>From aforum@moose.uvm.edu Mon Jun 21 11:44:02 1993 PRISON LEGAL NEWS Vol. 4 No. 4 - April 1993 THREE STRIKES AND YOU'RE OUT, AGAIN By Ed Mead Their baaack! And this time with both barrels. Ida (now Republican state representative from Mercer Island) Ballasi- otes and her fellow victims' rights cronies have reintroduced the so-called "three strikes and you're out" initiative. In addition to Citizens' Initiative 593, this group and a bunch of reaction- ary legislators have introduced House Bill 1139, a proposed new law that contains the exact same language as Initiative 593. If the legislators don't implement this draconian law, they hope the voters will. At this point, given the anti-crime hysteria whipped up in the public's mind by the bourgeois media, it is likely that one of these avenues of passage will be successful. Washington state prisoners and their families should be aware of the probable shape of things to come. The three-strike initiative campaign was launched last year, but failed to gather enough signatures to get it on the ballot. but failed to gather enough signatures to get it on the ballot. the law, but rather because the signature gathering process had been started too late. This year the victims' rights lobby has hit the ground running. The official ballot summary states: "This initiative requires persons convicted of `most serious offenses' on three occasions be sentenced to life imprisonment without early release, community custody, furloughs or parole. `Most serious offenses' includes class A felonies (violent offenses); and extortion, indecent liberties, manslaugh- ter, vehicular assault or homicide, incest with a child under 14, felony with a deadly weapon, exploiting children for pornography, coerced prostitution, controlled substance homicide; second degree assault, child molestation, kidnapping, robbery, child assault, and third degree rape." If the state legislature does not pass this law, initiative workers will need to get 183,000 signatures by July 1st. If they are able to acquire the necessary number of signatures, the proposed law will be placed on the general ballot during the November elections. The list of offenses contained in the above quoted ballot summary isn't complete. The proposed new law would also contain such vague crimes as "leading organized crime" and "sexual exploitation." A couple of catch all sections could include nearly all felons, such as any class B felony with a sexual motivation (stealing a box full of pornographic magazines?) and the commission of any other felony with a deadly weapon verdict (poaching?). So all of the above crimes, along with many others, are to be called "most serious offenses." Committing one of the listed crimes, and having prior convictions in this state or elsewhere for them on two separate occasions, qualifies you as a "persis- tent offender." According to the proposed law, "a persistent offender shall be sentenced to a term of total confinement for life without the possibility of parole..." The people who have introduced and who support this law are sincere but short-sighted individuals who believe in the effi- ciency of punishment. Its endorsers include the Washington Council of Police Officers, the King County Police Officers' Guild, Friends of Diane, Tennis Shoe Brigade, Coalition of Victim Advocates, Washington State Grange and so on. Rather than examine the root causes of crime, they focus all of their atten- tion on the offender; they treat the symptom and not the illness. And the medicine they prescribe, like every tyrant in history, is ever increasing doses of repression. The SRA was enacted in order to get tough on violent crime. Since its adoption in 1984, the legislature has increased the SRA guideline sentencing ranges for violent offenses every year. Yet the rate of violent crime continues to grow faster than the increase in population. Their response is of course more of what clearly hasn't worked. This year it comes to us in the form of HB-1139 and Initiative 593. Historically, this process ends when such modest behavior as picking a pocket or chopping down a tree on a public lane become capital crimes (as was the case in feudal England), and what generally puts an end to this process is revolution. What can you do in the here-and-now to oppose this law? Not very much. You and your friends can write and obtain a copy (or better yet several copies) of Initiative 593 from: Washington Citizens For Justice 223 - 105th NE, Suite 201 Seattle, WA 98004 Write something like "get a life" on the signature section of it and mail it back to them, with a three cent stamp so they will have to pay postage due. Folks on the outside can dial their toll-free (800) 775-3201 number, often, if they'd like more details on all this. If there's to be any serious effort to oppose the house bill and the initiative, however, it will have to come from the family members and loved ones of prisoners on the outside. They can vote and can work to defeat law makers who advocate taking these easy ways out of complex social prob- lems. It would be nice if the initiative process could be used to generate a genuine public debate on the subject of crime and punishment. So far we have been unable to find any criminal justice issue around which ex-cons or our loved ones on the outside would be willing to organize. We'd hoped opposition to the parole board would be the key, but personality conflicts and such prevented any real unity from developing. If you have some ideas on how to proceed in this area, we are certainly willing to listen. While I'm not optimistic that the threat of life without parole will motivate this state's readers to action, I at least hope this article has been informative. The young minorities who will be the primary victims of this proposed law are going to need all the information they can get. PRISON ESCAPES AND KILLINGS DOWN Incarceration rates in the United States and Canada are on the rise. Overcrowded conditions are being felt by more and more prisons. Despite all this, the number of prison escapes and homicides has decreased. Fifty state systems, the District of Columbia, and the federal Bureau of Prisons responded to a recent survey by Corrections Compendium regarding prison escapes and violence. In 1991, prison populations in the U.S. grew by more than 76,000 in the 49 systems reporting. For the same period there were 5,793 escapes. This is a decrease of 1,451 from 1990's figure of 7,244. The escape rate has continually decreased since 1984, when a reported 1.93 percent of the inmate population (7,903) escaped. In 1991, the escape rate decreased to .78 percent. Thirty-two U.S. systems, including the federal Bureau of Prisons, reported a decrease in escapes, owing to better inmate classification procedures, increase in staffing and training and an advancement of technology in security equipment. An increase in escapes was reported in seven systems due to an increase in population, specifically community or open institutions which makes it easier for an inmate to "walk away." Escapes by low-risk inmates (minimum security custody) decreased by almost 1,500 from 1990 figures, while escapes from community custody and furloughs show a decrease of 707. Many more inmates escaped from behind the bars of medium or maximum security institutions - 399 in 1991 as opposed to 327 in 1990. California, with the highest number of incarcerated offenders in a state system, also had the highest number of escapes, 1,196. However, Delaware reported the highest escape rate, 8.46 percent. The federal Bureau of Prisons, with a prison population of 52,588, reported an escape rate of less than .01 percent. Of the 49 reporting U.S. systems, the number of escapees returned to custody was 78 percent, a decrease from 1990's figure of 86 