Sexual Abuse by Prison Chaplains (Clergymen)

September 2010 1 Prison Legal News
Insi de
VOL. 21 No. 9
September 2010
Legal News
ISSN 1075-7678
P R I S O N
Dedicated to Protecting Human Rights
Thou Shalt Not: Sexual Misconduct by Prison and Jail Chaplains
by David M. Reutter
T
raditionally, the role of a chaplain
in the correctional setting is to
serve as a spiritual advisor to prisoners
and help them meet the requirements of
their religious faiths. Equally tradition-
ally, chaplains have generally been from
conservative mainstream Christian faiths
and often proselytize among prisoners for
those faiths.
There is some debate as to whether it
is proper to have government-paid chap-
lains at prisons and jails, based on the
premise that such arrangements violate
the principle of separation of church and
state. There is also dispute concerning
whether chaplains who are overwhelm-
ingly Christian can adequately address
the religious needs of prisoners with many
diverse faiths, including Islam, Judaism,
Native American beliefs, Hinduism and
Buddhism, among others, to say nothing
of agnostics and atheists.
However, there is universal agreement
that prison and jail chaplains should not
abuse their role as spiritual leaders and use
their positions of authority to fulfll their
own deviant sexual desires. Such abuses do
occur, albeit not with the frequency that
other correctional staff victimize prison-
ers. [See, e.g.: PLN, May 2009, p.1].
While incidents involving sexual mis-
conduct by chaplains are not common, they
are indicative of a somber incongruity be-
tween the need to provide religious services for
prisoners and the exploitation of those pris-
oners by abusive prison and jail clergy.
Sexual Abuse by Jail Chaplains
Former Henrico County, Virginia jail
chaplain Toney Leon McDonald, 42, was
arrested on May 17, 2006 and charged
with engaging in sexual misconduct with
two female prisoners.
According to one of the indictments,
McDonald, a member of the Good News
Jail and Prison Ministry, engaged in oral sex
with prisoner Ashley Baskerville. Jail au-
thorities recorded a conversation between
the two; according to Sheriff Mike Wade,
it was obviously not the type of conver-
sation that a chaplain ... should have.
McDonald was acquitted of sexual mis-
conduct charges in New Kent County, but
on October 12, 2006 he entered an Alford
plea to similar charges in Henrico County.
He received a 12-month jail sentence, which
was suspended, plus 100 hours of commu-
nity service. [See: PLN, Feb. 2007, p.36].
Before becoming the chaplain at the
jail, McDonald had worked as a sheriffs
deputy until he was arrested in 1991
and charged with possession of cocaine
with intent to distribute and attempting
to smuggle marijuana to a prisoner. He
served one year of a six-year sentence in
that case.
In April 2004, King County, Wash-
ington jail prisoner Terry Shanklin fled
suit alleging that he had been sexu-
ally assaulted by Regional Justice Center
Chaplain Warren Ungles, who coerced
him into having oral sex and masturbat-
ing in exchange for help with his release
plans.
Ungles claimed he was part of a
church that believed God allowed male sex
with preachers. Shanklin passed a poly-
graph test related to seven sexual assaults
involving the chaplain; his lawsuit stated
that he had suffered a divorce and mental
breakdowns due to the emotional trauma
of engaging in sex acts with Ungles.
Shanklin reportedly settled the case
for $7,500 in damages and $1,435.92 in
costs. See: Shanklin v. King County, King
County Superior Court (WA), Case No.
04-2-10003-8 SEA.
In Texas, the chaplain at the Lubbock
County Jail, Gilbert Herrera, 55, was in-
dicted on sexual misconduct charges on
July 28, 1999, two days after being fred
for insubordination because he refused to
cooperate with an internal investigation.
According to news reports, Chaplain
Herrera had previously suffered from drug
addiction and served time for burglary;
he received a pardon from then-Texas
governor Dolph Briscoe in 1978.
This is just a very unfortunate inci-
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dent not only for the sheriffs offce but
also for the Christian community as well,
said Lubbock County Sheriff David Guti-
errez. It was also presumably unfortunate
for the female prisoner whom Herrera was
accused of sexually assaulting.
On June 28, 2000, the former chaplain
pleaded no contest to a misdemeanor
charge of violating the prisoners civil
rights; he was sentenced to two years
probation. Despite pleading to the charge,
Herrera maintained his innocence and
said the accusations were politically mo-
tivated.
Well just leave it at that, his lawyer
stated. Herrera had served as a jail chap-
lain for 10 years.
PLN previously reported on sexual
abuse by jail chaplains in Florida and In-
diana, both involving sex acts with female
prisoners. [See: PLN, May 2007, p.34].
Paul L. Pierce, 61, the former senior
chaplain at the Pinellas County Jail in
Clearwater, Florida, apparently confused
his missionary role at the facility with
the missionary position when he had a
three-year adulterous relationship with
a prisoner from 2003 until 2006. Pierce
reportedly had a love affair with Karleen
Doris Bonow, a convicted prostitute.
Hes the chaplain of the jail; I al-
ways thought he would be there for me.
It turned into he wanted sex, and I didnt
know how to say no. I didnt want to lose
his love, said Bonow. And I played out
the scenario [he] is going to leave his wife
and he is going to marry me, and Im going
to live happily ever after and someone is
really going to love me.
However, things changed dramati-
cally when Bonow became pregnant.
Chaplain Pierce told Bonow to get rid of
it when he learned about her condition.
It crushed me. It devastated me when he
told me about getting an abortion and I
saw what kind of monster he could be,
Bonow said.
Pierce resigned as chaplain at the jail
on October 2, 2006 and was placed on
administrative leave, pending investiga-
tion, from his chaplaincy position with
the Largo Fire Department. The jails
internal investigation was closed after
Pierce quit.
Homer Henderson, a chaplain at the
Morgan County Jail in Indiana, also was
accused of engaging in sexual miscon-
duct with a prisoner. Susan L. Robbins
said Henderson had coerced her into
performing oral sex on him in February
2006, when the chaplain escorted her and
another prisoner to a local high school to
take GED tests. In exchange for the sex
act, Henderson allowed Robbins to visit
her boyfriend and family members and go
to a Taco Bell.
The chaplain tried to get Robbins to
perform oral sex on him again the follow-
ing day, but instead she opted to escape
and was recaptured five months later.
In addition to serving as a jail chaplain,
Henderson was also the chaplain for the
Indiana State Police. He resigned from
both positions but was not criminally
charged.
Prison Clergy Abuse Their Positions
Vincent Inametti, 48, a Roman Cath-
olic priest, was employed as a chaplain by
the U.S. Bureau of Prisons at the Federal
Medical Center (FMC) in Carswell, Texas
from August 2000 until September 2007
when he was charged with engaging in
sexual acts with female prisoners.
Unfortunately, it was the wrong
place and the wrong time, said Michael
Heiskell, Inamettis attorney, who down-
played his clients gross misconduct by
referring to it as a lapse of judgment.
Inametti pleaded guilty on November
14, 2007 to sexually abusing two female
prisoners at Carswell. [See: PLN, Feb.
2008, p.42]. Although he claimed the
encounters were consensual, one of his
victims disagreed, stating that Inametti
had threatened to kill her if she told
anyone about their trysts. The sex acts re-
portedly occurred in the prisons chapel.
His role as a chaplain was one of
trust, said attorney Tahira Khan Merritt,
who represented one of Inamettis victims.
He was supposed to provide emotional
and spiritual sanctuary for these women.
He violated that trust.
Following Inamettis guilty plea,
prison offcials at Carswell remodeled the
chaplains offces, adding glass windows in
all of the doors and installing a new video
surveillance system in an effort to curtail
future sexual misconduct.
On May 5, 2008, Inametti was sen-
tenced to four years in federal prison and
fined $3,000. He remains incarcerated
with a release date of October 2011. See:
United States v. Inametti, U.S.D.C. (N.D.
Texas), Case No. 4:07-cr-00171-Y.
Doris Jean Dykes, one of the prison-
ers victimized by the former chaplain, fled
suit against the federal government for
Chaplain Sexual Misconduct (cont.)
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failing to protect her from his sexual ad-
vances. She alleged in her complaint that
she had been sexually abused by Inametti
on multiple occasions, that he had an
impulsive sexual disorder which caused
him to prey on vulnerable women, and
that he had reportedly said Whos your
Daddy? Im your Daddy during sermons
at the prison.
The parties agreed to dismiss the
suit under undisclosed terms in Decem-
ber 2008. See: Dykes v. United States,
U.S.D.C. (N.D. Texas), Case No. 4:08-
cv-00111-A.
Previously at FMC Carswell, Daryl
Desjardin, a supervisory chaplain, was
charged in April 1997 with sexual mis-
conduct involving female prisoners. He
pleaded guilty to one count of a sex act
with a person under peripheral supervi-
sion and was sentenced to six months in
federal prison, one year on supervised
release and a $5,000 fne.
Desjardins attorney, James R.
Claunch, who also represented an FMC
Carswell staff counselor charged with
sexual abuse, said his clients had pleaded
guilty because they were. See: United
States v. Desjardin, U.S.D.C. (N.D. Texas),
Case No. 4:97-cr-00047-BE.
An incident at SCI-Cresson, a Penn-
sylvania state prison, leaves one wondering
who the victim was in the case. Under a
contract with his Franciscan order, the
Third Order Regular of St. Francis, the
Rev. Gerard Majella Connolly was hired
on March 16, 2006 as the chaplain at
SCI-Cresson.
From September 2006 through
January 2007, Connolly, 66, had multiple
sexual encounters with prisoner William
Victor during counseling sessions. How-
ever, to keep the liaisons quiet, Victor
in turn extorted $7,600 in hush money
from the chaplain. The illicit trysts came
to light when prison offcials questioned
Victor about a money order he had re-
ceived.
A subsequent investigation resulted in
Connolly being charged with 12 counts of
institutional sexual assault and fve counts
of introducing contraband allegedly
alcohol into the prison. He was placed
on probation for 23 months, after which
his criminal record can be expunged.
Victor received two years proba-
tion, to be served upon completion
of his prison sentence, after pleading
guilty to extorting hush money from the
chaplain. He also fled a lawsuit against
Connolly due to their sexual encounters;
a settlement for an undisclosed amount
was reached in April 2009. See: Victor v.
Connolly, U.S.D.C. (W.D. Penn.), Case
No. 3:07-cv-00292-KAP.
In Kentucky, state prison officials
confrmed they did not receive a report
from Corrections Corporation of America
(CCA) regarding sexual misconduct by
Randy Hagans, the chaplain at CCAs
Otter Creek Correctional Center, which
at the time housed female prisoners from
Hawaii and Kentucky.
Hagans, 49, was charged wi th
third-degree sexual abuse, a Class B mis-
demeanor, for having sex with a prisoner
in 2008. He was scheduled to go to trial
in Floyd County District Court on No-
vember 16, 2010.
The chaplain is one of six CCA em-
ployees to be charged with sexual abuse
or rape at Otter Creek. [See: PLN, Oct.
2009, p.40]. Both Hawaii and Kentucky
have since removed their female prisoners
from the facility.
According to a lawsuit fled in June
2003 by former juvenile offenders who
served time at Oregons state-run Mac-
Laren Youth Correctional Facility, sexual
abuse of prisoners by chaplains had oc-
curred over a lengthy period of time.
The former prisoners alleged that
while incarcerated at MacLaren as teenag-
ers in the 1970s, they were sexually abused
by the Rev. Michael Sprauer. They ac-
cused Sprauer, a Roman Catholic priest,
of grooming them to engage in oral sex
and mutual masturbation. Sprauer had
served as a chaplain at MacLaren from
1972 to 1975, and later as the director of
religious services for the Oregon Depart-
ment of Corrections before retiring in
1999.
A total of 15 men eventually joined
in the lawsuit against Sprauer, who tried
to invoke doctor-patient and clergy-pen-
itent confdentiality to avoid answering
questions related to any treatment he
had received for sexual disorders or
deviant behavior. The former chaplain
admitted in a videotaped deposition
that he had engaged in anonymous oral
sex with men in restrooms in the 1970s
and 1980s.
Sprauer was also accused of smuggling
drugs into the Oregon State Correctional
Institution and engaging in a consensual
sexual relationship with state prisoner
Thomas Ha. Ha claimed that he and the
chaplain had sex in a bathroom in the
prison chapel. He said he loved me and
would take care of me, Ha testifed in
the civil suit.
Although Sprauer denied that he had
ever molested any juvenile offenders, a
Multnomah County Circuit Court jury
disagreed. On May 16, 2007, the jury
entered a verdict in favor of two of the for-
mer prisoners, fnding that Rev. Sprauer
had sexually abused them when they were
incarcerated at MacLaren, which was then
known as the MacLaren School for Boys,
and that the State of Oregon was negligent
in failing to protect them.
The jury awarded almost $1.4 million
in damages $695,000 to Robert Paul, Jr.,
and $690,000 to Randy Sloan. I proved
that he was a child molester, said Paul.
I proved that I was not lying. The truth
came out, and thats what I wanted.
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The jury [verdict], fnally, will give
my clients some justice, and, hopefully,
some closure, said attorney Daniel Gatti,
who represented the plaintiffs. See: Sloan
v. Sprauer, Multnomah County Circuit
Court (OR), Case No. 0311-12724.
At the Pendleton Juvenile Correc-
tional Facility, a maximum-security prison
run by the Indiana Department of Correc-
tions, chaplain Billie Jo Pena was charged
with performing oral sex on a 17-year-old
prisoner. She was fred, pleaded guilty to
sexual misconduct in March 2003, and
was sentenced to three years probation
and ordered to complete a sex offender
treatment program.
Any kind of sexual contact between
offenders, coerced or uncoerced, between
offenders and staff, is against the law,
noted Doug Garrison, Communications
Chief for Indianas prison system.
Also, in one case, a prison chaplain
engaged in nonconsensual abusive con-
duct involving another staff member. In
October 2005, a female California prison
worker who was sexually harassed by a
Muslim chaplain prevailed in a lawsuit
fled against state prison offcials.
Sallie Mae Bradley, a licensed clinical
social worker at Corcoran State Prison
from August 2000 to October 2000, was
employed by National Medical Registry,
Inc., which provided temporary contract
services to the California Department of
Corrections and Rehabilitation (CDCR).
Bradley was assigned to the Substance
Abuse Treatment Facility (SATF) at
Corcoran, where she evaluated prisoners,
prepared treatment plans and provided
therapy.
On September 13, 2000, Bradley
complained to prison offcials that Omar
Shakir, 48, a CDCR Muslim chaplain,
was stalking her at home and staring at
her at work. She stated that even after
she made it clear that she had no inter-
est in a romantic relationship with him,
he engaged in a pattern of inappropriate
behavior and harassment that included
knocking on [her] door at 4:00 a.m., mak-
ing sexually suggestive comments, groping
her, and leering at her in a way that made
her extremely uncomfortable.
Soon after fling a complaint, Brad-
ley was terminated from her position
at SATF. Bradley then sued Shakir and
CDCR offcials in state court. In October
2005, a jury found in her favor on sexual
harassment and retaliation claims, award-
ing $439,000 in damages.
The superior court granted the
defendants motion for judgment not-
withstanding the verdict on Bradleys
retaliation claim and vacated the $50,000
award for that claim, for a net verdict of
$389,000. She was also awarded $305,000
in attorneys fees. See: Bradley v. Shakir,
Superior Court of Kings County (CA),
Case No. 01-C-2235.
On January 17, 2008, the California
Court of Appeal for the Fifth District
upheld the jurys verdict and reinstated
the award for the retaliation claim, fnd-
ing that Shakir was engaged in classic
stalking behavior, terrorizing, intimidating
and humiliating Bradley and taking full
advantage of his free access to her at work
to accomplish his inappropriate goals,
and that the CDCR did nothing to stop
his sexual harassment.
The appellate court noted that
Shakir had been fred from the CDCR
on June 13, 2001 after he threatened a
warden and other prison offcials; there
was also evidence that Shakir had prior
criminal convictions known to [CDCR]
when they hired him and that he had
been disciplined on several occasions for
providing contraband to the inmates, for
being rude to an offcer, and for failing
to inform his supervisor of his loca-
tion. See: Bradley v. California Dept. of
Corrections and Rehabilitation, 158 Cal.
App.4th 1612, 71 Cal.Rptr.3d 222 (Cal.
App. 5 Dist. 2008).
Some Accusations Lead to Acquittals
Sometimes, despite credible allega-
tions of sexual abuse involving prison
and jail chaplains, criminal charges result
in acquittals or overturned convictions.
Factors that contribute to such outcomes
include jurors not crediting the testimony
of prisoners due to their criminal records,
the belief that clergymen would not en-
gage in such egregious sexual misconduct,
and legal technicalities.
Such was the case with jail chaplains in
Texas and New Hampshire.
On April 30, 1999, Freddie E. Wier,
61, the head chaplain of the jail in Harris
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County, Texas, was charged with offcial
oppression and illegal sexual contact.
He was accused of fondling, digitally
penetrating and performing oral sex on a
female prisoner in 1997. [See: PLN, July
2002, p.15; Nov. 1999, p.26].
According to a federal lawsuit
filed by jail prisoner Olga Lydia Paz,
Wier had encouraged her to engage in
sexual acts in exchange for buying gifts
for her son. Paz accused the chaplain
of fondling her breasts and inserting
his fingers into her vagina while she
wrapped the gifts. She said she was
very confused by what Chaplain Wier
had done to me. I had looked to him
for the spiritual help I needed and he
took advantage of my confusion and
vulnerable position.
Court documents stated that [b]oth
Paz and Wier were given polygraph
examinations regarding the events that
transpired in the summer of 1997. Pazs
polygraph test result indicated that she was
Strongly NDI [No Deception Indicated],
while Wiers indicated that deception was
strongly indicated.
During an investigation into the ac-
cusations against Wier, jail offcials found
that prior Personnel Affairs/Internal
Affairs cases involving complaints of
sexual misconduct against Chaplain Fred-
die Wier had been voiced by three other
female prisoners Mary Bernard, Villette
Rochford and Diana Rocha. They alleged
sexual acts that included being fondled by
the chaplain and performing oral sex on
him. Another Harris County prisoner,
Bridget Storm, later came forward and
claimed she had been sexually abused by
Wier, too.
Wiers frst trial on the sexual mis-
conduct charges ended in a mistrial. He
was acquitted at a second trial in July
2000, after his attorney told the jury
that even if they believed the convict
who said she had been sexually abused
by Wier, they could not fnd him guilty
because he was an independent contrac-
tor at the jail and not a public employee.
Charges were not fled in regard to Wiers
alleged sexual misconduct with other
female prisoners, as the statute of limita-
tions had expired.
Pazs federal civil suit went to a jury
trial in July 2001, which found in favor
of both Wier and Harris County, and she
was ordered to pay $1,718.68 in the defen-
dants costs. See: Paz v. Wier, U.S.D.C.
(S.D. Texas), Case No. 4:99-cv-01645.
In New Hampshire, Chaplain Ralph
Flodin was hired in July 2006 as a part-
time spiritual services coordinator for the
Strafford County Jail. In that capacity it
was his duty to coordinate and oversee
religious activities at the facility, adminis-
ter to the spiritual needs of prisoners and
staff, and conduct services such as Bible
study groups.
After a jail guard saw a 24-year-old
female prisoner crying because she was
upset about being in a car accident that
killed her friend, she was referred to one-
on-one counseling with Flodin.
At their first meeting, Flodin dis-
cerned the prisoner was very frail-looking
and shaken. He told her, I got a feeling
that youre hurting very deeply. Because
Flodin, 72, appeared to really care
about her and talking to him made her
feel good, the woman met with the
chaplain from 20 to 25 times over a nine-
month period.
During the course of their meetings,
Flodin and the prisoner allegedly en-
gaged in sexual acts with one another.
Flodin admitted to deputies in a recorded
confession that he had sexually touched
the woman and kissed her, which was
wrong.
The chaplain was indicted, and a jury
found him guilty of two counts of sexual
assault and aggravated felonious sexual
assault. At sentencing, Flodin claimed the
prisoner was the aggressor and the depu-
ties had coerced him into confessing.
His attorney, Stephen Brown, said
Flodin was not the kind of person who
deserved to serve time. Is this the type
of man that needs to go to state prison
with those type of people? Brown asked
the court.
The prosecutor apparently thought
so. Sadly, what we have is another
instance when someone within the jail
community has used his or her authority
to coerce sexual favor, stated County At-
torney Tom Velardi.
The trial court sentenced Flodin to
2-10 years in prison on September 5, 2008.
[See: PLN, May 2009, p.1]. However, the
New Hampshire Supreme Court reversed
his conviction in November 2009, as there
was no evidence that the chaplain was
providing therapy to the female prisoner
at the time the sexual abuse occurred, as
required by the elements of the criminal
statute.
Pvisoncv Rights Attovncy
CHARLES CARBONE, ESQ.
"very cose l toke is qiven compossionote, thorouqh
ond viqorous representotion with one qoo/ in mind -
lustice for the lncorceroted."
- chor/es corbone
Personally and professionally dedicated
to fighting for prisoner rights and human rights
for California prisoners and their families.
Charles represents prisoners in California's worst prisons
on conditions of their confinement, including (but not limited to):
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However inappropriate the sexual
conduct may have been, the charged
sexual acts did not occur within the
context of a therapy relationship as
required by the law under which Flodin
was convicted, the Supreme Court wrote.
See: New Hampshire v. Flodin, 159 N.H.
358, 986 A.2d 470 (N.H. 2009).
Prisons a Dumping Ground for
Abusive Clergy?
In recent years there have been a num-
ber of high-profle cases involving sexual
abuse by religious offcials, particularly
in the Catholic Church. The evidence
in those cases found that church leaders
who knew about accusations of sexual
misconduct by priests would often move
them from one parish to another as al-
legations arose.
There is also anecdotal evidence that
abusive clergy were sent to prison not
to serve time, but to serve as chaplains.
Presumably this was done so they could
no longer molest members of their con-
gregations. After all, the typical adult male
correctional population does not allow
many opportunities for sexual misconduct
involving women or children, who were
frequently the preferred victims of abusive
church offcials.
For example, on August 8, 2002, the
Rev. John P. Blankenship, 65, retired from
his position as chaplain at the Federal
Correctional Complex in Petersburg, Vir-
ginia after his involvement in child sexual
abuse decades earlier became known.
According to a diocese spokesman,
Blankenship had sexual encounters
with a 14-year-old male parishioner in
1982; he acknowledged his wrongdoing,
apologized to the victim and subsequently
paid for the boys college education and
counseling.
Blankenship became a prison chap-
lain in 1983 the year after the sexual
abuse occurred. The church reportedly
allowed Blankenship to continue working
at the prison because he had no contact
with minors in that position, accord-
ing to an article in the Richmond Times
Dispatch.
Blankenship pleaded guilty in Janu-
ary 2003 to four counts of sodomy for
sexually abusing his 14-year-old victim
two decades previously; he admitted he
had made a tragic mistake, and was
placed on indefnite supervised proba-
tion. He will not spend any time in prison
beyond the time he served as a prison
chaplain, that is.
Hi s v i c t i m,
Robert G. Pres-
son, who agreed to
make his identity
public, supported
the plea agreement.
Mr. Blankenships
acceptance of his
responsibility for
the crimes he perpe-
trated some 20 years
ago was a necessary
step enabling me to
go forward with my
life, he said.
I n Oc t o b e r
2 0 0 5 , t he Re v.
James E. Jacobson,
80, a Jesuit priest
who had served as a prison chaplain in
Oregon for 25 years, was accused in a
lawsuit of sexually assaulting two wom-
en when he worked in remote Eskimo
villages in Alaska decades earlier. One
of his victims was allegedly assaulted
in 1965, and the church removed Jacob-
son from her village after she became
pregnant. Another of his victims was
sexually abused in 1974-75 and also
became pregnant.
In a deposition, Jacobson admitted
that he had had sex with at least seven
women when he served as a priest in Alas-
ka in the 1960s and 1970s; he also said he
used church funds to pay for prostitutes
and knew of two other children he had
fathered.
The lawsuit was fled by one of the
women he had impregnated and two men
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who said Jacobson was their father based
on DNA paternity tests. They requested
damages for back child support, emo-
tional distress, loss of self-esteem and
other injuries. Jacobson sought to dismiss
the suit, arguing that his vow of poverty
prevented the plaintiffs from collecting
compensation from him.
A second lawsuit was fled in 2006 by
a woman who accused Jacobson of raping
her three times in 1967 when she was 16
years old. That victim said the priest told
her that having sex with him would bring
her closer to God.
The claims against Jacobson, 11
other priests and three church volunteers
accused of sexual abuse, involving a total
of 110 plaintiffs, all Alaskan natives,
were resolved by the Society of Jesus,
Oregon Province in November 2007 with
a $50 million global settlement. See: Doe
v. Jacobson, Superior Court of Bethel
(Alaska), Case No. 4BE 05345-CI.
Jacobson had previously received the
Chaplain of the Year Award from the
Salvation Army in 2003 and the Ameri-
can Catholic Correctional Chaplain
Associations Maximilian Kolbe Award.
He was sent to Oregon and assigned to
be a prison chaplain after leaving Alaska;
he retired from his chaplaincy position
in 2005.
We are saddened that one of our
members has failed to live the life he prom-
ised, and we hope that we might fnd a way
to reconcile with those whose lives have
been affected by this tragic failure, stated
the Rev. John D. Whitney, a supervisory
church offcial in Portland, Oregon.
