News

 By Andrea Jones

As prisoners in California entered the tenth day of statewide hunger strikes staged in opposition to the long-term solitary confinement policies of the California Department of Corrections and Rehabilitation (CDCR), news broke that administrators were countering activism with reprisal.

Confined for up to twenty-three hours per day in cramped, windowless cells called Security Housing Units (SHUs) at Pelican Bay State Prison, the inmates who initiated the protests—which spread to include 30,000 prisoners across two-thirds of state facilities—did so as a plea to abolish indefinite isolation. Although the enduring psychological harm of solitary confinement is well established—the U.N. has called for the prohibition of the practice in excess of fifteen days—many of California’s prisoners have been stuck in solitary for decades.

Rather than consider the demands presented, CDCR cut off access to broadcast news and confiscated some of the legal papers of fourteen Pelican Bay participants, forcing them into administrative segregation—an even more punitive form of isolation, according to a statement from the prisoners.

“Despite this diabolical act on the part of CDCR intended to break our resolve and hasten our deaths,” the statement read, “we remain strong and united! We are 100% committed to our cause and will end our peaceful action when CDCR signs a legally binding agreement meeting our demands.”

Eminently reasonable, these demands include: adequate food for SHU inmates; educational and rehabilitative programming; one phone call per week; and the elimination of “debriefing,” a policy that poses severe safety risks by making release from solitary contingent upon informing on other inmates. “Hunger strikes are the last option for prisoners,” explains Shane Bauer, the journalist whose traumatic confinement in Iran in 2009 compelled him to investigate conditions at Pelican Bay last year. With administrative and legal attempts proving futile, prisoners are risking their health as a final resort.

By Katherine White

Christopher Zoukis is a prisoners’ rights advocate, and the author of Education Behind Bars: A Win-Win Strategy for Maximum Security (Sunbury Press, 2012).  While incarcerated, Mr. Zoukis spends his time writing books, articles, blog posts, and school papers (he’s pursuing a degree in Business Administration).  He also spends much of his time either in his prison’s law library or out and about consulting with those he assists with legal pleadings.

Prison Law Blog’s Katherine White interviewed him regarding his own prison experiences and the challenges he has faced as an impassioned prisoners’ rights activist and prison writer.

Katherine White: Why did you decide to use your time in prison to fight for the rights of other prisoners?  That is, wouldn’t it be easier if you just did your time, as they say, and concentrated on your writing?

Christopher Zoukis: When I came to prison, it was a great shock to me to see how few prisoners were able to speak for themselves or assert their rights.  To add to this, I was stunned at how often prison administrators seemed to just do as they pleased, even if their actions violated the law, or were clearly unconstitutional.  I was despondent about such actions and felt that it would be up to me to protect myself.  Legal study was the path I chose.  And I used this legal study, prompted by witnessing the existing abuses, to motivate myself to help my fellow prisoners.

Approved and Edited by Craig M. Coscarelli

Preliminary Statement:

Since the June 17, 2013 release of Alleyne v. United States, 133 S. Ct. 2151 (2013) by the Supreme Court of the United States, there has been much discussion about the differences between

Apprendi v. New Jersey, 530 U. S. 466 (2000) and Alleyne. Of course, the main discussion centers around retroactivity. I believe that the excellent work and research done by Tommy Walker and his law students below dispels any doubt that Alleyne is retroactive.

Introduction:

The Sixth Amendment provides that those “accused” of a “crime” have the right to a trial “by an impartial jury.” This right, in conjunction with Due Process, requires that each element of a crime be proved to the jury beyond a reasonable doubt. In Re Winship, 397 U.S. 358 (1970). The substance and scope of this right depend upon the proper designation of the facts that are elements of the crime.

In Alleyne , the Supreme Court dropped a big bombshell on state and federal sentencing regimes. By holding, that any facts that increase the prescribed range of penalties to which a criminal defendant is exposed are elements of the crime. This is an important decision that has been a long time coming.

By Prison Legal News

ON April 11, 2013, the Idaho Department of Correction (IDOC) announced that Corrections Corporation of America, the nation’s largest for-profit prison firm, had acknowledged that employees at the CCA-operated Idaho Correctional Center (ICC) falsified staffing records from at least May through November 2012. As a result, the state paid the company for almost 4,800 staffing hours for vacant positions during that time period.

According to a review of ICC shift logs obtained by the Associated Press, some CCA employees were falsely listed as having worked 24, 36 and even 48 continuous hours.

In January 2013, attorneys for prisoners housed at the ICC filed an amended complaint in federal court that alleged CCA officials had falsified staffing records to conceal chronic understaffing. The prisoners claimed that fewer employees were on duty at the time of prisoner-on-prisoner assaults than the number reflected on shift logs. The lawsuit also contends that CCA staff collaborated with ICC gang members in order to maintain control at the facility. See: Castillon v. CCA, U.S.D.C. (D. Idaho), Case No. 1:12-cv-00559-EJL.

