tremendous resource.” Fire, his last as a prisoner-firefighter, was the boots of the prisoner-firefighters. Some Prisoner Transfer Woes the “craziest fire” he’s worked. disagree with using prisoners to save money. Upon his release in 2019, he was “Every fire season it’s the same,” Ralston The wildfires have also compounded October 2020 44 Prison Legal News problems for prisoners all along the West without any consideration of security level. minutes the prisoners were given food and Coast. In the early part of September, Fights broke out and at least one person allowed showers. prisoners from four different Oregon pris- was reportedly stabbed, Tara Herivel, an In California, 26 prisoners died and ons were transferred to other prisons to Oregon public defender, said. ODOC sent more than 2,500 prisoners and staff were escape wildfires threatening their prisons. 1,450 prisoners to the maximum security infected with COVID-19 at San Quen- The Oregon Department of Corrections state penitentiary, which was already at its tin Prison after infected prisoners were (ODOC) evacuated Coffee Creek Correc- 2,000-person capacity. transferred from a Southern California tional Facility in Wilsonville to Deer Ridge There also wasn’t any consideration by prison to San Quentin in May without Correctional Institution in Madras. Coffee ODOC about the coronavirus, she said. being tested. Creek is the intake facility for Oregon State “It’s like COVID doesn’t even exist,” she An ODOC spokesperson addressed prisoners before they are designated to said. Herivel is leading a team of lawyers the conditions and protests at Deer Ridge other prisons. It’s also a COVID-19 hotspot who are bringing 180 cases against ODOC and said that “during an emergency, opera- in the ODOC. for failure to protect prisoners from CO- tions do not run as smoothly as normal.” The prisoners were loaded into school VID-19. “These are constitutional claims She said prisoners did receive food and buses at 11 p.m. one night and zip-tied to against the Department of Corrections for medications, but “not on their normal each other. They were allowed one bag with failing to protect inmates from COVID,” schedule.” a change of clothes, a towel, an address she said. “Inadequate treatment, inad- She acknowledged that a crisis team book, and shower slides. No commissary or equate medical care — all conditions of was dispatched to break up the protests at other personal items were allowed. Arriving confinement claims. We’re more likely to Deer Ridge, but that the incident ended at Deer Ridge at 4 a.m., they sat on the bus have some kind of super-spreader event,” without the use of force. for around three hours without access to a she explained. Prisoners seem to have been deliv- bathroom. They were told to urinate in cups The conditions were so bad at Deer ered from one disaster to another, from and throw them out the window. About Ridge that some female prisoners protested. coronavirus-infected prisoners to prisons 2,750 prisoners were evacuated from the They refused to “bunk up” until they were with subhuman conditions, all in an effort wildfires, ODOC said. given food, showers and clean clothes. They to escape from the wildfires. But the conditions weren’t any better said they had gone 24 hours without food at Deer Ridge, they said. Prisoners from and water. One prisoner’s daughter told Sources: oregonlive.com, theguardian.com, all sorts of facilities were housed together Oregonian/OregonLive that within five nytimes.com, npr.org, abc7.com

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Prison Legal News 45 October 2020 National Guard Called in to Help Run Indiana State Prisons by Dale Chappell

he Indiana National Guard has shortage has occurred,” he said. prompted IDOC to seek outside help. Tswitched roles in helping the Indiana He also said that federal lawsuits either Department of Correction (“IDOC”) dur- brought by or threatened by state prisoners Sources: nationalguard.mil, indianapublic- ing the coronavirus pandemic, from that alleging improper medical care might have media.org of health-care workers to prison guards, as prison staff become infected by COVID-19. Back in May 2020, as COVID-19 Eleventh Circuit Reinstates Pay-To-Vote for infected the nation’s prisons, the National Guard was brought in to help IDOC with Florida Felons Who Completed Sentences detection and treatment of COVID-19 in by David M. Reutter state prisons. It was an effort to stay ahead of the game, or at least keep up with the n a 6-4 en banc ruling, the Eleventh withholds the franchise from any felon, wildfire spread of the disease. But things ICircuit Court of Appeals held that regardless of wealth, who has failed to got out of hand and the National Guard Florida can bar ex-felons from voting until complete any term of his criminal sen- switched from medical workers to actually they pay all court fines, fees, and restitution tence — financial or otherwise.” A rational running the prisons. — even if they are unable to pay. basis review applies in cases that scrutinize At first, teams of four National Guard The court’s September 11, 2020, reenfranchisement in the absence of any members were deployed to Plainfield, Pend- opinion was written by Chief Judge Wil- suspect classification, the court wrote in leton, and Westville Correctional Facilities. liam Pryor. The case was before the court overruling the panel’s previous ruling to They expected to be there until the end of after Florida appealed U.S. District Judge the contrary. May, maybe a few weeks. Members with Robert Hinkle’s April 7, 2020, order that The majority found the re-enfranchis- experience as EMTs, firefighters, and other found Florida law constituted an “uncon- ment requisite was not a poll tax. Rather, health-care background were selected to stitutional pay-to-vote system.” [See PLN, it found the requirement to pay LFOs bolster IDOC’s medical staff. June 2020, p. 62.] are “directly related to legitimate voter “These medical professional quickly The controversy started when a 64.55% qualifications.” Turning to the prerequisite augmented the governor’s efforts to reduce super-majority of voters in 2018 approved classification, the court said Florida has two the impact of COVID-19 in correctional Amendment 4, which restored voting rights relevant interests. facilities during this public health crisis,” to people who had completed “all terms of “The twin interests in disenfranchising the National Guard’s website said about its sentence,” except those convicted of murder those who disregard the law and restoring work in state prisons. and sex offenses. those who satisfy the demands of justice are By August 2020, entire National Guard During its 2019 legislative session, both legitimate goals for a State to advance,” units were deployed to operate some of Florida’s GOP-dominated legislature the Court wrote. “If a State may decide IDOC’s prisons. When staff members at passed SB 7066. It defined that re-en- that those who commit serious crimes are Miami Correctional Facility in Bunker Hill franchisement prerequisite to mean “any presumptively unfit for the franchise, it may became sick with COVID-19, National portion of a sentence that is contained conclude that those who have completed Guard units took over working control pods the four corners of the sentencing docu- their sentences are the best candidates for in the prisons. According to IDOC spokes- ment,” including “full payment of LFOs reenfranchisement.” man James Frye, the National Guard has no (legal financial obligations) ordered by the Having found no Equal Protection vio- direct contact with the prisoners. sentencing court as part of the sentence.” lation, the court determined that there was What began as four-person teams [See PLN, Oct. 2019, p. 58; Sept. 2018, no basis to conclude that court costs and quickly turned into hundreds of National p. 14] fees imposed as part of a criminal sentence Guard members operating in Pendleton, The Eleventh Circuit divided its en are taxes. It pointed to SCOTUS precedent Miami, and Westville prisons. The IDOC banc majority opinion into three parts. The that holds that “if a government exaction is would not confirm those numbers, but first addressed the Equal Protection Clause a penalty, it is not a tax.” said in a news release that “while other claim. It noted that in approving Judge The imposition of court fines, fees, and businesses may be able to operate with a Hinkle’s grant of preliminary injunction restitution is part of the penalty imposed reduction in their workforce, the unique in an interlocutory appeal by the State, a as punishment for a crime, the court said. duties performed by correctional staff must three-judge panel applied a “heightened Florida law is clear that costs of prosecution continue with proper staffing levels.” scrutiny” standard to find Amendment 4 are criminal punishment. If a felon cannot Monroe County Sheriff Brad Swain and SB 7066 invidiously discriminated pay an LFO, the sentencing court may said he’s not surprised that IDOC had to based on wealth. See Jones v. Governor of “convert the statutory financial obligation call in the National Guard. “I spoke with my Fla., 950 F.3d 795 (11th Cir. 2020). into a court ordered obligation to perform jail commander and neither of us can recall The en banc majority said “[t]hat community service.” a time when this kind of remedy to staffing decision was wrong.” It found “Florida The majority rejected the felons’ argu- October 2020 46 Prison Legal News ment that the LFO payment requirement individualized assessment of felon’s LFOs matter was only resolved after a ruling by violates the Twenty-Fourth Amendment. and determining whether they have been SCOTUS. That court may weigh in on the The court further found there was no Due satisfied.” current dispute next year. In denying an Process violation based on a vagueness chal- SB 7066 failed to “provide sufficient appeal to overturn the Eleventh Circuit’s lenge. That felons argued SB 7066 “makes standards for how to determine whether a stay of Judge Hinkle’s order in July 2020, it difficult or impossible for some felons felon has satisfied the LFO requirement, Justices Sonia Sotomayor, Elena Kagan and to determine whether the are eligible to resulting in an arbitrary application.” Judge Ruth Bader Ginsburg dissented. Ginsburg vote.” Registering to vote or voting without Hinkle’s judgment granted injunctive relief died on Sept. 18, 2020. pay all LFOs could subject the felons to to set in place procedures to make that “This court’s order prevents thousands prosecution. determination. of otherwise eligible voters from participat- Judge Hinkle found there was no way The majority noted that 85,000 felons ing in Florida’s primary election simply for felons or even the State to determine have registered to vote and none have been because they are poor,” Justice Sotomayor how much they owe or have paid in the removed from the voter rolls, and until they explained in her dissent. The court’s “in- LFOs. “[T]hese concerns arise not from a are removed, all 85,000 are entitled to vote. action continues a trend of condoning vague law but from factual circumstances In a dissenting opinion, Judge Jordan said disenfranchisement.” (Florida has an that sometimes make it difficult to deter- that “Florida has not completed screening estimated 774,000 disenfranchised felons mine whether an incriminating fact exists,” even a single registrant for unpaid LFOs.” in the state.) the Eleventh Circuit said. It is clear that “The truth is that many of these reg- For now, the voters’ will in approv- felons cannot register to vote or vote unless istrants will not vote to avoid the risk of ing Amendment 4 has been negated by they have satisfied the LFOs, so “the laws prosecution, even if they are in fact eligible, Florida’s GOP-dominated legislature. are not vague.” It found that as the laws creating a de facto denial of the franchise,” Unless SCOTUS intervenes, the re-en- are legislative, they are not subjective to wrote Judge Jill Pryor. “Florida ignores this franchisement victory that already created a procedural due process. reality, and the majority is blind to it. class based upon offenses has another class: In dissent, Judge Jill Pryor said that The 2020 presidential election on Nov. the poor who have little hope of paying off figuring out whether LFOs have been 3 is only weeks away. Florida has been a their LFOs. See: Jones v. Governor of Fla., paid is merely “legislative.” She said it was swing state that has tipped the scales in 2020 U.S. App. LEXIS 28851. adjudicative because “the Division of Elec- recent elections. In 2000, Florida’s out- tions is tasked with both conducting an come hinged on “hanging chads” and the Additional source: latimes.com