percent. In Canada, with seven provinces and the Correctional Service of Canada reporting, 562 escapes and 769 unlawfully-at-large (UAL) occurred in 1991, making the escape rate 2.07 percent and the UAL rate 2.82 percent. This is an increase over 1990's figure of 461 escapes in eight of the provinces. The Correction- al Services of Canada, which housed the most inmates, had the lowest escape rate, .57 percent. The highest percentage of escapes in 1991 was 12.6 percent in Manitoba. Canada increased their escapee return rate from 86 percent in 1990 to 88 percent in 1991. Homicides within America's prison walls also declined in 1991. Inmate deaths have been reduced by half since Compendium's first prison violence survey in 1984. Also, for the first time since 1984, there have been no staff homicides reported in the 49 responding U.S. systems. Inmates killed by staff members, not surveyed previously, occurred in Arkansas, California and North Carolina. A distinct increase of inmate and staff assaults by inmates was reported. Assaults on staff by inmates increased by 2,519 and assaults on inmates increased 2,438 over 1990's figures. Inmate suicides increased slightly, going from 101 in 1990 to 112 in 1991. In Canada, of the eight reporting jurisdictions, Ontario and the Correctional Services of Canada reported five inmate homi- cides and no staff homicides. Only the Correctional Services of Canada reported two inmates killed by staff members. Assaults on staff by inmates decreased slightly from 42 in 1990 to 37 in 1991 for the same provincial systems. As in the U.S., Canadian provinces also reported an increase in assaults on inmates by inmates of 148 for 1991, up from 102 in 1990. Twenty-five inmate suicides were reported in four Canadian systems, a decrease from 55 reported in 1990. Two staff members killed inmates in Correc- tional Services of Canada facilities. Over 150 riots or disturbances occurred in 20 U.S. systems and the federal Bureau of Prisons. Maryland reported a riot involving 41 inmates, injuring 14 officers and causing over $1 million damage to the facility. Texas reported the most distur- bances, 47, involving several inmates, but did not submit any specific information. Canada reported 17 occurrences in two provincial systems and the Correctional Services of Canada. From: Corrections Compendium 24 COPS SLAIN IN FIRST HALF OF 1992 FBI Director William S. Sessions announced that 24 law enforcement officer were killed feloniously in the line of duty during the first six months of 1992, a sharp reduction from the 44 officer slain during the first half of 1991. Another 29 officers were killed by accidents that occurred during the performance of their duties, the FBI said. Firearms were the weapon most used in the slaying of offi- cers, accounting for 19 of the 24 killings this year. One officer was killed by a bomb explosion, and four were intention- ally struck by vehicles. About half of the slain officers were killed during arrest situations. Of those, six were attempting to prevent robberies or apprehend burglary suspects. Four officers were killed while responding to disturbance calls; and two were slain while inves- tigating suspicious persons or circumstances. Nearly all of the slayings occurred in Southern (14 offi- cers) or Western (six officers) states. From: Criminal Justice Newsletter RELEASE NOT APPROPRIATE RELIEF FOR BEATINGS Samuel Brown is a New York state prisoner. Brown was convicted of three counts of felony murder arising from an armored car robbery in upstate New York by the Revolutionary Armed Task Force. Brown became an FBI informant and was later tried and convicted. This case is Brown's federal habeas corpus petition contest- ing his criminal conviction. The district court found that jail guards beat Brown three to six times a day for five days, causing severe injuries and then denied Brown medical treatment for 75 days. Brown raised the beatings as a grounds for relief in his petition. At pages 948-50 the court gives a detailed discussion of remedies available to protect prisoners from government abuse. The court ordered the district attorney to send copies of the court order to Governor Cuomo and the state officials responsible for operating the Rockland county jail for them to report to the court what investigative efforts and remedial measures have taken place since Brown's beating. The court held that the beatings and lack of treatment did violate the eighth amendment. But such violations are only grounds for money damages or injunctive relief, not release. The court said it would give further consideration to the matter upon receipt of the requested report from state officials. See: Brown v. Doe, 803 F. Supp 932 (SD NY 1992). NYC CLAIMS PRISONERS SHOOT THEMSELVES TO FILE SUIT New York City commissioners claim that for the last several years prisoners have paid jail guards to smuggle guns in to them, whereupon they shoot themselves and then sue the city for failing to protect them. A city official claims "There are at least five lawsuits presently pending against the city involving incidents where we have evidence that the wound was either self-inflicted, or inflicted at the direction of the injured inmate. An inmate would pay a corrections officer to bring in a gun to shoot himself so that he could bring a lawsuit or get some favor from jail authorities, such as reduced bail or improved jail accommo- dations." On January 2, 1993, a gun smuggled into a jail's maximum security section accidentally discharged and wounded a jail guard. A prisoner is suspected in that shooting. Another jail guard has been arrested and charged with smuggling the gun in. City officials claim guards have been paid between $1,100 and $7,500 to smuggle in guns. Since 1987, 16 handguns have been found in city jails. A city official states that investigations have shown a pattern to the shootings: in each case wounded prisoners could not identify their assailants, even when the shootings took place in well lit areas of maximum security prisons and each prisoner suffered only a grazing wound on a fleshy part of the body. To date none of the suits have come to trial. One suit seeks $8.5 million in damages. Seattle Times, Jan. 21, 1993. NY CORRECTIONS COMMISSIONER PLEADS GUILTY William Jenkins, a former assistant corrections commissioner pleaded guilty in January to charges that he extorted money from a janitorial supplies company which served the city's jails. Jenkins, who was responsible for the Corrections Department's assets management, is scheduled to be sentenced March 19, 1993. Prosecutors said Jenkins received $24,000 in cash and hundreds of dollars worth of toilet paper in exchange for awarding $240,000 in contracts to the company. He was arrested and dismissed from his position last October. Source: On the Line INQUIRY STEPPED UP IN GEORGIA PRISON SEX CASE Authorities in Georgia said they have intensified an inves- tigation into alleged sexual abuse at a Georgia women's prison after 14 current and former state corrections employees were indicted on rape and sexual assault charges. A grand jury returned the indictments after prosecutors laid out the accusations in graphic detail. The indictments came more than eight months after the Georgia Bureau of Investigation (GBI) began probing allegations that officers had sexually abused inmates at the Georgia Women's Correctional Institution in Hardwick. The GBI initiated its investigation after more than 100 inmates spoke out as part of a 1984 lawsuit filed against the prison. The suit claimed female inmates were subjected to rape, sodomy and other sexual assaults. Prison employees coerced inmates into prostituting themselves, trading sex for favors, and in some cases forced prisoners to have abortions, the suit said. The defendants named in