Another priest who committed
acts of sexual abuse and was then as-
signed to work as a prison chaplain was
Thomas Harkins. Harkins was accused
of molesting two young girls in the
1980s, one while he was assigned to the
St. Anthony of Padua Church in Ham-
monton, New Jersey. The church paid
a total of $195,000 to settle lawsuits in
both abuse cases.
In 1993, Harkins was sent to the
Cathedral of the Immaculate Conception
in Camden, New Jersey; according to a
report in the Philadelphia Inquirer, the
parish apparently was chosen because
it had few families. The church then
assigned Harkins to work as a prison
chaplain in 2000.
He should not have been returned to
ministry, acknowledged Camden Diocese
spokesman Andrew Walton. Law en-
forcement should have been notifed. This
would be a serious and inexcusable failure
on the part of the diocesan administration
to fulfll its obligation to the community.
While the church thought that Harkins
was unsuitable to minister to members
of the public, he was evidently suitable
for prisoners.
In California, Matthew Bleecker, 25,
sued the dioceses of San Bernardino and
San Diego in October 2004, claiming he
had been sexually molested as a child
by the Rev. Michael Bucaro, a Catholic
priest. According to the lawsuit, the abuse
began when Bleecker was about fve years
old.
Since 1983, Rev. Bucaro, 52, had been
assigned as a prison chaplain at the Cali-
fornia Institute for Men, a state prison in
Chino. Bucaro countersued Bleecker, who
was himself in prison serving a two-year
sentence, claiming slander. The slander
suit was condemned as vicious and
un-Christian legal hardball tactics by a
victims advocacy group.
Victims already have enormous feel-
ings to overcome: guilt, shame and blame,
noted Mary Grant, a regional director for
Survivors Network for those Abused by
Priests (SNAP). For victims who may be
thinking of taking that courageous step of
reporting a crime to law enforcement or
exposing their perpetrator, this can scare
them back into silence.
Bucaro resigned from his prison chap-
lain position, saying he was concerned for
his safety. The church settled Bleeckers
lawsuit in January 2008 as part of a global
settlement involving other cases. See:
Doe v. Roman Catholic Bishop, Superior
Court of San Bernardino (CA), Case No.
SCVCC119080.
Also in California, the Rev. Anthony
Ross, 56, who oversaw the Santa Rosa dio-
ceses detention ministry, which included
both adult and juvenile prisoners, was
suspended and banned from ministering
at local correctional facilities in April
2002.
Ross suspension occurred after he
was accused of molesting a 15-year-old
boy twenty years earlier when he served as
a priest at the Cathedral of St. Raymond
in Joliet, Illinois. He apologized to his
victim in a written statement, saying, I
have caused pain to the young man from
Illinois and his family because of my ac-
tions in the early 1980s, for which I am
profoundly sorry.
Ross had reportedly sent letters to
his victim, including a valentine with the
message For a special boy, and requests
for nude photos, after he entered a treat-
ment facility for priests who engaged in
child sexual abuse, according to a lawsuit
fled against Ross and the Roman Catholic
Diocese of Joliet.
When Bishop Joseph Imesch was
confronted with Ross sexual misconduct
in 1993, he transferred Ross to Santa Rosa
to serve in the jail ministry. The lawsuit
against Ross and the Diocese was volun-
tarily dismissed in December 2006 under
undisclosed terms. See: Doe v. Imesch,
Will County Circuit Court (IL), Case No.
2006L-135.
A prison chaplain with the Nevada
Department of Corrections, James F.
Kelly, 70, retired in February 2003 after
being placed on leave by the Catholic
Church when he was implicated in a
lawsuit alleging sexual abuse at Father
Flanagans Boys Home, where he had
worked in the 1970s.
According to the suit, fled by Ari-
zona resident James Duffy, Kelly was one
of two church members who molested him
at the Boys Home when he was a child.
Kelly was not named as a defendant in the
lawsuit, which was eventually dismissed in
January 2006.
Kelly said he absolutely, vehemently
denied the sexual abuse accusations, and
had decided to retire because he did not
want to remain on leave.
According to the Associated Press,
Kelly previously had been accused of
sexual misconduct when he was a priest in
New York in 1983 and 1984. The church
investigated and determined that Kellys
conduct did not constitute sexual abuse;
however, he was ordered to participate
in therapy. He later went to work for the
Nevada prison system, where he served as
a chaplain for seven years.
Lastly, Pastor Alan R. Sienkiewicz,
60, worked as a volunteer chaplain at the
Schuylkill County Prison in Pottsville,
Pennsylvania for almost a decade, until he
was arrested in October 2008 and charged
with multiple felony counts of indecent
assault. He was accused of repeatedly
molesting a 14-year-old girl.
The sexual abuse allegedly occurred at
Sienkiewiczs home, at a church parsonage
and in a truck that he owned. The chaplain
was released on bail and suspended from
his position at the prison. He never went
to trial on the charges, though, as he died
on July 4, 2009.
Conclusion
Sexual abuse of prisoners by members
of the clergy can only occur in situations
where silence and secrecy are allowed to
prevail, and where insuffcient safeguards
are provided by prison and jail offcials. It
is tragic when religious leaders responsible
for guiding prisoners to the light of their
faith instead misuse their positions for
their own dark sexual desires. It is also
tragic when church offcials use prisons
and jails as dumping grounds for clergy-
men who engage in sexual misconduct.
This kind of behavior profoundly
diminishes the ability of chaplains to
help create prisons and jails that are hu-
mane, lift people out of crime and preserve
a persons right to freely worship while
LAW OFFICES OF ROBERT E. YOUNG
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hundred years of combined experience, including a former Assistant U.S. Attorney, publisher of California
Resource Manual (1994), "For The Prisoner" Newsletter,and involved in over forty-eight (48) combined
published cases, on the cutting edge of criminal law, appellate law, parole law, civil rights and pri soner
rights litigation. Expertise in AEDPA, ADA, PLRA, RLUIPA, TRANSFERS, DISCIPLINARY, PRISON
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Retainer amounts can vary depending on complexity of case
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HABEAS CORPUS [PC 1473,et.seq.]
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$5000 CDCR SINGLE ISSUE WRITS [DISCIPLINARY -
CONDITIONS-TRANSFER-MEDICAL]
$5000 FBOP & CDCR WRIT CHALLENGES TO
SENTENCE CALCULATIONS
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MANDATE TO SUPERIOR COURT
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CHI LD CHALLENGES [MANDATE OR JUVENILE
COURT]
$3000 FBOP & CDCR TRANSFER REQUEST
WI TH AGENCIES

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incarcerated, stated Rev. Dwight Cuff
and Tom OConnor, Ph.D., with the Inter-
national Prison Chaplains Association.
Hopefully, with the introduction of
new standards for the prevention of sexual
abuse in correctional facilities under the
Prison Rape Elimination Act (PREA),
there will be fewer incidents of sexual
victimization by prison and jail chaplains.
As of August 2010, however, the PREA
standards had not been promulgated by
the U.S. Attorneys Offce, it does not ap-
pear they will be in the near future [See:
PLN, March 2010, p.22] and the standards
were signifcantly watered down after op-
position from prison offcials.
In the meantime, prison and jail chap-
lains who are inclined to prey on prisoners
rather than pray with them should ask
themselves, what would Jesus do? The
answer should be obvious: Thou shalt not
rape or sexually abuse members of your
incarcerated congregation. Or anyone else,
for that matter.
Sources: The Oregonian, Tribune-Democrat,
WTSP-TV, The Telegraph, Herald-Leader,
www.fosters.com, Dallas Morning News, As-
sociated Press, http://lubbockonline.com, www.
frstcoastnews.com, The Daily Item, www.
justdetention.org, Fort Worth Weekly, States-
man Journal, www.mcall.com, Richmond
Times Dispatch, Las Vegas Review-Journal,
Spokane Review, www.adn.com, Philadelphia
Inquirer, The Press-Enterprise, San Bernar-
dino Sun, www.bishop-accountability.org,
Chicago Tribune, www.pressdemocrat.com,
www.news-miner.com
Clergy Who Advocate for Prisoners Barred from Prisons and Jails
A
s described in this months cover
story, prison and jail chaplains
accused of sexual misconduct often
resign, retire, are fred or are sometimes
prosecuted. In other cases, though, well-
meaning clergy members who seek to help
prisoners have been locked out of jails and
prisons by staff who dont appreciate their
advocacy efforts.
Such was the case with Gail Hanson,
a volunteer chaplain for eight years at
the Cameron County Jail in Brownsville,
Texas. Hanson, 61, complained about con-
ditions at the facility for women prisoners
such as poor food, cold temperatures
and lengthy pre-trial detention. In re-
sponse, instead of addressing those issues,
in March 2008 Cameron County Sheriff
Omar Lucio prohibited the chaplain from
visiting the jail.
Chief Deputy Gus Reyna, Jr. later
told a local newspaper that Hansons
complaints on behalf of prisoners
might even rise to the level of threat-
ened security breach, stating, While
spiritual guidance may be helpful, personal
involvement and advocacy for inmates is
not within the acceptable limits of spiritual
guidance and counseling, and may foment
unnecessary and counter-productive unrest
among the jail population.
Some chaplains, however, including
Hanson, realize that it is insuffcient to
address prisoners spiritual needs if their
physical needs remain unmet. For example,
Hanson would complain when women
prisoners did not have sufficient toilet
paper, sanitary napkins and underwear,
or had to sleep on the foor; she helped
them communicate with their families
and even took one prisoner into her home
who needed a place to stay as a condition
of her release.
Some would describe Hansons ac-
tions as living her faith; Cameron County
jail offcials deemed her advocacy efforts
a potential security problem.
Preventing someone from volunteer-
ing their time to help rehabilitate prisoners
because she was critical of the county is
outrageous, said Scott Medlock, director
of the Prisoners Rights Program of the
Texas Civil Rights Project (TCRP). Mrs.
Hanson should be commended for her
dedication to ministering to the women
held in the jail, not punished for speak-
ing the truth about what she saw behind
prison bars.
With representation by the TCRP,
attorney Edward A. Stapleton and the law
frm of King and Spaulding, Hanson sued
Cameron County on First Amendment
grounds, seeking to overturn the sheriffs
ban that prevented her from ministering
to prisoners. She is not seeking monetary
damages.
This is an important test case, said
Medlock, both because of its free-speech
implications and also because not many
like this have been litigated. And that is
because most sheriffs are not abusing their
power the way Sheriff Lucio is. This case
tests the power of a sheriff to retaliate
against those who speak out.
Hansons lawsuit, fled in state court
and later removed to federal court, is
still pending. On January 1, 2010, the
district court denied the countys motion
to dismiss her complaint. See: Hanson
v. Lucio, U.S.D.C. (S.D. Tex.), Case No.
1:09-cv-00202.
In a similar incident in 2006, volun-
teer chaplain Lance Voorhees was barred
from the Taylor County, Texas jail after he
complained about mistreatment of prison-
ers. He fled a complaint with the Texas
Commission on Jail Standards to no avail.
According to Adam Munoz, the Commis-
sions executive director, sheriffs can ban
volunteer chaplains at their discretion.
In Iowa, the Rev. Val Peter, a former
executive director of Boys Town (former-
ly Father Flanagans Boys Home), was
barred from visiting the Iowa Correctional
Institution for Women. His offense? While
visiting a prisoner in October 2009, the 75-
year-old priest took written notes during
the meeting, as was his usual practice. As
he was leaving a prison guard demanded
that he surrender the notes because he
had written down another guards name;
instead, Peter tore off the note with the
name, put it in his mouth and ate it an
act that he described as a prophetic ges-
ture, citing Ezekiel 3.
His visitation privileges were sus-
pended for a year, a decision that was
upheld by prison offcials. Keep in mind
that visiting is a privilege, and it can be
terminated for good cause at any time,
remarked Iowa Dept. of Corrections
spokesman Fred Scaletta.
In July 2010, the Rev. A.J. Guyton,
73, a Baptist pastor, was banned from
the Peoria County Jail in Illinois. Sheriff
Mike McCoy confrmed that Guyton was
not welcome at the facility, at least on a
temporary basis, after the pastor made
uncomplimentary remarks about guards
during a sermon and encouraged pris-
oners to write petitions expressing their
concerns. Guyton had ministered at the
jail for more than 25 years.
We felt some of the reverends com-
ments were not religious in orientation or
nature and do not follow his charge, which
is to preach the gospel and help inmates
with their religion, said Sheriff McCoy.
Rev. William B. Pickard, 63, a Catho-
lic priest, has been barred from visiting
prisoner Nicholas Pinto, who was the
victim of a vicious assault by another
prisoner at the Lackawanna County
Prison in Pennsylvania in August 2010.
Four months earlier Pickard, an advocate
for prisoners at the facility, had informed
members of the prison board that Pinto
previously had been assaulted and was a
likely target for future attacks.
Rev. Pickard was not allowed to visit
Pinto after he was hospitalized in critical
condition, because guards claimed he
had pushed them. Pickard said he merely
brushed by them. It would be better if he
didnt come to visit prisoners, said War-
den Janine Donate. The assault on Pinto,
which occurred in the jails protective cus-
tody unit, resulted in attempted murder
charges against another prisoner.
Lastly, the Associated Press reported
on July 21, 2010 that when part-time
pastor Gerald Otahal arrived at the Ken-
tucky State Penitentiary to pray with a
prisoner on death row, he was turned away.
Kentucky prison offcials had decided to
strictly adhere to a policy that limits visits
by members of the clergy.
Referring to the prisoner he ministered
to, Otahal said, He has no outlet now. He
has no one to pray with. No one to talk to
him about the hereafter. Good grief. Im
just astounded they took this away.
The Kentucky Department of Cor-
rections moved to enforce the policy after
a pastor wanted to minister to more than
one death row prisoner. Religious advisors
now have to be one of three people on a
prisoners visitation list before they are
allowed to visit.
You have a right over their life,
Otahal said of prison authorities. You
dont have a right over their soul. He also
noted that pastors should be welcomed in
state prisons, so they can talk to [prison-
ers] about how to live a better life.
Apparently, though, when it comes
to allowing members of the clergy to
visit with and minister to prisoners, there
is no higher power than prison and jail
offcials.
Sources: Texas Observer, www.wishtv.com,
www.omaha.com, www.texascivilright-
sproject.org, Brownsville Herald, www.
chicagotribune.com, www.pjstar.com, As-
sociated Press, www.thetimes-tribune.com,
www.citizensvoice.com
Federal Court Finds Nation of Islam Publication
Not Racially Infammatory
by David M. Reutter
O
n March 31, 2010, a Louisiana
U.S. District Court held that the
denial of access to a religious publication
based solely on the inclusion of a section
called The Muslim Program was a vio-
lation of the First Amendment and the
Religious Land Use and Institutionalized
Persons Act (RLUIPA).
The courts ruling came in a lawsuit
fled by Louisiana prisoner Henry Leon-
ard, who was incarcerated at the David
Wade Correctional Center (DWCC).
Leonard had been a member of the
Nation of Islam (NOI) since 1985. He
subscribed to The Final Call, the NOIs
offcial publication, and frst began receiv-
ing it at DWCC in October 2005.
Beginning on June 14, 2006, DWCC
started rejecting The Final Call because it
contained racially infammatory material
that was considered a threat to security.
Of greatest concern to prison offcials was
The Muslim Program on the last page
of each issue, which includes statements
about What Muslims Want and What
Muslims Believe. Leonard fled suit over
the DWCCs censorship policy.
The district court held that Leonards
claims were very similar to those raised in
Walker v. Blackwell, 411 F.2d 23 (5
th
Cir.
1969). At issue in that case was Muham-
mad Speaks, an NOI publication that
was the precursor to The Final Call. The
Muslim Program had appeared in both
publications since 1965. In Walker, the
Fifth Circuit found that writing arguably
much more controversial than The Muslim
Program was not racially infammatory.
As such, the district court said it must
find likewise in Leonards case. It did
so while applying the four-prong test in
Turner v. Safey, 482 U.S. 78 (1987). The
court held that DWCCs policy requiring
rejection of publications that contain
racially infammatory material did not
itself violate the Constitution, but its
implementation as applied to Leonard was
in confict with the First Amendment.
DWCC was unable to provide an
example of violence or unrest in an insti-
tutional setting that could be attributed to
The Final Call, and the court found that
the wholesale prohibition of the publica-
tion is simply too broad when balanced
with the Plaintiffs right to the free exercise
of his religion.
There was no alternative means for
Leonard to practice his religious beliefs,
as DWCC does not provide NOI materials
and The Final Call is the primary organ
to propagate [the NOI] religion.
As Leonard had received the publica-
tion in the past with no negative impact on
guards or other prisoners, the court found
there would be minimal impact by allow-
ing him to continue receiving it. Finally,
DWCC policy already requires staff to re-
view The Final Call. Continuing to review
the publication for infammatory material
other than The Muslim Program was a
ready alternative that is not an enormous
administrative burden when compared
with the Plaintiffs ability to practice and
grow in his religion of choice.
Accordingly, the district court found
the censorship policy at DWCC, as ap-
plied, violated Leonards First Amendment
rights. The court also held that the policy
violated RLUIPA because it was not the
least restrictive means to further a legitimate
governmental interest. Leonards motion for
summary judgment was therefore granted
and prison offcials were ordered to let him
receive future issues of The Final Call.
Leonard was represented by Shreve-
port attorney Nelson W. Cameron and the
ACLU of Louisiana. See: Leonard v. State
of Louisiana, U.S.D.C. (W.D. Louisiana),
Case No. 5:07-cv-00813-DEW-MLH;
2010 WL 1285447.
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To all inmate workers involved
in the Gulf Oil Spill Clean-up.
Loevy & Loevy, a civil rights law firm, would like
to pursue claims on behalf of inmate workers
involved in shore protection and oil clean-up
work. For a free initial evaluation, please send a
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conditions of work, wages (if any), name of
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provided, etc. for us to evaluate your case. All
information received will be kept confidential.
Send your statement to:
Attorney Michael Kanovitz
Re: Oil Spill Clean-up Efforts
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email: loevylaw@loevy.com
telephone: 312-243-5900
This is an advertisement for legal services.
From the Editor
by Paul Wright
A
fter 20 years of publishing Prison
Legal News I have been asked if
it ever gets old or if I get tired of reporting
the same news for decades. While there are
common themes in prison and jail news
over the years (medical neglect and guard
brutality being the most common), new
things are always arising and then there
are new variations on the old.
One thing that I look for whenever
there is a mainstream media story is what
is the prison angle for PLN readers. For
the past few decades the sexual assault
of children by members of the clergy has
been all too common and the sexual as-
sault of prisoners by staff members has
been even more common. This months
cover story refects that connection as
we report in detail on an inter-related
phenomenon: clergy members who rape
prisoners and prisons that serve as dump-
ing grounds for clergy who rape their
parishioners outside prison.
PLN had reported such cases in the
past but it was only while researching
broader articles on a national basis, about
the prevalence of sexual assault of prisoners
by staff, that the scope of the problem be-
came apparent. How prevalent is diffcult to
say given the lack of reliable data on sexual
assaults by staff and also since, compared
to say guards, there are a lot less clergy
working in prisons and jails yet given the
opportunity, some can and do act with the
worst of intentions. The fip side of the coin
are the clergy who, in addition to providing
for prisoners spiritual needs, also advocate
on behalf of prisoners and seek reform of
existing prison systems. As we note, those
clergy members are targeted for removal
from prisons and jails with a rigor rarely
seen when abusive staff are the problem.
This year marks PLNs 20
th
anni-
versary and we are celebrating 20 years
of independent, hard-hitting journalism
and advocacy exposing the realities of
the American gulag. Our survival over the
past two decades is thanks to our readers
and supporters. Subscribers will soon be
receiving our annual fundraiser and I hope
that readers are extra generous this time
around to help us mark our anniversary.
When PLN started in 1990 I dont think
anyone expected we would last 20 years.
I certainly didnt.
Our second book, The Habeas Cor-
pus Citebook, is nearing completion and
should be ready for shipping by mid-
October. We will announce its availability
as soon as we have copies in our offce that
are ready to ship. Also, the long-awaited
fourth edition of the Prisoners Self-Help
Litigation Manual by John Boston and
Dan Manville has been published, and
as this issue of PLN goes to press we are
contacting the publisher about distribut-
ing the book and will announce it as soon
as we have an answer.
For the past two decades that I have
been PLNs editor, the only thing that has
consistently saddened me has been writing
the obituaries for our supporters who have
died over the course of our publication. A
few months ago when I heard that political
prisoner and former PLN columnist Mari-
lyn Buck was being released on July 15,
2010 after 25 years in prison, I was elated
at the prospect of fnally meeting Marilyn
after so many years of communicating by
mail. Marilyn was convicted in 1985 of
various political offenses aimed at protest-
ing US imperialism, including bombing the
US senate and the naval war college. She
was sentenced to 80 years in prison.
Marilyn was one of our earliest sub-
scribers when PLN began publishing in
1990. She contributed articles to a wide
variety of publications on the topics of
women prisoners, prisons in general,
political prisoners and radical politics,
and poems as well. Marilyn was also a
quarterly columnist for PLN in 2000 and
2001; her column was appropriately titled
Notes from the Unrepenitentiary.
Unfortunately, Marilyn died on August
3, 2010 at the age of 62 due to untreated
uterine cancer, less than a month after being
released from federal prison. Prisoners in
general and women prisoners in particular
have lost a powerful advocate. It is sad to
say that the medical neglect of the Bureau
of Prisons succeeded in silencing a proud,
powerful woman where the guns of the FBI
and assorted police agencies failed.
On that very unhappy note, please
enjoy this issue of PLN and please
encourage others to subscribe. As the
holidays approach, if you are looking
for a good holiday gift consider giving a
subscription to PLN or one of the books
we distribute.
$35,000 Settlement in Indiana Jail Failure
to Protect and Medical Care Suit
by David M. Reutter & Mark Wilson
I
ndianas Marion County Jail
(MCJ) has paid $35,000 to settle a
federal civil rights complaint that alleged
deliberate indifference to a prisoners
safety and serious medical needs.
The lawsuit was fled by Joseph R.
Grieveson, a federal detainee incarcer-
ated at MCJ from 2000 to 2002. Between
November 30, 2000 and March 21, 2001,
he was assaulted seven times by both other
prisoners and a guard.
During Grievesons frst six months at
the jail he shared a cell with former India-
napolis Colts quarterback Art Schlichter.
A federal grand jury was investigating
Schlichter for gambling schemes involv-
ing his attorney, Linda Wagoner, who
allegedly smuggled items into the facility
for Schlichter. Grievesons friend, Nor-
man Buff, was involved in the Schlichter
investigation.
Grieveson believed that he was
considered a snitch ... because of his
association with Buff. On several oc-
casions, Buff asked guards to move
Grieveson away from Schlichter. He was
fnally moved on November 18, 2000, to
a 45-bed dorm.
Twelve days later Grieveson was
beaten unconscious by another prisoner
who called Grieveson a snitch and said
the beating was a favor for Schlichter.
Grieveson repeatedly informed guards
that he had a broken nose, was bleeding
down his throat and was in intense pain.
Grievesons sister called the jail, attempt-
ing to get him medical care. Three days
after the assault he was fnally taken to a
hospital, where he was diagnosed with a
broken nose, prescribed pain medication
and advised to see a plastic surgeon.
A guard initially refused to give
Grieveson his medication, saying You
dont need it. Be a man and stop whining.
MCJ staff later gave Grieveson all of his pre-
scribed pain pills at one time, but a stronger

prisoner took them away from him, leaving
him without medication for a week.
On December 31, 2000, Grieveson
was assaulted a second time. He asked to
be moved and also requested that he be
given only one dose of medication at a
time. He was assaulted again on January
17, 2001, but not taken to a hospital for
two days and only then after repeated
calls from his family.
Grieveson had to have a broken
tooth surgically removed. He was again
prescribed pain medication and issued the
entire prescription at once. The medication
was again stolen by another prisoner.
On January 22, 2001, a guard slammed
Grievesons arm in a steel door and threw
him repeatedly against the bars in a base-
ment holding cell. The guard reportedly
told Grieveson to stop complaining and
stop causing trouble. Grieveson was
taken to the hospital and treated for an
injured shoulder. He was prescribed pain
medication and told to apply cold packs
to the injury. Guards denied him an ice
pack, however, saying we dont give those
out here. He was again issued his entire
pain medication prescription, which was
again taken by a stronger prisoner.
In February 2001, Grieveson was
pummeled in the face for snoring, and
on March 4, 2001 he was assaulted a sixth
time when he tried to stop other prison-
ers from stealing his food and property.
A guard witnessed that assault and told
Grieveson to learn how to fght harder
or dont come to jail.
Grieveson fled a grievance concerning
the repeated assaults on March 14, 2001,
expressing his fears and requesting to be
moved to a safer cell block. Buff also re-
layed his concerns about Grievesons safety
and asked that he be moved. He was not.
The seventh and worst attack oc-
curred a week later, when a prisoner who
was a former client of Schlichters attor-
ney hit him in the face and slammed his
face into a steel table, knocking Grieveson
unconscious. After regaining conscious-
ness, it took him 90 minutes to get a
guards attention.
Grieveson suffered ... a broken left
eye socket, damage to his optic nerve, and
injuries to his ribs, face, jaw, and nose. On
March 28, 2001, a plastic surgeon con-
cluded that immediate surgery was needed
to address the damage to his eye. The sur-
gery was to occur within a few days, but
was not performed because Grieveson was
transferred to a federal prison. It took 35
days for his medical records to follow. By
the time he saw another doctor it was too
late to correct the injury to his eye.