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Prison Legal News 47 October 2020 Information for advertisers The Violent Crime Control and Law Enforcement Act of 1994: 25 Years Later, Where Do We Stand? by Dale Chappell

very state spends more money on be a goal,” the center noted. Instead, the Act prisons for rehabilitation to using prisons Eprisons than on schools, according to of 1994 continues to plod along. for retribution has caused an explosion of PolitiFact. But you can’t blame the states Legislators have reintroduced the Re- the prison population. The VCCLEA was a — the federal government made them do it. verse Mass Incarceration Act, which would major force in that change. While the word Some 25 years ago, President Bill Clin- provide financial measures to states to “reform” is thrown around with abandon- ton signed into law the biggest incendiary decrease imprisonment, the opposite of the ment, mass incarceration happened because device that lit the fire of mass incarceration: VCCLEA’s purpose. Presidential candidate of reform — namely the VCCLEA. It’s The Violent Crime Control and Law En- Joe Biden has included the same plan in his time to undo the “reforms” and dismantle forcement Act of 1994 (VCCLEA). “Gangs criminal justice reform platform, though he the VCCLEA, the center says. and drugs have taken over our streets and was a key supporter of the VCCLEA back undermined our schools,” he said as he in the day. Sources: brennancenter.org, thecrimereport. signed the bill into law before a wall of For six decades, the switch from using org uniformed police officers. Under the VCCLEA, the federal gov- Ford Foundation President’s ernment coerced the states to adopt harsher sentences and require that prisoners serve Support to Replace Rikers With at least 85 percent of their sentences. States that refused to go along lost out on $12.5 Other Jails Criticized billion in grants ($19 billion in today’s by Chad Marks terms) to build new prisons and bulk up police forces. Most states jumped on board. ord Foundation President Dar- a different plan than more prisons, saying But states had already been hiking up Fren Walker published a blog titled, “In on their website that “billions of dollars their sentences because violent crime was Defense of Nuance” in the fall of 2019. A budgeted for new jails should be redirected rampant in the early 1990s. So requiring larger portion of the missive supported the instead to community-based resources that even longer sentences, especially with the building of four smaller detention centers will support permanent decarceration.” 85 percent rule and abolishment of parole, to replace the infamous Rikers Island Jail. Walker, an African American, sits on meant lots more prisoners in jail for lots more Many subsequently pushed back, including the Commission on New York City Justice time. This “Truth-In-Sentencing” scheme hundreds of Ford Fellows, criminal justice and Incarceration Reform. filled prisons to capacity, prompting the reform activists, public health advocates, In his blog, he wrote,” I am proud of prison construction boom. Early on, a new grassroots organizations, and others. [the commission’s] work to propose rea- prison was opened in the U.S. every 15 days. The Rikers jail has for years been sonable, workable solutions to shutter this The VCCLEA was late to the party, plagued with deplorable conditions and warehouse of inhumanity [Rikers] and to though. Violent crime peaked in this riddled with violence from staff and prison- end its long history of abuse and injustice. country in 1991, three years before Clinton ers alike. Unjust detentions also have been This was heavy lifting, full of competing signed VCCLEA into law. Nevertheless, part of the jail’s makeup. interests and complexity — of nuance.” federal and state law enforcement were New York City has long been planning Walker went on to write “without bound to follow the new law, and they still to shut it down for good. Part of that plan question as a community, we will need to adhere to its outdated and faulty reasoning. is to build four smaller jails throughout the hold replacement jails to account, especially The Brennan Center for Justice said city. This proposal does not sit well with in light of the negligent affronts to human in a September 2019 report that “undoing many people. dignity at other New York City Jails.” this failed system must be deliberate.” The Activist groups have voiced opposi- During a Q&A at the Riverside VCCLEA fueled the mass incarceration tion, saying building more lockups for New Church in Manhattan, Angela Y. Davis, a problem we have today, and “we must York City will only contribute to the mass member of No New Jails, was asked about confront the legacy of decades of federal incarceration problem facing our nation as a Walker’s blog post. Davis’ response was that funding” that created it, the center said. whole. More jails and prisons are not the so- a demonstration should be staged. With It was the funding enabled by lution, according to those disputing Walker. such blessing from Davis, a protest was VCCLEA that encouraged states to One of the biggest grassroots organiza- organized outside the Ford Foundation. increase arrests, prosecutions, and incar- tions objecting to the city’s plans, No New An open letter, with former and current ceration, the center said. While most agree Jails, has pushed back Walker’s support for Ford fellows signing on, addressed Walker’s that mass incarceration should be fixed, “the the new jails. More jails means more people post stating: “[W]e take issue with the federal government has never sent a clear of color will be subject to unjust incarcera- implicit characterization of organizations, message to states that decarceration should tion, according to the objectors. They want activists, and advocates fighting for prison October 2020 48 Prison Legal News abolition as ‘extremist’ and ‘ideological to ending mass incarceration. We envision purist,’ while situating those who support a world where people are not locked up building new jails as taking a reasoned or in cages, [are] treated inhumanely, and ‘nuanced’ approach, particularly as you sit stripped of their dignity.” He added: “As on the commission that developed the a black man with many family members proposal.” who have been ensnared in the system, I The letter went on to say that more jails know, personally, that the distance between lead to higher rates of incarceration and justice and injustice is perilously, painfully disruption of families. Shandre Delaney, short—especially as a result of entrenched director of Human Rights Coalition Fed discrimination and economic inequality. I Up! and a mother of a son who spent 10 am proud of our work—all of it—to reform years in solitary confinement, was quoted a discriminatory system that treats millions in the letter. She stated, “It doesn’t matter of people so unfairly.” that you trade in the old dungeon for a Two things remain certain. It’s time new dungeon. The brutality, disparities and to close Rikers, and it’s time to come up inhumanity of incarceration will still exist.” with real solutions to end the era of mass The producers of the letter encouraged more incarceration. In order to achieve those Ford Fellows to add their names to it using goals, people on both sides must sit down a Google form. and work together on common goals. Walker did not remain silent. Instead, he published a response: “The Ford Foun- Sources: fordfoundation.org, hyperallergic. dation is unwavering in its commitment com, nonprofitquarterly.org California Judge Reconsiders Six Months’ Jail for Cookie Theft at Rehab Program by Anthony W. Accurso

regory Fields was in a court- needed to be reprimanded,” said Drusinsky. Gordered rehab program at the Salvation ‘The way the drug court is rationalizing it Army Harbor Light Center in San Fran- is that by not starting [treatment] over, cisco. He had completed a 30-day detox he’s not complying with the terms of his and blackout period when he started the treatment staff.” program, during which he could not contact Jennifer Byrd, communication director family or friends. for the Salvation Army, said the organiza- He was ‘‘acclimated in groups, he was tion could not comment about specific talking openly about issues that he had and clients, but said “each client admitted to a how they affected his life,” said his public Salvation Army facility agrees to behavioral defender, Dana Drusinsky. “He’s a really expectations.” endearing person, so [the treatment facilita- Drusinsky asked Judge Michael Begert tors] were all proud of him.” to reconsider his decision, and the district Then he stole a cookie. attorney went along with the resentencing. In November 2019, Fields and other Fields was released on probation with from Harbor Light were preparing food credit for time served. packages for charity. According to the local “If the court and providers were in COLLEGE DEGREES FROM PRISON CBS affiliate, Fields “ate a leftover cookie fact focused on Mr. Fields’ recovery, they Earn an Associate’s, Bachelor’s, Masters, or without permission” and “Harbor Lights would not have locked him up for eating Doctoral Degree in Christian Counseling. Ordination services also available asked him to leave the program afterward.” a cookie,” said Drusinsky. When some Fields was offered a deal: He could people expressed dismay at Fields’ sentence, Tuition as Low as $12.95 per month resume treatment if he agreed to restart Drusinsky argued that disproportionate Scholarships available. To see if you qualify, the program, including the 30-day blackout sentences for arbitrary offenses are not send a self-addressed, stamped envelope to P.O. Box 530212 Debary, FL 32753. period. Not wanting to lose contact with unusual in the U.S. legal system. She said, his mother, he refused the deal he saw as “What is unusual is for a person to actually INTERNATIONAL CHRISTIAN punishment. stand up for themselves and say, ‘No, I don’t The circuit court then sentenced him to deserve this.’” COLLEGE & SEMINARY six months in jail. “The treatment program ICCSCAMPUS.ORG is justifying it by saying that he stole and he Sources: vice.com, sanfrancisco.cbslocal.com Prison Legal News 49 October 2020 Conditions at South Carolina Juvenile Facility Unconstitutional by David M. Reutter

he U.S. Department of Justice youths are able to assault each other without longest stay was 225 days. On average, T(DOJ) issued notice on February 5, fear of intervention. BRRC used isolation 94 times a month 2020 that it has found the “totality of The DOJ noted that staff decreased by from July 1, 2018, to May 31, 2019. There the conditions, practices, and incidents” 27 percent, from 235 in September 2017 were 46 instances of youth under suicide it discovered at Broad River Road Com- to 172 in May 2019. Yet, the population watch being placed in isolation or mental plex (BRRC), South Carolina’s long-term increased from 119 to 127 over that period. health observation. juvenile commitment facility, violated the It also found the failure to have videos The conditions of isolation are harsh, juveniles’ Fourteenth Amendment rights. held for longer than two weeks prevented for the cells are dark and have no natural After stating its intent in September investigation of incidents. Of 47 incidents light. The only window in the cell was 27, 2017, to investigate BRRC, the DOJ in 2017, video for only 12 was available painted over “to impede the youth from conducted three onsite visits, reviewed for the DOJ’s review. Failure to train staff interacting with other youth or staff out- documents and videos, and conducted de-escalation techniques resulted in them side.” The DOJ found instances of youths’ dozens of interviews with juveniles, staff, using force to restrain youths or in response mental health deteriorating from prolonged and management within South Carolina’s to fights. isolation. In a few cases, juveniles were not Department of Juvenile Justice (DJJ). The While the constitution prohibits using provided psychiatric care after attempting DOJ noted that the DJJ was very coop- isolation solely for punishment of youths, self-harm. erative and took steps to address concerns DJJ uses isolation for punishment even The DOJ’s report listed remedial raised on site. where the youth was not a threat to health measures to correct the conditions. The This is not the first time DJJ came or safety. Youths were placed in isolation February 5, 2020, notice points out that under scrutiny for its failure to provide for “having playing cards,” “being unable to DOJ can file suit if the conditions are not constitutional conditions of confinement complete a drug test,” and “tattooing each corrected. for juveniles committed to its custody. In other with ink pens.” the 1990s, a federal court issued an injunc- The average stay in isolation was Source: Investigation of Scout Carolina’s tion requiring DJJ to implement minimally three days, but in 2017 youth were iso- Department of Juvenile Justice’s Broad River acceptable standards to remedy the uncon- lated 39 times for 10 or more days. The Road Complex, U.S. Department of Justice stitutional confinement conditions at its facilities. See: Bowers v. Boyd, 876 F.Supp. How Kamala Harris’ Orange County, 773 (D.S.C. 1995). It developed and implemented a plan that resulted in that case California “Snitch” Scandal being terminated in 2003. The DOJ found DJJ fails to keep the Investigation Imploded average daily population of 100 juveniles at by Derek Gilna BRRC reasonably safe from harm and its use of isolation is unconstitutional. Over an amala Harris, the Democratic stirred frustration that many key players 11-month span from July 2018 and May Knominee for vice president, has long will escape accountability, the Times said. 2019, “there were 134 fights and 71 assaults touted her law enforcement background The investigation began after a pub- that resulted in 99 injuries to youths. On in winning election to the offices of district lic defender probed the Orange County average, youth fights and assaults occurred attorney, California attorney general, and Sheriff ’s Office practice of placing prisoner every two of three days and a youth sus- U.S. senator. But, serious questions have informants, or “snitches,” in cells with indi- tained an injury every third day. been raised about an investigation her office viduals already charged with serious crimes, Staff reports in 2017 “describe signifi- launched in 2015 regarding corruption in hoping to elicit an unguarded confession. cant incidents such as youth being punched, the Orange County jail. That violated their constitutional right knocked to the ground and stomped, struck That investigation quietly ended to have an attorney present while being in the face, grabbed by the genitals, and without any charges filed against law questioned. having their glasses broken in altercations enforcement personnel who perjured them- Orange County public defender Scott with their peers.” The injuries included loose selves and compromised many criminal Sanders uncovered this clearly unconsti- teeth, a bite, and a broken nose. trials, resulting in numerous retrials and tutional practice as he reviewed discovery The physical plant’s design was seen dismissals, as detailed by the Los Angeles records given to him in the case of Scott as contributing to the problem because it Times in a January 20, 2020 story. Dekraai, who eventually pleaded guilty to prevented supervision because it lacked a “Though the scandal sparked a U.S. the 2011 Seal Beach salon murders, which line of sight in two pods and video did not Department of Justice investigation and showed sheriff ’s officials had purposely cover certain areas of the campus. Combine led to retrials for dozens of defendants, placed a well-known snitch close to Dekraai that with only one guard overseeing 10 including convicted murderers, the unex- while he was in custody. A California Supe- juveniles in each pod, and the result is that plained conclusion of the state inquiry has rior court judge later said that two deputies October 2020 50 Prison Legal News “intentionally lied or willfully withheld misdeeds. “You would have never examined these material evidence” during his murder trial. The end of the investigation in 2016 materials and decided the A.G.’s office Dekraai faced the death penalty over was not publicized until three years later, was trying to put any sheriff ’s deputies in the worst mass killing in Orange County and Sanders implied that this was done harm’s way.” history, eight people murdered at a hair to avoid embarrassment to Harris and her Sanders went on to specifically criticize salon. He was expected to receive the death successor. Harris for a lack of resolve to get convictions penalty, but Orange County Superior Court “It’s been pretty hard to sit here for obvious criminal misconduct: “Three Judge Thomas Goethals ruled he could not watching them pretend like they had an deputies committed blatant perjury in a receive a fair trial as the Sheriff ’s Depart- ongoing investigation when they were death penalty case. The Harris administra- ment’s had failed to turn over evidence done in 2016,” he said. “All of them knew. tion had everything it needed to prosecute about the scandal. It’s not like Sen. Harris didn’t know. It’s for perjury, except for the courage to stand In 2017, he was sentenced to life in not like Becerra didn’t know they were up to law enforcement.” prison without the possibility of parole. perpetuating a scam. There was no reason Although Harris’ spokespeople said (Capital punishment is legal in California, not to tell us the investigation was over, they were also frustrated by the investi- but Governor Gavin Newsom declared an but they clearly did not want to deal with gation’s lack of success, Sanders was not official moratorium on further executions questions about why they did and didn’t convinced, and said that the inept investiga- in March 2019.) do certain things.” tion did nothing to end widespread police Among other defendants who received Sanders, who was in a position to speak misconduct in Orange County. retrial due to the scandal was a man who with authority regarding the investigation, “When you do an investigation like killed a woman who was eight months was clearly unimpressed by the efforts of this and it’s not done in good faith and pregnant and dumped her body into Long the Harris-led attorney general’s office: it’s not responsibly done, members of law Beach harbor. “It was just striking ... it was really, clearly, enforcement just become more dangerous Sanders was clearly dissatisfied with not a hard and penetrating investigation in terms of their willingness to commit the apparent lack of interest by Harris’ of- determined to get to the truth about what misconduct,” he said. “The last line of fice and by her successor, Xavier Becerra, happened. You couldn’t read this and say protection for the public was the attorney in pursuing those Orange County sheriff ’s these folks were really trying to get to the general’s office.” deputies who perjured themselves but bottom of this. It was softballs and little escaped criminal consequences for their follow-up,” he said. See: latimes.com

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Prison Legal News Name______Amount enclosed: $_____ PUBLISHED BY THE HUMAN RIGHTS DEFENSE CENTER VOL. 31 No. 4 ISSN 1075-7678 Dedicated to Protecting Human Rights April 2020 Protect Yourself and Your Facility from COVID-19

by Michael D. Cohen, M.D.