the indictments, 10 men and four women, were all arrested last November. Of the 14, six were fired, six quit, and two have been suspended. Additional indict- ments are likely, including some from the Milan Women's Center and the Washington Correctional Institution. Robert Cullen, an attorney for the inmates, said he was "heartened" by the indictments but a "high level of sexual abuse continues to occur" in the state's prison for women. Since March of 1992, more than 100 inmates have taken polygraph tests or given sworn statements implicating about 50 employees at the three prisons. In the past eight months, nine employees have been fired, while nine have resigned rather than be fired. Another four have been transferred and six suspended, four of them without pay. From: Corrections Digest VA BUILDS MORE PRISONS A projected 38 percent increase in the states prison popula- tion within the next five years has prompted Governor Douglas Wilder to propose a $111.7 million prison construction project. The proposal includes construction of a 1,046 bed women's prison, a 697 bed men's prison, a 100 bed maximum security juvenile facility, a 24 bed work release center and a day reporting center that would handle as many as 600 prisoners assigned for technical violations of probation or parole. DOC officials had asked for $305 million but Wilder included only what aides said were the most critical projects in his proposal. Source: On the Line DEATH ROW PRISONERS CAN MARRY Roger Buehl is a Pennsylvania state prisoner on death row. In 1990 Buehl requested permission for a special one time visit in order to marry his girlfriend, Deborah Ayres. Prison offi- cials denied the request citing a 1985 incident where Ayres had been caught smuggling three balloons of marijuana to another death row prisoner. Previous requests by Buehl to add Ayres to his visiting list had been denied. After unsuccessfully adminis- tratively appealing the denial Buehl and Ayres filed suit under  1983 claiming violation of their constitutional right to marry. Prison officials moved for summary judgement which the district court granted in part and denied in part. The court notes that prisoners have a constitutional right to marry but do not have a right to visitation. The court lists extensive cases concerning visitation in general. The court denied summary judgement to the defendants by noting that they had not identified any security risk in a brief, one time visit for the marriage ceremony at a time and place of the warden's choosing. The court notes that a valid reason to deny Ayres general visitation privileges does not justify the denial of Buehl's right to marry. The court granted the defendants qualified immunity from money damages, holding that they could have reasonably believed they could deny Ayres institutional access for any reason. They reached this conclusion despite the Supreme Court decision in Turner v. Safely, 482 US 78, 107 S.Ct. 2254 (1987), which held that prisoners have a right to marry. The case will proceed to trial on the plaintiff's request for injunctive relief. See: Buehl v. Lehman, 802 F. Supp 1266 (ED PA 1992). DENIAL OF WINTER CLOTHING CRUEL AND UNUSUAL In February, 1990, several Iowa prisoners were placed outdoors without hats or gloves for an hour while guards searched their living unit. The temperature was about 30 degrees F. The prisoners did not suffer any long term injury from the experi- ence. The prisoners filed suit and the district court ruled in their favor, holding their eighth amendment rights had been violated. PLN has reported this case in the past as it has wound its way through the system. The current cases are two opinions by the district court after a remand from the court of appeals at 973 F.2d 686 (8th Cir. 1992, PLN, vol. 4, no. 3) In the two opinions the district court gives a good explana- tion of the objective and subjective factors that need to be proven by prisoners filing eighth amendment suits. The court cites numerous cases which hold that prisoners have a right to adequate clothing to protect them from weather conditions. Denial of proper winter clothing is a deliberate infliction of pain totally without penological justification that violates the eighth amendment. The court held that the claim by defendants that they were concerned that the prisoners would hide contraband in the hats and gloves was unfounded. The court considered the fact that the hats and gloves were readily available in ruling against the prison officials. The court awarded each plaintiff $75.00 in damages. See: Gordon v. Faber, 800 F. Supp 793 and 797 (ND Iowa, 1991, 1992). PUNISHMENT OF PRETRIAL DETAINEES UNLAWFUL Spencer Parker is a pretrial detainee in Texas. While awaiting trial in the jail's minimum security section he was moved to the violent offenders section in retaliation for arguing with a guard. As a result of the transfer he was assaulted and lost his right eye and was denied proper post-operative treat- ment. Parker filed suit under  1983 and the district court dismissed the complaint as being frivolous under 28 U.S.C.  1915 (d), before service on the defendants. Parker appealed and the court of appeals for the fifth circuit reversed and remanded. The court of appeals begins by noting that district courts have a duty to closely examine pro se prisoner complaints to ensure they are not prematurely dismissed. Using the Supreme Court's test for "frivolousness" (set out in Nietzke v. Williams, 490 US 319, 323-25, 109 S.Ct. 1827, 1831 (1989)), the court held that Parker's suit was not frivolous. The court notes that pretrial detainees may not be subjected to any treatment amounting to punishment because they have not been convicted of any crime. Pretrial detainees are entitled to protection from adverse conditions of confinement created by prison officials for punitive purposes. Thus, Parker has stated a valid legal claim and is entitled to an opportunity to develop his claims. Pretrial detainees are also entitled to reasonable medical care. This claim was also remanded for development of a factual record so that the district court can fully investigate the facts surrounding Parker's medical treatment. The appeals court also instructed the district court to appoint counsel to represent Parker to assist him in investigat- ing and litigating his claims. See: Parker v. Carpenter, 978 F.2d 190 (5th Cir. 1992). RIGHT TO RELIGIOUS DIET CLEARLY ESTABLISHED Warren Bass is a Jewish New York state prisoner. Despite the recommendation of the prison rabbi that Bass was sincere in his religious beliefs and should receive a kosher diet, prison officials refused to provide Bass with a kosher diet. Bass filed suit under  1983 claiming the denial of a kosher diet violates his right to practice his religion. The defendants had sought qualified immunity from damages contending Bass did not have a clearly established right to a religious diet. The district court denied the qualified immunity motion and the court of appeals affirmed in the defendant's interlocutory appeal at Bass v. Coughlin, 976 F.2d 98 (2nd Cir. 1992), which PLN reported (PLN, vol. 4, no. 3).. In this opinion the district court provides an extensive discussion of how courts should examine qualified immunity defenses by government officials. At pages 1070-72 the court gives a detailed examination of cases that hold that prisoners are entitled to a diet consistent with their religious beliefs. Because there was a clear and controlling legal authority establishing this right as far back as 1969, and continuously affirmed up to the present, prison officials were clearly not entitled to qualified immunity for their actions. See: Bass v. Coughlin, 800 F. Supp 1066 (ND NY 1991). CHANGE IN IFP STATUS DOES NOT REQUIRE FEE PAYMENT Michael Murphy is a Missouri state