Grieveson sued various jail offcials in
federal court, alleging they had failed to
protect him from harm or provide him with
adequate medical care. He also raised state
law negligence claims. The district court
dismissed some of his claims and granted
summary judgment to the defendants on the
remaining claims. Grieveson appealed.
The Seventh Circuit found that for all
but one of the assaults, Grieveson pre-
sented no evidence that any of the named
defendants were aware that Grieveson
was perceived as a snitch by his fellow in-
mates. Therefore, there was no genuine
issue of material fact concerning the as-
saults Grieveson suffered at the hands of
angry, unstable, violent inmates because
there is no evidence demonstrating that
any of the named offcers knew about
these threats to Grievesons safety.
However, the appellate court held
that Grievesons claim concerning the
sixth attack survived summary judgment
because he alleged a guard had witnessed
the incident but failed to intervene and
told him he needed to learn how to fght
harder. Those facts exhibited a quintes-
sential deliberate indifference.
The Court of Appeals also concluded
that Grievesons claim for deliberate
indifference to his medical needs survives
summary judgment ... to the extent that
the claim relates to delay in treatment
after Grievesons frst assault. He failed
to show that the named defendants were
personally involved in the other delays.
Finally, the Seventh Circuit reversed the
dismissal of Grievesons state law negligence
claims, explaining that Grievesons burden
on a negligence claim is far less than his
burden on a 1983 deliberate indifference
claim, and negligence law exists to deal
with the very types of allegations Grieveson
made here that certain individuals should
have acted differently in light of the duties
applicable to them, and that their failure to
abide by the relevant standard of care caused
Grieveson personal injury. See: Grieveson v.
Anderson, 538 F.3d 763 (7th Cir. 2008).
On remand, Grieveson successfully
moved to have the U.S. District Court
judge recuse herself from his case. The
court noted that A careful review of
the criminal proceedings, rather than
demonstrating a bias or prejudice against
the Defendant by the undersigned judge,
reveals a concerted effort by her to ame-
liorate the harsh conditions / effects of
Defendants incarceration in the Marion
County Jail.... However, as the judge had
independent knowledge relating to the
pending civil claims because of or growing
out of [Grievesons] criminal prosecution,
she recused herself in January 2009.
The parties agreed to settle the case in
August 2009 for $35,000 following seven
years of litigation, and the court entered
a stipulation of dismissal in October.
Grieveson was represented by Indianapo-
lis attorney Michael K. Sutherlin. See:
Grieveson v. Cottey, U.S.D.C. (S.D. Ind.),
Case No. 1:02-cv-01862-LJM-TAB.
Boulder Weekly Investigation Ends the Practice of
Shackling Colorado Prisoners in Labor
by Pamela White
R
yan Owens caught her first
case at age 27 after becoming
addicted to methamphetamine. She was
sent into treatment, but relapsed almost
immediately after graduating. When she
got into trouble again, she went on the
run, afraid of being sent to jail.
A mother with two children, she was
also pregnant.
She wasnt on the run long, however,
when law enforcement caught up with
her. She spent her frst fve days in Denver
City Jail heavily pregnant and sleeping
on the foor on a dirty blanket. Then she
was transferred to Denver County Jail,
where she stayed for a time, before being
transferred to El Paso County on her due
date and then back again.
During transport, she was kept in full
restraints, including ankle shackles and
a belly belt, an excruciating experience.
Though she begged the guards to remove
some of the shackles, they refused, instead
joking about whether or not the trip would
make her go into labor.
It hurt so bad, she says. It was
miserable. I cried the whole way down
there and the whole way back.
She was in Denver County Jail when
she finally went into labor. She was
brought to the hospital in wrist and ankle
irons, then chained by her ankle to a hos-
pital bed. The humiliation was extreme.
Worse was her inability to make use of
the comforts available to other women to
help ease the pain of labor, such as the
hot tub.
The experience, she told the Colorado
State Senate and House judiciary commit-
tees, left her feeling that shed been treated
like an animal.
I listened to Owens testify at the
House Judiciary Committee hearing and
watched as her testimony resonated with
others in the audience, including a former
prisoner who had tears running down
her face. And I feel great satisfaction in
knowing that what happened to Owens
will never happen again at least not in
Colorado.
On Thursday, May 27, 2010, Gov. Bill
Ritter signed Senate Bill 193, nicknamed
the shackling bill, into law.
The bill was introduced and carried
by Sen. Evie Hudak, who learned about
the shackling of prisoners in labor from
a Boulder Weekly investigation into the
treatment of pregnant prisoners. Rep.
Claire Levy sponsored the bill in the
House.
When the law goes into effect on Jan.
1, 2011, it will regulate the use of shackles
on prisoners throughout pregnancy, pro-
hibiting the use of shackles on prisoners
during labor and delivery, except under
extreme circumstances where a prisoner
poses an immediate danger to herself or
others or represents a threat of escape.
With the governors signature, Colo-
rado became the ninth state to prohibit
the shackling of prisoners in labor.
For former prisoners, like Owens,
who gave birth while in custody, the new
law offers a chance to heal one of the
worst memories from their time behind
bars.
Its so great, she says. Thats a
memory that will never go away. Thats
how my son came into this world. I take
full responsibility for the reasons that I
was there, but the fact that nobody else
has to go through that is huge to me. My
[labor and birth] is done and over with.
It is what it is. But the fact that this is a
law now it does heal.
For the coalition of womens groups
and medical professionals who pushed
for the bills passage, the new law marks a
leap forward for the medical treatment of
women prisoners and for human rights
in the states jails and prisons.
This takes us out of the dark ages
in the Department of Corrections and
our jails, said Sen. Hudak, and its
long overdue.
For me, the journalist who investi-
gated the issue and then took the unusual
step of carrying it to Capitol Hill and
even writing the frst draft of the bill, the
new law serves as validation for what Ive
always believed that newspapers are
still capable of bringing about signifcant
change.
Disbelief and Shame
The toughest thing about launching
Senate Bill 193 was lawmakers disbelief.
Upon reading through the bill for the
first time, many responded like Sen.
Keith King.
Do we know this really happens?
he asked.
King went on to become a vocal sup-
porter of the bill when he learned that
somewhere between 50 and 60 prisoners
were giving birth in chains each year in
Colorado.
As my investigation revealed, how and
when prisoners were shackled depended
entirely on where they were being held.
In Boulder County, prisoners were not
shackled during labor, but in nearby Den-
ver County, prisoners were being shackled
to their hospital beds by a long, heavy
chain fxed to one ankle. In some mountain
jurisdictions, women were actually being
given furlough from jail to give birth and
were allowed to have family with them in
the hospital. DOC prisoners, on the other
hand, were being taken to the hospital
in wrist restraints and sometimes ankle
shackles and belly belts and were shackled
to their beds by one extremity throughout
labor depending on which nurse and
guard were on duty.
Once these facts were laid out, most
lawmakers were astonished and even
ashamed.
Hudak says that compared to some
other bills shes carried, SB 193 wasnt a
diffcult bill to explain to people. During
the bills frst hearing before the Senate
Appropriations Committee, Hudak asked
her fellow senators if any of them had
ever given birth or been present when their
spouses gave birth. She then asked whether
they could imagine themselves or their
wives trying to escape.
They fnished the sentence before it
came out of my mouth, and they really un-
derstood that its ridiculous that a woman
in labor would try to escape or would be
successful if she tried, Hudak says.
SB 193 prohibits the use of belly shack-
les and ankle irons on pregnant prisoners
at any point during their pregnancy, out
of concern that shackling in this manner
poses a danger to the fetus, uterus, and
placenta should the belt put pressure on
the prisoners pregnant abdomen or should
the prisoner trip and fall.
The bill also prohibits the use of any
kind of shackles on prisoners during labor
and delivery, except in extreme cases when
a prisoner poses an immediate danger to
herself or others or represents a serious
fight risk. If they are shackled, it must
be done using the least restrictive restraint
necessary for maintaining safety, and the
incident must be detailed and saved as a
public record.
Further, the bill enables prisoners to
have a member of the medical staff pres-
ent during her strip-search on return to
jail or prison.
The bill moved swiftly through the
legislative process. It received the unani-
mous support of the Senate and passed
with a single no vote in the House, cast
by Rep. Mark Waller.
The only hesitation came from the
Department of Corrections, Hudak
says.
The DOC, which runs the states
prisons, originally took a neutral posi-
tion, but perhaps showed its true stance
by attaching a signifcant cost to the bill,
claiming that they would need to hire
more guards if they left laboring prisoners
unshackled.
But the fscal note was struck from the
bill by the Senate Appropriations Com-
mittee during a hearing in which Sen. Bob
Bacon admitted to feeling ashamed that
Colorado needed a bill like SB 193.
I was particularly pleased in the
Senate that they took the fscal note off
because they didnt believe that additional
guards would be necessary, Hudak says.
After the fscal note was removed,
however, the DOC took a more aggressive
stance against the bill. There were indica-
tions that its representatives would ask
the governor for a veto and look for ways
to stall the bill until it died if it werent
amended.
Rep. Claire Levy worked with the
DOC to craft a version of the bill they
could support, removing language from
the House version that would have
prohibited shackling prisoners during
transportation to or from a medical fa-
cility for childbirth, as well as during the
immediate postpartum recovery period.
Had it not been for those changes, Levy
says the bill might have faced an uphill
battle with the governor.
Im sorry that the Department of
Corrections was successful in weakening
the bill in the House, Hudak says. They
were more successful in convincing the
representatives that shackling was neces-
sary during transport. I still dont believe
it is. But as is common in the legislative
process, you might not get everything you
want, but this goes a long way.
Because of Levys efforts, the DOC
testifed in favor of the bill.
Although the law doesnt go into
effect until Jan. 1, the DOC plans to imple-
ment new procedures before then.
As you are aware, our procedures
were in place and different than some
other jurisdictions prior to passing of the
bill, Joanie Shoemaker, deputy director
of prisons for the DOC, wrote in an e-mail
to Boulder Weekly. We have begun the
process of changing policy and design-
ing the tracking tool. We will implement
as soon as that is fnalized even if the bill
has not been enacted.
Reproductive Justice
Julie Krow has heard more about
womens experiences being shackled dur-
ing labor than most people. Krow oversees
The Haven, a residential substance-abuse
treatment program for pregnant and
parenting women. About 70 percent of
the clientele at The Haven have entered
the program after being diverted from
the criminal justice system or after being
released from jail or prison.
Concerned about the treatment of
prisoners during labor, Krow pulled to-
gether a focus group of Haven clients who
had given birth while in custody and asked
them to share their experiences.
To me, the thing that was really tell-
ing was that the experiences were all over
the map, Krow says. Some of the women
were traumatized by the experience and
had had a terrible experience. Some people
from some of the rural mountain towns
said it wasnt like that for them.
It seemed to Krow that such a wide
discrepancy in how prisoners were treated
meant that there was room for compas-
sion and consistency in shackling
policies.
Krow testifed in favor of SB 193 and
discussed the bill with her clients during
the legislative process. She was pleased
to hear that the governor had signed the
bill and said her clients are also happy
to learn that the shackling of prison-
ers during labor is coming to an end in
Colorado.
For Dr. Eliza Buyers, an obstetrician-
gynecologist in Denver and the legislative
chair of the Colorado Section of the
American Congress of Obstetricians
and Gynecologists (ACOG), the new law
means safer pregnancies and births for
prisoners and the achievement of a legisla-
tive goal here in Colorado.
The issue of shackling pregnant and
laboring women is one that the American
Congress of OB/GYNs has been talking
about on a national level for well over
fve years, Buyers says. Providers have
become involved in this issue because,
beyond the physically demeaning aspects
of this practice, there are also serious
medical concerns.
Those concerns include everything
from possible damage to the fetus, uterus
or placenta caused by pressure from belly
shackles to delays in emergency treatment
caused by an inability to remove shackles
quickly enough.
Labor is a dynamic, physical and,
at times, very rapid process, Buyers says.
The use of restraints on pregnant prison-
ers is medically hazardous, and prohibiting
this practice is necessary for health provid-
ers to deliver safe medical care.
ACOG had been hoping to present
a bill in Colorado next year, but when
Buyers heard a bill was being drafted,
she immediately became involved. She
brought a medical perspective to the draft-
ing process and testifed at both the Senate
and House judiciary hearings.
Lorena Garcia, director of policy and
organizing for COLOR, the Colorado
Organization for Latina Opportunity and
Reproductive Rights, also had plans to
push for a ban on the shackling of prison-
ers in labor next year. When she learned
that an effort was under way this year, she
became actively involved in the process of
drafting and lobbying for the bill.
COLORs mission is reproductive
justice, and being able to give birth in a
humane fashion no matter the location is a
piece of reproductive justice, Garcia says.
With the passage of SB 193, it brings us
a step closer now that even women who
are incarcerated can also have reproduc-
tive justice.
Garcia says she was surprised and
gratifed when the bill received such over-
whelming bipartisan support.
Im very pleased to see that the
state of Colorado has a vested interest in
ensuring that one of our most vulnerable
populations is treated fairly, and that
population is incarcerated women, she
says.
Garcia says she also fnds hope in the
fact that, in the end, it wasnt a lobbyist
or activist group that brought the issue
of shackling pregnant prisoners to the
table.
I think this process being driven by
a citizen and a constituent proves that
there is value in our everyday Coloradans
advocating for rights, she says.
For Owens, who graduates from
treatment later this month and whose
son recently turned 2, testifying before
state lawmakers was an empowering
experience.
It was extremely empowering, even
though my hands were shaking, she says.
The only thing that kept going through
my head was that people need to hear what
really happens. People need to hear from
the inside. So many times people dont
hear people like us. This time, thanks in
part to Owens, people in the highest levels
of state government got the message loud
and clear.
I think the fact that another woman
wont have to feel [what I felt] is amazing,
she says. Its huge to me. Its awesome. It
really is.
How the Law has Changed
Before Senate Bill 193:
Each jurisdiction had its own policy
regarding the shackling of prisoners dur-
ing pregnancy, transport, labor and
delivery.
Pregnant prisoners could be shack-
led with ankle shackles, belly belts and
wrist shackles.
Many prisoners were kept in shack-
les throughout their labor.
No medical personnel were present
during prisoners strip-search upon return
to jail or prison.
Because records pertaining to
pregnancy and birth are private medi-
cal records, it was diffcult to determine
exactly how pregnant women were being
treated.
After Senate Bill 193:
There is one statewide policy regulat-
ing the shackling of prisoners throughout
pregnancy, including transport, labor and
delivery.
Belly belts and ankle shackles are
banned for use on pregnant prisoners.
When shackling pregnant prison-
ers, guards must use the least restrictive
restraint possible for maintaining safety.
No prisoner may be shackled dur-
ing labor or delivery unless she presents
an immediate danger to herself or others
or poses a serious threat of escape, and
then she may only be shackled by the least
restrictive restraint necessary.
A prisoner may choose to have a
member of the jail or prisons medical
staff with her when she is strip-searched
after returning from giving birth.
Any use of shackles on a prisoner
during labor or delivery must be recorded
(without identifying medical information)
and maintained as a public record for fve
years.
This article was originally published in
Boulder Weekly (www.boulderweekly.
com) on June 3, 2010, and is reprinted with
permission. Pamela White is the editor of
the Weekly.
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$10 Million Settlement for Former Colorado Prisoner Cleared by DNA
by David M. Reutter
O
n February 16, 2010, Colorados
Larimer County Commission
approved a $4.1 million settlement with
a former prisoner who served 10 years
of a life sentence for a murder he didnt
commit. The settlement agreement covers
employees in the Larimer County district
attorneys offce, while claims against Fort
Collins police offcials were resolved sepa-
rately for $5.9 million.
Timothy Masters was convicted in
1999 of the February 12, 1987 murder
of Peggy Hettrick. He was convicted
without any physical evidence tying
him to the crime, and was exonerated
by DNA evidence in 2008. Police had
suspected him of the murder because
he drew violent pictures, wrote violent
stories and had seen Hettricks body on
his way to school but didnt report it
because he thought it was a mannequin.
Prosecutors secured a conviction in part
through the use of a psychological pro-
fle that they claimed Masters ft.
His attorneys said the settlement does
not make up for a decade spent under
police scrutiny and then another decade in
prison. Its not like he walked down the
street and found a lottery ticket, stated
attorney David Wymore. Hes had a lot
of suffering.
Two former prosecutors named in
Masters lawsuit, Jolene Blair and Ter-
ence Gilmore, werent happy with the
settlement. We had just begun to fght
this case, said Blairs attorney, Kevin
Kuhn. And we would have prevailed in
this case.
Its really a shame that to this day
they wont admit they convicted an in-
nocent man, countered David Lane,
another of Masters attorneys. There is
no amount of money that can make up
for what happened to him.
Blair and Gilmore, who are now Lar-
imer County district judges, were censured
by the Office of Attorney Regulation
(OAR) of the Colorado Supreme Court
in September 2008 for failing to turn over
evidence to Masters trial counsel that
would have been favorable to his defense.
They directly impaired the proper opera-
tion of the criminal justice system in the
trial of Timothy Masters for murder,
OAR offcials found.
This is a slap on the wrist, said
Wymore. This is a form of punishment,
but it doesnt go far enough.... This man
spent 10 years in prison, and the prosecu-
tors who put him there arent even being
sentenced to an ethics class?
The two judges are up for retention
elections in November 2010. I hope the
voters of Larimer County remember the
justice denied Timothy Masters regard-
ing the retention of Gilmore and Blair,
Lane stated.
Larimer Countys insurance company
will pay $3 million of the $4.1 million
settlement and the remainder will come
from the countys special risk management
fund. The county spent around $400,000
defending against Masters lawsuit before
agreeing to settle. See: Masters v. City of
Fort Collins, U.S.D.C. (D. Col.), Case No.
1:08-cv-02278-LTB-KLM.
The City of Fort Collins settled
Masters claims for $5.9 million in June
2010, bringing his total settlement award
to $10 million or about $1 million for
each year he spent in prison. The city
refused to admit fault, calling the settle-
ment a business decision that refects the
fnancial realities and risks of proceeding
to trial.
That didnt sit well with Masters.
Theyre just trying to cover their ass, he
said. It frustrates me they wont admit
they screwed up.
On June 30, 2010, the police detective
who helped send Masters to prison was
indicted on eight felony counts of perjury.
Lt. Jim Broderick, a 31-year veteran of the
Fort Collins police force, was accused of
lying in affdavits and in court to secure
Masters conviction; he was suspended
following the indictment.
He framed the guy, Wymore stated,
bluntly. And to frame a guy, youve really
got to hide and be deceptive about a lot of
evidence, and thats what he did.
Masters said he was pleased to see
a glimmer of hope that the man most
directly responsible for my wrongful in-
carceration might be held accountable for
his actions to some extent.
Sources: Denver Post, www.coloradoan.
com
Prison Nursery Programs Promote Bonding, Reduce Recidivism
by Gary Hunter
S
everal studies, highlighted by
the Womens Prison Association
(WPA) in a recent report, have shown
that allowing infants born in prison to
remain with their incarcerated mothers
enhances bonding and leads to decreased
recidivism.
Prior to the 1950s, nurseries for pris-
oners who gave birth were fairly common.
But by the 1970s every state prison and
jail system except one had eliminated
efforts to keep mothers united with their
newborns. Only the nursery in New Yorks
Bedford Hills Correctional Facility, which
was founded in 1901, has remained in
continuous operation.
Not surprisingly, it was also during
the 1970s that the United States ushered
in draconian lock-em-up policies and
practices. According to a report released
by the WPAs Institute on Women &
Criminal Justice in May 2009, the num-
ber of women incarcerated in the U.S.
increased by 832 percent between 1977
and 2007. The report also stated that in
2004, four percent of women in state
prisons and three percent of women in
federal prisons were pregnant at the time
of admittance.
Currently only seven states have
prison nursery programs: Illinois, Indi-
ana, Ohio, Nebraska, New York, South
Dakota and Washington. Two states,
California and West Virginia, are in the
process of creating prison nurseries. Just
one jail system, Rikers Island in New
York, offers such a program.
In other jurisdictions pregnant pris-
oners are usually separated from their
newborns within a matter of hours.
Female prisoners in Texas cant live with
their children after giving birth, but are
allowed liberal visitation through the Love
Me Tender program at the Carole Young
Medical Facility.
Prison nurseries vary greatly from
state to state as there are no standardized
requirements or federal guidelines. The
Illinois program at the Decatur Correc-
tional Center only accommodates five
mothers and their children, while New
Yorks Bedford Hills facility can house
29 mother/infant pairs. The Bedford Hills
program includes a parenting center,
prenatal center, day care center and child
advocacy offce.
In June 2010, Indiana prisoners raised
money for the Wee Ones Nursery at the
Indiana Womens Prison, which is funded
through donations and grants. Within
the frst week prisoners had contributed
$4,000 to the program, which was founded
in 2008 and has provided services for 30
incarcerated mothers and their children.
I just know that I was motivated and
feeling strong about keeping my baby here,
because my other two kids, I lost them,
because after coming to prison, I had to
let somebody adopt them, said Indiana
prisoner Balbina Hernandez, 33, who
participated in the Wee Ones program
with her newborn daughter, Angelina,
for one year.
The length of participation in prison
nursery programs varies. South Dakota
only allows prisoners to nurse their babies
for thirty days, while the Washington Cor-
rectional Center for Women lets children
live with their incarcerated mothers for
up to three years. For most facilities the
average duration is 12 to 18 months.
To be eligible for nursery programs,
most states require that women be pregnant
upon their arrival at prison. They must
also sign a waiver releasing prison offcials
from responsibility for children who may
get sick or injured. Prisoners who become
pregnant during their incarceration (e.g.,
on furlough) or who plan to give their child
up for adoption are disqualifed.
Despite the variations, every prison
nursery program currently reports favor-
able results for both the prisoners and
children involved.
The University of Nebraska con-
ducted a study of the nursery program
at the Nebraska Correctional Center for
Women. According to that study, pris-
oners who participated in the program
received 13 percent fewer disciplinary
cases than those in general population.
A five-year evaluation concluded that
women who were immediately separated
at birth from their newborn children re-
turned to prison at a rate of 33.3% within
fve years of release. Women who partici-
pated in the prison nursery program had
a 9% recidivism rate.
A study conducted at the Ohio Re-
formatory for Women (ORW) had even
more impressive results. Established in
2001, 118 mothers and their newborns
took part in the ORW nursery program
over a fve-year period. The three-year
recidivism rate for women in the program
was a mere 3% compared to an overall
38% for general population prisoners,
both male and female.
A 2002 follow-up survey of prison-
ers in the New York State Department of
Correctional Services yielded less dramat-
ic but still noteworthy results. For women
who participated in the nursery program,
13.4% returned to prison within three
years of release compared to 25.9% of
female prisoners in general population.
The most extensive study was conduct-
ed by Prof. Mary W. Byrne at Columbia
University. Her longitudinal research
covered prison nursery participants at
New Yorks Bedford Hills and Taconic
Correctional Facilities. Ninety-seven pris-
oners and 100 infants who participated in
the nursery programs from 2003 to 2008
were studied. The results indicated that
mothers and their children developed a
stronger attachment as a result of such
programs, and according to a one-year
follow-up, the women also appear to
have a lower recidivism rate than similar
women in the community.
According to Dr. Byrne, Prison
nurseries offer needed services to a popu-
lation of women and infants who might
otherwise be overlooked. Dr. Angela M.
Tomlin, an Adjunct Assistant Professor
of Pediatrics at the Indiana University
School of Medicine, agreed, stating, The
prison nursery is an investment in the fu-
ture, one mother and baby at a time.
Despite such favorable data and en-
dorsements, prison nursery programs are
not without their critics. For example, a
1992 study conducted by Dr. L. Catan
found that while children in prison nurs-
eries did develop a strong bond with
their mothers, they also demonstrated
defciencies in motor skills and cognitive
development. Follow-up studies have
concluded that those defciencies disap-
pear soon after children leave the prison
environment.
Legal Services for Prisoners with
Children (LSPC), a non-proft advocacy
organization, endorses community-based
rather than in-prison programs for moth-
ers and their infants. While acknowledging
the benefts of prison nurseries, LSPC
supports implementing a true commu-
nity-based program without guards for
parents who have sole custody of their
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Handbook made possible by the Southern Poverty Law Center
young children instead of putting these
children in prison, noting that prison of-
fcials have diffculty providing adequate
care for adults; they certainly arent quali-
fed as experts in child rearing.
In addition to prison nurseries, the
WPA report also profled community-based
residential parent programs for prisoners
in Alabama, California, Connecticut, Il-
linois, North Carolina, Massachusetts and
Vermont, and in the federal Bureau of Pris-
ons, which operates Mothers and Infants
Nurturing Together (MINT) programs at
facilities in Florida, Texas, Connecticut,
Illinois and West Virginia.
Almost all prison nursery programs
include some educational component for
prisoners such as GED, parenting and
care-giver courses. Children participating
in the longest programs are offered Head
Start classes. In almost every case, female
prisoners involved in nursery programs
are incarcerated for non-violent drug
offenses.
Prison nursery programs keep moth-
ers and infants together during the critical
frst months of infant development, and
the research shows that these programs
produce lower rates of recidivism among
participating mothers, said Chandra K.
Villanueva, the primary author of the
WPA report. She also emphasized the
need for community-based alternatives
that will enable women to address the
issues that brought them into the criminal
justice system in the frst place.
Unfortunately, although an estimated
744,200 male prisoners in the U.S. are
parents, no comparable programs exist
that allow incarcerated fathers to live
and bond with their young children. If
there were such programs, it is likely that
male prisoners also would beneft from
closer familial relationships and lower
recidivism rates.