Introduction trust rumors. False information is widely DOC/BOP Number: ______Facility: ______ity have mild symptoms like a common he novel coronavirus is now a circulating already. cold, including runny nose, sneezing, mild Tglobal pandemic and is widespread in Residential institutions with congregate the United States, causing a disease called living like boarding schools, mental hospitals, cough and possibly some nausea, vomiting COVID-19. It is likely that a majority homeless shelters and prisons or jails bring or diarrhea. On average, symptoms develop of the population will eventually become together a large number of people into a about 5 days after infection, but patients infected with this virus. Here is some in very small space for prolonged periods of are infectious to others starting 2 or 3 days formation about the coronavirus and some- time. Communicable diseases are readily before symptoms start. thoughts about taking care of yourself and introduced from outside and spread more Therefore, people who are feeling your facility during this pandemic. Rec easily where people live in close quarters. well can still be infectious and spread the ommendations are changing daily as the - Coronavirus is coming to all of us in virus to others. virus spreads more widely. Try to get newer the free world. Prisons and jails will likely Some patients develop more severe Address: ______disease with symptoms such as fever, cough, information from trusted sources such as be hard hit, with rapid spread inside when the Centers for Disease Control (CDC), the disease becomes widespread in the local shortness of breath, and pneumonia. People community or home communities. Prisoner with more severe disease may need hospital the World Health Organization (WHO) - or your state Department of Health. Don’t representative councils should try to work ization for supportive medical and nursing with facility administration to develop the care. In some cases, the lungs are unable institutional response to COVID-19. Some to move oxygen into the blood and carbon jurisdictions are trying to release prisoners dioxide waste out of the blood. Those people INSIDE to reduce populations and allow people to need mechanical breathing with a respirator From the Editor survive the epidemic with family in the in intensive care. 8 free world. Anyone at any age may develop more Prison Understaffing Nationwide Problem severe disease. However, some people are City: ______State: ______Zip______14 This virus is new to humans. It appears Wave of Problems at GEO Jail in Texas to have spread from animals to people in more likely to have severe disease because 16 markets where wild animals are sold for their bodies are weaker due to age or chronic CA Prisons Put Hold on Gladiator Fights meat. Because it is new to us, no one has illness. People over 60 in the general popu 24 - Kim Kardashian’s War on Incarceration been exposed to it before and there is no lation are at higher risk. I have observed that 27 immunity to it in the population yet. people who have lived hard lives age faster AI Spreading to Prisons and show the effects at a younger age. So 30 COVID-19 illness takes Coronavirus: Early Look from Prisons prisoners may be at higher risk starting at 32 different forms age 50. People at higher risk for more severe NY: Prison Labor Makes Hand Sanitizer disease due to chronic illness include those 38 The majority of people who become Child Strip Searched at VA Prison infected may have no symptoms, may be with lung disease (such as COPD, chronic 40 unaware that they are infected, and recover bronchitis, emphysema, or asthma), heart CA Governor’s Mixed Record on Parole disease (such as congestive heart failure Human Rights Defense Center, PO Box 1151, Lake Worth Beach, FL 33460 44 fully. Nevertheless, they are infectious to Restraint Chairs and Death others. or poorly controlled hypertension), weak 50 immune system (such as Some people develop symptoms. The untreated HIV $1.5 Million for Rape at GA Juvi Center disease caused by the novel coronavirus infection, chemotherapy, prolonged cortico 54 - News in Brief is called “COVID-19” which stands for steroid treatment), diabetes, cancer, or any 561-360-2523 • www.prisonlegalnews.org 62 Corona Virus Infectious Disease-19. Of other chronic disease with organ damage those who develop symptoms, the major such as kidney, liver or intestinal diseases. - Everyone needs to be careful not to spread

Prison Legal News 51 October 2020 First Wrongful Death Claim Against San Quentin Prison Filed Over COVID-19 Death by Dale Chappell

he family of one of the prisoners same day the Chino prisoners were trans- called the transfer “the worst prison health Twho died of COVID-19 at San Quen- ferred in. Within three weeks, San Quentin screw up in state history.” Newsom himself tin prison in California has filed the first went from zero cases to almost 500. admitted the Chino prisoners “should not wrongful death claim — a precursor to a A federal court ordered a person to have been transferred.” lawsuit — against the prison. Papers filed medically monitor the prison’s handling of Attorneys for the family claimed that by the family’s lawyers on September 10, the virus, and on June 13, 2020, a group of CDCR “knew or should have known that 2020, detailed how prison officials ignored health experts toured the prison. They wrote Daniel Ruiz had multiple high-risk factors the risks of the coronavirus and transferred an “urgent memo” on June 15 warning that for COVID-19,” and that he was “due to 121 prisoners to San Quentin from a known COVID-19 at San Quentin could develop be released within a matter of weeks.” They COVID-19 hotspot without testing them into a “full-blown local epidemic and health claimed that “due to [CDCR’s] wrongful — and then housed those prisoners in an care crisis in the prison and surrounding decisions, acts, and omissions described open dorm with San Quentin prisoners counties.” They found prison staff were -ig [in the letter], Daniel Ruiz contracted without any precautions. noring safety measures, like wearing masks, COVID-19 while in [CDCR’s] custody In short order, more than 2,237 pris- and not testing for COVID-19. and care.” They further claimed “deliberate oners became infected and 26 died (one The experts also reported that use indifference” by CDCR to Ruiz’s “serious guard also died). The transferred prisoners of disciplinary segregation to house medical needs.” came from the California Institution for COVID-19 prisoners “may thwart efforts They claimed damages for wrongful Men in Chino, where more than 600 cases for outbreak containment as people may be death, pain and suffering, emotional dis- of COVID-19 were reported with at least reluctant to report their symptoms.” Nev- tress, loss of companionship and economic nine deaths. ertheless, San Quentin moved COVID-19 support, and punitive and statutory dam- Known for being the home of Califor- prisoners to disciplinary segregation, ages, among others. nia’s death row, San Quentin also houses including solitary confinement. Prisoners The family is represented by Michael large numbers of low-level, non-violent then began refusing testing to avoid being J. Haddad of Haddad and Sherwin out of prisoners, with many being older and at-risk punished for having the virus. Oakland, California. See: Claim of Daniel for COVID-19. One of those prisoners was But it was the transfer of the Chino Ruiz, Deceased, et al., pursuant to Gov. Code Daniel Ruiz who, at age 61, had at least four prisoners to San Quentin that was the focus § 910 et seq., and Demand for Preservation identified medical problems that put him of the claim. The letter cited a California of Evidence. at risk for death of COVID-19, according Senate Committee on Public Safety meet- to the papers filed. He was one of 40,000 ing on July 1, 2020, where state senators Additional source: latimes.com prisoners identified across the state as being at-risk for COVID-19 complications. When Gov. Gavin Newsom ordered $420,000 Settlement in Lawsuit Over Opioid the release of thousands of at-risk prisoners, Ruiz was one of those selected. He had Withdrawal Death in Georgia Jail just weeks to go before his release when by Matt Clarke he was exposed to COVID-19 at San Quentin. When he fell gravely ill and was ilkinson County, Georgia, of trash, but they did not find her. Three transferred to the hospital, prison officials Wagreed on January 2, 2020 to pay days later, the 51-year-old turned herself refused to let hospital staff notify his fam- $420,000 to settle a lawsuit brought by in to the Wilkinson County jail to face ily, the papers said. Ruiz’s family had no the son and estate of a woman who died drug charges. idea he was sick or even in the hospital. five years earlier of apparent prescription Mixon had valid prescriptions for Within days, he was on a ventilator and opioid withdrawal that went untreated in Oxycodone, Prozac, Wellbutrin, Losartan, near death. Only then was his family noti- the county’s jail, after her pleas and those of and Tegretol. She had been taking the fied. He died on July 11. her cellmates for medical help were repeat- Oxycodone for back pain and fibromyalgia. The Demand Letter filed with the edly ignored. Helms began suffering from opioid California Department of Corrections In January 2015, Amanda Helms withdrawal soon after she arrived at the jail and Rehabilitation (“CDCR”) to preserve allegedly tried to purchase hydroco- three days before Mixon. Jailers ignored her evidence for a lawsuit planned by attorneys done from Cynthia Mixon, using money pleas for medical treatment and told her she for Ruiz’s survivors identified the missteps provided by her uncle, Herman Bill Hen- needed to “dry out.” by prison staff in response to the deadly dricks, 57. He was arrested, along with his “At no point during those nightmarish virus. On May 30, 2020, San Quentin had 32-year-old niece. Police searched Mixon’s two and a half days was Ms. Mixon ever no reported cases of COVID-19. But on the home, finding firearms and an abundance taken to see a doctor or a nurse despite October 2020 52 Prison Legal News fellow inmates telling every jailer working medical assistance for Mixon to no avail. Jail county, its sheriff, and jail personnel alleging at the time that Ms. Mixon was ‘detox- records—including her intake forms—did violations of Mixon’s constitutional rights ing’ and needed medical attention,” said not note Mixon’s medical issues until the and state torts. her complaint. “Instead, the jail followed second day after she arrived at the jail. That In May 2019, a federal judge said the policy and practice articulated by Jail notation, made on the evening of January King’s actions could be interpreted by a jury Administrator Thomas ‘Buster’ King when 29, 2015, on the jail’s roster merely said, as “more than grossly negligent.” The two speaking with the parent of another inmate: “Vomiting+ Fever Needs Doc Appt.” sides agreed to a settlement in December ‘We’re not running a rehab center here’.” By 7 the next morning, Mixon was 2019 and the figure of $420,000 was soon In response to a plea for medical at- having seizures and the women in her negotiated. tention for his daughter, Helms’ father cellblock were screaming and banging on “Through the lawsuit, [Mixon’s family was told by King, “We’re gonna dry these the door as she turned blue and bled from members] were able to get some answers people out.” her mouth. Jailer arrived, but instead of about what happened in the jail, and they Meanwhile, a friend of Mixon’s deliv- performing first aid, they rolled her onto feel that they’ve gotten some measure of ered her prescription medications—which her side, called out her name, and patted her justice,” said Begnaud, who also noted that included anti-seizure and high blood pres- hand. When, after some time, she did not the county hired a nurse for the jail, which sure medications—to the jail the day after respond, they finally asked the dispatcher previously had no full-time trained medical she turned herself in. He asked King to to call for an ambulance. It arrived too late, personnel. “Now they can move forward, ensure she got them. Despite a jail policy and Mixon was pronounced dead on arrival knowing they fought hard for Cynthia.” requiring King to contact the jail’s contract at a Milledgeville hospital. See: Brooks v. Wilkinson County, 393 Supp. doctor to have the medication approved, he After Mixon died, Helms was rushed 3d 1147 (M.D. Ga. 2019). never did so. to the jail’s physician. He scolded the jailers Mixon suffered from obvious symp- for depriving prisoners of their medica- Additional sources: 13WMAZ.com, wgxa. toms of opioid withdrawal soon after tions without first consulting him. Helms tv, macon.com arriving at the jail. These included uncon- received medical treatment and survived. trollable vomiting, diarrhea, fever, chest In 2016, Atlanta attorneys Mark Beg- Dictionary of the Law pains, loss of appetite and weakness. She naud and Nathanael A. Horsley of Horsley Thousands of clear, concise definitions. and the other prisoners in her cellblock Begnaud, LLC helped Mixon’s son file See page 69 for ordering information. repeatedly tried to get jail staff to summon a federal civil rights lawsuit against the