prisoner who filed suit claiming his religious rights had been infringed by prison officials. At the time he filed suit he earned $30 a month at his prison job and had $53 in his prison account. To file his suit he sought, and was granted, In Forma Pauperis (IFP) status to proceed as an indigent. The court did require that he pay a partial $13 filing fee rather than the full $120 filing fee. Nearly three years after filing the suit Murphy was placed in work release and had about $1,300 in savings. The defendants moved the court to dismiss the suit because Murphy had not promptly notified the court of the change in his financial status. As an alternative, they moved the court to reconsider Murphy's IFP status, require him to pay the full filing fee and/or discharge his appointed counsel. The district court, in the first ruling on this subject in the eighth circuit, held that dismissal of a suit is not warrant- ed due to a change in the indigent's finances. The court gives an extensive discussion, with numerous citations, of cases involving indigents' IFP status, changes in finances, the legis- lative history and intent of the IFP statute, etc. The court held what was important was the indigent's finan- cial status at the time he applies for IFP status. Changes in financial status after the litigation is begun do not warrant revocations of IFP status. Because government funds are not being expended (the court only waives the fees for filing and process serving) there is nothing to be gained by forcing payment of the fees at a later stage of the proceedings. Because the court cannot compel counsel to represent indigents in civil matters, appointed counsel may continue to represent plaintiffs whose IFP status has been revoked. The district court ruled against prison officials on all points in this case. See: Murphy v. Jones, 801 F. Supp 283 (ED MO 1992). CONFISCATION OF LAW BOOKS STATES CLAIM Tyrone Chavers is a Wisconsin state prisoner. He filed suit under  1983 after prison officials confiscated his lawbooks. This case is the district court's ruling on Chavers' In Forma Pauperis (IFP) request. The defendants had not yet been served in the case. The court held that Chavers had adequately alleged his indigence. Because Chavers did not claim that the confiscation of his legal materials affected his ability to litigate, however, the court held that this claim was legally frivolous and had no arguable basis in law. The court went on to hold that Chavers could state a claim that prison officials had violated his due process rights by confiscating his law books. While an intentional but unauthorized property deprivation cannot be challenged in federal court as long as adequate state remedies exist, an authorized and intentional confiscation may be challenged under  1983 in federal court. In this case the court relied on Wisconsin DOC rules which authorize only Bibles and Korans as permitted books. It thus held that Chavez may not have been afforded due process to challenge the DOC policy prohibiting prisoners from possessing their own law books and legal materials. These claims were authorized by the court to proceed. See: Chavers v. Abrahamson, 803 F. Supp 1512 (ED WI 1992). WISCONSIN LACKS ADEQUATE STATE REMEDIES FOR DUE PROCESS VIOLATIONS Varees Smith is a Wisconsin state prisoner. He was infrac- ted for allegedly charging another prisoner to do legal work. He filed suit under  1983 claiming his due process rights were violated when a disciplinary hearing was held without notice and he was not allowed to present witnesses or evidence on his own behalf. The defendants sought to dismiss Smith's complaint on the grounds that it failed to state a claim for which relief could be granted. The defendants claimed they could not be sued in federal court because even if Smith had been deprived of his due process rights to remain out of segregation without a constitu- tionally adequate hearing, he had an adequate remedy for relief under Wisconsin state law. The district court gives a detailed examination of the U.S. Supreme Court cases concerning prisoners' rights to sue for due process violations. The district court ruled that Zinermon v. Burch, 494 US 113, 110 S.Ct. 975 (1990), does not allow state officials to escape liability for failing to provide constitu- tionally required due process safeguards merely by pointing to state remedies. In this case the district court specifically examines the Wisconsin state remedy available to prisoners wrongfully placed in segregation. The remedy, called state law certiori, only allows for expungement of the conduct report and does not permit recovery of money damages. The district court agreed with another federal district court in Wisconsin, Sturdevant v. Haferman, 798 F.Supp. 536 (ED WI 1992), that this Wisconsin state law remedy is not adequate. Thus, Wisconsin prisoners can continue to sue state prison officials in federal court for violation of their due process rights. See: Smith v. McCaughtry, 801 F. Supp. 239 (ED WI 1992). INFRACTION SUITS MUST EXHAUST ADMINISTRATIVE REMEDIES L. Markham is an Indiana state prisoner. He lost 243 days of earned good time in a series of disciplinary proceedings. Under Indiana DOC regulations prisoners can appeal the loss of good time credits to prison officials within 10 days of the hearing, which Markham did not do. Indiana state law provides no judicial forum for prisoners to contest the decisions of prison disciplinary boards. Their only avenue of relief, when good time is at stake, is via federal habeas corpus. Markham filed a petition of habeas corpus in federal court seeking return of his good time credits. The district court dismissed the petition holding that by failing to appeal the rulings administratively, Markham had waived his claims. The court of appeals for the seventh circuit affirmed. The appeals court held that 28 U.S.C.  2254, the federal habeas corpus statute which requires the exhaustion of state judicial remedies before allowing a petition in federal court, also requires exhaustion of state administrative remedies as well, even though the statute does not say any of this. The court interprets the word "courts" in  2254 to "...embrace any tribunal that provides available and effectively corrective process." It is not the concern of the federal courts how the states divide adjudicative functions between courts and agencies. The court states that federal courts should not intrude into relations between the states and their prisoners until the state has a chance to correct its errors. The court held that because Markham had not administratively appealed the disciplinary board ruling he had forfeited his right to seek judicial review. The only difference, according to the court, between forfeiture in this case and forfeiture in other habeas cases involving exhaustion of state remedies is that here the state forum is administrative and not judicial. The court notes this is the first time a court has held that prisoners must administratively appeal the decisions of disciplinary boards before being able to challenge the decision in court. See: Markham v. Clark, 978 F.2d 993 (7th Cir. 1992). NOMINAL DAMAGES AWARDED IN PRISON RAPE CASE Four Missouri state prisoners were repeatedly raped by other prisoners. Before and after the rapes they were unable to check into Protective Custody (PC). They filed suit against prison officials claiming the rapes violated their eighth amendment rights. After a trial, the jury awarded the plaintiff's nominal damages of $1. The court awarded the plaintiffs $95,000 in attorney fees. Both parties appealed. In a 7 to 6 decision the court of appeals for the eighth circuit affirmed in an en banc hearing. The court held that the jury could have reasonably awarded nominal damages because the plaintiff's