A strong bond between a father
and his family helps that inmate succeed
upon release and shows children how
important they are in their parents life,
acknowledged Matthew Cate, Secretary
of the California Department of Cor-
rections and Rehabilitation (CDCR). In
June 2010, the CDCR and the Center
for Restorative Justice Works brought
hundreds of children to four California
prisons to visit their incarcerated fathers
for Fathers Day through the Get on the
Bus program.
According to a February 2009 report
by The Sentencing Project, titled Incarcer-
ated Parents and Their Children: Trends
1991-2007, as of 2007 there were 1.7 mil-
lion children in the U.S. with a parent in
prison. About half of those children were
under 10 years old.
Sources: Womens Prison Association:
Mothers, Infants and Imprisonment: A
National Look at Prison Nurseries and
Community-Based Alternatives (www.
wpaonline.org), The Sentencing Project,
Huffngton Post, www.prisonerswithchil-
dren.org, www.corrections.com, Galveston
Daily News, www.wthr.com
Texas Judge Sharon Killer Keller Receives Sanctions
by Matt Clarke
O
n January 20, 2010, San Antonio
judge David A. Berchelmann,
Jr., acting as a special master for the Texas
State Commission on Judicial Conduct,
issued fndings of fact in a disciplinary
complaint against Sharon Keller, the
presiding judge of the Texas Court of
Criminal Appeals (TCCA).
The disciplinary action resulted after
Keller refused to keep the court clerks
offce open late on September 25, 2007
to accept post-conviction flings in the
capital case of Michael W. Richard, who
was scheduled to be executed that evening.
On the morning of September 25 the U.S.
Supreme Court had agreed to hear argu-
ments in a case involving a challenge to
the three-drug protocol used to execute
prisoners in Kentucky, which was similar
to the protocol used in Texas. This even-
tually led to the staying of all executions
in the U.S. until the Kentucky case was
decided. [See: PLN, Dec. 2008, p.37].
According to the Texas Defender
Service (TDS), a coalition of attorneys
opposed to the death penalty who were
representing Richard, TDS contacted the
court before the 5:00 p.m. closing time for
the clerks offce, explained they were hav-
ing computer diffculties and asked Keller
to keep the clerks offce open late to allow
them to fle their pleadings. Keller said
no, twice, stating We close at 5:00 p.m.
Richard was executed later that night.
[See: PLN, July 2008, p.22].
According to Berchelmann, that
widely-publicized account was wrong;
instead, he faulted TDS for most of the
problems. He said the TDS attorneys
waited until two hours after the Supreme
Court ruling was announced to begin
drafting the pleadings in Richards case,
then assigned a junior staff attorney to the
project. Further, they should have raised
the issue in a previous fling long before the
Supreme Courts decision. Berchelmann
said the TDS lawyers never contacted
the clerks offce or Keller directly; rather,
their paralegals contacted Abel Acosta,
a TCCA deputy clerk. Acosta contacted
Edward Marty, TCCAs General Counsel,
and it was Marty who called Keller and
was twice told no.
However, Kellers no response
was to extending the hours of the clerks
offce, not to accepting late flings. By
unwritten and unpublicized policy, the
TCCA assigned a judge to be the con-
tact person for each death penalty case.
In Richards case the judge was Cheryl
Johnson. Berchelmann said Acosta and
Marty should have called Johnson, who
was available to personally accept late fl-
ings, instead of Keller, who was the only
person who had authority to extend the
clerks offce hours.
Berchelmann placed the bulk of the
blame on TDS. He assumed that, had the
TDS attorneys called the court clerk or
Keller, they would have been informed that
Johnson was assigned to the case and could
accept late flings. He claimed the com-
puter problem experienced by TDS only
prevented them from emailing the docu-
ments and did not delay the completion
of the pleadings. He said the documents
were completed at 5:56 p.m., not 5:20 p.m.
as TDS stated. Finally, Berchelmann said
that TDS should have known to start call-
ing all of the TCCA judges individually to
see if one would accept the late pleadings
in Richards case, an alternate method of
fling documents with the court.
As for Judge Keller, Berchelmann
noted her conduct was uncommunicative
and she should have been more open
and helpful. Further, her judgment in
not keeping the clerks offce open past
5:00 to allow the TDS to fle was highly
questionable. However, she did not
violate any written or unwritten rules or
laws. Therefore, although there is valid
reason why many in the legal community
are not proud of Judge Kellers actions,
her conduct did not warrant her removal
from office or even further reprimand
beyond the public humiliation she has
surely suffered.
The State Commission on Judicial
Conduct rejected Berchelmanns fndings
and reprimanded Judge Keller on July 16,
2010 for interfering with TDSs attempts
to fle the late pleadings in Richards case,
stating her conduct was clearly inconsis-
tent with the proper performance of her
duties as a judge of the Court of Criminal
Appeals.
By failing to require or assure that
staff subject to her direction and control
complied with the execution-day proce-
dures on September 25, 2007, Judge Keller
interfered with Richards access to court
and right to a hearing as required by law,
the Commission concluded.
The Commission issued a public
warning but did not recommend that
Keller be removed from offce. See: In Re
Keller, Texas State Commission on Judi-
cial Conduct, Inquiry No. 96.
The people of Texas have been pub-
licly warned ... that we have an ethically
compromised judge on the Texas Court
of Criminal Appeals who did not accord
a person about to be executed with access
to open courts or the right to be heard ac-
cording to law, yet she has been allowed to
keep her job, observed Scott Cobb, presi-
dent of the Texas Moratorium Network,
an anti-death penalty organization.
Keller filed a petition for writ of
mandamus with the Texas Supreme Court
seeking to void the Commissions order,
and has indicated she will take other legal
action to clear her name. Ironically, she is
availing herself of the same court system
that she denied to Richard.
In an unrelated ethics complaint,
Keller was accused of failing to fully dis-
close her personal fnances in statements
fled in 2007 and 2008. On April 28, 2010
the Texas Ethics Commission found she
had committed ethical violations, having
failed to report stock and other income
totaling at least $61,500 in her 2007
statement and $121,500 in 2008. She also
did not disclose over $2.4 million in real
estate holdings. The Commission imposed
a $100,000 fne reportedly the largest
ethics fne in Texas.
Keller claimed her father had made
investments for her and her son without
her knowledge, and noted she had fled
amended statements when the discrepan-
cies were brought to her attention. She
said she would appeal the fne, which her
attorney described as excessive. See: In
the Matter of Sharon Keller, Texas Ethics
Commission, No. SC-290354.
On August 16, 2010, the Texas Su-
preme Court declined to reverse the public
warning imposed on Keller by the State
Commission on Judicial Conduct. With
ethically-challenged judges like Keller
on the bench, its little wonder that the
Texas criminal justice system has such a
wretched reputation.
Additional sources: Texas Moratorium
Network, http://gritsforbreakfast.blog-
spot.com, Austin Statesman, Houston
Chronicle
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Court Rebuffs BOP for Third Time
in PLN Records Suit
by Brandon Sample
T
he score is now PLN - 3, BOP - 0
in a protracted legal battle over
the disclosure of records related to settle-
ments and judgments paid by the federal
Bureau of Prisons (BOP).
In August 2003, PLN submitted a
Freedom of Information Act (FOIA)
request to the BOP for all documents
showing all money paid by the [Bureau]
... for lawsuits and claims from January
1, 1996 through July 31, 2003.
PLN requested a fee waiver for the
documents, which the BOP promptly de-
nied, claiming that PLN lacked the ability
to effectively disseminate the information
to the public.
PLN then fled suit, arguing it was
entitled to a fee waiver. U.S. District Court
Judge Reggie Walton agreed and granted
summary judgment against the BOP.
Round one to PLN. See: Prison Legal
News v. Lappin, 436 F.Supp.2d 17 (D. D.C.
2006) [PLN, Sept. 2006, p.15].
Thereafter, federal prison officials
provided PLN with over 11,000 docu-
ments; however, the vast majority were
useless because they were so heavily
redacted.
PLN fled another summary judg-
ment motion, contending that the BOP
failed to conduct an adequate search for
records and that most of the redactions
were improper. In support of its motion
PLN argued the declaration of BOP
paralegal Wilson J. Moorer, the sole piece
of evidence relied upon by the BOP to
support the adequacy of its search and
asserted FOIA exemptions, was not based
on personal knowledge and therefore did
not constitute admissible evidence.
On March 26, 2009, Judge Walton
again sided with PLN, ordering the
BOP to conduct new searches or submit
additional evidence showing they had
employed search methods reasonably
likely to discover records responsive to
plaintiffs request and which shows that
the responsive documents and parts of
documents not produced to the plaintiff
have properly been withheld under the
FOIA exemptions claimed by the Bu-
reau. Round two to PLN. See: Prison
Legal News v. Lappin, 603 F.Supp.2d 124
(D. D.C. 2009) [PLN, June 2009, p.26].
Following the courts decision the
BOP moved for reconsideration, claiming
it had submitted additional declarations
concerning the adequacy of its records
search and redactions, but due to a
purported transmission error the dec-
larations were not filed by the courts
electronic docket system. Accordingly,
the BOP asked the court to reconsider its
ruling in light of that circumstance.
PLN opposed the BOPs motion on
fairness grounds, arguing that it was the
responsibility of BOPs counsel to moni-
tor the docket and, as such, the defendants
should not be permitted another bite at
the apple.
Putting aside whether the BOPs
neglect in monitoring the docket was
excusable, Judge Walton held the BOPs
additional evidence remained insuffcient
to support the alleged adequacy of its
records search and asserted exemptions.
The declarants fall short of explaining,
in reasonable detail, the scope and method
of the search, the court found.
Without providing further descrip-
tion or specific detail concerning the
search, the declarants conclusions that
as a result of the search all responsive
claims were identifed, do not provide
suffcient information for the Court to
independently determine if the search was
adequate, Judge Walton wrote.
Similarly, the court concluded that
the BOP had failed to justify the FOIA
exemptions it invoked. None of the BOPs
newly fled declarations addressed any
of the exemptions, and the only other dec-
laration in the record that did Moorers
had been held inadmissible because it
was not based on personal knowledge.
As such, the record was devoid of an
adequate basis to fnd the Bureaus invo-
cation of the FOIA exemptions is proper,
the district court stated.
The BOPs motion for reconsideration
was therefore denied without prejudice on
February 25, 2010. Round three for PLN.
This case remains ongoing, with renewed
cross-motions for summary judgment
pending. PLN has been ably represented
in this litigation by Ed Elder, Mara
Verheyden-Hilliard, Radhika Miller, Carl
Messineo and Adam Cook. See: Prison
Legal News v. Lappin, U.S.D.C. (D. D.C.),
Case No. 1:05-cv-01812-RBW.
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Since 1959
Failed Extortion Scheme Led to Washington
Prisoners Suicide Attempt, Lawsuit Says
by David M. Reutter
A
ccording to a suit fled on behalf
of a Washington state prisoner
who attempted to commit suicide, a guard
at the McNeil Island Corrections Center
retaliated against prisoners who failed to
pay extortion fees.
Leon G. Toney was left in a coma and
permanent vegetative state after trying to
hang himself in his segregation cell at Mc-
Neil on September 18, 2008. The lawsuit
says he had a history of depression and
suicidal ideation.
Toneys suicide attempt came only
six-and-a-half hours after being placed in
segregation when he was found with a cell
phone charger. Preceding the discovery
of the charger, prisoner Luis Perez was
caught with a cell phone after a guard
heard a female voice coming from his
cell. A search of the phone revealed nude
photos of Toney.
An investigative report by Washington
State Patrol detective Juli Gundermann
uncovered information that formed the
basis for part of the lawsuit. Her report
noted that Toney had lost his visitation
privileges for 90 days when he was caught
engaging in sexual conduct with his wife,
Rene Matthews, in the prison visitation
room on July 18, 2008.
Gundermann was briefed by Wash-
ington State Department of Corrections
chief investigator George Gilbert about
details of his investigation. Gilbert learned
that prison guard Natasha Davson was
smuggling cell phones to prisoners for
$500 and allowing them to have sex with
visitors for $150. The sex acts allegedly
occurred in an area known as the boom
boom room. Prisoner Ronnie Hamilton
informed Gilbert that the July 18 disciplin-
ary charge was a result of Rene not paying
Davson for her visit with Toney.
Davson was fred before her probation-
ary period ended. She also was arrested
and charged with a misdemeanor count of
introduction of contraband, but the charge
will likely be dropped due to the expira-
tion of the one-year statute of limitations,
stated deputy prosecutor Kevin Benton.
The investigation determined there
was no foul play and Toney had hung him-
self. The prisons video cameras, however,
revealed that guards did not make cell
checks as recorded in the log book.
The lawsuit claims Toney tried to
commit suicide due to a failed extor-
tion scheme that resulted in fabricated
disciplinary charges, which put pressure
on him and increased his depression and
loneliness. An hour before he attempted
suicide, Toney told a nurse he had not
slept in two or three days and gave her a
medical request seeking help. The nurse
later wrote in Toneys medical fle that his
situation was not emergent and he was not
going to hurt himself.
The failure to act on that information
in light of Toneys mental health history
resulted in his suicide attempt, the lawsuit
contends. Toney is represented by John
R. Connelly, Jr. and Nathan P. Roberts
of Tacoma. The suit remains pending.
See: Toney v. State of Washington, Pierce
County Superior Court (WA), Case No.
10-2-05353-6.
Additional sources: The Olympian, www.
thenewstribune.com
Deplorable Conditions at Los Angeles
ICE Facility Result in Settlement
by Brandon Sample
B
eing locked up is bad enough. But
imagine being held in a basement
without basic essentials like drinking wa-
ter, clean clothes, the ability to shower, a
toothbrush and toothpaste, and medical
care. Thousands of immigration detainees
in Los Angeles were routinely subjected to
such conditions at B-18, an Immigration
and Customs Enforcement (ICE) holding
facility located, literally, in the basement
of a federal building.
You actually walk down the side-
walk and into an underground parking
lot. Then you turn right, open a big door
and voil, youre in a detention center,
said Ahilan Arulanantham, director
of Immigrant Rights for the ACLU of
Southern California (ACLU).
The problems at B-18 were due, in
part, because the facility was not designed
for long-term detention. In fact, according
to ICE policy, prisoners were not to be
kept there for more than 12 hours.
However, ICE offcials circumvented
that rule by shuttling detainees back-
and-forth between B-18 and local jails. A
detainee would spend 12 to 18 hours at
B-18, be held overnight at a county jail
and then return to B-18 in the morning.
This cycle would repeat itself over and
over, forcing prisoners to endure B-18s
squalid conditions for weeks or sometimes
months.
In early April 2009, the ACLU and
the National Immigration Law Center
stepped in, along with the law frm of
Paul, Hastings, Janofsky and Walker,
LLP. Representing four B-18 detainees,
they fled a class-action lawsuit against
Janet Napolitano, Secretary of Homeland
Security.
The suit detailed many of the horrifc
conditions that detainees had to endure
at B-18. Male and female prisoners were
denied changes of clean clothing and ac-
cess to soap, clean drinking water, sanitary
toilets, and toothbrushes and toothpaste.
There were no benches, mats, pillows or
beds in any of the holding rooms, forcing
detainees who were occasionally kept at
B-18 overnight to sleep on the foor. Fur-
ther, the holding rooms were designed for
only 40 or 50 people yet regularly held over
100, exacerbating unsanitary conditions,
and were kept at frigid temperatures.
Beyond these defciencies, detainees
also were denied recreation and could
not send or receive mail, let alone receive
attorney visits. Prisoners were even denied
access to pencil and paper.
ICE agreed to settle the case in Sep-
tember 2009, a mere fve months after the
lawsuit was fled. The terms of the settle-
ment ended the most egregious practices
at B-18, guaranteeing that detainees are
provided access to clean drinking water,
hand sanitizer, female sanitary napkins,
writing materials and toilets that work
properly, and have the ability to send and
receive legal mail.
The settlement also required ICE
to allow attorney visits during business
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hours and limited the number of detainees
that can be kept in a holding room to the
rooms design capacity. Most importantly,
the settlement ended the practice of shut-
tling detainees back and forth between
B-18 and county jails.
No longer can ICE stuff people into
overcrowded cells or deny detainees their
right to see a lawyer, said Karen Tumlin, a
managing attorney with the National Immi-
gration Law Center. This settlement serves
as a safeguard against what was once an
almost everyday situation at B-18: unlawful
treatment and unsanitary conditions. See:
Castellano v. Napolitano, U.S.D.C. (C.D.
Cal.), Case No. 09-cv-02281-PA.
However, the problems at B-18 may
be only the tip of a much larger ICE-berg.
According to a December 16, 2009 article
in The Nation, ICE operates 186 unlisted
and unmarked subfeld offces that are
used for short-term detention for prison-
ers in transit. It is unknown how many
of those facilities have abusive conditions
similar to those that existed at B-18.
Additional sources: The Nation, ACLU
press release
$2 Million in Settlements for Wrongful
Arrest, Conviction in Ohio
T
wo former Ohio prisoners have
accepted settlements totaling $2
million after being wrongly imprisoned
for crimes they did not commit. One of
the men, Derris Lewis, spent 18 months
in jail pending trial on murder charges.
The other, Robert McClendon, served 18
years in prison for rape.
Lewis was arrested for the murder
of his 17-year-old twin brother, Dennis
Lewis, who was shot and killed by masked
intruders in his mothers home on the
morning of January 18, 2008. His mother,
who was wheelchair-bound, was held at
gunpoint while the robbers ransacked
the house, confronted Dennis and fatally
shot him.
A Franklin County jury deadlocked
on the aggravated murder charge on
March 9, 2009, resulting in a mistrial.
Afterwards, prosecutors and Columbus
police concluded that a palm print from
Derris, which they had introduced to
prove their case, had not been left in his
brothers blood inside his mothers home
as they originally thought.
On behalf of the Department of
Public Safety and the Division of Police,
I want to apologize to Mr. Lewis and his
family for the mistake that was made dur-
ing the homicide investigation of Dennis
Lewis, said Columbus Public Safety Di-
rector Mitch Brown. Todays settlement
is a clear acknowledgement that a mistake
was made, and we wish Mr. Lewis the best
of luck in his future endeavors.
The February 10, 2010 settlement
agreement with the City of Columbus
was reached without a lawsuit, but Lewis
attorneys filed a complaint in federal
court in case there was a problem with
having the settlement approved by the
city council.
Lewis will receive $950,000 but
elected to take an interest-bearing annuity
with payments over 20 years, which will
pay approximately $1.2 million. See: Lewis
v. Young, U.S.D.C. (S.D. Ohio), Case No.
2:10-cv-00125-ALM-EPD.
In the other case, Robert McClendon,
54, received $1.1 million from Ohio off-
cials after he was wrongly convicted and
spent 18 years in prison. He was released
in August 2008 upon receiving assistance
from the Ohio Innocence Project, which
used DNA evidence to clear him of the
1991 abduction and rape of a female
relative.
McClendon settled his claims against
the state in May 2010; he had sought
compensation as a wrongly imprisoned
individual pursuant to ORC 2743.48.
See: McClendon v. State of Ohio, Court
of Claims of Ohio, Case No. 2009-02073-
WI.
Sources: Columbus Dispatch, Associated
Press
Five Sentenced in Oregon Prison Food Bribery Scandal
by Mark Wilson
F
our men who paid Oregons
prison food services administra-
tor $1.2 million in bribes to obtain state
contracts have been sentenced to 3 months
in prison for their role in the worst corrup-
tion case in Oregons history.
As previously reported in PLN, short-
ly after a January 10, 2007 raid by IRS
and FBI agents, California food brokers
Michael Levin, William Lawrence and
Howard Roth, as well as Maryland food
broker Douglas Levene, pleaded guilty
to one count of bribery and one count
of tax fraud in exchange for cooperating
with the prosecution of former Oregon
Department of Corrections (ODOC) food
services administrator Farhad Fred
Monem. [See: PLN, Aug. 2008, p.1].
Assistant U.S. Attorney Kent Rob-
inson said the food brokers cooperation
was a key element of their plea agree-
ments. Although each defendant faced
a maximum of 13 years in prison and a
$500,000 fne, Assistant U.S. Attorney
Christopher Cardani said the government
would recommend the low end of the
sentencing range so long as they fulflled
their obligations.
With his co-conspirators turning
against him, Fred Monem tried to cut a
deal of his own. However, when Monem
and his wife who was also involved in
the bribery scheme met with federal
prosecutors on June 28, 2007, they learned
that Monems deal would include a stiff
prison sentence.
Apparently unhappy about the pros-
pect of eating prison food for an extended
period of time, three days later Monem
fed for his homeland of Iran, which does
not have an extradition treaty with the
United States. He left behind a teenage
son suffering from serious psychiatric
problems linked to the onset of schizo-
phrenia, and his wife, Karen.
On November 19, 2008, Karen
Monem pleaded guilty to one count of
money laundering. At that time Cardani
informed the district court, it is the un-
derstanding of the FBI that Fred Monem
has been herding sheep in Iran. We are
confdent he is there. He refuses to return
voluntarily to face the charges. [See:
PLN, July 2009, p.20].
U.S. District Court Judge Ann Aiken
sentenced Karen to one year in prison in
February 2009. On September 8, 2009,
she sentenced Levin, Lawrence and Roth
to 3 months in prison, nine months on
home detention and 1,000 hours of com-
munity service. Since their April 2007 plea
agreements, the men have collectively paid
approximately $1.5 million to settle tax
and civil claims. They also participated
in a Los Angeles anti-crime program that
involved preparing, serving and donating
thousands of meals.
ODOC Director and former state
senator Max Williams attended the
sentencing hearing for the trio of food
brokers. It is my hope that the sentence
handed down today will stand as a warn-
ing to the serious consequences of bribing
a public offcial, he said. Yet three months
in prison for bribes that resulted in $21
million in food sales to ODOC over a
four-year period somehow doesnt seem
like a serious consequence. The lack
of oversight by Williams which allowed
the corruption to flourish is also not
encouraging.
On October 27, 2009, Aiken sen-
tenced Levene to 3 months in prison
and nine months on home detention.
The prosecutor had requested a 2-year
prison term, presumably because rather
than paying the State of Oregon a $1.8
million judgment, Levene opted to fle
for bankruptcy. He had paid Monem tens
of thousands of dollars in cash bribes,
sometimes when they met in Las Vegas to
go gambling. ODOC offcials were aware
of Monems trips to Vegas but thought he
was doing consulting work.
Once confdent that there would be
consequences for Mr. Monem for his con-
duct, more than three years later federal
prosecutors dont sound as certain. Im
not aware of whether he is still tending
sheep in Iran, said Cardani. Judge Aiken
suggested that Monems self-imposed exile
from the U.S. might be an appropriate
punishment in itself although bilked
Oregon taxpayers may disagree. Prisoners
who had to eat the poor-quality food that
Monem accepted bribes to purchase might
disagree, too.
Source: The Oregonian
Technology, Budget Cuts Make Sex
Offender Monitoring More Diffcult
by Matt Clarke
T
echnological innovations and
tech-savvy sex offenders, com-
bined with budget cuts, have made it
harder for law enforcement authorities
to monitor the nations estimated 716,750
registered sex offenders (RSOs).
That does not include all RSOs, as
some are not required to register and
around 100,000 have failed to comply with
registration requirements and are being
sought by law enforcement. According
to the National Center for Missing and
Exploited Children (NCMEC), the num-
ber of sex offenders has increased 78%
since 2001.
Part of the reason for the rise in RSOs
is the Bush administrations emphasis on
prosecuting sex crimes against children,
which has been re-emphasized by the
Obama administration, driving up child
sexual exploitation prosecutions by 147%
since 2002. In the frst year of the Obama
administration funding for child sex abuse
task forces rose from $16 million to $75
million, and 81 new Department of Justice
prosecutors were hired to handle a larger
number of sex offender cases.
While the federal government has
increased spending on child sex abuse
prosecutions, budget cuts among the
states have hampered efforts at monitor-
ing RSOs. For example, Virginia cut its
budget for parole and probation depart-
ments by $10 million in 2009, including
a $500,000 decrease for the program that
electronically monitors violent sexual
predators.
The burden on probation and parole
offcers is going to explode, said NCMEC
president Ernie Allen.
The budgetary problem is com-
pounded by laws that require registration
for all sex offenders rather than only those
who are the most dangerous or most
likely to reoffend, which stretches scarce
resources.
Its causing the workload to be such
that you cant keep up with the problem
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Prlsoners and ex-prlsoners examlne
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people, said criminal justice profes-
sor Jeffery Walker at the University of
Arkansas-Little Rock. The question is
how do you separate those who do not
appear to be a problem and those who are
hiding something?
Further complicating the monitoring
of RSOs is the proliferation of electronic
sources and devices that sex offenders
can use to access pornography, including
illegal child pornography such as chat
rooms, instant messaging, texting, email,
cell phones, web cams and social network-
ing sites like MySpace and Facebook.
A District of Columbia police detec-
tive was surprised to be having an online
conversation with a church deacon who
had recently been convicted for sending
child porn to the same detective. An in-
vestigation revealed the former deacon
was using a smuggled cell phone to access
the Internet from his cell in the D.C. Cor-
rectional Treatment Facility, where he was
awaiting sentencing. Another RSO, on
probation for molesting a 9-year-old girl,
was caught downloading child porn to his
PlayStation Portable as he was walking to
a probation meeting.