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Prison Legal News 53 October 2020 Theft, Lies and Bribes Force California Warden’s Early Retirement, $11,500 Monthly Pension by Mark Wilson

longtime California prison cording to the California Public Employees obtained through a public records request Awar den abruptly retired during an inves- Retirement System. by journalists. Yet the report concluded that tigation into alleged theft, lying and bribery. “The investigation concluded in De- Lizarraga’s dishonesty, theft and “failure of Joe Lizarraga began working for the cember 2019,” said Simas. “As a result, good behavior” warranted firing. California Department of Corrections CDCR sustained that there had been in- The report did not indicate whether and Rehabilitation (CDCR) in 1986. He stances of dishonesty and theft that would Lizarraga was criminally charged. The police was appointed warden of the Mule Creek have been grounds to terminate Lizarraga’s chief and Amador County District Attor- State Prison (MCSP) in 2013, where he was employment.” ney’s office also declined to comment. named Warden of the Year by the California Eleven of the 16 allegations against Prison Industries Authority in 2017. Lizarraga were blacked out of the heav- Source: mercurynews.com, marinij.com, Ba- Lizarraga reportedly stole from the ily redacted investigation report that was kersfield.com, Ledger.com, Fox40.com Interfaith Food Bank Thrift Store in Sutter Creek, California on September 14, 2018. Despite earning an estimated $150,000, Lawsuit Over Hellish 9-Day Prisoner annually, he allegedly removed price tags from merchandise, then suggested lower Transport Reinstated prices to the cashier. by David M. Reutter When Sutter Creek police investigated the matter, Lizarraga allegedly lied to the n April 29, 2020, the Eighth Cir- sleep for any period beyond “cat naps.” police chief, claiming that he did not sug- Ocuit Court of Appeals reversed a grant There were no bathrooms in the gest prices to the clerk. He also told the of summary judgment to Inmate Services vehicles, which forced some detainees to chief that he purchased the equipment for Corp. (ISC), allowing to continue a civil urinate in cups that ultimately spilled onto his family when it was allegedly for personal rights action alleging a pretrial detainee’s the floor. One female defecated in her pants, financial gain. constitutional rights were violated in 2016 Stearns alleged, after her repeated requests Lizarraga wrote a $125 personal money when the private firm transported him for a bathroom break were ignored. He de- order in an attempt to dissuade a witness “shackled and unable to lie down, for eight veloped “clogs of manure” in his pants that from participating in a criminal prosecution continuous days across twelve states, with caused perianal irritation from not being and later made a second bribery attempt only momentary breaks for bathroom use.” able to properly clean himself. He was not using prison charitable funds, according to The lawsuit was filed by Danzel Stea- allowed to change clothes or shower during investigative reports. rns. Two ISC employees picked him up in the trip. Upon arrival in Mississippi, Stearns On January 25, 2019, FBI agents raid- Colorado Springs, Colorado, on Septem- discovered ringworm on his stomach. ed Lizarraga’s Mule Creek office, seized his ber 17, 2016, under contract with Union Stearns’ complaint alleged violations computer and escorted him off the premis- County, Mississippi, to extradite him to the of the Fourth, Eighth, and Fourteenth es. “I wasn’t walked off,” claimed Lizarraga. county courthouse in New Albany to stand amendments. “The unnecessarily prolonged KCRA News said FBI officials would not trial on a charge there. The firm, based in transport, fully chained, immobile, with confirm nor deny an investigation. West Memphis, Tennessee, should have no opportunity to wash even his hands, to “I can confirm there’s an ongoing in- covered the 1,145-mile trip in less than change clothes, or to use the toilet more vestigation, and Mule Creek State Prison 17 hours. than irregularly and while chained, and Warden Joe Lizarraga is currently on Ad- But instead of heading east toward able only to snatch an occasional nap while ministrative Time Off,” acknowledged Mississippi, its drivers headed west and sitting up on hard seats for nine continuous CDCR Press Secretary Vicky Waters at the “wandered through 13 states,” passing days” violated Stearns’ Eighth Amendment time. “As this is a personnel matter, we are through some twice to pick up and drop off right to be free from cruel and unusual unable to provide additional information. as many as 17 other prisoners and detainees punishment, the complaint alleged. The prisons administrative duties are being at a time and overcrowding the van “before The district court denied ISC’s motion overseen by CDCR leadership while the finally delivering a sick, sleep-deprived for summary judgment under the Prison investigation is being conducted.” Stearns for prosecution on a minor drug Litigation Reform Act, but it granted a When he resigned in fall 2019, Lizar- charge,” his suit stated. second motion to dismiss charges of exces- raga was paid $433,000 in unused vacation, The transport made no overnight or sive use of force, inadequate medical care leave time, holiday and weekend pay and lengthy stops. The two drivers took turns and improper conditions of confinement. other special pay he had accrued, noted sleeping on a mattress in the front of the Stearns appealed. CDCR spokeswoman Dana Simas. He vehicle. Meanwhile, the detainees remained The Eighth Circuit analyzed Stearns’ collects an $11,500 monthly pension, ac- in upright positions, making it difficult to claim under the Fourteenth Amendment October 2020 54 Prison Legal News and Bell v. Wolfish, 441 U.S. 520 (1979), transport, in violation of another company which holds that “due process requires a policy that restraints be removed “from Stop Prison Profiteering: pretrial detainee not be punished.” Under inmates that are on transport more than 48 Bell, the appeals court ruled, the district hours.” Its policy also provided he be given Seeking Debit Card Plaintiffs court was required to focus on ISC’s policies water and fast food, but he was provided The Human Rights Defense Center is or customs to determine whether Stearns’ only limited amounts. ISC’s policies also currently suing NUMI in U.S. District confinement conditions were reasonably contemplate “transports as long as 7 to 10 Court in Portland, Oregon over its related to a legitimate goal or were excessive days,” and the evidence showed its practice as compared to that goal. If excessive, then is to pick up and drop off prisoners on release debit card practices in that the conditions might constitute punishment, multi-state journeys such as Stearns. state. We are interested in litigating from which Bell explicitly protects detainees. In reversing the district court’s order, other cases against NUMI and other The court found that “Stearns was the Eighth Circuit concluded a jury could debit card companies, including subjected to painful, unsanitary, and severe find the totality of the circumstances en- JPay, Keefe, EZ Card, Futura Card conditions and restraints for over one week.” dured by Stearns violated his Fourteenth Services, Access Corrections, Release Yet ISC’s representation in its contract was Amendment right to be free of punishment, Pay and TouchPay, that exploit pris- for “a much shorter contract of no more remanding the case to the district court for oners and arrestees in this manner. than 24 hours.” The Court then looked to reconsideration. See: Stearns v. Inmate Ser- If you have been charged fees to the totality of the circumstances. vices Corp., 957 F.3d 902 (8th Cir. 2020). access your own funds on a debit Under ISC’s policy, Stearns was kept card after being released from prison in handcuffs and leg shackles connected Additional source: Arkansas Democrat or jail within the last 18 months, we to a belly chain during the entirety of the Gazette want to hear from you. Please contact Kathy Moses at kmo- Seventh Circuit Protects Guards Who ses@humanrightsdefensecenter. Allegedly Failed to Protect Wisconsin Prisoner org, or call (561) 360-2523, or write to: HRDC, SPP Debit Cards, P.O. Box by David M. Reutter 1151, Lake Worth Beach, FL 33460. n April 6, 2020, the Seventh When Schillinger arrived at his unit, OCircuit Court of Appeals affirmed Terry attacked. It took about eight to 10 the grant of summary judgment to guards minutes for guards to respond. Schil- who allegedly failed to protect a Wisconsin linger was knocked unconscious. He prisoner. The court agreed that the prisoner suffered a skull fracture, cuts to the face failed to mention during the prison griev- that required stitches, a cut on his elbow; ance process that the guards were aware of he lost a tooth and suffered a chipped threatening behavior by the attacker before one, and sustained possible nerve dam- the assault and failed to take steps to pre- age on the left side of his mouth, plus a vent the threat of harm. bruised lung. Before the court was the appeal of Schillinger filed a grievance that prisoner Daniel A. Schillinger, who was identified the date of the incident and his confined at Wisconsin’s Secure Program injuries. Facility when he was assaulted on Sep- The Second Circuit agreed with the tember 17, 2015. While on the recreation district court that the grievance failed to yard, a prisoner named Terry approached inform prison officials of the nature of the Schillinger as he was playing chess. wrong and the grievance did not exhaust Terry made threats and demanded administrative remedies as required by the Nolo’s Plain-English Schillinger buy canteen items for him. Prison Litigation Reform Act, known as Law Dictionary Guards Randy Starkey and Josh Kiley PLRA. approached and asked, “Are you guys horse Neither Starkey or Kiley were men- $29.99 playing or are you for real?” Terry responded, tioned in the grievance, and there was no Order from “No, it’s all good.” reference to an earlier confrontation be- As the recreation yard was closing, tween Schillinger and Terry. Thus, it could Prison Legal News Starkey and Kiley asked Schillinger if he not be concluded from the grievance that POP.O. Box Box 1151 1151 was going to be okay. He responded he they failed to take appropriate measures to Lake Worth Worth, Beach, FL 33460 FL 33460 didn’t know because Terry made threats prevent the attack. 561-360-2523 and he did not trust him. Another prisoner The district court’s grant of summary Add $6 shipping for orders under $50 overheard Starkey say that he thought there judgment was affirmed. See: Schillinger v. www.prisonlegalnews.org was going to be a “rumble.” Kiley, 954 F.3d 990 (7th Cir. 2020). Prison Legal News 55 October 2020 Bloomberg Allies Make $20 Million Push to Help Enfranchise 30,000 Florida Ex-Felons by Derek Gilna