actions, and not the defendants' unconstitutional conduct, caused many of the inju- ries. The dissenting opinion is highly critical of this part of the ruling. The dissent notes that in prison eighth amendment cases, with the high standard requiring actual injury, intent by the defendants, etc., that "nominal damages are, in effect, impossible in prison assault cases for the injuries suffered in those cases are `too obvious to address.'" The dissent believes that nominal damages constitute a miscarriage of justice requir- ing a new trial. The court upheld the finding of liability against the prison warden because the warden did not warn prisoners of the risk of sexual assault, prison staff were not trained or instructed on how to handle or prevent sexual assaults, and of more than 100 rapes in a three year period none were referred for prosecution and almost none were assigned to the prison investigator. PC was also not readily available upon request. The court also held the warden was not entitled to qualified immunity because the law was clear at the time that prisoners and prison officials are liable if they are deliberately indifferent to or act with reckless disregard of that right. The court upheld the denial of injunctive relief because none of the plaintiffs had been raped since 1989. Injunctive relief was also not appropriate because the warden lacked the authority to change procedures centrally decided by the DOC. The award of attorney fees was upheld. See: Butler v. Dowd, 979 F.2d 661 (8th Cir. 1992). STATE LIABLE FOR COUNTY JAIL OVERCROWDING Jail prisoners in the Harris County Jail, Texas, filed suit against county and state officials claiming that overcrowding at the jail violated the eighth amendment. The district court found that it did and that both state and county officials had acted with deliberate indifference towards jail prisoners. The defendants appealed and the court of appeals for the fifth circuit affirmed the lower court rulings. The appeals court notes that the states do not enjoy quali- fied immunity protection. The court upheld the liability finding against the state by holding that the state's refusal to accept convicted prisoners for transfer to state prisons was the cause of the jail's overcrowding. The court rejected the state's defense that a lack of funding for the state's prisons, which are seriously overcrowded, had caused it to not accept the jail's convicted prisoners. The court notes that if the state expands its prison facilities the early release of prisoners will not be needed to relieve overcrowding. The court also upheld the finding of deliberate indifference by, and liability of, the county defendants. The defendants claimed that the district court's imposition of a population cap on the jail was an overly intrusive remedy and thus an abuse of discretion. The appeals court rejected this argument by holding that a numerical cap on the number of prison- ers gives the county maximum flexibility in how it wants to meet the population goals. See: Alberti v. Sheriff of Harris County, Texas 978 F.2d 893 (5th Cir. 1992). BLIND PRETRIAL DETAINEES ENTITLED TO TREATMENT Anthony Harris was a pretrial detainee in the Cook county jail (Chicago). He is legally blind. While at the jail he repeatedly requested medical treatment for his blindness and frequent eye infections. He also requested special handicapped housing to prevent dangerous situations. Jail officials ignored his requests. As a result he was never provided with any medical treatment and suffered from eye infections. Being unable to protect himself he was beaten by jail staff and prisoners. Harris filed suit claiming violation of his eighth amendment rights. The defendants moved for dismissal on grounds Harris had failed to state a claim and that he failed to properly serve some of the defendants with the complaint. The district court granted their motion in part and denied it in part. Finding one of the defendants had not been properly served within 120 days of the complaint being filed the court dismissed the defendant from the suit without prejudice, giving Harris an opportunity to properly serve him. The court begins by noting that pretrial detainees are protected from mistreatment by the due process clause of the constitution, not the eighth amendment. The court gives a good discussion of the elements that must be plead to properly state a constitutional violation for deprivation of medical treatment. Using that standard the court held Harris had properly stated a claim upon which relief could be granted. The court dismissed some of the supervisory defendants because Harris had failed to allege their personal participation in or knowledge of the violations. In declining to dismiss the jail guard defendants the court discusses detainee's right to medical treatment and to be pro- tected from harm. The court held Harris had properly alleged such violations. See: Harris v. O'Grady, 803 F. Supp 1361 (ND IL 1992). DAMAGES AWARDED TO HIV+ JAIL PRISONER Louise Nolley is an HIV+ prisoner held in the Erie County Jail in New York. She filed suit under  1983 contending that various jail practices violated her rights. The objectionable practices included: automatically segregating HIV+ prisoners; denying HIV+ prisoners law library and religious service access; and placing red stickers on the files and records of HIV+ prison- ers. In a preliminary ruling, at 776 F. Supp 715 (WD NY 1991), the district court had found the defendants had violated a number of Nolley's rights but did not order relief at that point. In this opinion the court awards Nolley extensive damages finding that the county, sheriff, jail warden and jail nurse were all responsible for the statutory and constitutional violations. The court awarded Nolley $20 per day for mental distress and $10 per day in presumed damages for each of the 310 days the jail kept red stickers, denoting her HIV status, on her files. The court gives an extensive discussion of the right of privacy and damages as a remedy for privacy deprivations. The court ruled the jail's policy of automatically segregat- ing HIV+ prisoners was unconstitutional and violated Nolley's due process rights. The court held that the policy was irrational and not reasonably related to any legitimate penological concerns where the defendants knew HIV cannot be spread through casual contact and Nolley was not assaultive or aggressive. The court gives a good discussion of damage awards in wrongful segregation cases and explains its award to Nolley of $125 per day for each of the 310 days she was segregated. The court awarded nominal damages on Nolley's denial of law library access because, while the denial was unconstitutional, she could not show any adverse effects. The court awarded $10 in damages for each of the 35 reli- gious services Nolley was prohibited from attending. The court provided a good discussion on the award of puni- tive damages against supervisory staff. The court awarded Nolley $20,000 in punitive damages against the jail warden. The court also awarded Nolley $87,000 in attorney fees and costs. See: Nolley v. County of Erie, 802 F. Supp 898 (WD NY 1992). DOC PHONE RIP OFF On March 16, 1992, the Washington DOC signed a contract with AT&T (American Telephone and Telegraph) for the latter to provide telephone services to all the prisons in the Washington prison system. AT&T in turn has subcontracted with three Local Exchange Companies (LEC's) to provide local telephone service. The contract covers two types of LEC public telephones. One is services for prisoners who can only make collect calls. The others are public phones for use by staff and visitors which can make collect and pay calls. The subcontractors and the facilities they service are: GTE for the Washington State