One option available to law enforce-
ment offcials is computer monitoring,
which involves installing software on a
sex offenders computer. The software re-
cords and reports every keystroke, email,
chat, program accessed and Internet site
visited, and provides remote monitoring
of computer use. However, the Achilles
heel of computer monitoring is that it is
not available for non-computer electronic
devices such as cell phones and game
systems; further, it doesnt prevent an
RSO from using a second, unreported
computer or from accessing someone
elses computer system or public comput-
ers at a library.
Consequently, some law enforcement
offcials say nothing can replace home
visits, vigilance and instinct when it comes
to keeping an eye on sex offenders. But
that only works when such monitoring
is done competently. For example, Phil-
lip Garrido faithfully registered as a sex
offender in California for 10 years while
sexually abusing Jaycee Lee Dugard,
whom he had kidnapped and held in a
tent in his backyard, despite home visits
by parole and sheriffs offcers. [See: PLN,
Dec. 2009, p.48].
Even GPS technology is insuffcient,
as monitoring is not always done in real-
time and does not prevent crimes by RSOs,
only provides evidence after an offense
has occurred. [See, e.g.: PLN, Dec. 2009,
p.20]. When 13-year-old Alycia Nipps
body was found in a feld in Vancouver,
Washington on February 22, 2009, it was
later discovered that she had been killed
by Darrin Sanford, a Level 3 sex offender
who was on GPS monitoring at the time.
The GPS data placed him at the scene of
the murder; Sanford pleaded guilty and
was sentenced to life without parole.
You have to use [GPS] very respon-
sibly, said Peter Ibarra, a sociologist at
the University of Illinois-Chicago. Its a
technology that cannot stand alone, espe-
cially if youre thinking about using it with
offenders who imperil the public.
Connecticut offcials have reevaluated
the use of GPS to monitor sex offend-
ers as a result of errors, signal loss and
tampering. To some extent, its been
oversold and misunderstood, stated Bill
Carbone, director of the Court Support
Services Division of Connecticuts Judi-
cial Branch. I think it is a tool not the
sole tool needed for proper supervision
of offenders.
Sources: Washington Post, USA Today,
www.oregonlive.com
Wisconsin Doctor Sentenced for Sexually Abusing Prisoner Patients
I
n March 2010, a former doctor
employed at the Stanley Correc-
tional Institution in Wisconsin pleaded
no contest to seven misdemeanors related
to abusing or mistreating prisoners at that
facility. In exchange for entering into a
plea agreement, prosecutors reduced the
charges from six felony counts.
Dr. Brian J. Bohlmann, 47, received
a sentence of seven months in jail for the
misdemeanor charges, which were brought
in Chippewa and Winnebago Counties.
He also agreed to give up his medical li-
cense for three years; signifcantly, he will
not have to register as a sex offender.
Male prisoners said Bohlmann
touched them inappropriately and had
them remove their clothes when that had
nothing to do with their medical com-
plaints. [See: PLN, May 2009, p.1].
Three prisoners had harsh words for
Bohlmann at the doctors sentencing hear-
ing. If I had my way, youd be charged
and prosecuted with sexual assault like
you should be, go to prison and register
as a sexual offender and never practice
medicine again, said one of the doctors
former patients.
The sentencing judge, however, said
that although he was aware of the prison-
ers concerns, he felt it was signifcant that
Bohlmann had given up eight years of his
life to learn to become a doctor and treat
patients, which he would not be able to
do for three years under the plea agree-
ment. Beyond that, Id be very surprised
if someone would hire him as a physician
again to give him the opportunity to do
what he did to you gentlemen and others,
said Judge James Isaacson.
Although Bohlmann also pleaded
no contest to a felony charge of second
degree sexual assault by correctional staff,
no conviction was entered and the charge
will be dismissed following a three-year
deferred prosecution agreement.
Prosecutors said the plea bargain was
a necessary compromise. While Id like
to do what they want me to in regards to
this matter, I cant risk what would happen
if he was found not guilty, stated Assis-
tant Chippewa County District Attorney
Wade Newell.
Additionally, Bohlmann was charged
with identity theft, prescription fraud and
bail jumping in Dane County, stemming
from allegations that he wrote prescrip-
tions for controlled substances that one of
his friends obtained for his personal use.
The prescriptions included Oxycodone
and Hydrocodone.
Bohlmanns medical license was
suspended for three years on March 17,
2010. See: In the Matter of the Disciplinary
Proceedings Against Brian J. Bohlmann,
M.D., Wisconsin Medical Examining
Board, Order No. 0000097.
Additional source: WQOW
Congress Passes Law to Reduce Crack/Powder
Cocaine Sentencing Disparity
by Anthony Papa
O
n August 3, 2010, President
Obama signed into law historic
legislation that reduces the two-decades-
old sentencing disparity between federal
crack and powder cocaine offenses. House
Republicans and Democrats are in agree-
ment that U.S. drug laws are too harsh
and must be reformed. The tide is clearly
turning against the failed war on drugs.
Before the changes, a person with
just fve grams of crack received a man-
datory sentence of fve years in prison.
That same person would have to possess
500 grams of powder cocaine to earn the
same punishment. This disparity, known
as the 100-to-1 ratio, was enacted in the
late 1980s and was based on myths about
crack cocaine being more dangerous than
powder. Scientifc evidence, including a
major study published in the Journal of the
American Medical Association, has proven
that crack and powder cocaine have identi-
cal physiological and psychoactive effects
on the human body.
Advocates pushed to totally eliminate
the disparity, but ultimately a compromise
was struck between Democrats and Re-
publicans to reduce the 100-to-1 disparity
to 18-to-1. The 100-to-1 ratio has caused
myriad problems, including perpetuating
racial disparities, wasting taxpayer money,
and targeting low-level offenders instead of
dangerous criminals. African Americans
comprise 82 percent of those convicted for
federal crack cocaine offenses but only 30
percent of crack users, and 62 percent of
people convicted for crack offenses were
low-level sellers or lookouts.
We are sad to say that the bill, the
Fair Sentencing Act of 2010 (S.1789),
is not retroactive and does not impact
people who are already incarcerated. This
was another compromise that Democrats
had to make to get Republicans on board,
even though Democrats have majorities
in both the Senate and the House. There
were rumors that the U.S. Sentencing
Commission would eventually make the
new law retroactive, but this is not the case.
The Commission can only make changes
to the Sentencing Guidelines, not the
mandatory minimum sentencing (MMS)
laws. Only Congress can make changes
to MMS laws.
However, S.1789 does give the U.S.
Sentencing Commission emergency
authority to amend the crack sentenc-
ing guidelines within 90 days after the
law goes into effect. This amendment
will allow the new 18-to-1 crack/powder
ratio to appear in the emergency advisory
guidelines. Any temporary emergency
amendment would only apply to prison-
ers sentenced on or after the amendment
goes into effect and would last until a
permanent amendment is made.
The U.S. Sentencing Commission
estimates that about 3,000 prisoners
charged with federal crack offenses will
receive shorter sentences due to S.1789.
The changes in the law would shorten
federal crack sentences by an average of
27 months. Overall, the compromise bill
is expected to save an estimated $42 mil-
lion in criminal justice spending over the
frst fve years.
Prisoners who will not beneft from
the new changes are those who are already
sentenced and those convicted in state
courts for state crimes. Also, these changes
do not apply to federal mandatory mini-
mums for any other type of drug only
crack cocaine.
As a former prisoner who received
a 15-to-life sentence under New Yorks
Rockefeller Drug Laws, I know first-
hand the reality of being sentenced under
mandatory minimum sentencing laws. I
eventually served 12 years and was set
free after being granted clemency by
Governor Pataki in 1997. When I came
out I became an activist helping those left
behind to regain their freedom. I started
an organization called The Mothers of
CALIFORNIA LIFER NEWSLETTER
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the New York Disappeared, which played
a signifcant role in the recent reform of
the Rockefeller Drug Laws in 2009. I now
work for the Drug Policy Alliance, an or-
ganization that is dedicated to promoting
treatment instead of incarceration, and
that leads the way in reforming draconian
drug laws throughout the United States.
My advice for prisoners serving long
sentences under MMS laws is to not give
up hope. I did not, and eventually regained
my freedom. We will continue to fght to
change the existing crack/cocaine laws
and to help prisoners who are serving
sentences dished out under unfair and
ineffective war-on-drug statutes. The Fair
Sentencing Act is a huge step forward in
reforming our countrys overly harsh and
wasteful drug laws, but much more needs
to be done.
Anthony Papa is the author of 15 to Life
and the Manager of Media Relations for
the Drug Policy Alliance (DPA) in New
York City. DPAs Deputy Director of
National Affairs, Jasmine Tyler, also con-
tributed to this article.
Former Prisoner Accepts $179,000 for Wrongful
Conviction Under New Florida Law
by David Reutter
A
fter initially declining to ac-
cept $179,000 under Floridas
Victims of Wrongful Incarceration
Compensati on Act, Leroy McGee
agreed to receive compensation pur-
suant to that statute for serving 43
months in prison for a crime he didnt
commit.
McGee, 42, was convicted of a 1991
gas station robbery. He had a time card
from his janitorial job at Fort Lauderdale
High School that indicated he was work-
ing at the time of the robbery. Further,
he did not match initial descriptions of
the robber and his fngerprints were not
found at the crime scene.
However, at trial his attorney failed
to raise a single objection during the
case and attempted to enter the wrong
time card into evidence. His conviction
was reversed after he fnished serving his
prison sentence, with Judge Paul Backman
saying McGees trial lawyer had provided
absolutely the worst performance in the
courtroom Ive ever seen.
Under the Victims of Wrongful
Incarceration Compensation Act, which
was enacted in 2008, exonerated prison-
ers are eligible to receive $50,000 for
each year they spent in prison. McGee
refused to accept compensation under
the statute because it failed to cover
the costs associated with hiring an at-
torney.
Most exonerees come out of prison
with limited resources or no resources at
all. It is one of the reasons why they were
convicted in the frst place and were unable
to effectively prove their innocence for so
many years, observed Seth Miller, execu-
tive director of the Innocence Project of
Florida. But to get compensation, you
have to spend money you dont have to
get a lawyer.
Addi t i onal l y, under a cl ean
hands provision, the Act bars exoner-
ated prisoners from receiving payments
if they have been convicted of any
other felony unrelated to the wrongful
conviction. Fortunately McGee had an
otherwise clean record.
He agreed to accept $179,000 in com-
pensation pursuant to the Act after his
attorney, David Comras, agreed to repre-
sent him at no charge. By signing papers
to accept the payment from state offcials
on February 16, 2010, McGee became the
frst Florida prisoner compensated under
the statute.
I delayed taking this compensation
to let the public know that there are a
number of ways to improve the wrongful
incarceration compensation statute. With
the economy like it is, it was time to ac-
cept the compensation and continue this
fght, he stated.
For additional information on com-
pensation for the wrongly convicted, see
the related article in this issue of PLN,
Innocence Project Report on Compensa-
tion and Reentry Services for Exonerated
Prisoners.
Sources: Legal News for Florida Criminal
Lawyers, www.foridainnocence.org
Ohio Cuts Prison Industry Jobs
by Matt Clarke
I
n February 2010, Ohio Penal
Industries (OPI) announced it
planned to close several prison industry
programs and reduce its prisoner work
force from 1,554 to 1,269 due to budget
cuts. Previously, OPI stated in December
2009 that it was discontinuing its wood
offce furniture operation as part of ad-
ditional cost-savings measures.
Industry jobs are highly sought after
by Ohio prisoners, as they pay between $.21
and $1.23 an hour and provide work skills
and experience that can be used to help fnd
post-release employment if the prisoners
are ever released. Participation in prison
industry programs is tied to a reduction in
recidivism, from an overall rate of 38% to
just 18% for OPI workers. However, those
fgures are questionable since some prison
industry workers are lifers who will either
never be released or will be too old to work
when they are released.
Industry jobs performed by Ohio
prisoners include manufacturing toilet pa-
per, making dentures, crafting eyeglasses,
producing institutional clothing, milking
dairy cows and slaughtering cattle. The
slaughterhouse operation at the Pickaway
Correctional Institution supplies 3.7 million
pounds of meat per year to Ohios prison
system, saving the state $3.3 million.
OPI also manufactures both Ohio
and U.S. fags, at a rate of almost 3,000
fags annually. Prisoners who work on the
fag line are paid $.57 an hour; the fags
sell on OPIs website for between $33 and
$51 each.
At the OPIs eyeglasses manufactur-
ing operation at the Ohio Reformatory for
Women, 22 workers make over 520 pairs
of glasses for Ohio prisoners each month.
Likewise, the toilet paper manufacturing
facility at the Belmont Correctional Insti-
tution saves the state money by supplying
the prison system and some highway rest
areas with toilet paper.
Thus, the reduction in industry jobs
may be penny-wise but pound-foolish,
both in terms of reduced recidivism rates
for OPI workers and cost savings to the
state resulting from products produced
by prison industry programs. Of course,
such savings are only possible because OPI
workers are paid far below the minimum
wage. Whether the fgures provided by the
state are accurate is another matter. Every
state to audit its prison industry operations
invariably concludes most of the products
can be bought on the open market at a
lower cost. While the prisoners are paid a
pittance, the bloated bureaucracy of prison
industries, the civilian supervisors and the
guard force are not. Hence any savings
tend to be illusory at best.
Following the closure of eight OPI
programs, 24 prison industries still operate
in Ohios prison system, including the fag
manufacturing operation.
Sources: www.dispatchpolitics.com, As-
sociated Press, www.opi.state.oh.us
Alabamas Indigent Defense System
Perfect Storm for Ineffective Assistance
by David M. Reutter
A
labamas right-to-counsel
system has the perfect storm
of characteristics that virtually guarantee
ineffective assistance of counsel to the
poor, observed David Carroll, research
director for the National Legal Aid &
Defender Association.
Carroll was referring to a system that
gives state court judges unbridled discre-
tion to appoint attorneys to cases, and
therefore lets them assign work to lawyers
who, for example, make contributions to
the judges election campaigns.
Most states with state funding have
independent right-to-counsel commis-
sions with authority to promulgate and
enforce standards. There is no such ac-
countability in the Alabama system, said
Carroll. This means attorneys who move
dockets quickly and who kick back some
of the money to the judges reelection
campaigns can be fnancially rewarded.
The perfect storm. Judges are happy,
defense attorneys are happy. The only
problem is that clients rights are being
trampled on.
In Mobile County, six attorneys
received six-digit payments from the indi-
gent defense system, which is funded by
state general revenue funds and revenue
collected from a $50 civil case fling fee.
The top earner, attorney Habib Yazdi,
made $267,193 in fscal year 2009; he had
a total caseload of 516 appointments.
The second-highest earner, Lee L.
Hale, Jr., made $217,239 for 241 cases
in FY 2009. Almost a third of those ap-
pointments came from Judge Charles A.
Graddick. At one time, Graddick worked
with Hales father, Lee L. Hale, Sr.
Hale Jr. denied claims of favorit-
ism. What he did not deny was making
$1,850 in contributions to Graddicks
2004 reelection campaign. In fact, he was
unapologetic about it. I make lots of
contributions to lots of people, he said.
If someone is doing a great job, I want
them kept in offce. It is what it is.
Yazdi and attorney Gregory Hughes,
another of the top six indigent defense
fund earners in Mobile County, also made
campaign donations to Judge Graddick.
Carroll singled out Yazdi as an ex-
ample of an attorney taking on too many
cases. My guess is that the majority of
them are felonies. If so, the attorney in
question could very well be handling
three times as many cases as he should,
Carroll said.
The indigent defense situation in Ala-
bama is particularly bad because it leaves
no one to fle a complaint or issue a warn-
ing when the system breaks down.
[T]he reason I call Alabama the
perfect storm is because in other systems
theres usually someone that cries out. If
you have a public defender system that is
underfunded, attorneys are carrying way
too many cases and not able to handle it.
So, they will refuse to handle more cases,
Carroll noted. In Alabama, because the
defense attorneys are making so much
money, and the judges are happy with it
and county managers dont have any con-
trol, so theyre happy with it theres no
one to speak on behalf of the client.
Circuit Court Judge Joseph Rusty
Johnston said he found nothing wrong
with Alabamas and especially Mobile
Countys indigent defense system.
You couldnt have a public defenders
offce large enough to handle all the cases
in Mobile County. If you want to handle
the situation here expeditiously, youd
need to have enough lawyers to handle
all the cases on your worst day, Johnson
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stated. That would amount to a lot of
wasted time. So, you try to get private [at-
torneys] to do this stuff as much as they
can. A public defender system would be
slower and more expensive, I know that
much.
Such a system, however, would elimi-
nate cozy relationships between judges
and lawyers who donate to their election
campaigns, while providing better repre-
sentation for poor defendants.
Legislative efforts to establish an
indigent defense office and oversight
commission failed in 2008. At that time,
Alabama Supreme Court Justice Sue Bell
Cobb said, I want to make sure poor de-
fendants are getting a good solid criminal
defense and that Alabamas tax dollars are
being spent wisely. Apparently neither
has occurred.
Another bill to reform Alabamas in-
digent defense system is presently pending
in the state legislature (SB 497). However,
even if it passes, that bill provides for
a paltry $85 per hour payment rate for
attorneys who take noncapital cases and
$100 per hour for death penalty cases
hardly enough to attract highly qualifed
defense counsel.
Sources: www.lagniappemobile.com, www.
timesdaily.com
$130,000 Settlement in Tennessee
Jail Prisoners Beating, Rape
L
ocal offcials in Shelby County,
Tennessee paid $130,000 to settle a
lawsuit by a man who was beaten and raped
while held at the Shelby County Jail.
The plaintiff, identified in federal
court documents as E.R. to protect his pri-
vacy, was arrested for a warrant that had
been outstanding since 1983. The warrant
should have been recalled in 1995.
When Shelby County Sheriffs depu-
ties pulled E.R. over on June 9, 2007
for a seat belt violation, he produced a
valid Tennessee drivers photo operators
license that indicated his name, address
and date of birth.
The dispatcher informed the deputies
that there was a warrant for a person with
a similar name. Despite E.R.s protesta-
tions that his name and birth date were
not the same as those on the warrant, the
deputies arrested him anyway.
Within an hour after he was placed in a
jail cell, E.R. was savagely beaten and raped
by prison inmates. E.R., who was 50 at the
time, had never been arrested before.
He did not fle a complaint about the
assault at the time; he was released on June
10 after it was shown his arrest was due to
mistaken identity, and was subsequently
referred to a psychologist and hospitalized
the following month.
At the psychologists direction, E.R.
reported the assault in August 2007. The
District Attorneys office declined to
prosecute the other prisoners because the
delay in reporting the crime precluded the
collection of physical evidence.
Two treating psychologists and an
independent expert confrmed that E.R.
suffered from post-traumatic stress disor-
der as a result of the brutal attack.
The Shelby County Board of Com-
missioners approved a $130,000 settlement
in the case on February 15, 2010. E.R. was
represented by Memphis attorney Glenn
Wright. See: E.R. v. City of Memphis,
U.S.D.C. (W.D. Tenn.), Case No. 2:08-cv-
02378-BBD-tmp.
U.S. Supreme Court Holds Restitution Deadlines Not Jurisdictional
U
nder the federal Mandatory Res-
titution Act (MRA), 18 U.S.C.
3664(d)(5), the court shall set a date
for the fnal determination of the victims
losses, not to exceed 90 days after sentenc-
ing. The U.S. Supreme Court, however,
held on June 14, 2010 that a sentencing
court which misses the 90-day deadline re-
tains the ability to order restitution when
it has made clear prior to the deadlines
expiration that it would impose restitu-
tion, leaving open only the amount.
Brian R. Dolan pleaded guilty on
February 8, 2007 to a federal charge of
assault resulting in serious bodily in-
jury. He was sentenced on July 30, 2007
to 21 months in prison and 3 years
supervised release. The district court
stated it had insufficient information
regarding restitution and would leave
that issue open.
Sixty-seven days after sentencing,
the probation offce prepared an adden-
dum to Dolans presentence report that
included $104,649.78 in restitution. How-
ever, the court did not hold a restitution
hearing until February 4, 2008. Dolan
argued the law no longer authorized the
district court to impose restitution due
to the expiration of the 90-day statutory
deadline.
The court disagreed and ordered
restitution; on appeal, the Tenth Circuit
affrmed. The Supreme Court noted there
was no dispute that the district court had
missed the deadline. To determine the
consequences of the missed deadline,
the Court was required to examine the
statutory language and relevant context,
and what they revealed about the pur-
poses that the time limit was designed
to serve.
A jurisdictional deadline is absolute
and unwaiverable, preventing a court from
permitting or taking the action attached
to the deadline by statute. A claims-
processing rule does not limit a courts
jurisdiction; it is a deadline that regulates
the timing of motions or claims and can
be waived unless brought to the courts
attention. Finally, there are deadlines
that create a time-related directive that is
legally enforceable but does not deprive a
judge or public offcial of the power to act
if the deadline passes.
The Supreme Court found the MRAs
deadline was of the third type, and set
forth six factors that led it to reach that
conclusion. In sum, those conclusions are
based on the importance of restitution
and the harm to victims if restitution is
not imposed.
In a dissenting opinion, Chief Justice
John G. Roberts wrote that such consider-
ations were a series of irrelevancies that
cannot trump the clear statutory text.
He argued the MRA specifes a deadline
to alter the sentence, which becomes
fnal upon imposition. The court had
no more power to order restitution 269
days after sentencing than it did to order
an additional term of imprisonment,
Roberts stated.
The Supreme Courts 5-4 decision af-
frmed the judgment of the Tenth Circuit,
demonstrating that a statutory deadline is
only a deadline when the government says
it is. See: Dolan v. United States, 130 S.Ct.
2533 (2010).
Pay-to-Stay Jails Unsuccessful in Ohio
by David M. Reutter
P
art of the legacy of the punitive
criminal justice philosophy of the
1990s is pay-to-stay incarceration, which
involves jails charging prisoners booking
fees and per-diem fees. [See: PLN, July
2010, p.10].
The rhetoric behind pay-to-stay pro-
grams is that it is wrong for criminals to
be rewarded with free room and board
while their victims suffer and the public
struggles to fund overcrowded prisons
and jails.
The concept has turned out to be a
huge fop in Ohio, often costing more than
it returns to county coffers. Several factors
have contributed to this failure, notably
the fact that most people who end up in
jail are poor and cant afford to pay.
Another factor was an Ohio federal
courts fnding that it was unconstitutional
to impose pay-to-stay fees on prisoners
who had not been convicted. That ruling
required Hamilton County offcials to
refund about $1 million in jail fees and
pay $150,000 for a prisoner education
program after the county was sued in
2000. [See: PLN, Aug. 2003, p.20; June
2002, p.18].
The following year Butler County,
Ohio was sued. That litigation settled
when county offcials agreed to return
$63,846.37 to 2,431 current and former
prisoners. [See: PLN, Aug. 2003, p.21].
When the county failed to add 10 percent
interest to the refund checks as required
by the settlement, the court ordered an
additional $5,000 to be paid to the Legal
Aid Society of Greater Cincinnati.
Extreme budget cuts caused Ham-
ilton County to resurrect its pay-to-stay
policy in 2008, but it limited the pro-
gram to a $40 booking fee imposed on
convicted prisoners sentenced to jail.
Through January 31, 2010 the county had
collected $402,000 in fees well below the
$1.65 million annual revenue predicted
by the sheriff.
Clermont County Sheriff A.J. Roden-
berg said the pay-to-stay program was
more trouble than its worth. A complete
failure is the best way to describe it, he
observed. When it came time to col-
lect the pay-for-stay, it ended up costing
almost as much if not more to run the
program.
The Clermont County jail now
collects only small co-payments from
prisoners for medical and dental visits,
and for over-the-counter drugs such as
aspirin and antacids.
Some offcials still believe that jails
should generate money. We are looking
at any way we can to have some sort of rev-
enue from the jail, said Major Norman
Lewis, who served as warden of Butler
Countys jail in 2000 when it operated a
pay-to-stay program. If we can do this
legally, well look at it. If its practical,
well implement it.
The Corrections Center of Northwest
Ohio (CCNO), which houses prisoners
for fve counties and the City of Toledo,
implemented a pay-to-stay program on
November 2, 2009. The jail assesses a
reception fee of $100 plus a per-diem
fee of $67.77, saying it recognizes the
importance of offender accountability,
the cost of incarceration and its increasing
tax burden on the citizens of Northwest
Ohio.
CCNO has contracted with a private
company, Intellitech Corp., to collect the
fees. Pre-trial detainees who are found
not guilty can receive a refund of any fees
taken from their jail accounts.
Sources: www.enquirer.com, www.ccnore-
gionaljail.org
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U.S. Department of Agriculture Subsidizes Jail Building in Texas
by Matt Clarke
T
he U.S. Department of Agriculture
(USDA) is considering whether to
grant or loan $5 million to Webb County,
Texas to build a new county jail. The
USDA has already given Jim Hogg County,
Texas $5 million to expand its jail 25% as
a loan and 75% as a grant.
Webb County Sheriff Martin Cuellar
said the county needs a new jail because
they are losing out on the opportunity to
earn about $500,000 a year by housing
federal prisoners. The federal government
often contracts with local jails to house
prisoners, particularly immigration de-
tainees, and some counties use contracts
with the U.S. Marshals Service as a reli-
able source of income.
One complication in Sheriff Cuellars
plan is the Rio Grande Detention Center,
a 1,500-bed private prison in Laredo
owned and operated by the GEO Group,
a Florida-based company formerly known
as Wackenhut Corrections. The Rio
Grande facility opened in October 2008
following controversy over GEOs record
of alleged human rights abuses at some
of the companys other Texas prisons.