eep-pocketed friends and foun- in Florida prisons while making up about rights restored for the more than 1 mil- Ddations associated with business 17% of the state population,” a 2019 story in lion ex-felons in Florida. Their efforts had mogul Michael Bloomberg are planning the Tallahassee Democrat newspaper said, to resulted in Florida’s Amendment 4 passing to spend around $20 million to pay the cite just one example. “Whites with half of with over 60% support in a statewide vote. outstanding fines and court debts of for- the overall population make up 38% of in- According to ACLU Executive Direc- mer state felons in Florida, obligations mates, while 13% of inmates are Hispanic.” tor Howard Simon, “Florida voters took a that would otherwise disqualify them from However, the majority of ex-felons stand for fairness and voting rights, and to voting in November. whose voting rights stand to be restored remove an ugly stain that has been in our Computer scientist Robert Montoye are White. In a 2018 interview, Desmond state’s constitution since the Civil War era.” noted in a New York Times opinion piece Meade, chairman of the FRRC and himself Florida immediately announced plans Sept. 21: “Because of an 11th Circuit ap- a former felon and now a law school gradu- to investigate “potential violations of elec- peals court ruling on Sept. 11, an estimated ate, said most people “assume that this is tion laws” over Bloomberg’s donation, said 774,000 Floridians who have already served only an African American issue, or it’s only Attorney General Ashley Moody. She their time in jail or prison are not eligible African Americans that are impacted by urged statewide prosecutor Nick Cox to to vote in the 2020 election until they pay this particular policy and in reality, the op- work with Florida Department of Law the fines and fees associated with their posite is true…There are more people who Enforcement and the Federal Bureau of sentences.” are white, there are more people who are Investigation. As of press time, DeSantis The funds will flow to the Florida not African American, that are impacted.” was considering calling a grand jury to look Rights Restoration Coalition (FRRC), Bloomberg, a billionaire former Re- into the matter. run by former felons, Bloomberg said. “The publican mayor of New York City, ran Tampa attorney Michael Steinberg, right to vote is fundamental to our democ- unsuccessfully for the Democratic presi- who represents one of the plaintiffs in racy and no American should be denied that dential nomination until withdrawing in ongoing Amendment 4 litigation, told the right,” he said. “Working together with the favor of eventual nominee Joe Biden. He Miami Herald that there is no legal issue Florida Rights Restoration Coalition, we has separately pledged to invest $100 mil- with someone paying a released prisoner’s are determined to end disenfranchisement lion in the pivotal Sunshine State to help court fees, fines or restitution. “It’s no differ- and the discrimination that has always elect Biden. ent than if someone gave someone a gift to driven it.” NBA star LeBron James is one The law requiring payment of court pay their fines,” he said. “There’s absolutely of the major backers of the Coalition. fees, passed by a Republican state legisla- nothing wrong with it.” The money will aid tens of thousands ture, and signed by Republican Gov. Ron of ex-felons who have served their sentences DeSantis, threatened to delay the efforts of Sources: The Associated Press, cnn.com, tal- and had debt of less than $1,500, allowing advocates who fought for years to see voting lahassee.com them to cast ballots in the upcoming presidential and state election. Until 2018, former felons in Florida Mental Health and Prison Systems were unable to vote, but state constitutional Amendment 4 re-enfranchised most of in Major Need of Reform them. It excluded murderers and sex of- by Kevin Bliss fenders. However, a new law, which withstood n article in the Harvard Political more likely to be arrested than others and a recent Florida Supreme Court challenge, AReview by Jenna Bao published March their proportional presence in prisons has made that right to vote conditional upon 9, 2020, reported that the movement to exceeded the rate of the general population payment of all restitution, fines and costs, deinstitutionalize mental health facilities by a factor of somewhere between three and a serious challenge for a generally economi- and save costs, which began in the 1950s, six. In addition, prisons and jails do not have cally disadvantaged group. has resulted in a large over-representation the mental health facilities or personnel Some news reports said that only of the mentally ill in U.S. prisons and loss necessary to properly treat these individuals. Blacks and Latinos would have their fines of quality of treatment for them. Bao called this a pseudo-criminalization and debts paid with Bloomberg’s money, Bao said that although driven by noble of illness. but the FRRC specifically denied that. ideas, governments failed to replace mental The report stated that the system pro- Blacks and Latinos are disproportion- health institutions with an immediate effec- voked great ethical concerns. The Center ately impacted by Florida’s criminal justice tive alternative, resulting in conditions that for Prisoner Health and Human Rights system. “African Americans account for contributed to higher incarceration rates. Director Scott Allen described it as coun- nearly half of the 96,000 people locked up People with mental illness are 4.5 times ter-therapeutic. He said, “This is the wrong October 2020 56 Prison Legal News environment to try and treat people with enforcement training to resolve crises. sustainable alternative for the seriously men- mental illness. Very likely isolating people The report by Bao stated, “While tally ill will require collaboration between from their outside community and confin- increasing efforts for reform are spreading multiple sectors and systems.” ing them to the criminal justice setting across the country, deliberate and widespread has harms, so that when someone returns change is still beyond reach. Establishing a Source: harvardpolitics.com ... they may be worse off than they were, even if mental health care was provided in the facility.” NYC Floating Jail May Finally be Closed He asserted that this perpetuated the by Jayson Hawkins mentally ill’s cycle of arrest and incarceration. he Hunts Point neighborhood of river, and small portholes provide prisoners Bao discussed the continuity of com- Tthe Bronx was emblematic of the Big their only window to the outside world. munity care. A patient’s caregiver is not Apple’s rotten core in the 1990s, an area Conditions inside rank as medieval. normally contacted when a patient is saturated with drugs, homelessness and “The heat was unbearable, and it was incarcerated. The arresting department is prostitution. Facing an influx of inmates dark and cramped and sweaty,” recalled not given the patient’s diagnosis and his- from rising crime rates, the city had resorted Marvin Mayfield, a Bronx native who was tory. Intake is a brief interaction with the to a fleet of jail barges but lacked a place to incarcerated at the facility. “We were in patient. Most process through and are out dock its fifth and final ship. a cargo hold of a slave ship—a modern- again pending court in just a few hours. It is As an ex-president of a local commu- day slave ship owned by the City of New difficult to determine who needs treatment nity board lamented, “Hunts Point was a York.” and who does not. place to put things that no one else wanted.” The city has plans to close both Bain The mentally ill have been found to be In January 1992, tugboats pulled and the Rikers Island prison complex as 15 percent more likely to recidivate within the Vernon C. Bain Center, a feature- part of an effort to create a more humane five years. They make up more than half the less five-story jail, into port. The facility, criminal justice system. The closures may prisoners who commit suicide in correc- which holds 800 prisoners and has over not take effect until 2026 even if the City tional facilities. Incarcerating the mentally 300 employees, did not seem out of place Council approves the proposal, though, ill costs taxpayers about $15 billion per year. among the strip clubs and other eyesores and it remains to be seen what impact the Several communities are now attempt- that pockmarked the neighborhood at COVID-19 crisis that ravaged the city will ing new programs to address the problem. the time. have on the timeline. Mental health-care professionals are pairing Much has changed in the intervening Critics question why the jail barge with police to help de-escalate situations 28 years. Mirroring the renewal of Times still exists 28 years after it was floated as a involving the mentally ill. Many have de- Square, Hunts Point has shuttered the sex temporary measure. The exploding prison veloped crisis stabilization centers as safe shops; violent crime has plummeted 280 population it was meant to address has alternatives to hold mentally ill patients. percent since 1990. Next up is a planned long since receded, yet Bain remains as an Miami-Dade County of Florida marine terminal along the waterfront, annual $24 million reminder to taxpayers launched a pilot program a decade ago which the city hopes will shift movement of of their support for a system slanted against created by Eleventh Judicial Circuit Judge goods from congested roadways to the East economically disadvantaged people of color. Steve Leifman. Called the Criminal Men- River. Part of that shift will include closing “Closing Rikers is one thing,” said tal Health Project, it diverts individuals the Rain Center to free up potentially valu- Mayfield. “Closing the boat should have with mental illness from serving time over able real estate. happened decades ago.” minor offenses with the use of voluntary Bain is believed to be the last floating community-based treatment plans and law jail in the nation. It rocks in the wake of the Source: nytimes.com

MARILEE MARSHALL, ATTORNEY AT LAW

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Prison Legal News 57 October 2020 Fourth Circuit Holds South Carolina DOC Lawyers Entitled to Qualified Immunity by David M. Reutter

he Fourth Circuit Court of Ap- sion. It found he took appropriate steps in could rely on the good judgment of his Tpeals held that lawyers for the South making a statutory interpretation, especially subordinates until he had reason to believe Carolina Department of Corrections in the face of contradictory provisions of otherwise.” (SCDC) who made a legal error in in- existing law and those contained in the Although it is now settled that Florian terpreting new state law were entitled to Act. It noted that it is not uncommon for and Tatarsky were wrong in interpreting qualified immunity. courts to make an interpretation only to the Omnibus Act, “legal error alone is not The Court’s August 20, 2020, opinion have a higher court find error with that deliberate indifference.” The district court’s was issued in an appeal brought by former interpretation. order was affirmed. See: Campbell v. Florian, prisoner Marion K. Campbell, who was The court further found that “Tatarsky 2020 U.S. App. LEXIS 26489. convicted in December 2011 of distribu- tion of cocaine. He alleged Eighth and New Study Shows “Tough on Crime” Fourteenth Amendment violations from a memorandum written by Chris Flo- Generation Spent More Time in Prison rian, SCDC’s deputy general counsel who interpreted the state’s Omnibus Crime Despite Falling Crime Rate Reduction and Sentencing Reform Act by Dale Chappell of 2010. Florian concluded the Act made prisoners who committed a “no parole of- study by a group of criminologists be 50 today — and likely still in prison. fense” were now eligible for parole, but they Aand sociologists published in August Whereas those who turned 20 in 2020 had were still required to serve 85% of their 2020 found that an entire generation dur- less than half the rate of incarceration as sentence if they were not granted parole. ing the “tough on crime” era of the 1980s their previous generation. This is because That interpretation was approved by David and early 1990s spent more time in prison of several factors, the authors noted. Tatarsky, SCDC’s general counsel. serving longer sentences than any other One reason is that harsh mandatory- Prisoner Michael Bolin challenged the generation before or after. Many are still minimum sentences for drug crimes during memo. The South Carolina Administrative serving time under those harsh sentences. that earlier era means more twenty-some- Law Court endorsed Florian’s interpreta- The collaboration of experts from the thing-year-olds were handed long prison tion of the Act. The South Carolina Court State University of New York at Albany and sentences. And if they did get out of prison, of Appeals disagreed, finding that under the the University of Pennsylvania analyzed they were more likely to be rearrested and Act an offense under S.C. Code Section 44- data from 1.6 million prisoners, focusing given even longer sentences because of 53-375(B) is no longer a “no parole offense.” mainly on North Carolina during 1972 to the stricter laws enacted to punish repeat That meant persons convicted of those 2016, as it was representative of the idea of offenders. offenses were eligible for work and good longer prisons sentences in an attempt to Even though the national crime rate time credits. See: Bolin v. South Carolina curb crime across the country. has dropped to the lowest levels last seen Dep’t of Corrections, 718 S.E.2d 914 (S.C. The highly detailed study found that since the 1960s, the experts said the in- Cut. App. 2016). the crime rates for rape, aggravated assault, carceration rate for the U.S. still remained As of that opinion, SCDC re-calcu- burglary and other violent crimes were about four times the level of that in the lated Campbell’s release date, and he was higher in the 1970s than in the 1990s. 1960s. They attributed the increase to released in March 2016. At that point, he Yet, those adults who came of age during the harsh sentences of the tough-on- had served about five years of his seven-year the 1990s had higher rates of arrest and crime era. sentence. After his release, Campbell filed incarceration than their counterparts just “The unprecedented rise in incar- a class action under 42 U.S.C. § 1983, al- 20 years earlier. ceration rates can be attributed to an leging SCDC’s initial interpretation of the Titled “Locking Up My Generation,” increasingly punitive political climate sur- Act precluded the application of good-time the study’s authors identified a “cohort ef- rounding criminal justice policy formed in and work credits based on the 85% rule, and fect” that filled the nations prisons in record a period of rising crime and rapid social he was held longer than provided by law. time, which they defined as a group that change,” the study said, quoting the Nation- The defendants, Florian and Tatarsky, shares “common historical or social expe- al Research Council. This, then, provided a moved for summary judgment. The district riences.” To be more specific, it’s a group series of policy choices that “significantly court granted the motion, holding they were of people the same age who got caught increased sentence lengths, required prison entitled to qualified immunity. Campbell up in the “war on drugs” during the crack time for minor offenses, and intensified appealed. epidemic. punishment for drug crimes.” The Fourth Circuit found Florian acted For example, they said those who Simply put, adults who entered the reasonably in coming to his legal conclu- turned 20 in 1990 and got locked up would criminal justice system in their early twen- October 2020 58 Prison Legal News ties back in the 1980s and 1990s, “became The report called for additional re- process plays out over the life course.” enmeshed in a sequence of incarceration search and said, “The challenge now is to throughout their entire life course,” the use the micro data…to flesh out how this Sources: thecrimereport.org, wiley.com authors wrote. “In this fashion, a boom in crime and punishment at a given historical Beltway Sniper Marries in Prison moment carries forward through time, even as the politics and policies that were enacted by Jayson Hawkins in response diminish in the rearview mirror of history.” or three weeks in October of 2002, Malvo, a native of Jamaica, has man- That is, after the realization that the Fthe residents of the Washington, D.C. aged to find a measure of joy and normalcy tough-on-crime and war-on-drugs stances area lived in fear of unknown assassins tak- amidst his incarceration. In early March weren’t working, the casualties of those ing aim at random victims. Thirteen people 2020, he wed a woman whom he had been draconian laws enacted at the time were were shot during that period; 10 died. writing and visiting with for the previous forgotten and left to sit in prison serving Perhaps the only thing more shocking than two years. The woman’s identity was not sentences everyone now says were inef- the arbitrary nature of the crime spree was revealed, but two of Malvo’s attorneys de- fective. the identity of the snipers: a middle-aged scribed her as close to his own age and “an The experts found that the group af- man, John Allen Muhammad, and teenager absolutely wonderful individual.” fected by the lock-em-up attitude three Lee Boyd Malvo. Carmeta Albarus, part of Malvo’s origi- decades ago was the Black community. “It Muhammad was depicted as the mas- nal defense team, served as a witness at the turns out that that sentencing shocks have termind behind the murders. He received ceremony and said the prison was “very been felt most acutely among the African- the death penalty and was executed in 2009. accommodating.” She remembered feeling American population,” they wrote. Malvo, only 17 at the time of the killings, “overwhelming sadness that this boy was Of course, as the cohort born in the was believed to have been heavily influenced taken down this path” after his convictions in 1970s ages out of prison, prison populations by Muhammad. Convicted in eight of the 2003. “But when I left there after the wedding, will continue to fall. But the authors say that slayings, Malvo received sentences of life I left with overwhelming joy that two people decreasing punishment is the best way to without parole for each. Under current laws could find joy the way they have.” ensure that a generation doesn’t get stuck in in Maryland and Virginia, he will never a cycle of long prison sentences that do no leave prison. Source: washingtonpost.com good. “The solution to ‘mass incarceration’ is change in the criminal justice policies that reduce punishment,” they concluded. If You Write to Prison Legal News “Federal and state policy makers should CALIFORNIA HABEAS revise current criminal justice policies to We receive many, many letters from prisoners – significantly reduce the rate of incarceration around 1,000 a month, every month. If you contact HANDBOOK 2.0 in the United States.” us, please note that we are unable to respond to the vast majority of letters we receive. By Kent Russell In almost all cases we cannot help find an “A Godsend” For Habeas Pro-Pers attorney, intervene in criminal or civil cases, contact prison officials regarding grievances or Federal Post- disciplinary issues, etc. We cannot assist with • California & Federal Habeas wrongful convictions, and recommend contacting Corpus A to Z. Conviction organizations that specialize in such cases – see • Latest SCOTUS Cases & CA Rules the resource list on page 68 (though we can help of Court. and Habeas obtain compensation after a wrongful conviction has been reversed based on innocence claims). • Comprehensive New Chapter on • Resentencing Parole. Please do not send us documents that you need to • Guide to CA Propositions • Motions for new trial have returned. Although we welcome copies of verdicts and settlements, do not send copies of Affecting Early Parole. • Rule 35 complaints or lawsuits that have not yet resulted in Send payment ($89) to: a favorable outcome. Pro Bono not accepted. Serious Kent A Russell financial inquiries only. Send Also, if you contact us, please ensure letters are 3169 Washington St financial info and inquiries to: legible and to the point – we regularly receive 10- San Francisco, CA 94115 The Law Offices of to 15-page letters, and do not have the staff time Patrick F. McCann or resources to review lengthy correspondence. If For information: 700 Louisiana, Ste 3950 we need more information, we will write back. Send S.A.S.E. to above address. Houston, Texas 77002 713-223-3805 While we wish we could respond to everyone who habeashandbook.com or [email protected] contacts us, we are unable to do so; please do not kentrussell@sbcglobal. net * Not board certified by the Texas Board of Legal Specialization be disappointed if you do not receive a reply.