“[E]mployees were being placed on the shift schedule who were not present within the building or who were actually working in other areas and in some cases were no longer employees of CCA,” stated T.J. Angstman, one of the attorneys representing the prisoners. “This was being done to fraudulently show the State of Idaho that ICC was fully staffed when in fact it was not and to hide culpability for the injuries suffered by the plaintiffs.”

By Christopher Zoukis

The Federal Correctional Institution (FCI) in Danbury is a low-security US federal prison in southwestern Connecticut. When it first opened in 1940, it was used to house male inmates. Since 1993, it has been housing only female prisoners, but that’s about to change. By December 2013, all the female inmates will be shipped to other federal prisons, such as a brand new one opening in Alabama. Male inmates will begin moving into FCI Danbury by January 2014. Not surprisingly, this transition presents some hardships for the female inmates currently in FCI Danbury.

Visitation Difficulties

The female inmates from the Northeast likely have family and friends who currently make the short trip to visit them. According to the CT Mirror, the move to other prisons, such as the one in Aliceville, Alabama, will inconvenience the families of the 1,126 women in the low-security federal prison. This is because it will take them about 1,000 miles away from Connecticut. FCI Danbury mostly houses women from New York, New Jersey, and surrounding areas, which is why the move to Alabama or other states is predicted to be such a hardship for most of the inmates and their family members.

Many of the inmates have children and spouses who regularly visit them at FCI Danbury, but after the transition, they might not be able to without taking a long car ride or even traveling by plane. Studies show that children of inmates are already more likely to do poorly academically and display criminal behavior themselves, and not having contact with their mothers simply worsens the issue.

By Christopher Zoukis

On April 26, 2013, David Lee Kemp, 43, turned himself into the Comanche County, Oklahoma Sheriff’s Office. He was actively being sought by the FBI, U.S. Marshals and other law enforcement agencies for escaping from the Comanche County Jail 14 years earlier. “He said that he was just tired basically of running and it was affecting his health,” said Sheriff Kenny Stradley. 

Kemp was being held in the Comanche County Jail in 1999 for the shooting deaths of Christine Frances Kemp, his ex-wife, and Robert Wayne Miller, her new boyfriend. Kemp allegedly went to their apartment, pushed open the unlocked front door, and shot Miller four times and his ex-wife three times.

He then fled the area. Police later located a man who claimed he had sold Kemp a .45 caliber handgun. Subsequent testing of spent bullet casings confirmed that the gun was the one used in the murders. The California Highway Patrol located Kemp’s Dodge Ram pickup truck abandoned by the side of the road several days later, and commenced a search. They located Kemp, who was eventually cornered in a junkyard, where he held the .45 up to his head and threatened to kill himself. Police fired rubber bullets to disable him and he was returned to the Comanche County Sheriff’s Office.

By Prison Legal News

In February 2013, the Tennessee Court of Appeals issued its second ruling in a long-running lawsuit filed under the state’s Public Records Act against Corrections Corporation of America (CCA), the nation’s largest for-profit private prison company. The Court of Appeals affirmed the ruling of the lower court, holding that CCA must produce documents that it had refused to disclose, plus pay attorney fees and costs.

The suit was filed by PLN managing editor Alex Friedmann. In 2007, CCA had denied Friedmann’s request for records related to litigation filed against CCA and for reports or audits that found contract violations by the company, among other documents. The Chancery Court ruled in Friedmann’s favor on July 29, 2008, finding that CCA was the functional equivalent of a government agency and ordering the company to produce the requested records. [See: PLN, Oct. 2008, p.24].

CCA appealed and the Court of Appeals affirmed in September 2009, noting, “With all due respect to CCA, this Court is at a loss as to how operating a prison could be considered anything less than a governmental function.” The appellate court narrowed the lower court’s ruling by exempting one CCA-run Tennessee prison (the South Central Correctional Center), finding that it fell under a different state statute. The case was then remanded to determine which records CCA would have to disclose. See: Friedmann v. CCA, 310 S.W.3d 366 (Tenn.Ct.App. 2009), review denied.

Following remand, CCA produced a number of the requested records, including hundreds of pages from reports and audits in which the company had been found in violation of or non-compliance with its contractual obligations to operate prisons and jails in Tennessee. However, CCA refused to produce copies of settlement agreements, verdicts or releases in cases where it had paid monetary damages to resolve lawsuits or claims. CCA also refused to release database printouts listing such settlements.