Corrections Corporation of America
(CCA) operates the 480-bed Webb County
Detention Center near Lardeo, too, which
houses U.S. Marshals detainees and is
another source of competition.
Funding for the new Webb County
jail would come through the USDAs
Rural Communities Facilities Program,
which also provides money for community
centers, clinics, schools, nursing homes,
telemedicine programs and water infra-
structure projects.
According to Sheriff Cuellar, it is
helpful to know federal officials who
can provide assistance when applying
for USDA grants and loans. He should
know his older brother is U.S. Rep.
Henry Cuellar. Rep. Cuellar also worked
with Jim Hogg County Sheriff Erasmo
Alarcon to secure the $5 million from the
USDA that will increase that countys jail
capacity from 18 to 48.
In November 2008, Jim Hogg County
voters approved another $5.2 million in
bonds to help build the new jail. Alarcon
said the facility will save the county money;
currently they are paying other counties
to house their excess prisoners. Further,
although it has been years since Jim Hogg
County held a federal detainee, Alarcon
thinks the new jail might allow him to get
into the cash-for-federal-prisoners game.
Sheriff Cuellar said he often has to
send Webb County prisoners to jails in
neighboring Dimmit or Zapata Coun-
ties, paying them $40 to $45 per diem. He
hopes the USDA funding will let him ex-
pand his jail, fx existing roof and elevator
problems, and perhaps even air condition
the facility. He noted the county could be
fned $5,000 a day by the Texas Commis-
sion on Jail Standards if improvements
arent made soon.
Still, some question whether the
USDA should be in the business of help-
ing to build jails or if such funding could
be better spent on community projects
that do not involve incarceration even
though, as Sheriff Cuellar put it, a new
jail that houses federal prisoners could be
something very proftable to the county.
Source: Texas Tribune
Democratic Chairmans Rhetoric Supports Restoration of
Voting Rights, but Actions Speak Louder than Words
by David M. Reutter
R
estoration of voting rights for
former prisoners is a key issue
for many members of the Democratic
National Committee (DNC), because
ex-felons are disproportionately mi-
norities and according to conventional
wisdom, minorities are more likely to
vote for Democratic candidates. It would
be natural, therefore, for the DNCs
chairman to support restoration of
voting rights.
I think folks who serve their time
should have their rights restored, espe-
cially those who have been convicted of
nonviolent felonies, said DNC chairman
and former Virginia governor Timothy
M. Kaine.
Despite Kaines apparent support for
re-enfranchisement, however, Virginia is
one of only two states that refuse to re-
store the voting rights of ex-felons upon
the completion of their sentences without
approval from the governor. That restric-
tion applies to all felons, not just those
convicted of violent offenses.
When Kaines term as governor was
ending in January 2010, he was asked by
WTOP political reporter Mark Plotkin
why he did not sign an executive order
restoring the voting rights of former pris-
oners he thought were deserving.
Our analysis of Virginias law is that
I cant just do a blanket restoration I
have to restore people by name, Kaine
explained, describing the one-page form
that ex-felons use to request restoration
of their voting rights as being as near an
automatic process as can be.
You fll it out, you ask for your rights
back. You demonstrate that youve served
your time and that youve been out and
you havent committed any problems for
a couple of years, said Kaine. If your
felony was a nonviolent felony, we restored
every right of everybody who applies. If
its a violent felony, we dig into it a little
more.
While its true that Kaine restored the
voting rights of thousands of ex-felons,
including those convicted of murder, rape
and other violent crimes, he also declined
to restore the rights of some nonviolent
felons if they had received an infraction as
minor as a speeding ticket since complet-
ing their sentence.
Frank Andersons request to have
his voting rights restored was denied on
December 16, 2009 for that very reason.
Although he was convicted of burglary
years earlier and had not reoffended,
he was informed that to have his rights
restored he must have no legal violations
for three to fve years, and that moving
violations, such as speeding disqualifed
him. Thus, even nonviolent offenders
who had speeding tickets could not re-
gain their voting rights under Kaines
tenure as governor.
As for a blanket executive order to
restore the voting rights of former prison-
ers, Kaines administration said it feared
a court would overturn it or a subsequent
executive order by another governor
would do likewise. Nearly 300,000 Vir-
ginians are disenfranchised due to felony
convictions.
Sources: WTOP, www.hamptonroads.com,
www.notlarrysabato.typepad.com
$850,000 Award in Delaware Prisoners Suicide;
State Declines to Renew CMS Contract
A
federal district court has award-
ed $850,000 to the family of a
Delaware prisoner who hanged himself,
after entering default judgment against
First Correctional Medical, Inc. (FCM).
In other Delaware news, the states prison
system did not renew its contract with
Correctional Medical Services (CMS).
In 1997, Christopher Barkes was in-
volved in a car accident while under the
infuence of alcohol, which resulted in the
deaths of two people. He was sentenced to
two years in prison and a lengthy period
of probation for vehicular homicide.
The consequences of the accident
went well beyond prison for Barkes. The
deaths he caused left him wracked with
extreme guilt, and he was diagnosed as
suffering from post-traumatic stress disor-
der. He made at least one suicide attempt
while held at the Howard R. Young Cor-
rectional Institution (HRYCI), and two
other attempts between November 2003
and September 2004 while on probation.
Barkes was incarcerated at HRYCI
on November 13, 2004 for loitering, a
violation of his probation. The intake
form noted he was taking several medica-
tions used to treat depression and bipolar
disorder; it also noted he had previously
attempted suicide.
Despite this information, Barkes was
not given his medication or examined by a
qualifed professional to assess his psycho-
logical condition. Further, he was housed
alone in a cell during his initial period of
imprisonment, a known critical time for
detecting potential suicides.
On November 14, 2004, Barkes was
found hanging from a bedsheet; resusci-
tation efforts failed and he was declared
dead at a local hospital. His estate fled
suit against FCM and various staff mem-
bers in February 2006.
The district court entered default
judgment against FCM on June 6, 2008
after the company failed to appear at a
hearing on its failure to obtain counsel.
In March 2010 the court entered an order
that found damages could not be awarded
under Delawares survival statute, but
could be recovered under the wrongful
death statute.
The court awarded $150,000 to
Barkes widow and $350,000 to each of
Barkes two daughters. Claims remain
pending against other state prison em-
ployees. See: Barkes v. First Correctional
Medical, Inc., U.S.D.C. (D. Del.), Case
No. 1:06-cv-00104-LPS-MPT.
Also in Delaware news, the state
declined to renew its contract with CMS
after the existing contract expired in Janu-
ary 2010. As previously reported in PLN,
medical care in Delaware prisons has been
under the oversight of a federal monitor
due to an agreement with the U.S. Depart-
ment of Justice. [See: PLN, Feb. 2010,
p.12; March 2009, p.32; Nov. 2008, p.10;
Feb. 2008, p.24; July 2007, pp. 8, 10].
The new contract for prison medical
care will involve 10 smaller agreements
that focus on specifc services. Thus far,
24 companies have bid to provide health
services to Delaware prisoners. Whether
the new privatized system will work better
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than the old one is unknown.
Were excited but still a little nervous.
The hard part is going to be putting this
contract together, said Delaware Cor-
rections Commissioner Carl C. Danberg.
Ultimately, the proof of whether or not
this whole new system works is going to be
in whether or not the provision of health
care works.
In other words, if prisoners receive
adequate medical and mental health treat-
ment, which had been lacking under the
states contract with CMS.
Source: The News Journal
U.S. Supreme Court Holds Government May Offset
Attorney Fees to Collect Litigants Debt
O
n June 14, 2010, the U.S. Su-
preme Court held that fees and
other expenses awarded to a prevailing
party are payable to the litigant and ...
therefore subject to a Government offset
to satisfy a pre-existing debt that the liti-
gant owes the United States.
After attorney Catherine Ratliff pre-
vailed in a Social Security benefts claim
for her client, she moved for an attorney
fee award of $2,112.60. The unopposed
motion was granted, but before the fees
were paid federal offcials discovered that
Ratliffs client owed the United States a
debt that predated the award.
The government then used its statu-
tory authority to impose an administrative
offset to recover the debt from the at-
torney fee award. The district court held
Ratliff lacked standing to intervene to
challenge the proposed offset. On appeal,
the Eighth Circuit accepted Ratliffs argu-
ment that attorney fees awarded under
the Equal Access to Justice Act (EAJA)
are awarded to a prevailing partys lawyer
and may not be used to offset or otherwise
satisfy a litigants federal debt.
In rejecting that ruling, the Supreme
Court found the plain language of 28
U.S.C. 2412(d)(1)(A) does the opposite
it awards the fees to the litigant, and
thus subjects them to a federal administra-
tive offset if the litigant has outstanding
federal debts.
While the Social Security Act allows
for direct payments to attorneys, subsec-
tion (d)(1)(A) contains no such language.
The Court noted that the textual language
of that subsection is virtually identical to
42 U.S.C. 1988, the law that provides
for attorney fees and costs in civil rights
cases.
It was noted that until 2006, the
government frequently paid EAJA fees
in Social Security cases directly to attor-
neys. The policies for the administrative
offset program changed in January 2005
to prohibit such payments when a litigant
has an existing debt. Nonetheless, the Su-
preme Court found the plain language of
the statute imposed duties on the federal
government to collect the debt.
The Eighth Circuits opinion was
therefore reversed and the case remanded
for further proceedings. This ruling may
affect prisoners civil rights cases when
they are represented by counsel and have
pre-existing debts owed to the federal
government. See: Astrue v. Ratliff, 130
S.Ct. 2521 (2010).
Pennsylvania Legislator / GEO Board Member Faces Criminal Charges
by Matt Clarke
O
n November 12, 2009, Pennsylva-
nia state representative John M.
Perzel was charged with 82 counts of theft,
confict of interest, conspiracy, obstruction
of justice and hindering apprehension or
prosecution as a result of Attorney General
Tom Corbetts long-running investigation
into political corruption, nicknamed Bo-
nusgate. Perzel, a Republican and former
Speaker of the House, had for years been a
member of the board of directors of GEO
Group, the nations second-largest private
prison frm.
Perzel, his brother-in-law, a nephew,
two former chiefs of Perzels staff and fve
other people with ties to the Pennsylvania
House GOP caucus (including two for-
mer district attorneys) were charged with
spending around $10 million in state funds
to develop advanced computer programs
that were used by Republicans to give
them an advantage during elections.
According to William Tomaselli, a
state-paid special projects coordinator
who was granted immunity by prosecu-
tors, Perzel was aware that the programs
were utilized to beneft GOP candidates.
The goal was to win elections. It was a
campaign piece, Tomaselli alleged.
Perzel has denied any criminal con-
duct and claims the charges are political
opportunism by Corbett, a fellow Repub-
lican who is running for governor. Corbett
countered that Perzel was the mastermind
behind a sophisticated criminal strategy
to spend $10 million in public funds on
Republican political campaigns.
The same day he was indicted, Perzel
resigned as a member of GEO Groups
board, a position he had held since 2005.
Perzel was paid a salary of $20,000 a year
as a GEO board member plus board fees
and options; those fees and options were
worth $147,953 in 2008. In contrast, he
receives around $78,000 a year as a state
lawmaker.
On October 28, 2009, the frst day
he was able to do so, Perzel exercised an
option to buy 5,000 shares of GEO stock
valued at $105,360. Our company has no
comment beyond the information it has
disclosed through its public flings with the
Securities and Exchange Commission,
remarked GEO Group spokesperson
Pablo E. Perez.
Perzels fnancial relationship with
GEO has long been controversial. A 2006
bill, clearly inspired by his board mem-
bership with the private prison company,
would have prohibited legislators from
receiving fnancial compensation when
serving on corporate boards. The bill was
defeated in the House.
GEO Group does not currently oper-
ate a prison in Pennsylvania, though from
1995 until 2008 the frm had an almost
$40 million annual contract to manage
the 1,883-bed George W. Hill Correctional
Facility in Delaware County. GEO ended
that contract one year before it was due
to expire, citing underperformance and
frequent litigation. [See: PLN, March
2009, p.16].
Perzel, 59, has enjoyed a 30-year
career as a state legislator. A former
dishwasher and waiter, and the son of a
waitress and Linotype operator, he was
frst elected to the House in 1978. He
represented Northeast Philadelphia, a
tough blue-collar neighborhood, and had
a reputation as a political brawler.
Perzel worked his way up through
the GOP leadership and became House
Speaker in 2003. He vied with former Penn-
sylvania state senator Vincent J. Vince
Fumo for the title of most influential
state lawmaker; Fumo is currently serving
a 55-month federal prison sentence on
unrelated political corruption charges. In
2007, a Democratic takeover of the House
by a single vote relegated Perzel to a back
bench, where he toiled in near anonymity
until the Bonusgate scandal broke.
On May 27, 2010, a state district court
held there was suffcient evidence to take
the case against Perzel and the nine other
defendants to trial, although some ob-
struction charges were dropped. A grand
jury that investigated corruption in state
government concluded that the Pennsyl-
vania legislature was in a time warp of
corruption, and recommended imposing
term limits among other remedies.
Perzel is free on $100,000 bond pend-
ing trial about the value of the GEO
stock he purchased just weeks before he
was indicted. He has not resigned his
House seat despite the pending criminal
charges, and could draw over $100,000
in annual retirement benefts should he
retire. However, he may lose his state pen-
sion if convicted.
Sources: Philadelphia Inquirer, www.pitts-
burghlive.com
Innocence Project Report on Compensation and
Reentry Services for Exonerated Prisoners
by Matt Clarke
T
he Innocence Project was found-
ed in 1992 by Barry C. Scheck
and Peter J. Neufeld at the Benjamin N.
Cardozo School of Law at New Yorks
Yeshiva University. Since that time the
Innocence Project and its partners have
been instrumental in securing the release
of many of the 258 prisoners exonerated
by DNA evidence nationwide including
17 who spent time on death row.
Exonerees have served an average of
13 years in prison and experience all of
the usual diffculties faced by long-term
prisoners reentering society, yet are denied
even the inadequate social services and
fnancial assistance available to released
prisoners. The plight of exonerees has
received little attention or study, but a
recent Innocence Project report describes
the ordeals they suffer and recommends
model legislation to ensure fair compensa-
tion for wrongful convictions.
Exonerees who serve lengthy prison
terms often have a variety of disabilities,
including post-traumatic stress disorder;
poor health due to substandard prison
medical care; institutionalization; depres-
sion; lack of work experience, education
and training; and lack of experience with
modern technology. Frequently some of
their family members have died, their part-
ners found new mates and their children
grew up during their incarceration. When
exonerees seek housing or jobs, they are
often treated like any other released pris-
oner. Clearly innocent people who have
been wrongly convicted deserve compen-
sation, yet almost half never receive any.
There are three ways for exonerees to
obtain fnancial compensation: a civil law-
suit, statutory compensation or a private
bill passed by the legislature. Each method
Tlrd edltlon
All llstlngs
completely
updated
More than io
programs wlth ull
detalls
Easy-to-use ormat
Step-by-step
lnstructlons
Advlce, tlps and
lnsplratlon!
By a prlsoner or
prlsoners
lnternet access
not necessary!

PnisoNzns CuznniLLA HANosook
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Order by mail, phone, or on-line.
Number o coples ordered Amount enclosed
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lnstltutlon/Agency
Address
Clty State zir
PO Box :|:o West Brauleboro VT oo
Tel [8o:| :,-i|: www.prlsonlegalnews.org
Should be available in every prison library!
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has its problems, but they all suffer from
a delay between release from prison and
compensation. Such delays average 3.9
years for a lawsuit, 2.8 years for statutory
compensation and 1.8 years for a private
bill. During the delay, exonerees may suf-
fer homelessness and have no means to
pay for needed medical care or even food
and clothing. Compensation payments
may also vary widely, even within the same
state. [See: PLN, July 2010, p.24].
All 50 states have passed crime vic-
tim compensation legislation. This is not
because the state is liable for crimes, but
rather because it is the right thing to do.
For similar reasons, compensation for
exonerated prisoners is proper regardless
of whether the state was at fault. Twenty-
seven states, the federal government and
the District of Columbia have passed
compensation statutes but only fve states
Texas, Florida, Alabama, Mississippi
and North Carolina meet the federally-
recommended level of compensation of
at least $50,000 per year of imprisonment
and $100,000 per year on death row. Four
other states do not specify the amount of
compensation and could, in some cases,
meet the federal recommendations.
Monetary compensation is not the
only support that exonerees need, but the
provision of social services is spotty. For
example, North Carolina offers job train-
ing and tuition expenses. Vermont provides
10 years on the states health care plan.
Montana offers educational aid, but only
to DNA exonerees, and does not provide f-
nancial compensation. Some states provide
less compensation and support to exoner-
ees who pleaded guilty or falsely confessed;
Florida restricts compensation to exoner-
ees with no prior criminal record.
In terms of compensation and sup-
port, Texas has become a model. With
one-sixth of all DNA exonerations, Texas
has seen a steady stream of wrongly-
convicted prisoners released over the past
ffteen years. For Tim Cole, who died due
to inadequate medical care while in a
Texas prison, his exoneration came too
late. Coles case and the activism of his
family and the rape victim he was wrongly
convicted of attacking led to the passage
of the Tim Cole Act in 2009. [See: PLN,
Dec. 2009, p.26].
The Act provides for $80,000 per
year of wrongful imprisonment, $25,000
per year on parole or as a registered sex
offender, 120 hours of job training or col-
lege tuition, life skills training, vocational
training, immediate assistance for living
expenses, assistance for child support
payments, assistance in accessing federal
entitlement programs, and help with medi-
cal and dental care.
According to the Innocence Project
report, compensation statutes are the best
and most effcient method of compensat-
ing exonerees. This is because it is diffcult
and time consuming to sue government
offcials, and private bills can lead to large
variations in compensation. The Innocence
Project recommends that compensation
statutes provide a minimum of $50,000 per
year of wrongful incarceration ($100,000
if on death row), plus payment of attorney
fees associated with fling for compensa-
tion, provision of immediate social services
to assist with housing, transportation,
education, health care and fnding a job,
and issuance of an offcial document ac-
knowledging a prisoners exoneration.
Model legislation is appended to the
report, which is available on PLNs website
or at www.innocenceproject.org.
Source: Making Up for Lost Time: What
the Wrongfully Convicted Endure and How
to Provide Fair Compensation, Innocence
Project (December 2009)
Former Oregon Prison Guard, Accused of Contraband Smuggling
and Sexual Misconduct, Files Suit Alleging Racism
by Mark Wilson
A
n ex-Oregon prison guard who
resigned in 2007 was hired the
following year as a security technician at
the Oregon State Hospital (OSH). He was
fred one month later after being accused
of engaging in oral sex with a male co-
worker in an OSH vehicle, at a cemetery,
while on duty.
William Coleman began working as
a guard at the Oregon State Penitentiary
(OSP), a maximum-security prison, on
January 18, 2005, but resigned in Sep-
tember 2007.
He was subsequently hired by OSH
as a mental health security technician;
however, he was terminated following a
November 24, 2008 incident involving
co-worker Gregory Charles. The two men,
whose duties included patrolling OSH
grounds, drove to an adjacent cemetery
and parked. They said they were watching
a suspicious man riding a bicycle, but
the bicyclist, who was the cemetery gate-
keeper, reported they were having sex in
the vehicle. Police arrived and questioned
Charles and Coleman, then called their
supervisors.
Coleman was immediately fired.
Charles, who had been an OSH employee
since November 2006, was placed on leave
before being terminated on March 20,
2009. Both fatly denied claims that they
were engaging in oral sex.
They fled suit, alleging racial dis-
crimination, defamation and wrongful
termination. Patients at OSH have
been overheard to joke that there are job
openings in security and there are oral
interviews in the back of state vehicles,
Coleman alleged in his lawsuit.
Salem attorney Kevin Lafky, who
represents both men, called the alleged
sexual tryst in the cemetery ludicrous.
Weve got evidence that many other em-
ployees would go outside the state hospital
grounds, including the cemetery when do-
ing their security rounds, said Lafky. Yet
these gentlemen, who happen to be black,
are the ones who are fred for it.
I refer to this case as the case of
visiting the cemetery while black, Lafky
remarked. It seems to be the reason these
gentlemen got fred. OSH offcials re-
ferred inquiries to the Oregon Department
of Justice, which declined to comment
citing the pending litigation.
Meanwhile, in June 2009, a grand jury
indicted Coleman on a dozen counts of
supplying contraband and three counts of
receiving bribes when he worked at OSP.
Between October 2006 and May 2007,
Coleman allegedly smuggled tobacco and
creatine, a muscle-building supplement,
into the prison in exchange for cash pay-
ments made directly or indirectly by
prisoners, according to Marion County
deputy district attorney Bryan Orrio.
Declining to specify a total dollar
amount, Orrio estimated that Coleman
may have received less than a hundred
grand but more than $5,000. He de-
clined to go into detail, explaining, with
prison cases, in my experience, theyre
the most susceptible to going down the
toilet because the inmates are so good
at manipulating witnesses and getting
information through the grapevine, so Im
pretty tight-lipped about this case.
Coleman was arrested, booked into
jail and then released on his own recog-
nizance. Its an interesting coincidence
that they charge him with a crime for
something that supposedly happened
years ago just as hes suing the state,
Lafky noted.
Colemans wrongful termination
lawsuit claims his reputation has been
smeared. Since the incident at the cem-
etery, OSH staff, acting in the course and
scope of their employment, have pub-
lished this false information to other staff
members, patients at the hospital, and
staff at the Oregon State Penitentiary,
his complaint states.
As a result, Coleman alleged he has
suffered emotional distress as well as
health problems that include headaches,
chest pains, dizziness, fright, grief, shame,
humiliation, embarrassment, anger, disap-
pointment and worry. Charles has cited
similar injuries, and said his wife divorced
him due to the sexual misconduct allega-
tions.
Coleman was found not guilty of the
contraband and bribery charges follow-
ing a state court jury trial in April 2010.
His discrimination suit remains pending.
Charles was reinstated to his security
job at OSH in November 2009; however,
he said he continues to be subjected to
taunts and ridicule by coworkers and
patients.
Sources: Statesman Journal, www.salem-
news.com
Suit Filed for Oregon Jail
Pneumonia Death
H
olly Jean Casey, a homeless 36-
year-old heroin addict, lived a
rough life and died an agonizing death on
the foor of an Oregon jail cell on January
4, 2008.
The day before she died, Casey was
on her way to the hospital when she was
arrested in Portland for failing to appear
in court on a misdemeanor theft charge.
Between coughs, Casey told police she had
missed court because she was sick.
When she was booked into the
Multnomah County Detention Center
(MCDC), Oregons largest jail, police
told guards at the facility that she had
pneumonia. Casey flled out a medical
request stating, Ive got pneumonia for
3 days. Wont go away. I have diffculty
breathing. It hurts bad. I have no energy.
I have lupus and no spleen.
A nurse examined Casey and noted
her wheezing, labored breathing and
racing heart. She was given several puffs
from an Albuterol inhaler, which seemed
to help, but was not seen by a doctor or
given any other treatment.
By the next morning Caseys condition
had worsened. She begged for help yelling,
I cant breathe, I cant breathe, please help
me, according to a federal suit fled by her
estate. For several hours she hit the call
light buzzer and she banged on the jail cell
door crying for help. In response, deputies
yelled at Casey to shut up. A female deputy
yelled at Casey to get off the foor.
Other prisoners heard Caseys buzzer
go off repeatedly. Two prisoners tried to
summon help by pushing their own call

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buttons but deputies ignored them, the
complaint alleges. Guards failed to con-
duct regular cell checks as required.
Soon after shift change, Deputy
Leo Irvan performed his frst safety and
welfare check at 7:32 a.m. He saw Casey
lying on the foor in a semi-fetal position,
wearing only underwear and a T-shirt. He
asked prisoner Laurie Tucker to check on
her. Casey was not breathing; her skin was
cold and blue and she was in full rigor
mortis, indicating she had been dead for
quite some time.
State Medical Examiner Dr. Karen L.
Gunson performed an autopsy later that
day and determined the cause of Caseys
death was pneumonia, exacerbated by her
lack of a spleen, which fghts infections.
On December 30, 2009, Caseys estate,
representing the interests of her minor
son, filed suit in federal court against
the county, its contract healthcare pro-
vider, Maxim Health Systems LLC, and
24 guards, nurses and other jail staff.
The lawsuit, which raises wrongful death
and negligence claims, seeks $1 million
in damages for funeral costs and pain
and suffering. The case remains pending;
Caseys estate is represented by Portland
attorneys Hala J. Gores and Matthew
D. Kaplan. See: Wheeler v. Multnomah
County, U.S.D.C. (D. Ore.), Case No.
3:09-cv-01518-AC.
Hepatitis & Liver Disease
A Guide to Treating & Living with
Hepatitis & Liver Disease. Revised Ed.
By Dr. Melissa Palmer
See page 53 for order information
14 Years of Litigation Fails to Remedy Defcient Jail Medical Care;
Herrera Saga Continues in Washington State
by Mark Wilson
I
n 1996, Tacoma, Washington of-
fcials settled a class-action federal
lawsuit over unconstitutional conditions
and insuffcient health care at the Pierce
County Jail (PCJ). Fourteen years later,
however, prisoners continue to be denied
adequate medical and mental health
care, according to court flings. At least
eight deaths between 2006 and 2008 were
linked to defcient medical treatment at
the jail.
The class-action suit was filed in
1995 and settled with a consent decree on
March 28, 1996. [See: PLN, March 1997,
p.18; April 1995, p.5]. Pursuant to the con-
sent decree, the district court appointed
two monitors to report on compliance
with constitutionally-mandated minimal
health care at PCJ.