Prison Legal News 59 October 2020 Prisoners Evacuated but ICE Detainees in Louisiana Suffer During Hurricane Laura by Ed Lyon

he year 2020 has been rife with swath of utter destruction through that rections was not about to furnish personal Tunpleasant surprises. The planet has area, the Southern Poverty Law Center protective equipment to them, even under contended with the coronavirus pandemic said family members reported “suffocating the dire circumstances. — the worst since the Spanish flu — and conditions,” including poor ventilation in In fact, LaSalle at first prohibited protests sparked by the police killing of the extreme heat, plus power, flooding and its employees from wearing masks at the George Floyd. Even the weather chose to sewage failures. beginning of the coronavirus pandemic, join in the fray. August saw two hurricanes, Louisiana’s economic fortunes improved despite the fact that coronavirus comes in Laura and Marco, invade the U.S. Gulf in 2019 when ICE decided on for-profit jail- from outside of lock-ups, not originating Coast at the same time — an event last ers like GEO and LaSalle Corrections to from within the lock-ups themselves. seen in the 1930s. house asylum seekers and detainees awaiting Detainees suffering coronavirus symp- As these two wound their way in- hearings and deportation. toms were tested, then returned to their exorably toward the Louisiana and Texas Even amid the raging coronavirus dorms. When their tests returned with coastlines, federal and state emergency pandemic, ICE and immigration judges positive results, only then were they isolated. management agencies prepared for the denied applications for bond and parole and By then they had infected other detainees. worst and prayed for the best, working kept the eight detention facilities — some Conditions became so bad that by August feverishly around the clock. In prison-rich of which were formerly shuttered prisons 30, JPCC had a minor uprising, although Jefferson County, Texas, federal and state — full of human misery. Instead, they left officials denied any use of force. prisons were left bereft of inhabitants as detainees in place to weather Laura’s wrath As of September 1, ICE’s website busload after busload of prisoners were and aftermath. admitted to nine active coronavirus cases evacuated. On August 28, the JPCC lost power at JPCC, but that agency is not exactly a However, to the east, a completely and water. Without air conditioning, the paragon of timely self-reporting. None of opposite scenario played out for many heat soared to the point that guards al- the other seven GEO and LaSalle ICE state and federal prisoners, particularly lowed detainees to sleep in the yard at night. detention centers in that area fared any immigrant detainees held under the U.S. Without water, toilets could not flush and better than JPCC, according to reports. Immigration and Customs Enforcement it was not long until back flushing began. (ICE) agency at Jackson Parish Correc- Detainees had no choice but to mop and Sources: houstonpublicmedia.org, mother- tional Center ( JPCC) immigration jail in clean this bare-handed as LaSalle Cor- jones.com, splcenter.org Jonesboro and LaSalle Correctional Center in Olla. In the wake of Hurricane Laura’s Fifth Circuit Reinstates Lawsuit Over Texas Jail Prisoner’s Death by Matt Clarke

he family of a Texas detainee who work the next evening, he notified law Tdied of a suicidal overdose under jailers’ enforcement. noses can continue its lawsuit against Young Police in a nearby city found Simpson County, Texas. That decision was handed asleep in her car the next day, surrounded down on April 22, 2020, by the Fifth U.S. by empty beer containers and empty blister Circuit Court of Appeals, which reversed packs of medication. They asked her how in part a summary judgment in favor of much she had taken. She said, “all of it.” the county granted by a district court in After denying it to police, Simpson the case. admitted to a medic she was trying to kill Diana Simpson had previously at- herself. She was arrested for public intoxi- tempted suicide when she told her husband cation and taken to the Young County Jail, she would try again by overdosing on pills. where jailers only partially completed the She even laid out her plan to get cash from book-in process before placing Simpson in an ATM and check into a motel where he a holding cell to “sleep it off ” because they could not find her. A few weeks later, when assumed she was drunk. Simpson’s husband he noticed a withdrawal from their bank called the jail three times, told jailers she had account, he became worried. But he was been missing and was suicidal and asked unable to contact her. When she missed them to get her help. They ignored him. October 2020 60 Prison Legal News Hours later, Simpson was found well as a state-mandated Continuity of Care suicide-screening and medical intake forms half-naked and dead of “mixed-drug in- Query. The only thing jailers had to go on were not completed until a highly intoxi- toxication” on the floor of her holding cell. were Simpson’s own responses to the first cated detainee had “slept it off.” Together Her family filed a federal civil rights law- part of the suicide-screening form in which with a de facto policy of not monitoring suit against Young County and its sheriff ’s she denied having taken medication. highly intoxicated prisoners, this could have department, alleging they deprived her of A Texas Ranger who investigated the denied Simpson her needed medical care. her civil rights. death noted discrepancies between jail The Fifth Circuit opinion said: “The The district court granted defendants’ logs of checks on Simpson’s cell and video County has no apparent process or policy for motion for summary judgment and dis- recordings of the cell area. Her death oc- preventing such an overdosee from success- missed the case on two theories: Neither curred some time during a six-hour period fully killing herself. The jail has no medical the jail’s “episodic acts or omissions” nor for which video was inexplicably missing. staff, jailers do not consider outside informa- its “conditions of confinement” rendered it Even these questionable records showed tion that contradicts what a detainee states at liable for Simpson’s death. The appeals court excessive periods between cell checks. intake, and after intake, jailers do not conduct agreed with dismissal on the first theory but During the five years prior to Simpson’s follow-up assessments. The only follow-up remanded the case for the district court to death, the Texas Commission on Jail Stan- they do is periodic monitoring. And Plaintiffs reconsider the plaintiffs’ other claims, ruling dards filed numerous reports citing the jail claim that this monitoring is pervasively in- that they raised a question as to the possibil- for several failures: adequate. Given the different, compounding ity that the jail had created a de facto policy • to properly complete intake screen- ways that these alleged policies might interact, allowing improper monitoring – a question ing forms, a jury could reasonably conclude that they which could be factually answered. • to properly monitor prisoners, and had a ‘mutually enforcing effect’ that deprived On remand, the district court again • to document the monitoring. Simpson of needed medical care.” granted summary judgment. On appeal These reports put the sheriff on notice Therefore, the court upheld the dis- following remand, the Fifth Circuit noted of the problems, the appeals court noted. missal of the failure-to-train claim and that jailers had testified that there was a The claim covered failure to assess, moni- reversed the dismissal of the failure-to- policy of having highly intoxicated pre-trial tor and train. The last was barred by the assess and failure-to monitor claims and detainees “sleep it off ” before completing previous summary judgment, but the others remanded the case for further proceedings. the mandatory suicide-screening form, a were not. See: Sanchez v. Young County, 956 F.3d 785 computer-based medical intake form, as Jailers consistently testified that the (5th Cir. 2020).

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Prison Legal News 61 October 2020 Fifth Circuit Upholds Dismissal of Texas Jail Suicide Lawsuit, Holds Discrimination Not Proven by Matt Clarke

n April 15, 2020, the U.S. Court Four days later, a nurse on rounds discrimination must be proven in order to Oof Appeals for the Fifth Circuit af- talked with Hawkins, who said he had prevail. It rejected the idea that jail employees firmed the summary dismissal of a lawsuit recently tried to kill himself because the intentionally discriminated against Hawkins brought by the estate of a man who com- Illuminati was watching him. However, he by, for instance, failing to provide him a knot- mitted suicide at the Harris County jail in indicated that he was not presently suicidal. proof suicide blanket, removing the smoke Houston, Texas. The next day, a guard noticed the detector from his cell so it “could not be used Danarian Hawkins was 27 in Febru- window in Hawkins’s cell door was cov- as a tie-off point,” leaving in place the towel ary 2014 when he died by hanging himself ered with a towel. Upon investigation, he that covered his window, referring him to the with a bedsheet in his holding cell at the found Hawkins hanging by a sheet tied to MHU following his bizarre conversation with jail. He had been arrested in June 2012 after the smoke detector. The guard performed the nurse the day prior to his death, and more allegedly threatening a man with a knife in CPR after he and others got Hawkins closely monitoring his activities. a parking lot. down. Hawkins was taken to the jail’s clinic, The jail staff had no notice that such His mother, Jacqueline Smith, said she where he died. steps were necessary, the Court determined, was unable to pay his $30,000 bail, so he In July 2015, on behalf of Hawkins’ as they had placed him in MHU, which had remained in custody over a year and a half estate, Smith filed a federal civil rights released him, so they did not believe he was awaiting trial. He made an unsuccessful lawsuit alleging violations of the Americans actively suicidal. suicide attempt in April 2013, after which with Disabilities Act (ADA), 42 U.S.C. § The Court said: “[The] laws allow he spent time in the jail’s Mental Health 12101, et seq., and the Rehabilitation Act Smith to recover damages only if she Unit (MHU). But he was then released (RA), 29 U.S.C. § 794(a). can prove that Harris County or its back into the general population at the jail. Harris County moved for summary employees intentionally discriminated All told, Hawkins attempted suicide judgment as there was “no evidence of in- against Hawkins. Because Smith cannot at least five times at the jail—usually by tentional discrimination, which is required prove that Hawkins was subjected to in- hanging but once by an overdose of 100 for compensatory damages.” tentional discrimination, the district court prescribed pills he amassed by hiding them In February 2019, the trial court correctly granted summary judgment to under his tongue when he was supposed to granted the motion, noting specifically that Harris County.” take them. Hawkins was housed alone not because of Therefore, the judgment of the district Two and a half weeks before he died, his mental health but because he had a his- court was affirmed. See:Smith v. Harris he was found attempting to hang himself tory of assaulting other prisoners and staff. County, 956 F.3d 311 (5th Cir. 2020). using a sheet tied to a smoke detector and On appeal, the Fifth Circuit noted that transferred to MHU. He was discharged af- the ADA and RA were passed to prohibit Additional sources: harriscountycao.org, ter two weeks and returned to the same cell. intentional discrimination and, therefore, such chron.com News in Brief