Reformatory, Twin Rivers, Indian Ridge and the Special Offender Center. PTI does Clallam Bay, Purdy, Olympic CC, Pine Lodge Pre Release and Coyote Ridge. USWC does Shelton, Walla Walla, McNeil Island, Airway Heights, Tacoma Pre Release, Cedar Creek and Larch. The DOC does not own the telephone monitoring and recording equipment it has installed. Rather, as part of the contract each telephone company is being contracted to provide and maintain: public telephone sets, all associated equipment, lines, dicta- phone recording/monitoring equipment, call timing and call blocking software. Title to all the phones, recording equipment, etc., remains with the contractor. The DOC has agreed to defend against any and all litigation challenging the contractor's provision of call recording and call monitoring equipment. That provision will extend beyond the actual life of the contract, which is for five years. Each contractor provides the superintendent of each prison with a monthly report that details, by institution, the date, time, payphone number, called number and length of each call made from a prison telephone. Using this information prison officials can target specific phone numbers called or dates and times to choose which calls to listen to after they have been recorded. The Washington DOC policy on phone recording, DOC Policy 450.200, states that the tapes of all phone calls will be maintained for at least a one year period. With regards to the kickback that the DOC receives from prisoner phone calls the contract states: 7.A In return for the right to provide Inmate and Public Telephone Service under this agreement, Contractor GTE, PTI and USWC shall each pay to the department on a monthly basis the commissions set forth in attachment 1 to this agreement. Each carrier's monthly commission checks shall be sent to the superintendent of each covered correctional institution or work release program, made payable to the Inmate Welfare Fund, unless and until the Department shall specify a different payee for the carriers commission checks. The commission rates that the contract specifies is 24% of billed revenues from calls carried by ATT, 27% for those calls carried by GTE and PTI, and a whopping 35% for all calls carried by USWC. Needless to say, the telephone companies aren't giving the DOC these commissions out of their profit margin, rather they are adding this on as a surcharge to what they bill the people we call. The contract states that it is the responsibility of the contractor to abide by the rates established by the FCC (Federal Communications Commission). I've done some preliminary research into this matter and it seems that 47 U.S.C.  202-207, which prohibits telephone carriers from discriminating among their clients and charging them more, would provide a means by which to challenge this. 18 U.S.C.  2510 and 2511, limit the conditions in which phones can be tapped or recorded by the government. The law applies to prisons, See: Kimberlin v. Quinlan, 774 F. Supp 1 (DC DC 1991); United States v. Amen, 831 F.2d 373 (2nd Cir. 1987); but has been held not to apply to prisoners' calls because prison officials are considered law enforcement personnel. See: United States v. Noriega, 917 F.2d 1543 (11th Cir. 1990); Lee v. Carlson, 645 F. Supp 1430 (SD NY 1986). My thinking is that a challenge to both the extortionate surcharge and the monitoring would have to be brought by the outside person receiving the phone call. As a matter of standing the prisoner making the call is not affected because they don't pay the phone bill and are not being provided with the service. Thus the prisoner does not have standing to challenge the prac- tices. There are other issues as well such as the outside perso- n's right to choose the carrier that carries the call, etc. The outside people can challenge the fact that their right not be charged discriminatory prices under 47 U.S.C.  202-207 is being violated by this practice. They can also assert their right to privacy under the fourth amendment concerning the telephone recording/monitoring. All the published cases that uphold prison officials recording of prisoner calls have been brought by a prisoner. None have been filed by the free person being called. To get the applicable telephone rates, which are centrally filed with the government, write to: Federal Communications Commission, Common Carrier Bureau, 1919 M St. N.W. Washington D.C. 20554 (202) 632-6910. Ask for the rates applicable for your area, the company in question, etc. While the phone company or DOC being sued on this issue would argue that by accepting a collect call from a prisoner the person being called is consenting to being recorded that type of reason- ing has been rejected by courts dealing with free world visitors to prisoners being searched. See: Thorne v. Jones, 765 F.2d 1270 (5th Cir. 1985); Daugherty v. Campbell, 935 F.2d 780 (6th Cir. 1991); Marriot by and through Marriot v. Smith, 931 F.2d 517 (8th Cir. 1991). The courts have held that forcing a person to choose between a search that violates the fourth amendment and being allowed to visit their loved one in prison is not a choice at all and thus is not a valid consent. The same argument and reasoning can be applied to the phone recording issue: that a choice between talking to their friend or family member on the phone or consenting to a search and seizure of the telephone conversation by government officials is no choice at all and thus not a valid consent. The supreme court has held that both federal wiretapping statutes and the fourth amendment require particularized suspi- cion that someone has committed a crime when a non prisoner's phone is recorded or monitored by government officials. A court order authorizing the tapping is also required. See: United States v. Donovon, 429 US 413, 97 S.Ct. 658 (1977). Obviously the free person being called by the prisoner is the party who has to assert this right. At least one court has held that charging prisones ' families excessive phone rates is unconstitutional. See: Tuggle v. Barks- dale, 641 F. Supp 34 (MD TN 1985). But that seems to be an isolated ruling. I think the best results will likely be obtained by an outside person challenging the pricing scheme on statutory grounds and asserting their fourth amendment rights against the recording. I am interested in hearing from anyone who has liti- gated this issue or who has any ideas. Currently CURE (Citizens United for the Rehabilitation of Errants) is working on getting a bill passed in Congress which would allow prisoners to direct dial their phone calls and would ban this type of telephone extortion by the DOC and phone compa- nies. They require more information on the phone set up in different states and prisons. Their address is: CURE, P.O. Box 2310, Washington D.C. 20013. The following method is suggested by CURE on how to determine the actual cost of prisoner telephone calls. This can be used for litigation challenging the rates and/or be sent to CURE for their lobbying campaign on this issue. 