The first monitor was Dr. Steve
Shelton, Medical Director for the Oregon
Department of Corrections (ODOC),
whose hepatitis C policies were the subject
of an unrelated federal class-action law-
suit while he served as a court monitor in
the PCJ litigation. [See: PLN, Feb. 2005,
p.14]. He was replaced by Dr. Joseph
Goldenson, who oversees jail health ser-
vices for the San Francisco Department
of Public Health.
Both Court Monitors have repeat-
edly reported serious deficiencies at
PCJ, class counsel Fred Diamondstone
informed the district court, and Pierce
County has repeatedly ignored the conclu-
sions of the monitors.
Compliance with NCCHC Standards
In a January 26, 2008 court-ordered
progress report, Goldenson wrote that
Dr. Shelton had previously noted that the
defendants expressed a desire to use the
National Commission on Correctional
Health Care (NCCHC) Standards as their
guidelines and final goalpost for their
health care system. Goldenson agreed
that while the standards are not in and
of themselves proof of an adequate health
care system, they do represent a well
thought out and systematic approach to
the diffculties of providing a quality sys-
tem of health care in corrections, and have
consistently shown a high level of concern
for inmate welfare. As such, he said he
would follow the outline of the NCCHC
standards and ... comment on progress
towards meeting the standards, with the
caveat that compliance did not guarantee
constitutionally-adequate medical care.
Dr. Goldenson clarifed in his second
report, issued on August 5, 2008, that
while the NCCHC standards are used
as a method of organizing the reports,
his fndings and recommendations were
based on what the Constitution, not
the standards, required. He then found,
however, that PCJ failed to satisfy 18 of
the NCCHC standards related to issues
such as adequate staffng, chronic disease
management, mental health screenings,
suicide prevention and dental care.
Only then did the Pierce County de-
fendants object to the use of the NCCHC
standards, arguing that they should be
considered as guidelines, not require-
ments. Thus, after the defendants had
selected the NCCHC standards as their
guidelines and fnal goalposts, and failed
miserably to satisfy these self-imposed
minimum standards, they tried to move
the goalposts.
Medical Staffng Problems
A major point of contention between
the parties, and a recurring deficiency
found by the monitors, was medical staff-
ing at PCJ. In his August 5, 2008 report,
Dr. Goldenson recommended that the jail
hire six additional nurses and two mental
health professionals. The defendants dis-
agreed. Current staffng levels are fully
adequate to provide necessary medical
services for inmates, said PCJ Health
Services Manager Vince Goldsmith.
Class counsel Diamondstone sided
with the monitor. In 1996, PCJs popu-
lation was 1,264 but the 2007 Actual
Average Daily Population was nearly 20%
higher at 1,490, Diamondstone noted,
citing PCJs 2009 preliminary budget. The
increase in the jails population evidenced
a need for an increase in medical staff.
As early as December 2001, Dr.
Shelton, the frst court-appointed moni-
tor, had also found inadequate staffng.
In March 2002, a Nursing Consultation
Report prepared by Catherine Knox,
RN then the ODOCs Health Services
Administrator proposed a substantial
increase in staffng. Dr. Shelton concurred
with Knoxs recommendations.
Shelton again found defcient medical
staffng in 2005, as did Goldenson in his
January 2008 and August 2008 reports.
Yet PCJ refused to increase the health
care staff from the minimum number
that were present when the jail population
was smaller, in violation of the October
31, 1995 Stipulated Order that had been
incorporated in the Final Order and
Judgment, Diamondstone informed the
court. The parties are at an impasse on
the current issue of necessary health staff
at the jail.
Mental Health Services
In his August 5, 2008 report, Dr.
Goldenson concluded that the limited
number of mental health staff continues
to affect the ability of the mental health
program to provide an appropriate level
of care. He found that mental health
employees were not responding to a
significant number of mental health
kites, and the current coverage is not
adequate to serve the mental health needs
of the ... population. Long delays, up to
30 days, were found during chart reviews
and some patients were never seen, even
though there were multiple referrals to the
psychiatrist.
Dr. Goldenson also wrote that some
patients are released from suicide watch
with no follow-up checks from mental
health. While there is no nationally ac-
ceptable schedule for follow-up, Lindsay
Hayes, a nationally recognized jail suicide
prevention expert, recommends daily for
5 days, once a week for 2 weeks, and then
once a month until release, Goldenson
said. He again recommended an increase
of two full-time mental health profession-
als, but the county again refused.
To illustrate the problem, Dr. Gold-
enson noted that a prisoner with a history
of suicidal thoughts sent a kite to medical
staff on June 3, 2008, stating meds
seizures making it impossible to control
emotions put in several kites. Six days
later he sent another kite asking why his
kites werent being answered. I need help
badly, he wrote. As of June 12, 2008, nine
days after his initial request for mental
health care, he still had not received a
response.

When its time for a change call the

Federul Criminul Luw
Center
Admitted in and Filed Appeals

National Practice
Federal Criminal Law Center
Attorney Marcia G. Shein
2392 N. Decatur Rd
Decatur, GA 30033
www.federalcriminallawcenter.com
1
st
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Dental Care
Dental care continues to be avail-
able only one day per week, observed
Goldenson. As of June 2008, there were
40 patients on the dental priority list....
Many of these patients had been on the
list for over 2 months. In addition, 93 pa-
tients were on the waiting list for routine
dental care. Many of these patients had
been waiting over 4 to 6 months to see
the dentist.
One prisoner was placed on the
priority list on January 23, 2008 for
a dental abscess and another was put
on the list March 6, 2008 for a broken
tooth, but neither had been seen as of
June 12, 2008. As noted in our prior
report, the current schedule is totally
insufficient to meet the dental needs
of the jail population, Goldenson
wrote.
Diamondstone said the court had
previously ordered the county to employ
a half-time dentist, but the jail has been
providing one day a week dental care for
the past several years. Pierce County
did not begin to comply with the courts
half-time dentist order until January 6,
2009.
Continuation of Outside Medications
In our frst report, we also concluded
that the current system for continuing out-
side medications needed to be reviewed,
said Dr. Goldenson. We were concerned
that some patients were not receiving es-
sential medications in a timely manner.
Our review of medical records during our
recent visit revealed ongoing problems
with continuity of medications.
PCJ staff failed to conduct a recom-
mended quality improvement study to
evaluate the timeliness with which patients
receive essential medications when they
frst enter the jail. They also failed to
develop a recommended policy to address
verifcation of psychiatric medications
that prisoners were taking prior to their
incarceration, and to provide those medi-
cations during confnement, Goldenson
noted.
Chronic Disease Management
PCJ has not developed a system for
identifying and tracking patients with
chronic medical problems, Dr. Gold-
enson found in his August 2008 report.
Although the NCCHC chronic care guide-
lines had been distributed to medical staff
at the jail, a review of records revealed
that in many cases the guidelines are not
being followed.
Recent Jail Deaths
Diamondstone suggested in court
flings that eight deaths in 2006-08 all
raise questions about access and/or ad-
equacy of health care at PCJ. He also
criticized the jails new policy of allowing
only internal reviews of prisoner deaths.
Historically, Pierce County conducted
outside reviews of deaths that occurred
in the jail; apparently that practice has
ceased and 6 more recent death reviews
that have been provided (one death in
2007 and fve deaths in 2006) were all con-
ducted internally, by Dr. Balderamma,
Diamondstone wrote.
In one of those cases, Dr. Balder-
amma, the physician at PCJ, claimed that
law enforcement had not provided full
information about [a prisoners] suicide
potential at the time of booking. Yet
records indicated that the arresting of-
fcers wrote SUICIDE WATCH across
the top of the prisoners intake form and
made other notations that he was at risk
of self-harm.
NCCHC standards call for an outside
review when the jail physician was directly
providing care to a prisoner who dies. The
county said it would comply with that
standard in the future.
Non-Compliance with Court Orders
On March 28, 1996, the district court
ordered the county to establish a Quality
Assurance and Improvement Committee
of outside physicians. In October 2008 the
county admitted it was not in compliance
and agreed to reinstate a proper commit-
tee by December 31, 2008. However, the
defendants failed to meet that deadline.
The 1996 court order also mandated
that all prisoners be given at least one hour
of outdoor exercise at least three times per
week, except when they are housed in dis-
ciplinary or administrative segregation for
violent behavior. On November 26, 2008,
the county informed Diamondstone that
current policy now disallows outdoor
exercise to all segregation inmates.
Further, Dr. Goldenson noted that
access to medical care in special hous-
ing units remains problematic. NCCHC
standards requiring medical rounds in
segregation units at least 3 times per week
were not being met, and staff reported
that access to care is delayed for inmates
in segregation, Goldenson wrote.
Care Terminated for
Mentioning Counsel
On April 8, 2008, a prisoner who
had been incarcerated for many, many
months was hospitalized with a blood
sugar of just over 500 at the jail (normal
would be 60 to 100). He was held at the
hospital for fve days and was diagnosed as
diabetic. He returned to the jail on April
13, 2008, and three days later expressed
concerns about his diet and not being seen
by a doctor. After more long rants about
the type of food, ... [he is] putting a kite
under my face with lawyer Fred Diamond-
stones name and phone number written
on it, a nurse wrote in the prisoners
medical chart. I took this as a threat and
terminated the conversation.
Diamondstone argued that the inci-
dent revealed concerns about access to
adequate medical care and the adequacy
of chronic disease follow-up. He added
that the fact that an inmates reference
to class counsel is recorded in the chart as
a threat shows that jail inmates may be
dissuaded from presenting complaints to
both health care providers and to counsel
for the class.
Recent Developments
Dr. Goldenson issued his third prog-
ress report on February 8, 2009. He noted
that required three-times per week nursing
rounds in the segregation units are fre-
quently not [] being done, and cited other
continuing concerns that included delays
in providing treatment, staffng vacancies,
and insuffcient monitoring and care of
prisoners at risk of alcohol withdrawal. He
also reported improvements in the delivery
of mental health care at PCJ.
Pierce County moved to remove
the court-appointed monitor on July 9,
2009; the court denied the motion and the
county appealed to the Ninth Circuit, but
later dismissed its appeal. The defendants
also moved to terminate all provisions of
the consent decree other than those related
to health care. The district court granted
the motion on October 23, 2009, leaving
only health care-related matters at PCJ
subject to the consent decree. The parties
were ordered to mediate the remaining
contested issues.
Dr. Goldensons fourth progress report
was issued on November 18, 2009. He noted
that nursing staff still was not doing requir-
ing rounds in segregation, and found delays
in responses to prisoners kites. Goldenson
wrote that in the overwhelming majority of
these cases, the inmates were not seen for at
least 4 days, often longer, and at times not
at all. All nursing staff positions at PCJ
had been flled, but he remained concerned
that the jail did not have suffcient nursing
staff. Major improvements in mental health
care and dental care were cited, and Dr.
Goldenson concluded the report by listing
ten areas that still needed work including
responses to medical and mental health
kites, refusal of care and management of
alcohol withdrawal.
The district court removed Dr. Gold-
enson as the monitor at PCJ on January
11, 2010 and appointed Judith F. Cox,
MA, an expert in suicide prevention and
mental health care, to submit a report
regarding the ten unresolved issues re-
maining at PCJ.
Cox fled her report on August 10,
2010, fnding that four of the ten issues
were adequate or could be remedied
quickly. She reported that four others
still needed improvement responses to
mental health care kites, refusal of care,
privacy of nursing patient interviews
at intake, and management of alcohol
withdrawal. The remaining two issues, the
chronic disease program at PCJ and the
Continuous Quality Improvement (CQI)
process, also needed improvement but did
not affect access to care. Cox found the
CQI process at PCJ did not meet com-
munity standards.
This case remains ongoing, with a
trial date scheduled for January 24, 2011
if the remaining health care-related issues
at PCJ are not resolved before then. See:
Herrera v. Pierce County, U.S.D.C. (W.D.
Wash.), Case No. 3:95-cv-05025-RJB-
JKA.
Additional source: www.thenewstribune.
com
Registered Sex Offender Remained on
City Payroll While Incarcerated
by Michael Brodheim
D
ennis J. McLaughlin, a water
maintenance worker for Balti-
mores Department of Public Works (DPW),
continued to earn his salary from 2007 to
2008 while serving a prison sentence for
sexually abusing a 13-year-old girl.
McLaughlin, 37, pleaded guilty to
a frst-degree sex offense in 2007. Sen-
tenced to 16 months, he was released eight
months early in May 2008 according to the
Maryland Department of Corrections. In-
credibly he then resumed his employment
with DPW, which occasionally required
him to check water leaks in private resi-
dences and schools.
An investigation by Investigative
Voice, and later by the citys Inspector
General, found that McLaughlin received
$12,700 in sick leave, vacation and holiday
pay during the time he was incarcerated.
The investigation further revealed that
McLaughlin was able to remain on the
citys payroll by using fraudulent sick
leave requests.
All of this came to light only after
McLaughlin, a 10-year DPW employee,
was arrested again in January 2010, this
time for allegedly impersonating a police
offcer while sexually assaulting a Balti-
more County woman. He later pleaded
Herrera (cont.)
NK_sixthpage.indd 1 11/03/10 3:15 PM
guilty to those charges.
Professing ignorance, city officials
claimed they did not know McLaughlin
had served eight months in prison for
sexually abusing a minor or how he had
managed to stay on the citys payroll while
incarcerated even though he was placed
on Marylands sex offender registry as a
result of his initial conviction.
Three DPW employees received short
suspensions, while McLaughlins mother,
Joyce, who worked as a DPW supervisor,
retired. DPW director David E. Scott and
the head of the agencys Water and Waste-
water Bureau were forced to resign.
In May 2010, the mayor of Baltimore
issued new rules requiring city workers
to report when they are arrested; the city
also fled suit against McLaughlin and his
mother, seeking to recover the wages he
was paid while in prison.
Sources: www.investigativevoice.com, www.
foxnews.com
Oregon Politician Visits Prison, Proposes Porn Ban
by Mark Wilson
O
regon state representative Greg
Smith is up for reelection, and
thus looking for a way to win over voters.
So why not drop in on an Oregon Depart-
ment of Corrections (ODOC) facility and
engage in some tough-on-crime prisoner-
bashing? Thats likely to get some votes,
especially from members of the prison
guard union.
So Smith paid a visit to the Two
Rivers Correctional Institution (TRCI),
where staff members apparently regaled
him with appalling stories of prisoners
receiving sexually explicit magazines such
as Playboy.
It took me by surprise, said Smith.
Prisoners should be focused on rehabilita-
tion rather than on personal gratifcation.
Of course he failed to recognize that the
type of sexually explicit material allowed
in ODOC facilities does not undermine
rehabilitation, or that it is hard for prison-
ers to focus on rehabilitation when the
ODOC spends only a small part of its
budget on rehabilitative programs. He also
might not have realized that publications
like Playboy contain more than smutty
pictures.
Still, Rep. Smith left TRCI ready to
draft legislation imposing a sweeping ban
on all sexual materials in Oregons prison
system, never mind the fact that prison
officials have acknowledged that such
publications do not cause problems.
There really hasnt been any situ-
ations that you could tie directly to an
inmates possession of sexual content,
said Jeanine Hohn, ODOCs Commu-
nications Manager. Professor Richard
Tewksbury of the University of Louisville,
who conducted a survey in Kentuckys
prison system, found only about 5 percent
of prisoners received publications such as
Playboy, and concluded that no systemic
problems were caused by soft porn. In
fact, there are positive benefts to having
this material available, Tewksbury stated.
It can be a stress reliever.
Although the ODOC has not yet seen
Rep. Smiths porn ban proposal, which ac-
cording to a March 16, 2010 press release
will be introduced during the 2011 regular
legislative session, prison offcials warned
it may cause more problems than it fxes.
Surprisingly, The Oregonians edito-
rial board quickly criticized Smiths plan.
In our view, legislators should have
a keen interest in doing four things: 1)
Reducing prison costs; 2) Boosting reha-
bilitation and thereby reducing recidivism;
3) Keeping the public safe; and 4) Keep-
ing prisoners and prison guards safe, the
newspaper wrote. Whatever legislators
can do to help prison managers control a
population and a situation fraught with
tension, diffculty and danger, legislators
should do.
However, lawmakers should be wary
of micromanaging and meddling. Smith
has picked out an area to focus on that
actually doesnt need his help, The Or-
egonian noted. Although prison rules on
sexual material stop short of a complete
ban, prison managers say the rules are
working very well.
Removing this material from our
prison[s] will better enable the Depart-
ment of Corrections to maintain a safe
environment for offcers and inmates,
Smith countered. Although proposed
budget cuts call for the release of almost
1,000 ODOC prisoners and the closure
of three state prisons, evidently the most
pressing issue for Rep. Smith and his
reelection campaign is preventing pris-
oners from receiving Playboy.
$1 Million Award in New York State Prisoners
Death Caused by Medical Malpractice
A
New York Court of Claims has
awarded $1,021,915.73 to the
estate of a former prisoner who died as the
result of a prison nurse and doctor depart-
ing from accepted standards of care.
Leonard Pickell arrived at New Yorks
Ulster Correctional Facility (UCF) on
July 8, 2005. His medical records indicated
he was diabetic, hypertensive and suffered
from hepatitis C. In addition to having
several herniated discs in his spine, Pickell
also had a right drop foot.
Upon reception at UCF, Nurse
Cheryllene Towner conducted a health
screening and evaluation of Pickell. She
wrote he did not have a current health
problem or complaint. She did note,
however, that he had a limp and a [s]ore
on foot. Despite being aware that Pickell
was diabetic, Towner did not conduct a
physical examination or prepare a treat-
ment plan.
Pickells next interaction with prison
medical staff was on September 20, 2005.
On that day he saw UCF Health Services
Director Dr. Young S. Jun; however, Dr.
Jun did not have Pickells medical records
for review.
Not only did those records detail
Pickells medical problems, but they men-
tioned the sore on his foot, which was a
slow-healing ulcer on his right great toe.
At trial, Dr. Jun tried to say the ulcer was
dry, but his medical report stated it was
reddish and swelling.
At that time Dr. Jun did not prescribe
medication or diabetic foot care for Pick-
ell. Dr. Jeffrey Levine later testifed that
that failure to provide treatment was a
departure from the standards of care.
Redness and swelling in a diabetic
foot ulcer presents a danger of rapidly
ascending infection that may lead to septic
shock, and a diabetic may not display the
symptoms of an active infection such as
fever and pain. Dr. Levine testifed that the
applicable standard of care would include
establishing a baseline blood sugar level,
administering a blood test to determine
whether there was a hematological indica-
tion of infection, and ordering X-rays to
determine whether the bone was impli-
cated in the infection.
When Pickell saw Dr. Jun on October
11, 2005 the ulcer was much worse and
exhibited a purulent odor. Dr. Levine
said that was an alarming situation. Yet
Dr. Jun did nothing but provide Silvadine
ointment and order a culture. On October
13, Pickell was in a life-threatening situ-
ation after he was found unresponsive
due to septic shock.
Over the next ten months he remained
hospitalized. Pickells condition was still
severe when he was released from prison
in August 2006; he remained immobile
and underwent numerous medical proce-
dures before dying on June 13, 2007.
His estate fled suit, and the Court
of Claims found that Nurse Towner
and Dr. Jun had departed from the ac-
cepted standards of care, as established
by expert testimony. The court further
held that their deviations from accepted
standards of medical care and treatment
were a proximate cause of the decedents
injuries and death.
On November 19, 2009, the Court of
Claims awarded Pickells estate $700,000
for his pain and suffering; $96,915.73 in
medical expenses; $25,000 to his wife for
loss of consortium; and $30,000 in past
loss of parental nurturing and $70,000 in
future loss of parental nurturing to each
of his two adult daughters. Pickells estate
was represented by attorney Jonathan C.
Reiter. See: Pickell v. New York, New York
Court of Claims (Saratoga Springs), UID
2009-015-526, Claim No. 113130.
Arizona Attempts Prison System Sell-Off
by Brandon Sample
T
he next lot in our auction is the
Arizona prison system. Do I
hear $100,000,000? What, no bidders?
None? You, sir, Corrections Corporation
of America, you must be interested. No?
Okay. How about you, GEO Group? No,
not interested either?
Prison privatization is not a new
concept but efforts to privatize an entire
prison system are rare having been
previously considered in only one state,
Tennessee, more than a decade ago. [See:
PLN, Sept. 1998, p.16]. However, last year
Arizona lawmakers attempted to priva-
tize most of that states prison system as
they tried to close a whopping $4 billion
budget defcit.
HB 2010, signed into law by Gov-
ernor Jan Brewer on September 3, 2009,
permitted the unprecedented sale of al-
most all of Arizonas prisons. Under HB
2010, state prison offcials were required
to solicit bids for the operation of one
or more prison complexes by private
companies in return for an upfront pay-
ment of $100 million. The state would
then lease the prisons back from the
companies over a 20-year period, paying
them to manage the facilities. The prison
complex at Yuma was not subject to the
law; it had been exempted at the insistence
of a Yuma legislator.
The concept was such a new idea.
The model hasnt been done, said Leon-
ard Gilroy, an offcial with the Reason
Foundation, which champions the priva-
tization of government services and has
received funding from the private prison
industry. Its sort of like we want you to
do an operational contract and loan us
$100 million, Gilroy said. I dont know
if theres enough there to sweeten the pot
for the private sector.
When asked about taking over Ari-
zonas prison system, Louise Grant,
spokesperson for Corrections Corporation
of America (CCA), said they were not
focused on that. She noted that CCA was
interested in pursuing traditional private
prison contracts. GEO Group, the second-
largest private prison operator in the U.S.,
declined to comment on its intentions, as
did a third potential bidder, Utah-based
Management & Training Corporation
(MTC).
Aside from the $100 million upfront
payment being a nonstarter, some lawmak-
ers and state prison offcials questioned the
wisdom of trying to put Arizonas entire
prison system into private hands.
Corrections Director Charles L.
Ryan told legislators in a May 2009 hear-
ing that the idea was very concerning,
especially considering that some prison
complexes house death row prisoners and
other violent offenders. [The bill] seeks
to attempt something never experienced
in the nation: Privatizing a states entire
prison system. This is bad public policy,
Ryan remarked.
J. J-Rod Rodriguez, vice-president
of the Arizona Correctional Peace Of-
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fcers Association, raised concerns about
the loss of jobs for state prison guards.
Theyre trying to replace us with lower-
paid [private] guards to handle sex
offenders, murderers, rapists, inmates with
volatile connections, he said.
Ultimately, Ryan, Rodriguez and
other concerned offcials had nothing to
fear. Although Arizona tried to sell off
its prison system to the private sector,
there were no buyers. CCA, GEO Group,
MTC and other companies just werent
interested possibly because HB 2010
required an annual cost effciency savings
to the state.
The system-wide privatization pro-
vision of HB 2010 was quietly repealed
when HB 2006 was signed into law in
March 2010. Prior to its repeal, the
Arizona Department of Corrections had
reduced the number of prison complexes
that could be privatized from nine to two,
excluding facilities that house maximum
or close-security prisoners.
However, other aspects of HB 2010
remain in force including a require-
ment that the Arizona Department of
Corrections (ADOC) issue a request for
proposal to privatize correctional health
services, including medical and dental ser-
vices, and issue a request for proposals
and contract for 5,000 private prison beds
for either an expansion of current private
prisons ... or new locations in this state.
Arizona already houses about 20% of its
prison population in privately-operated
facilities.
Private prison companies were ame-
nable to traditional contracts for 5,000
more beds, and four frms submitted bids
in May 2010. The interested companies
are CCA, GEO, MTC and Emerald Cor-
rectional Management, which is seeking
to build several facilities in Arizona
including a 1,000-bed prison in Globe.
CCA and MTC considered putting
prisons in Prescott Valley, but withdrew
their proposals due to community op-
position and lack of support from the
town council.
Arizonas plan to contract for 5,000
more private prison beds hit a snag with
the high-profle escape of three prisoners
from an MTC-operated facility in King-
man on July 30, 2010. I believe a big part
of our problem is that the very violent
inmates, like the three that escaped, ended
up getting reclassifed [as lower security]
quickly and sent to private prisons that
were just not up to the job, said Arizona
Attorney General Terry Goddard.
The escape, which sparked a na-
tionwide manhunt and exposed serious
security faws at the MTC prison, will be
covered in an upcoming issue of PLN.
Following the Kingman escape it was
revealed that two advisors to Governor
Jan Brewer had close lobbying ties to
CCA, and that eight CCA executives had
donated to Brewers election campaign.
Also, a February 2010 report by the
ADOC found it may actually be more
expensive to house the states prisoners in
privately-operated facilities.
Sources: www.guardian.co.uk, Associated
Press, www.eacourier.com, Arizona Repub-
lic, www.azdailysun.com, www.tulsaworld.
com, www.silverbelt.com, Prescott Daily
Courier, www.money.cnn.com
The New Jim Crow: Mass Incarceration in the Age of Colorblindness,
by Michelle Alexander (N.Y., The New Press, 2010). 290 pages.
Book Review by Mumia Abu-Jamal
T
he New Jim Crow offers an
unfinching look at the US ad-
diction to imprisonment and comes up
with a startling diagnosis: American
corporate greed, political opportunism
and the exploitation of age-old hatred
and fears have congealed to created a
monstrous explosion in the worlds larg-
est prison industrial complex. Further,
the author, Michelle Alexander, a law
professor at Ohio State Universitys
Moritz College of Law, digs deep into
US history, and deeper still into US
criminal law and practice, to conclude
that the barbarous system of repression
and control known commonly as Jim
Crow had a rebirth in this era.