Alabama: In February 2020, a grand 12-year veteran of DOC, resigned immedi- the maximum 20-year sentence, to be served jury in Limestone County, Alabama, ately after his arrest. IID Director Arnaldo consecutive to their current terms. The returned an indictment for “possession/ Mercado called the arrest “an example of guard was working as a teacher when he was receipt of a controlled substance” against our department’s proactive measures to attacked. Another guard was injured when Travis Wales, a former guard at the Lime- eradicate criminal activity inside our cor- he attempted to respond to the incident. stone County Correctional Facility in rectional facilities.” The other prisoners were Eric Chiago, 28, Harvest. According to Columbus, Georgia, California: A brutal attack at the U.S. who received a 188-month term; William TV station WBRL, Wales was arrested in Penitentiary in Atwater, California, left an Roe Acevedo, 33, who was sentenced to 13 September 2019 after a canine unit from officer with the federal Bureau of Prisons years; Michael Martin, 30, whose sentence the Investigations and Intelligence Divi- kicked, beaten and stabbed with homemade was set at 150 months; and Joey Thomas, sion (IID) of the Alabama Department knives in October 2017. Six prisoners were 26, who received a 97-month term. of Corrections (DOC) found him enter- charged, four of whom pleaded guilty to California: On August 21, 2020, ing the prison with contraband: a bag of aggravated assault, while the other two actress Lori Laughlin and her husband, methamphetamine, a tablet of Subutex – a were tried in May 2019. Jonathan Mota, fashion designer Mossimo Giannulli, were methadone alternative used in treating ad- 37, was convicted of attempted murder, sentenced for their role in a 2019 college diction – and a bottle of synthetic urine and Dominic Adams, 27, was convicted of admissions bribery scandal. The couple paid substitute called U-pass, which is used to assault. Both were sentenced in July 2020 by consultant William “Rick” Singer $500,000 fool a urine test. The 39-year-old Wales, a federal Judge Lawrence J. O’Niell, receiving to help get their daughters accepted to the October 2020 62 Prison Legal News University of Southern California using set fire to the Alameda County Superior investigators found Tazewell’s use of force fake credentials as members of a crew team. Courthouse, Arab News reported. The vio- excessive, and a termination memo for him The young women, now 20 and 21, had nev- lence also targeted police with lasers and had already been signed by Sheriff Rick er participated in the sport. Laughlin, best fireworks. The protest began peacefully, Staly when the deputy resigned. Statewide known for playing “Aunt Becky” on 1990s with marchers gathering in solidarity with data revealed that less than a third of the TV hit Full House, was sentenced to two protesters in Portland, Oregon, who clashed officers disciplined for excessive force were months in prison, two years of supervised violently with federally contracted armed fired or resigned, and 20 percent of those release and 100 hours of community service. militiamen sent by President Trump to were rehired elsewhere in the state. U.S. District Judge Nathaniel Gorton also guard that city’s federal courthouse. Two Florida: On July 8, 2020, Jamaul fined the 56-year-old $150,000. Giannulli, similar protests the same day elsewhere in Akeem Jackson was arrested at Lowell 57, received a five-month prison term, two the state also turned violent. In Sacramento, Correctional Institution (LCI) near Ocala, years of parole, 250 hours of community some 150 demonstrators attacked a TV where the 30-year-old prison guard held service and a $250,000 fine. Laughlin ad- news crew. And in Los Angeles, about 100 a supervisory position, and charged with mitted to Judge Gorton that she had “made protesters vandalized the federal Bureau of sexually assaulting a female prisoner. The an awful mistake” which “undermined and Prisons’ Metropolitan Detention Center. unnamed woman had provided investiga- diminished” her daughters’ “abilities and Violent clashes resumed after a Milwaukee tors from the Department of Corrections’ accomplishments.” Singer, who has pleaded policeman shot another unarmed man, Ja- Office of the Inspector General with guilty to racketeering and other charges, has cob Blake, on August 23, 2020. Three days evidence that she preserved from the inci- been cooperating with federal prosecutors later, Oakland police said that “numerous dent, which took place several days earlier and has not yet been sentenced. fires (had been) set, dozens of windows bro- in a dormitory maintenance room at the California: On August 10, 2020, San ken, (and) multiple businesses vandalized.” women’s prison, the state’s largest. Jackson, Francisco Mayor London Breed (D) an- Florida: In July 2020, Justin Lane was who was hired in November 2015, then nounced that the city’s jails would become scheduled to finish a 15-year term at complied with a DNA request and admit- the first in the nation to provide prisoners Florida’s Santa Rosa Correctional Institute ted the incident, according to a report in and detainees free phone calls. Video calls near Pensacola. But instead of release, the the Ocala Star Banner. His case follows will also be free, Politico reported. Breed said 36-year-old headed to federal prison for that of another LCI worker, 37-year-old Sheriff Paul Miyamoto had also eliminated another 10 years to serve a sentence received Samuel Derea Williams, who lost his job jail commissary markups, reducing prices in July 2019 after the FBI traced a pair of as food service coordinator after he was ar- an average of 43 percent. Prisoners at the threatening letters to him that were sent rested on September 18, 2019, and charged Calaveras County Jail (CCJ), 125 miles east to prosecutors at the Polk County State with battery for grabbing a prisoner’s but- of San Francisco, had threatened a hunger Attorney’s Office in Lakeland. As reported tocks. That same day, former LCI guard strike in September 2019 to protest phone by the Associated Press, the August 2017 trainee Nicholas Seaborn Jefferson, 27, rates and commissary prices. CCJ Capt. letters contained a powdery substance and was sentenced to a two-year prison term Chris Hewitt said that when research a message: “die, die, die, ha, ha, ha, anthrax, for having sex with a prisoner a year ear- showed some items were offered for less at goodbye.” Rachel Rojas, special agent in lier. Meanwhile former LCI guard Keith the Tulare County Jail commissary, the ven- charge of the FBI’s Jacksonville Division, Turner remains under investigation, along dor for both jails, Swanson Services Corp., said that bio-threat protocols were initi- with Ryan Dionne, who remains employed agreed to lower prices at CCJ. Hewitt added ated, and the substance was determined at LCI, for their role in an August 2019 that negotiations were still ongoing with not to be harmful. Lane had been serving beating that left prisoner Cheryl Weimar the jail’s phone service provider. But strike a sentence earned with a conviction in state paralyzed. On August 25, 2020, the state leader Marc Holocker said on October 2, court for committing similar crimes in West settled her lawsuit with an agreement to 2019, that he and 16 other inmates would Palm Beach. pay the 51-year-old $4.65 million, the call off their hunger strike. State Sen. Holly Florida: The Jacksonville Sheriff ’s- Of Tampa Bay Times reported. Mitchell (D-Los Angeles) has sponsored fice ( JSO) has disciplined more officers for Florida: In July 2020, an unnamed SB 555 to reduced both phone rates and excessive force than any other law enforce- 34-year-old woman from Fort Pierce, commissary prices in state jails and prisons. ment agency in Florida, according to a June Florida, was charged with attempting to It was scheduled for a hearing before the 2020 analysis by the USA Today Network. smuggle contraband into the St. Lucie state Assembly Appropriations Committee The study, which covered a 35-year period County Jail after deputies conducting a on August 14, 2020. dating back to 1985, found that 72 JSO strip search ordered an X-ray that revealed California: On July 25, 2020, two deputies were disciplined, including former a suspected meth pipe hidden in her anus. months after a Minneapolis policeman bru- deputy Jared Tazewell, who resigned before tally murdered an unarmed man – George he could be fired for punching a mentally Floyd, whose death set off nationwide ill prisoner to the floor in April 2019 at Hepatitis & Liver Disease: demonstrations demanding police reform the JSO jail. Though 54-year-old Marc A Guide to Treating & Living – a related protest in Oakland, California, Duncanson became agitated and threw his with Hepatitis & Liver Disease turned violent when a handful from a crowd walker at the deputy, he was not charged Revised ed. By Dr. Melissa Palmer of about 700 demonstrators vandalized the with assault because he had already been See page 69 for more information. Oakland Police Department building and declared mentally unfit to stand trial. JSO Prison Legal News 63 October 2020 News In Brief (cont.) nabbed 20 people, including Christopher of King’s car that turned up 0.10 ounces of Shane Smith, who allegedly helped run a marijuana. The guard, then 29, had worked branch of the Aryan Brotherhood gang at the prison just under 11 months, allowing According to a report in the TC Palm, from his cell during a 15-year prison term the state Department of Public Safety and the woman had been taken to the jail on he completed in July 2019. The task force Corrections to terminate his employment suspicion of DUI after she was found made five more arrests in December 2019. under provisions of his initial probation- slumped over the steering wheel of her car On June 25, 2020, officers nabbed 37-year- ary term. with her foot on the brake pedal and the old Christopher Pope after he sold meth to Maryland: Because he “placed our of- engine running in “drive.” Her arrest for a witness cooperating with the task force. ficers and staff in danger and jeopardized attempted smuggling followed that of a Angel Pope, 38, and Chet White, 35, were our public safety mission,” Maryland De- guard at the jail, Toby Johnson, who deliv- also collared in that sting. partment of Public Safety and Correctional ered an allegedly pornographic magazine Georgia: When they saw a deputy Services Secretary Robert L. Green told to an inmate in September 2019. Investiga- guarding them lose consciousness in July Washington, D.C., radio station WTOP tors said the 23-year-old deputy gave the 2020, three men held at the Gwinnett that former prison guard Antoine Fordham copy of Straight Stuntin’ to the inmate and County Jail in Lawrenceville, Georgia, did would begin serving a 35-year prison term then delivered a letter from the prisoner to not ignore him or try to take advantage in September 2019, with no more than 15 the man’s sister at a restaurant where she of the situation, instead pounding on cell years suspended. The harsh sentence was worked, in violation of state law. doors for help, CNN reported. The un- handed down in Anne Arundel County Georgia: In August 2020, a guard at a named deputy regained consciousness and Circuit Court that same month to the then- privately operated Georgia prison pleaded opened the cell doors, believing in his con- 33-year-old for his role leading members of guilty to a bribery charge for smuggling fusion that prisoners were trying to alert a Crips gang both inside and outside the cigarettes to a prisoner. Investigators found him to the distress of one of their own. He Jessup Correctional Institution where he evidence of the crime in text messages left then passed out again, but rather than at- was a sergeant. Another 25 people were also on a contraband cellphone that the inmate tempting escape through their opened cell convicted on charges of smuggling contra- also had. According to a report by TV sta- doors, the three inmates – who were also band into the prison and engaging in gang tion WTOG in St. Petersburg, Florida, unnamed – began trying to revive the un- activity, including a second guard, Phil- the 25-year-old guard, Michael Eaddy, conscious deputy. A post to the Facebook lipe Jordan. He received a 10-year prison accepted a $246.25 bribe from Jean Civil, page of the county sheriff ’s office said the sentence, with no more than 6-and-a-half also 25, who is a Haitian inmate at the D. incident “clearly illustrates the potential suspended. The two guards were caught in Ray Janes Correctional Facility in Folkston, goodness” found in both the inmates and 2017 taking bribes from an inmate’s sister to Georgia. Eaddy will serve six months in the deputy, whose plight moved them to smuggle drugs and cellphones to prisoners. federal prison, followed by three years of offer help because he had treated them New Jersey: A 42-year-old nurse at supervised release. Civil had a month added “with the dignity they deserve.” As of a New Jersey prison for young men was to a 78-month sentence he is serving for a August 31, 2020, the post had been liked arrested in September 2019 and charged cocaine-dealing conviction. The prison, the and shared over 270,000 times. with illegally accessing medical records largest employer in rural Charlton County, Kentucky: A former guard at the Boyd to “further her illicit relationship with an is owned and operated under contract County Detention Center in Catlettsburg, inmate,” the New York Post reported. As a from the federal Bureau of Prisons (BOP) Kentucky, was charged with sodomy in result, Charita Wimberly lost her job as a by Florida-based GEO Group, Inc., the September 2019 for allegedly having sex contract employee at Mountainview Youth country’s largest private prison operator with an inmate at the jail. Kristapher D. Correctional Facility in Annandale. The with $2,477 billion in 2019 revenues. All Mackey, 36, then pleaded not guilty and prison, which was renamed in early 2020 BOP inmates at the prison were scheduled was released from the Greenup County for former state Department of Corrections to be relocated outside the county by the lockup on a $25,000 cash bond, according head William H. Fauver, houses over 800 end of September 2020, resulting in a loss to a report in the Ashland, Kentucky, Daily men ages 18 to 30, all of whom were con- of some 316 jobs. Independent. An internal jail investigation victed as juveniles. No details were released Georgia: Four stings conducted resulted in Mackey’s arrest and charge for of the prisoner with whom Wimberly al- between September 2019 and June 2020 engaging in “deviate sexual intercourse” legedly had her affair. Acting Hunterdon netted a total of 35 arrests in northwest with an inmate, resulting in his termination County Prosecutor Michael H. Williams Georgia, including those of two Floyd later that same month. If convicted he could also charged her with official misconduct County Jail guards. Deputies Michael serve up to five years in prison. for assuming a false identity to transmit Landon Jones, 30, and Samuel James Louisiana: Adrian T. King, a guard at money to the prisoner. Kendrick, 25, were arrested by agents the Elayn Hunt Correctional Center in St. North Carolina: On August 6, 2020, with the state Department of Correc- Gabriel, Louisiana, was arrested in Sep- the Forsyth County Sheriff ’s Office released tions in September 2019 for smuggling tember 2019 and charged with attempting video showing 28 times over 46 minutes contraband – including drugs, tobacco and to smuggle drugs to prisoners. According on December 2, 2019, that detainee John cellphones – to prisoners at the lockup. to a report in the Plaquemine Post South, Neville told staff at the county jail in That same month a task force of Rome a crackdown on contraband at the state’s Winston-Salem, North Carolina, that police officers and Floyd County deputies second-largest prison resulted in a search he couldn’t breathe after the 56-year-old October 2020 64 Prison Legal News fell from bed in a holding cell and was release in November 2019, for two convic- Lee was recaptured a day later in Durham, restrained on his stomach with his feet tions of counterfeiting a legitimate refund North Carolina, not long after his three and hands “hogtied” together behind his check he had received following his 2018 fellow escapees were found and arrested at a back. He was transferred to Wake Forest release from the jail, according to reports Red Roof Inn in Cary, North Carolina. The Baptist Medical Center, where he died in the Zaynesville Y City News and the Gallia County Jail is a 50-year-old facility two days later of a brain injury caused by Newark Advocate. His co-defendant, Nikole whose cell doors have remained unlocked oxygen deprivation, the Raleigh News and Wiegand, 30, was already back in jail on for several decades to make room for all of Observer reported. After Sheriff Bobby Kim- felony drug charges when she admitted her its 22 beds, according to a report by TV brough Jr. waited seven months to publicly involvement in spending the money and station WGCL in Atlanta, Georgia. announce Neville’s death, Forsyth County received an additional 18 months added to Ohio: In late July 2020, former guard Superior Court Judge R. Gregory Horne her sentence in September 2019. However, Amanda Smith, 37, was scheduled for ar- ordered the video footage released on July she denied knowing where the checks had raignment on a sexual battery charge after 31, 2020, citing a “compelling public inter- come from. The sentences included fines she was discovered in September 2019 est.” Kimbrough has said he delayed partly for restitution – over $840 for Gibson and conducting a sexual affair with a prisoner at at the request of Neville’s family. On July 8, $2,000 for Wiegand. Warren Correctional Institution, one of two 2020, Forsyth County District Attorney Ohio: In June 2020, a guard at the state prisons in Lebanon, Ohio. That same Jim O’Neill announced criminal charges Gallia County Jail in Gallipolis, Ohio, filed month, another former guard at the facility in the incident against jail nurse Michelle suit over injuries she sustained during a allegedly received oral sex from a prisoner. Heughins, 44, and five former guards: La- September 2019 jailbreak. Debra Smith’s Ari D. Combs, 30, was slated for trial in vette Maria Williams, 47; Edward Joseph complaint alleges that Sheriff Matt Cham- August 2020 on a sexual battery charge Roussel, 50; Christopher Bryan Stamper, plin ignored jail policy that prevents female stemming from that incident, though pros- 42; Antonio Woodley Jr., 26; and Sarah guards from supervising male inmates ecutors admitted the case against him was Elizabeth Poole, 36. without assistance from male guards. Smith severely weakened by the inadmissibility Ohio: Two people guilty of cashing and another female guard were left alone at of statements he made before being read $3,000 in forged reimbursement checks for the jail on the night of September 29, 2020, his Miranda rights. He was terminated by unused commissary funds from the Licking when four men – Troy McDaniel Jr., 30, the state Department of Rehabilitation County Justice Center in Newark, Ohio, Brynn Martin, 40, Christopher Clemente, and Correction in February 2020, a month have been sentenced. Keith Gibson, Jr., 34, 24, and Lawrence Lee III, 29 – used a shank after Smith resigned. A year before their received a four-year prison term in Sep- to overpower the women, stealing keys from alleged trysts played out, a former guard at tember 2019, plus a concurrent six-month one of them to a personal vehicle in which the other prison in town assaulted a hand- term followed by three years of supervised they fled to a another waiting getaway car. cuffed prisoner after helping to break up a