1.Receive a one minute telephone call from a prisoner calling collect from a prison. Save your telephone bill which shows the cost of the call. 2.From the same telephone number that you received the prison- er call in No. 1 above, call the prison direct. When the phone answers the charge on your bill should be for a one minute call. Save your telephone bill which shows the cost of this call. 3.When visiting at the same prison from and to which the above telephone calls were made, call the same telephone number the prisoner called in No. 1 above from a pay phone in or near the prison. Make this call collect, operator assist. Save your telephone bill which shows the cost of this call. 4.Immediately after the above phone call is made, call the same telephone number direct, using coins, from the pay phone at or near the prison. Determine the connection charge which should be the same as a one minute call. Make a notation of the charge. The calls should all be received and made using the same struc- ture, i.e. weekend rate, holiday rate, day or evening rate, etc., in order that the charges you submit accurately reflect the same rate. The issue of telephone access is a vital one to prisoners. Virtually all US prisons are located far from the urban centers most prisoners come from. The isolation of prisons makes visita- tion difficult if not impossible. As a group prisoners and our families tend to be poor and ill able to afford this type of rip off. The telephone represents the best way, aside from personal visits, for prisoners to maintain family ties and relationships with their friends, family, loved ones and the community. It should not be held hostage to extortionate pricing by the tele- phone monopolies and the DOCs. FROM THE EDITOR By Ed Mead Welcome to another issue of PLN. We are still working on our 1994 prison calendar and we still need graphics and drawings. Any prison artists interested in participating should send us a copy of their work for us to check out, if we want to use it we will then contact you about getting an original or a better copy. The calendar will be in black and white and the graphics will be in a landscape format, horizontal 11 by 8 1/2. To have it available in time for the new year we need to have it at the printer by September. Anyone interested in participating should contact Ed or myself. Recently we went through our mailing list to find out how many were supporting subscribers. This is the first time we'd done this and the results kind of surprised us. A little more than 38% of our readers are getting free subscriptions and another 12% have donated less than $5.00. So all told, slightly more than half our readers have donated less than $5.00 (see accompanying graph). Most of the non-donors are prisoners. We don't expect prisoners in control units or on death row to make donations (but if you can afford it feel free to do so) because of the difficulty in earning money on lockdown. But we do expect prisoners in population and free people to donate. It costs us about $.50 to print and mail each issue of PLN. Those are pretty much our only expenses, no one at PLN gets a salary, we have no overhead because everything is done by volunteers. All we want is for people to try to cover the cost of their subscrip- tion. All donations, no matter how small, help. When we get letters from prisoners in population who state they find PLN useful and informative but that they can't make any donation whatsoever I wonder how useful we can be if they can't hustle up a few stamps to cover subscription costs. The reason I bring this up now is that while PLN has more readers than ever before many of the new additions are indigent and have not donated. At the moment we can afford to provide complimentary subscriptions and can do the occasional extra big issue like last month's PLN. But we see PLN as a long term project. PLN fulfills a need not met by any other publication and we want to continue meeting those needs and we will do so as long as the project pays for itself. We try not to let money concerns interfere with our operation, we've never turned anyone down for a subscription if they were indigent, in a control unit, down on their luck, etc. But at some point if the current trend continues and the non paying subscribers continue to increase in proportion to paying subscribers we will no longer be breaking even, it will start costing us more money to print and mail PLN than we take in from donations. That will necessitate our starting to cut non-do- nors from the mailing list. You, our readers, are our only source of income. We don't have any big money sponsors, we don't sell advertising, and our politics pretty much cut us off from grants and such from the poverty pimp foundations (we have already tried that, unsuccessfully). Financial independence also means that we answer only to you, our readers. My dad says that whenever people give you money (lots of it) they expect you to think like they do. Well, we aren't going to change our way of thinking, or PLN's editorial line, just for money. But that doesn't mean we don't need money. To make a long story short, if you haven't made any donations or aren't covering the cost of your subscription and you have the means to do so, please send us a donation. One means that prisoners can use to make PLN accessible to more readers, and help subsidize our indigent subscriptions, is to encourage their library or law library to subscribe to PLN at our institutional rate of $25.00 a year. We can provide invoices with our federal tax number and other information on request. If you know of anyone interested in what PLN has to say encourage them to subscribe. We can provide you with subscription forms on request. Enjoy this issue and pass it along when you're done with it. AT&T EXPLOITS PRISON LABOR The phone company has found a way to dump union workers, save big money and exploit the labor of prisoners, all at once. According to reports from the Communications Workers, AT&T is contracting out telemarketing jobs to firms that provide labor practically free through the prison system. The company is planning to lay off thousands of telephone operators " all union members who could perform the telemarketing work. Prisoners, of course, have no option about performing work they are assigned. What do the AT&T subcontractors pay prisoners for telephone work? Try $2 per day. For that, the prisoners " essentially slave laborers " have to call area businesses, identify them- selves as AT&T representatives and try to sell AT&T products and services. The prison systems in Colorado, Oregon, Arizona, New Mexico, Ohio, New Jersey and Florida sell the right to exploit prisoners to a firm called Unibase, which in turn sells the service to AT&T. From: Workers World PERUVIAN POLITICAL PRISONERS MISTREATED By Paul Wright In past issues of PLN we have reported on events in Peru affecting the political prisoners of the Communist Party of Peru (PCP). In May of 1992 the Peruvian government stormed the Canto Grande maximum security prison killing and wounding dozens of PCP prisoners; many were killed after surrendering to government forces (See Sep. 1992, PLN). After the prison massacre the government transferred the POWs to prisons and military bases across the country. Since the massacre (which was only the latest of several) the POWs living conditions have deteriorated dramati- cally. Recent reports from Peru indicate that on November 26, 1992, several truckloads of troops entered the Santa Monica prison in Lima and attacked the prisoners. The number of dead or wounded is unknown because the government refuses to allow lawyers, human rights groups, the red cross or family members to enter the prison. On November 22, 1992, two guards and two prisoners were reported killed in unknown circumstances at the prison in Puno. The prisoners at Puno are being subjected to especially barbaric treatment. Members of the delegation sent to Peru by the Interna- tional Emergency Committee to Defend the Life of Chairman Gonzalo denounced how the military dictatorship has initiated a new extermination of prisoners of war: "the prisoners accused of belonging to or support- ing the PCP have been transferred to the recently opened prison on an Air Force base in Puno, a city near Bolivia, where the temperature reaches 10 degrees below zero Celsius. The descrip- tion of living conditions in this prison, provided by lawyers and prisoners family members, can only be called barbaric and violat- ing all fundamental human rights: chained 23 hours a