By Christopher Zoukis

The plot thickens.  Last weekend I was called to the FCI Petersburg Visitation Room to visit with my Prisoner Visitation & Support (PVS) visitor, a woman who’s also a Christian minister.  On my way through the initial search area I was harassed by the prison guard (“Guard #1”) assigned to the Visitation Room because my clothing wasn’t ironed.  The guard tried to inform me that there was new Federal Bureau of Prisons policy on the matter, but after a short conversation, he begrudgingly agreed to allow me to have my visit.*1  So, after my frisk, I was allowed into the FCI Petersburg Visitation Room.

Once in the Visitation Room, I handed another guard (“Guard #2”) my inmate identification card and looked for my visitor.  I didn’t find her.  So, back to the guard’s desk I walked and asked Guard #2 where my visitor was.  After a short exchange, he informed me that my visitor had been “embarrassed,” and had to leave prior to my arrival.  Guard #2 and I returned to the visitation screening area and spoke with Guard #1, the one who had harassed me about my clothing.  Guard #1 informed me that my visitor, a Christian minister, had realized that her pants were see-through and had left in embarrassment.  I was not amused.  Upon returning to my housing unit, I submitted a complaint to the FCI Petersburg Captain.

Two days later I received a post card from my PVS visitor.  She informed me that the guards had terminated the visit, but that she would be back two weeks later.  She also expressed her profound sorrow for the visit being terminated prior to my arrival.  She had not left on her own accord.  Either Guard #1 or Guard #2 had officially terminated the visit prior to my arrival in the Visitation Room.

To say that I was upset about this would be an understatement.  But my lack of amusement turned to anger several days later.  While working out on the FCI Petersburg recreation yard, another man who had a visit that day filled me in.  He said that Guard #1, the one who had harassed me, had terminated the visit because of my visitor’s pants.  The man said that my visitor had been told to leave because of her pants being too transparent (he said that the guard claimed that he could see her pockets through the pants) and that she had burst into tears because of the situation.  According to the man, my visitor, the Christian minister, had cried all the way out of the prison.  I’m sure that she didn’t only feel terribly embarrassed by the whole situation, but probably a bit insulted and dirty too since Guard #1 was staring at her pants for a period of time.

By Christopher Zoukis

For the third time in the past eight years, Oklahoma County Sheriff John Whetsel has been sued for damages by a local hospital, which accuses him of releasing dozens of jail prisoners to avoid having to pay their medical bills.

Prior lawsuits involving Whetsel’s handling of detainee medical costs have resulted in county officials paying more than $8 million in settlements. The latest action, filed on April 5, 2013 in Oklahoma County District Court, alleges that the sheriff’s office has run up at least $924,085 in medical bills at Oklahoma University Medical Center (OUMC) since March 2011, excluding interest, while paying only $52,402 to the hospital.

OUMC officials contend that Sheriff Whetsel has deliberately circumvented a state law that requires counties to pay the medical costs of prisoners held in their custody. “The county and the sheriff have developed a practice of … purporting to ‘release’ inmates from custody before, and even after transporting them to the hospital, and then deny liability for the necessary medical care by saying the inmate is no longer in the county’s custody,” the lawsuit alleges. “This practice … is a blatant effort by the county and the sheriff to absolve themselves of their statutory and constitutional duty to provide medical care to inmates.”

According to the complaint filed by OUMC, the sheriff’s office has released at least 37 prisoners on their own recognizance in order to avoid paying their medical bills. OUMC officials argue that such releases are an ongoing problem and in violation of the same laws that were at issue in prior lawsuits filed against the sheriff’s office.

By Craig M. Coscarelli

WHAT’S IT ABOUT?

The Descamps decision gives guidance on the correct application of the Modified Categorical Approach (“MCA”) to determine whether a state prior conviction for burglary really was a burglary under the Armed Career Criminal Act (“ACCA”).  The Court explained that the MCA could only be applied to a statute if that statute was divisible, or contained alternative language outside the generic definition of the crime.  If the statute is not divisible, then it stands as is, but if the definition is not the same as or narrower than the “Generic” definition of the crime, the prior conviction does not count under the ACCA.

BACKGROUND:

Precedent ACCA cases, such as Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005), as well as other ACCA cases over the past quarter-century, show there is obviously a problem with the ACCA.  Descamps is yet another effort by the Court to give guidance to the lower courts.

In Taylor, the Court established the methodology to determine whether a prior state conviction for burglary actually was burglary under the ACCA.  The Court first defined burglary as: “an unlawful or unprivileged entry or remaining in a structure or building with the intent to commit a crime.” Id.  The Court then instituted the “Categorical Approach,” which is to simply look at the language of the state statute of conviction to see if the defendant was convicted of generic burglary.  But, since most state statutes for burglary have language in addition to the generic definition to cover a broader range of crimes, the Court authorized a modified version of the Categorical Approach and called it the “MCA.” Id.  Under this MCA, the sentencing court could look at the conduct for which the defendant was convicted if the state statute contained alternative language outside the definition of generic burglary.  And herein lays the problem. Id.