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Prison Legal News 65 October 2020 News In Brief (cont.) pepper-sprayed Joshua Castleberry and 51-week manhunt, he was recaptured in knocked out three of the Army veteran’s 2013. The state Department of Corrections front teeth, one of which lodged in a nasal says his earliest release date is April 2076. fight between rival gangs at Lebanon Cor- cavity and required surgery to remove it, Pennsylvania: At a hearing in Penn- rectional Institution. During the September according to a report in the Cleveland sylvania’s Indiana County Court on May 2018 melee, former guard John B. Hinkle, Plain Dealer. Wilson and fellow guard Ja- 21, 2020, the trial of Simere Alford was 52, wielded a baton in a “tomahawk mo- son Jozwiak were acquitted of civil rights postponed from June 22 to September 8, tion” to strike a handcuffed prisoner, leaving violations following the incident, and a Pittsburgh radio station WCCS reported. Malcom Cox, 24, with a fractured jaw and mistrial was declared when the jury split Alford, who is also known as Simere Ord, a hole in his mouth, according to assault along racial lines to get hung on additional was first arrested in 2017 at age 18 for the charges reported in the Butler County News charges of felonious assault against Wilson. attempted murder of his 7-year-old sister Journal. A Warren County jury convicted His plea avoided a retrial on those charges. while high on drugs. On June 24, 2019, the Hinkle in October 2019. A lawsuit filed by Castleberry in February then-20-year-old was being transported Ohio: A detainee who pried his own 2020 against both guards and the county from a hearing at Magisterial District Court eye out of its socket at the Hamilton is still pending. in Clymer back to the State Correctional County Jail in Cincinnati, Ohio, has had his Oregon: In January 2020, a second Institute (SCI) at Pine Grove when he murder case continued until late September prisoner at the Marion County Jail in Sa- escaped his restraints and took the gun of 2020. Aqeel Watson, 43, is also no longer lem, Oregon, was sentenced for attacking a male state trooper, firing it and nearly hit- listed at the jail, according to a report in guard Stacy Headrick in 2016, according ting him. The patrol car then crashed into The Cincinnati Enquirer. Watson is charged to a report by TV station KPTV. She was a guard rail, fracturing the arm of a female with fatally stabbing 45-year-old Lamont strangled but able to fight off the men and trooper also escorting Alford. He was Palmer 50 times in Palmer’s Mt. Airy home call for help from other deputies. For his charged with a pair of counts of attempting in September 2019. Watson was on suicide part in the incident, Brian Eller, 43, received to murder a law enforcement officer, two of watch at the jail when guards noticed blood a 10-year prison term after pleading guilty 22 total charges for which he will stand trial in his cell and found him with a severe head to charges including attempted aggravated before President Judge William Martin. wound from his self-conducted enucleation. murder. His fellow inmate, 49-year-old Pennsylvania: In May 2020, former Ohio: In September 2020, guard John Bradley William Monical, was convicted counselor Samantha Heinrich, 38, was Wilson was suspended without pay for 15 by a jury on the same charge and others in sentenced to a prison term of three to 18 days from the Cuyahoga County Jail in September 2019, receiving a 14-year sen- months after pleading guilty to proposition- Cleveland, Ohio, as punishment for his tence. Monical was convicted of a series of ing inmates for sex while working at the February 2020 guilty plea to a misdemeanor 2010 bank robberies, but he escaped from Lackawanna County Prison in Scranton, assault charge against a former prisoner. the Jackson County Jail with a dramatic Pennsylvania, According to a report by During the February 2018 incident, Wilson jump from the roof in 2012. Following a local TV station WNEP, she is the fourth

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October 2020 66 Prison Legal News staff member convicted in a recent series Washington Post database, Peru – whose Tyger River Correctional Institution (CI). of sexual abuse charges at the prison. In population ranks forty-third in the world Six former guards also admitted taking February 2019, former guard Jeffrey Staff, – had the fifth-highest case total and the bribes in exchange for smuggling contra- 43, pleaded no contest and was sentenced eighth-highest total number of deaths to band into the prisons where they worked: to nine months of probation for having COVID-19 as of September 2020. • Former Ridgeland CI guard Jamal sex with a prisoner on work release. Three South Africa: After a jailbreak July Early – tobacco and the synthetic narcotic months later, former guard George Efthi- 26, 2020, from the Malmesbury Correc- A-PVP miou, 51, received a two-year probationary tional Facility in the Western Cape of South • Former Kershaw CI guard Frank sentence for having sex with another inmate Africa, all 68 escapees were recaptured fol- Pridgeon – cocaine, marijuana, tobacco at her home after her release on probation. lowing a two-day manhunt, according to the and cellphones In February 2020, former guard James country’s justice ministry and al Jazeera. The • Former Perry CI guard Miguel Wil- Walsh, 53, was fined $500 after he admitted men were pre-trial detainees at the facility, liams – tobacco and liquor to sexually harassing prisoners. A fifth for- which holds 451 prisoners and a staff of 20 • Former Lieber CI guard Ebonynisha mer guard, Mark Johnson, 54, was acquitted about 40 miles from Cape Town. They “over- Casby – a watch and jewelry by a Scranton jury in September 2019 of powered officials, took the keys and locked • Former Broad River CI guard Sharon charges he forced inmates to have sex. three officials in a cell and opened other cells Johnson Breeland – methamphetamine Peru: By April 2020, as the COVID-19 before escaping through the main entrance • Former McCormick CI guard Cath- pandemic spread to Latin America, 2,500 and over the roof,” a ministry statement erine Prosser – marijuana and cellphones. inmates incarcerated at Lurigancho prison read. Nine staff members reported injuries A former fellow guard of Prosser’s at in Lima, Peru, had become infected with sustained during the incident. the maximum-security prison, James Har- the novel coronavirus that causes the dis- South Carolina: Eight former South vey, was still awaiting trial. ease, which had killed 33 of them. Protests Carolina Department of Corrections em- Virginia: After an August 2020 report erupted to demand improved conditions, ployees pleaded guilty in 2019 to federal by the Virginia Inspector General (IG) resulting in nine more deaths and several charges of bringing contraband into state cited the state parole board for failing to fol- dozen injuries before the National Peniten- prisons. Former food-service worker Holly low procedures in releasing several convicts, tiary Council created a containment plan Mitchem and former horticultural specialist chairwoman Tonya Chapman dismissed for the prison, with which Vice President Robert Hill both admitted accepting bribes demands from GOP leaders in the General Rafael Castillo plans to prevent a wave of to smuggle contraband – including mari- sick prisoners from swamping the coun- juana, K2, tobacco and cellphones – into try’s hospitals. Now some prisoners act as WORD OUT BOOKS publishes inmate health-care monitors to alert medical staff authors. For info send SASE only to potential new COVID-19 infections, J.A.Publishing. Typing,doc prep, (do not send manuscripts) to: Voice Of America reports. According to a more. Brochure:SASE 448 W19th St Word Out Books, PO Box 2689 #497 Houston, TX 77008 Eugene, OR 97402

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Prison Legal News 67 October 2020 News In Brief (cont.) (D), Jeffrey Breit, who accused the IG of Central Regional Jail in September 2019 overstepping its authority in examining the when he escaped a van transporting him board. Four of its five members are Black, to Ruby Memorial Hospital and stole an Assembly for the resignations of all board including its newest member appointed in ambulance, crashing into another ambu- members. Virginia abolished parole in 1995, 2019, Kemba Smith Pradia, who served lance and several cars before fleeing on but the board may still grant it to those time in federal prison for her involvement foot to a nearby apartment complex, where convicted before then, such as Vincent in a former boyfriend’s drug dealings that he was caught attempting to break into a Martin, who was sentenced to life in prison got him murdered before she was pardoned unit. A cause of death was not immediately for killing a Richmond cop in 1979. It was in 2000 by former President Bill Clinton. available, nor were the charges on which his release – approved before Chapman as- West Virginia: A former West Virgin- Martisko was being held before his escape. sumed the chair – that incensed Republican ia detainee who escaped a hospital transport He was arrested in September 2017 and politicians, who called on the IG to investi- van only to be recaptured, then passed away charged with rape, but he was freed when gate. Former board Chair Adrienne Bennet in August 2020, according to an obituary a cellphone video showed he was elsewhere called for help from a Virginia Beach in the Morgantown Dominion Post. Craig at the time of the incident and the victim attorney and ally of Gov. Ralph Northam Allen Martisko, 47, was an inmate at North then refused to testify.

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 sentencing 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 incarceration 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. 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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 newsletter 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 complaints, 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 October 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 overview 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 identify 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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October 2020 70 Prison Legal News 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.

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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.