News

Amount of Drugs a Factor for Departure Sentence

The Kansas Supreme Court reversed a prisoner’s sentence for possession of contraband – a small amount of marijuana – after it held the sentencing court misinterpreted its statutory authority by concluding it could not consider a downward departure to the presumptive criminal sentence. Prisoner Waddell Warren was convicted of introducing a controlled substance into a

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Judge May Resolve Exhaustion Issue

By David Reutter The Third Circuit Court of Appeals held on August 26, 2013 that a judge may resolve factual disputes relevant to the exhaustion of administrative remedies without the participation of a jury. It also held the district court had erred in finding a failure to exhaust where a prisoner did not receive a

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Seventh Circuit Reverses Summary Judgment in Dental Care Suit

On July 19, 2013, the Seventh Circuit Court of Appeals reversed a grant of summary judgment to three defendants, holding there was sufficient evidence for a jury to find they acted with deliberate indifference to a prisoner’s serious dental needs. Richard M. Smego, a civil detainee at Illinois’ Rushville Treatment and Detention Center, filed suit

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Ninth Circuit: Damages Required for Compelled Religious-Based Treatment

By Mark Wilson

The Ninth Circuit Court of Appeals has held that damages are required, as a matter of law, when a parolee is incarcerated for objecting to compelled participation in a religious-based drug treatment program.

Citing “uncommonly well-settled case law,” the Court of Appeals found in 2007 that the First Amendment is violated when the state coerces an individual to attend a religious-based substance abuse program. See: Inouyev.Kemna, 504 F.3d 705 (9th Cir. 2007).

The California Department of Corrections and Rehabilitation (CDCR) contracts with Westcare, a private entity, to provide drug and alcohol treatment for parolees in Northern California. Westcare, in turn, contracts with Empire Recovery Center, a non-profit facility. “Empire uses a 12-step recovery program, developed by Alcoholics Anonymous and Narcotics Anonymous, that includes references to ‘God’ and to ‘higher power.’”

Barry A. Hazle, Jr., an atheist, was incarcerated due to California drug convictions. His parole conditions required him to complete a 90-day residential drug treatment program.

Prior to his February 26, 2007 release from prison, Hazle had asked prison and Westcare officials to place him in a non-religious treatment program. Westcare officials directed Hazle to Empire.

When Hazle realized Empire was a religious-based program, he repeatedly objected to Westcare officials. They responded “that the only alternative to Empire was a treatment facility whose program had an even greater focus on religion.”

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Ninth Circuit: 9-Year Detention Pending Civil Commitment Proceeding Warrants Habeas Relief

By Prison Legal News

In March 2013, the Ninth Circuit Court of Appeals reversed a district court’s dismissal of a pro se habeas petitioner’s claim that his 9-year detention while waiting for the State of California to initiate civil commitment proceedings was unconstitutional.

Just before convicted rapist Bobby Joe Knight’s scheduled release from prison in 2004 after serving a 20-year sentence, the state filed a civil petition against him under California’s Sexually Violent Predator Act (SVPA), Cal. Welf. & Inst. Code §§ 6600, et seq. The Los Angeles County Superior Court ordered that Knight be held in a secure facility pending trial.

Knight remained in custody, as no effort was made to bring the state’s petition against him to trial. Incredibly, between 2004 and 2009, Knight’s counsel requested (or stipulated to) continuances of the case. Not content with the quality of his representation – being deprived of one’s liberty indefinitely, without due process of law, can be frustrating – Knight repeatedly requested that he be appointed new counsel.

Exasperated, he filed a habeas corpus petition in state court in April 2009, claiming that his lengthy detention was unconstitutional. The petition was denied, and Knight’s counsel and the government agreed to still more continuances.

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Third Circuit Finds Just Cause or Excuse Defense Not Applicable in Prison Assault Case

By Derek Gilna

Aaron Taylor, incarcerated at the Federal Detention Center (FDC) in Philadelphia, was charged with assault with a dangerous weapon under 18 U.S.C. § 113(a)(3) and assault resulting in serious bodily injury under § 113(a)(6), stemming from an attack on another prisoner. He attempted to assert the affirmative defense of “just cause or excuse” but the district court held that he failed to establish the defense as a matter of law.

On appeal, the Third Circuit found that “the elements of justification are: First, that [the defendant] was under an immediate, unlawful threat of death, or serious bodily injury to himself or to others; Second, that [he] had a well-grounded fear that the threat would be carried out if he did not commit the offense; Third, that the criminal action was directly caused by the need to avoid the threatened harm and that [he] had no reasonable, lawful opportunity to avoid the threatened harm without committing the offense … and Fourth, that he had not recklessly placed himself in a situation in which he would be forced to engage in criminal conduct.”

The district court allowed Taylor to testify as to the elements of his defense, but ultimately refused to permit additional witnesses and a prison-culture expert due to the circumstances of the assault. Taylor, who is black, had been involved in what appeared to be a racially-motivated disagreement with a white prisoner who allegedly had threatened Taylor for staring at a white, female psychiatrist. Taylor later attacked the other prisoner, who was handcuffed, while in a recreation cage – stabbing and cutting him with a shank fashioned from a razor blade. Following his conviction under 18 U.S.C. § 113(a)(3), Taylor received a 120-month sentence run consecutive to his prior sentence; the § 113(a)(6) charge was dropped.

Although the district court noted that Taylor may have felt justified in trying to deal with a perceived threat of harm, he was not entitled to prevail based upon his affirmative defense of “just cause or excuse” because he never “availed himself of [a] reasonable lawful opportunity” to avoid that threat. The judge precluded Taylor from offering additional witnesses and also refused to instruct the jury about the doctrine of justification.

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Seventh Circuit Retires “De Minimis” Standard for Use of Physical Force

By Prison Legal News

The Seventh Circuit Court of Appeals has reversed a district court’s application of a “de minimis harm” standard in dismissing a Wisconsin detainee’s claim that he was sexually groped.

In April 2008, James Washington, Jr. was a pretrial detainee at a Wisconsin jail when a guard, John P. Hively, allegedly fondled his “testicles and penis through [his] clothing” during a pat down, “then while strip searching him fondled his nude testicles for two or three seconds.” Washington filed a federal lawsuit against Hively, who denied the allegations.

The district court granted Hively’s motion for summary judgment. The court correctly recognized that it could not resolve the factual disputes on summary judgment. However, even presuming “that the defendant grabbed the plaintiff’s genitals in a way that was not related to penological interests,” the district court found Hively was entitled to summary judgment because Washington “presented evidence of only de minimis injury” and had “suffered at most an assault and battery.”

Washington appealed and the Seventh Circuit reversed, finding that “the judge’s references to ‘de minimis injury’ and ‘assault and battery’ inappropriately invoked excessive force cases,” which hold “that ‘de minimis uses of force are non-actionable.’”

The Court of Appeals found that “an unwanted touching of a person’s private parts, intended to humiliate the victim or gratify the assailant’s sexual desires, can violate a prisoner’s constitutional rights whether or not the ‘force’ exerted by the assailant is significant.”

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