day, limited access to sunlight for only an hour a day, being subjected to torture and beatings, they are forced to remain naked for long periods of time. Their food consists of a piece of bread and a glass of water in the morning and a watery rice soup in the evenings. Tuberculosis and other illnesses are very common and the prisoners are forced to sleep on bare concrete floors. It is difficult for them to see their lawyers and the infrequent visits from their immediate family members, who must travel for days to reach the prison, can only last 10 minutes." On their part the prisoners' relatives denounce the fact that the prisoners are denied the most fundamental human rights. They are not provided with either medical attention nor medicines. They are denied the right to nutrition, "giving them one meager meal a day, mixed with glass and kerosene, they have prevented their families or friends from giving them any type of nutrition- al assistance or any other type of assistance." This is in the context that in all Latin American countries it is customary for prisoners' families to provide food, clothing and other items to their imprisoned relatives. Since the capture of PCP chairman Guzman in September of 1992 the war has only intensified. The PCP has continued and increased its attacks on the government. For its part the government is seeking to impose the death penalty, retroactively, on members of the PCP because of their membership, real or alleged, in a "terrorist" organization. After the Peruvian Bar Association denounced the torture of PCP Central Committee member Marta Huatay, who is a lawyer and was captured with Guzman, the govern- ment banned the Bar Association for being apologists for terror- ism! Alfredo Crespo, the lawyer who represented Guzman at his secret military kangaroo trial has been arrested as have several other lawyers who represent PCP prisoners. Dr. Crespo was charged with "treason" because he is Mr. Guzman's attorney. Within four days of his arrest Dr. Crespo had been "convicted" by a secret military tribunal of hooded judges and sentenced to life in prison. Other lawyers who represent PCP prisoners have been murdered by right wing death squads or wounded in assassination attempts. Several other lawyers with political prisoners as clients have also been arrested. The government has also passed a law which prohibits lawyers from representing more than one client accused of political offenses. This has the effect of denying counsel to most defendants accused of being revolutionar- ies. To put this into context, there aren't that many lawyers to begin with in most non-industrialized countries, and when the lawyers run the risk of being killed or arrested for representing clients at odds with the government the pool of available counsel shrinks even further. In any case, with secret military tribunals trying all political cases there is little lawyers can do for the accused beyond act as impotent witnesses to the judicial charade. But Peru isn't the only place this occurs in. Chairman Guzman has been held in solitary confinement since his capture and has been denied all contact with his attorneys, doctors and human rights monitors. In fact,. no one aside from his captors has seen Mr. Guzman since his capture. Recent reports state he has lost some 50 pounds since he was captured. Guzman had been held captive on an island near Lima, he has since been transferred to an underground prison on a military base on the mainland. There are serious concerns that his life is in grave danger from the Peruvian government. We are unable to report on these events as frequently or in as great detail as we would like to due to space constraints in PLN, timeliness of the material and the sheer volume of information. Even if we restrict our coverage to events affecting only the prisoners in Peru there is a lot to cover because the government seems to commit a new outrage every day. I suggest that readers interested in events in Peru subscribe to: Bulletin of the International Emergency Committee to Defend the Life of Abimael Guzman, 27 Old Gloucester Street, London, WC1N 3XX, England. MIM Notes P.O. Box 3576, Ann Arbor, MI. 48106; El Diario Internacional, P.O. Box 1246, Berke- ley, CA. 94701. All of these give regular detailed coverage of events in Peru. PRISON RIOT CRUSHED IN VENEZUELA On January 12, 1993, Venezuelan police used tear gas to quell a riot in Fort Tiuna of about a hundred soldiers and civilians, who were tried for rebellion for their participation in a November 27, 1992, coup attempt. The riot was crushed with tear gas by police and Virginia Contreras, defense lawyer to some 20 of the imprisoned soldiers, said she also hear shots. All journalists were ejected from the scene. According to Radio Caracas, at least 180 of the 240 people tried in relation to the Nov. 27 coup attempt were sentenced and the rest absolved. 180 rebels got sentences of 18 to 20 years. The maximum sentence in Venezuela is 30 years. Source: Weekly News Update LETTERS FROM READERS "ARTICLE CLARIFICATION" REVISITED In response to J.D., Lompoc CA, "Article Clarification" Vol. 3 #12, December 1992: I understand J.D. being pissed off about 80% of the popula- tion not taking part in the strike. But when I think back to all the strikes I took part in since the '60s, I was in Lompoc then F.C.I., at the best of times 40% would be involved in a strike, and I took part in all of them. Even so convicts brought about change in the prison system. The trend towards more or total control of prisoners has made change all the more difficult to achieve by prisoners. The new breed of wannabes that J.D. made reference to has created a more serious problem that probably has no cure. They have no idea of convict values. So what do us convicts who give a shit about our rights do. We do whatever we can even if it's only 20% of us. The times they are a changing and we have to make adjustments to the changes. There is more than one way to skin a cat. We are already using some of them with litigation in the courts, pressure on legislatures, more outside involvement, there has to be more all of this plus the tactics used in the past. I would like to say to J.D., brother there are still those of us who care and never quit till we have justice. Don't get discouraged, don't give up the fight for right. Just like you I am living in a wannabe joint. R.K., McNeil Island, WA NEW VIDEO TAPE AVAILABLE Last October over a thousand people attended the Interna- tional Tribunal of Indigenous Peoples and Oppressed Nations in the USA. The event, sponsored and organized by a coalition of 30 organizations, was part of the counter-Columbus quincentennial activities throughout the country. The Tribunal put the U.S. Government on trial for internationally recognized crimes such as genocide, colonialism, and the holding of political prisoners. The aims of the Tribunal were to destroy the myth of Columbus as the embodiment of the European Spirit of Adventure and rugged individualism; to provide a forum for a broader understanding of the right of self-determination for Native Americans, Puerto Ricans, New Afrikans (Blacks) and Mexicans; and the immediate, unconditional release of the Political Prisoners and Prisoners of War presently in the U.S. prisons and jails. A 60 minute video has just been produced that covers the various events surrounding the Tribunal. It is called USA On Trial. To order copies of the video send $20.00, which includes postage and handling, to Mission Creek Video, P.O. Box 411271, San Francisco, CA 94141-1271. The published verdict of the Tribunal is also available from the American Indian Movement in English or Spanish. Please send $4.00 (indicate which language) to American Indian Movement, 2017 Mission Street #303, San Francisco, CA 94110.