Thats why she calls it The New Jim
Crow.
This system of legal discrimination
came into being much as the frst one did.
After the rout of the South in the Civil
War, millions of newly-freed Africans
exercised their new rights under Recon-
struction. Black men became senators
and legislators across the South. But this
period was short-lived, and as soon as
possible states passed harsh laws known
as Black Codes, which denied rights and
criminalized behavior by Blacks, and ex-
posed them to the repression of southern
prisons where convicts were leased out
to labor for others. It was the rebirth of
slavery by other means.
This present era began at the height
of the US civil rights movement, when
millions of Blacks fought for their rights
denied for more than a century.
Alexander concludes that this new
system this new coalescence of economic
and political interests targeted Blacks,
especially those engaged in the drug in-
dustry, as the human capital with which to
provide massive prison construction, huge
prison staffs and the other appendages of
the apparatus of state repression.
But perhaps Alexanders most salient
point is her fnding that Americas Black
population constitutes a racial caste
that feeds and perpetuates mass incar-
ceration.
Indeed, every other societal structure
supports this superstructure, from broken
schools to deindustrialization to popu-
lation concentration in isolated urban
ghettoes to police violence and to the
silence of the Black middle class.
One might argue that such a claim
seems unsustainable when we see a Black
president, hundreds of Black political
fgures and those in entertainment and
sports. But Alexander explains that every
system allows exceptions, for they serve to
legitimize the system and mask its ugliness
and its gross effects upon the majority of
Blacks.
For example, while its well-known
that apartheid was an overtly racist
system, it allowed Asian and even African-
American diplomats to live and work in
such a regime, through the political expe-
diency of identifying them as honorary
whites in their offcial papers.
When comparing both systems, Al-
exander argues that the US imprisons
more Blacks, both in raw numbers and per
capita, than were incarcerated in South
Africa at the height of apartheid.
The New Jim Crow, indeed!
Another Way for CCA
to Infuence Congress
by Matt Clarke
C
orrections Corporation of Amer-
ica (CCA), the nations largest
for-proft prison company, already spends
a significant amount of money court-
ing federal agencies and members of
Congress. CCA employs three lobbying
frms in Washington D.C., spent about
$1 million in lobbying on the federal level
in 2009, and has its own Political Action
Committee. CCA executives and employ-
ees have made over $135,000 in campaign
donations to federal political candidates in
the 2008 and 2010 election cycles.
Recently, though, Talking Points
Memo, a news organization that spe-
cializes in reporting on government
and political issues, found another way
that CCA influences federal officials:
Three former and current Congressional
staffers with ties to U.S. Rep. Bennie
Thompson, chairman of the House
Committee on Homeland Security, run
an event-planning business that has ac-
cepted money from CCA to plan events
honoring Thompson.
Dena Graziano, Rep. Thompsons
communication director since 2006, co-
founded Chic Productions along with
Michone Johnson, chief counsel for a
House Judiciary subcommittee, and Mi-
chelle Persaud, a former House Judiciary
Committee staffer. According to Chics
website the company provides high style
events with simple elegance, and congres-
sional events make up about 90 percent
of its business.
Lobbyist disclosure statements that
reveal these types of arrangements have
only been required since 2008, so the prior
history of Chics relationship with Rep.
Thompson is unknown. What is known,
however, is that Chic has planned at least
six events for Thompson other than lobby-
ist receptions during the past three years.
The company also planned Congressional
Black Caucus events in 2006, 2007, 2008
and 2009, some of which were hosted by
Rep. Thompson or held in his home state
of Mississippi
Over a six-week period in 2008, four
companies paid Chic Productions a to-
tal of $22,500 to plan events honoring
Thompson. CCA contributed $10,000, the
most of the four frms. Notably, CCA has
contracts with the Department of Home-
land Security to house ICE detainees, and
around 40% of CCAs business comes
from federal agencies.
Any time a member of Congress
perhaps directs business to somebody who
is a close personal friend or employee,
the members constituents should at the
very least ask questions about why this
was the case, stated Dave Levinthal,
communications director for the Center
for Responsive Politics. If a staffer who
receives a taxpayer-funded salary is using
that position to further their personal
wealth, that could be of concern.
Likewise, a private prison company
that pays a frm run by current and former
Congressional staffers, with the not-so-
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subtle goal of infuencing a member of
Congress, also should be a matter of
concern. But apparently thats just how
the game is played in Washington.
In related news, Rep. Thompson has
been accused of ethics violations by a for-
mer staffer who claims she was fred after
she raised objections to inappropriate
lobbyist requests. Other Homeland Secu-
rity Committee employees said Thompson
held a hearing on new rules for credit
card companies in March 2009 just to put
the squeeze on Visa and Mastercard for
campaign donations. He received $15,000
in contributions from the credit card
industry and its lobbyists within weeks
of the hearing. A House ethics panel is
investigating the allegations.
Sources: www.tpmmuckraker.com, Wash-
ington Post, www.opensecrets.org
California: Last Two of Five Guards Charged in
Prisoners Death Get Prison Time
I
n January 2010, two former jail
guards were sentenced to prison
for participating in a brutal assault that
resulted in a prisoners death.
James Moore, 30, was involved in a
lengthy struggle with over a dozen guards
at the Kern County Detention Center on
August 15, 2005 following his arrest on
criminal threat charges. He was placed
in a carotid hold and severely beaten,
including when he was shackled to a gur-
ney. Moore died about a week later due
to head injuries.
Five jail guards were charged with
participating in the beating or failing to
stop it. Three took plea bargains, while
two, Daniel Lindini and Ralph Contre-
ras, went to trial in October 2009 and
were convicted.
Lindini was sentenced to two years in
prison after being convicted of involun-
tary manslaughter and assault by a public
offcer. He had worked at the Kern County
jail for 26 years.
Contreras was convicted of second-
degree murder and assault by a public
offcer, and sentenced to 15 years to life.
The judge in the case, Louis P. Etcheverry,
said neither Lindini nor Contreras had
tried to stop the assault on Moore. Attor-
neys for the former guards claimed their
clients had been unfairly singled out.
Previously, in February 2006, jail
guard Lisa Romero pleaded no contest
to a misdemeanor assault charge in con-
nection with Moores death; she was
sentenced to one day in jail and three
years probation. Former guard Angel
Bravo pleaded guilty to a similar charge
two months later and was placed on three
years probation. A ffth guard, Roxanne
Fowler, pleaded guilty in September 2009
to a misdemeanor charge of assault by a
public offcer; she was sentenced to time
served, three years probation and a $375
fne.
In April 2009, Moores two minor
sons obtained a $6 million settlement in
their wrongful death suit against Kern
County. [See: PLN, Oct. 2009, p.32].
Sources: www.mercurynews.com, www.
bakersfeld.com, www.bakersfeldnow.com,
www.turnto23.com
U.S. Supreme Court Rejects Federal Good Time Challenge
by Brandon Sample
O
n June 7, 2010, the U.S. Supreme
Court upheld the Bureau of
Prisons (BOP) method for calculating
federal good time credits.
The dispute over the BOPs imple-
mentation of the federal good time
statute, 18 U.S.C. 3624(b), began about
six years ago. Federal prisoners across
the country, including this writer, fled
habeas petitions arguing that the BOP
was misapplying the good time statute by
awarding credits retrospectively instead of
prospectively.
Under the BOPs methodology, pris-
oners can earn 54 days of good time the
maximum allowable by statute only after
physically serving each year in custody
(except for the last year of incarceration,
when the amount of good time is prorat-
ed). A prisoner with a ten-year sentence,
for example, can earn a maximum of 470
days of good time on his or her total sen-
tence using the BOPs method.
Conversely, prisoners could earn 540
days of good time on a ten-year sentence
if the credits were awarded based on the
sentence imposed, which is the method
advocated by BOP prisoners and their
supporters (10 years x 54 days of good
time each year = 540 days total good
time).
Every federal Court of Appeals that
heard challenges to the BOPs calculation
of good time sided with the BOP. Some
courts said the statute unambiguously
called for the method used by federal
prison offcials, while others deferred to
the BOPs interpretation of the statute
after fnding its language ambiguous.
Just when it seemed the BOP good
time challenge was dead, the U.S. Su-
preme Court agreed to hear one of the
cases. Hope sprung anew; after all, why
would the high court agree to take a case
when there was no circuit split unless
they intended to do something differ-
ently? At least that is what many prisoners
thought.
The National Association of Criminal
Defense Lawyers, National Association
of Federal Defenders, Federal Public
and Community Defenders in the U.S.,
Families Against Mandatory Minimums,
Prison Fellowship Ministries, Dean Erwin
Chemerinksy of the UC Irvine School of
Law, the ACLU and others joined amicus
briefs in support of the plaintiffs.
Hopes were dashed, however, with the
announcement of the Supreme Courts
6-3 opinion in favor of the BOP. Justice
Breyer, who authored the decision, said
the BOPs method for calculating good
time refected the most natural reading
of the statute. The Court also rejected ap-
plication of the so-called rule of lenity,
which requires that ambiguous penal stat-
utes be construed in a defendants favor,
fnding there was no grievous ambiguity
in the law.
Justices Kennedy, Ginsburg and
Stevens, dissenting, said the Court had
interpreted the statute in a manner that
disadvantages almost 200,000 federal pris-
oners. We should not embrace this harsh
result, Kennedy wrote, where Congress
itself has not done so in clear terms.
Unfortunately the Supreme Court did
embrace the majoritys ruling, effectively
ending challenges to the BOPs method
of calculating good time. See: Barber v.
Thomas, 130 S.Ct. 2499 (2010).
Justice Thomas Wife Creates
Nonpartisan Political Organization
by David M. Reutter
M
embers of the judiciary have
an ethical obligation to re-
main impartial. When it comes to the
U.S. Supreme Court, such impartiality is
crucial given the impact that the Courts
rulings have nationwide. For that reason
the high court historically has remained
nonpartisan and distanced itself from the
political arena.
Thus, the recent involvement of Vir-
ginia Ginni Thomas, whose husband is
Justice Clarence Thomas, in the Tea Party
movement is raising eyebrows. I adore all
the new citizen patriots who are rising up
across this country, Virginia said while
speaking on a panel at the Conservative
Political Action Committee. I have felt
called to the frontlines with you, with my
fellow citizens, to preserve what made
America great.
Ordinarily, participation in political
advocacy by family members of the ju-
diciary is not a matter for concern. What
has tested the norms is that in November
2009, Virginia, an outspoken critic of
President Obama, created a 501(c)(4)
nonprofit organization called Liberty
Central, Inc.
The organizations website, Lib-
ertyCentral.org, coordinates activism
around a set of conservative core
principles. Beneftting from the recent
Supreme Court decision in Citizens United
v. Federal Election Commission, 558 U.S.
50 (2010), Liberty Central solicits money
from various sources such as corporations,
which then can be used to advocate for
or against political candidates. Justice
Thomas was part of the 5-4 majority in
Citizens United.
This is not Virginia Thomas frst
foray into politics. She previously
worked for former Republican Rep. Dick
Armey and the Heritage Foundation,
a conservative think tank with strong
ties to the GOP. As the Supreme Court
was hearing Bush v. Gore, the case that
decided the 2000 presidential election,
Virginia was at the Heritage Foundation
recruiting staff for George W. Bushs
administration.
Since his appointment to the Supreme
Court in 1991, Justice Thomas, 61, has
been a reliable conservative. We expect
the justice to make decisions uninfuenced
by the political or legal preferences of his
or her spouse, said New York University
law professor Stephen Gillers. However,
[t]here is an opportunity for mischief if
a company with a case before the court, or
which it wants the court to accept, makes
a substantial contribution to Liberty Cen-
tral in the interim, he noted.
Whether a Supreme Court justice
recuses him or herself from hearing a case
due to a potential confict of interest is
solely up to that individual justice. Thus,
former Chief Justice William Rehnquist
declined to recuse himself from an anti-
trust case against Microsoft even though
his son, an attorney, was working on a sep-
arate antitrust case involving Microsoft.
However, Rehnquist did recuse himself
from cases argued by attorney James
Brosnahan, who had testifed against him
at his confrmation hearing.
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It remains to be seen whether Jus-
tice Thomas will hear cases involving
companies that make donations to his
wifes political advocacy organization.
Liberty Central has been run past the
Supreme Court ethics office and they
found that the organization meets all
ethics standards, said Sarah Field, the
organizations policy director and general
counsel. In 2009, Liberty Central received
two donations totaling $550,000. The
donors were not identifed.
Sources: Los Angeles Times, www.politico.
com
New Jersey Prison Guards Fake Electrocution
by Brandon Sample
T
hree New Jersey guards accused
of faking the electrocution of
a prisoner at the Adult Diagnostic and
Treatment Center in Avenel have been
suspended. Sergeants Mark Percoco and
Steven Russo received 105-day suspen-
sions without pay following the October 3,
2009 incident, while prison guard Edward
Aponte was suspended for 14 days.
Details concerning the faux electrocu-
tion were revealed after the Star-Ledger,
a local newspaper, obtained a copy of a
confdential internal affairs report.
According to the report, prisoner
Javier Tabora was allegedly told by one
of the guards to sit in a chair used to scan
prisoners for contraband and pretend that
he was being electrocuted. While he was
seated, Tabora said he yelled and shook,
and pretended that electricity was com-
ing from the chair. He also put cream
soup in his mouth and let it ooze out for
added effect.
The charade was reportedly staged
to frighten Robert Grant, another
prisoner at the facility, which houses
sex offenders (including some who are
mentally ill). Grant had apparently been
filing grievances complaining about
certain aspects of his confnement. He
told investigators that he saw a prisoner
with foam coming from his mouth and
then became upset, nervous and shak-
ing when the guards placed him in the
chair before questioning him about his
complaints.
The guards denied wrongdoing,
and internal affairs investigators were
ultimately unable to substantiate the pris-
oners accounts because it came down to
their word against the guards and there
were no cameras in the room where the
incident occurred.
Nonetheless, Percoco, Russo and
Aponte pleaded guilty to workplace
infractions of conduct unbecoming and
violating safety regulations, and were
transferred to other facilities in addition
to their suspensions. Local prosecutors
declined to pursue criminal charges.
Respect for internal affairs and
prisoners rights to address grievances is
essential to the integrity of prisons and
other such institutions, said Deborah
Jacobs, director of the ACLU of New
Jersey. The only way to create a silver
lining to this tragic and appalling incident
is to use it as a springboard for establish-
ing grievance and oversight systems and
training programs to ensure that nothing
like it ever happens again.
Source: www.starledger.com
Actual Innocence
Explains how the innocent are convicted
by faulty eyewitness testimony, police
perjury, expert witnesses, prosecutorial
misconduct, etc., and how DNA testing
is used to free the innocent.
$16.00 from PLNs Book Store!
See page 53 for more information.
$2.9 Million Settlement in Suit against GEO
over Suspicionless Strip Searches
by Matt Clarke
O
n May 20, 2010, a $2.9 million
settlement was reached in a
Pennsylvania federal civil rights lawsuit
against GEO Group for performing
suspicionless strip searches of people ar-
rested for minor, non-violent, non-drug
offenses.
Penny Allison inadvertently missed
a scheduled court appointment fnalizing
her probation program in a DUI case, so
the court issued a bench warrant for her
arrest. Later, she was pulled over for an
expired registration sticker and arrested
on the bench warrant. She was taken to
the George W. Hill Correctional Facility
(GWHCF) in Thorton, Pennsylvania,
where she was required to strip naked,
squat and cough in front of a room full
of women as part of the intake process. A
male guard walked into the room during
the strip search procedure. At that time,
Delaware County was paying GEO over
$3 million a month to run GWHCF.
Zoran Hocevar was arrested for in-
advertently missing a court appointment
on a harassment charge after several other
charges related to a domestic disturbance
were dropped and he believed the harass-
ment charge had been dropped as well. He
was taken to GWHCF where he was strip
searched in front of other men as part of
the intake process.
Allison and Hocevar fled a class-
action civil rights lawsuit pursuant to 42
U.S.C. 1983 in federal district court alleg-
ing that GEOs blanket strip search policy,
which applies to all facilities it operates in
the U.S., violated their Fourth and Four-
teenth Amendment rights by subjecting
them to unreasonable searches. GEO fled
a motion for judgment on the pleadings
after the Eleventh Circuit upheld a Geor-
gia jails blanket strip search policy. The
court denied the motion, noting that nine
other federal courts of appeal had ruled
opposite of the Eleventh Circuit. GEO
then settled the suit.
The settlement applies to any person
who was arrested for non-violent crimes
that did not involve drugs or weapons,
had no prior history of such crimes and
displayed no behavior that would arouse
guards suspicion that they were carrying
contraband. Such arrestees who were
subjected to blanket policy strip searches
at any GEO-operated facility in the U.S.,
including GWHCF and at least fve other
jails in Texas, New Mexico and Illinois,
may be eligible for settlement awards up to
$400 each. The settlement applies only to
strip searches conducted as part of initial
arrest and booking.
GWHCF is currently operated by
Community Education Centers of West
Caldwell, N.J. To qualify for a possible
settlement award, GWHCF prisoners
must have been strip searched between
January 30, 2006 and January 30, 2008,
the time period in which GEO operated
GWHCF.
As a direct result of this litigation,
GEO has changed its strip-search policies
in those prisons it still operates, ac-
cording to plaintiffs attorney Joseph G.
Sauder of Haverford.
In our view, there is simply no jus-
tifcation for this kind of invasive body
search for those individuals coming to the
institution who pose no security risk to the
institution, said plaintiffs attorney David
Rudovsky of Philadelphia.
The plaintiffs were also represented
by Philadelphia attorneys Daniel E.
Levin and Jennifer R. Clarke; Haverford
attorney Benjamin F. Johns; and West
Chester attorney Christopher G. Hayes.
See: Allison v. GEO Group, 611 F.Supp.2d
433 (E.D. Penn. 2009).
Source: Philadelphia Inquirer
Mississippi Stops Segregating
HIV-positive Prisoners
O
n March 17, 2010, the American
Civil Liberties Union announced
that the Mississippi Department of Cor-
rections (MDOC) had agreed to stop
segregating prisoners with HIV. The policy
change followed two decades of efforts by
the ACLU, Human Rights Watch (HRW)
and other advocacy organizations.
The decision to end the segregation
of HIV-positive prisoners was made
by MDOC Commissioner Christopher
Epps prior to a forthcoming report by the
ACLU and HRW detailing the negative
effects of such discriminatory policies,
which are still in force in Alabama and
South Carolina.
Commissioner Epps deserves a tre-
mendous amount of credit for making this
courageous decision to replace a policy based
on irrational HIV prejudice with a policy
based on science, sound correctional practice,
and respect for human rights, stated Marga-
ret Winter, Associate Director of the ACLUs
National Prison Project. The remaining
segregation policies in South Carolina and
Alabama are a remnant of the early days
of the HIV epidemic and continue to stig-
matize prisoners and infict them and their
families with a tremendous amount of need-
less suffering.
Health care experts have long agreed
that there is no justifable medical reason
to segregate people with HIV in correc-
tional settings, or to prevent them from
participating in educational and vocation-
al programs afforded to other prisoners. In
2004, a federal court ordered Mississippi
to allow HIV-positive prisoners to par-
ticipate in the MDOCs community work
centers. [See: PLN, Feb. 2005, p.39].
Under the new policy, Mississippi
prisoners with HIV will be able to partici-
pate in jobs, training programs, and other
services to which they were previously
denied access because of their HIV status
and which are designed to prepare prison-
ers for a productive return to society, the
ACLU stated.
The desegregation of HIV-positive
prisoners will also improve their living
conditions, and will help to de-stigmatize
them from the rest of the prison popula-
tion. Prisoners with HIV were often
forced to live in cruel, inhumane and
degrading conditions, and were de-
lighted that Mississippi has changed its
policy, said Megan McLemore, a health
researcher for HRW.
Source: ACLU press release
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New York City Jail Prisoner Awarded $1.3 Million
in Deliberate Indifference to Assault Claim
A
New York federal jury awarded
$1 million to Steve Tatum for
severe injuries he sustained as a pre-trial
detainee when he was assaulted by other
prisoners at the Rikers Island jail. The
district court also awarded $321,788.21 in
attorneys fees and $4,023.62 in costs.
Tatums complaint originally in-
cluded 13 claims, but only seven made it
to trial. The jury found for Tatum on just
his deliberate indifference claim against
Rikers guard Renee Jackson.
That claim stated Jackson was indif-
ferent to an assault on Tatum by other
detainees on April 29, 2005; additional
claims alleged she conspired with the prison-
ers and aided and abetted the brutal attack.
As a result of the assault, Tatum suffered
two fractures in his jawbone and fractures
on either side of his upper nasal bones.
Following the jurys July 30, 2009
verdict awarding him $1 million in compen-
satory damages, Tatum moved for attorneys
fees and costs. Although he lost on most of
his claims, the jury award was proof he had
succeeded on a signifcant issue.
Since there was no dispute that
Tatum was a prevailing party entitled
to attorneys fees, the only question that
remained was the amount of the fees.
The court found that $450 an hour was
reasonable for attorney Adam Perlmut-
ter and $400 was reasonable for attorney
Zachary Margulis-Ohnuma. It further
found that $125 an hour was appropriate
for paralegal fees.
The district court reduced the re-
quested hours by 5.5 for each attorney for
work done on administrative or clerical
tasks, calculating that time at the rate for
paralegals. It also reduced the total fee
by 15% for work on Tatums unsuccessful
municipal liability and negligent hiring
claims. The courts order awarding over
$325,800 in fees and costs was entered on
January 28, 2010. See: Tatum v. City of
New York, U.S.D.C. (S.D. NY), Case No.
1:06-cv-04290-PGG-GWG.
GEO Group Settles $47.5 Million Texas
Prisoner Wrongful Death Suit
O
n January 7, 2010, GEO Group
settled a lawsuit over the beating
death of a prisoner in Willacy County,
Texas that had already resulted in a jury
verdict of $47.5 million one of the larg-
est prisoner wrongful death awards in the
nation.
Gregorio de la Rosa, Jr., 33, was in-
carcerated at a private prison in Willacy
County operated by Wackenhut Correc-
tions, now known as GEO Group. He had
been honorably discharged from the Na-
tional Guard and was serving a six-month
sentence for possession of cocaine. A few
days before he was due to be released, de
la Rosa was beaten to death by two other
prisoners armed with locks tied to socks;
Wackenhut guards stood by and watched
the fatal assault while the wardens smirked
and laughed.
De la Rosas family fled a lawsuit
against Wackenhut and Warden David
Forrest in state court. A jury awarded the
family $47.5 million, and the defendants
appealed. The Court of Appeals affrmed
in April 2009 but reduced the award to
$42.5 million because one of de la Rosas
family members had died. See: Wackenhut
Corp. v. De la Rosa, 305 S.W.3d 594 (Tex.
App.-Corpus Christi 2009) [PLN, June
2009, p.10; Feb. 2007, p.34].
The Court of Appeals found that the
jurys large award of punitive damages was
justifed by the horrifc facts of the case,
including Wackenhuts malicious and
grossly negligent conduct, the gruesome
manner in which Gregorio was killed,
and Wackenhuts behavior in attempting
to cover up its liability by destroying
critical evidence, including video footage
of the incident.
The confdential settlement between
the parties resulted after the scathing
Court of Appeals opinion was released.
I am pleased to have brought justice
to the de la Rosa family and I am honored
to have made a positive contribution to
Texas law for the future protection of
our people, said Laredo attorney Ron
Rodriguez, who represented the family
members. See: De la Rosa v. Wackenhut
Corrections Corp., 404th Judicial District
Court, Willacy County (TX), Case No.
02-110.
Source: Brownsville Herald
News in Brief:
Arizona: On July 25, 2010, the troubled
Corrections Corporation of America-run
Saguaro Correctional Center was placed
on lockdown after 30 prisoners from
Hawaii were involved in a scuffe over an
Xbox. During the melee the prisons gang
intelligence offcer was beaten and suf-
fered a broken nose, broken cheekbones
and eye socket damage.
Arkansas: Jessie Lunderby, 21, a
detention officer with the Washington
County Sheriff s Offce, was placed on
paid administrative leave in June 2010
after she posed for Playboy. Even though
she had reportedly informed her superiors
and did the photo shoot on her own time,
Lunderby was investigated for conduct
unbecoming an offcer. She was later
fred, with Sheriff Tim Helder saying her
nude modeling hobby had become a
distraction. It is unlikely that the petite
blond bombshell will have diffculty fnd-
ing another job.
Arkansas: On April 7, 2010, Betsey
Wright, 66, a former chief of staff for
then-governor Bill Clinton, pleaded guilty
to two misdemeanor counts related to at-
tempted contraband smuggling. Wright,
an anti-death-penalty activist who served
as a volunteer counselor, was on her way
to visit a death-row prisoner when prison
offcials found she had a Swiss Army knife,
a box cutter and tweezers hidden inside
a pen, plus 48 tattoo needles in a bag of
Doritos. [See: PLN, April 2010, p.24].
Wright said she had found the Doritos in
a vending machine in the prisons entrance
building and had grabbed the tweezers by
mistake. She pleaded guilty to possession
of the Swiss Army knife and box cutter,
and received one year on probation and
a $2,200 fne. She was also ordered not to
have any further contact with prisoners
without prior approval.
California: On August 3, 2010, Peter
Felix, 27, a guard at the Los Angeles
County jail in Castaic, was sentenced to
four years in state prison for possessing
161 grams of heroin, 24 grams of meth-
amphetamine and 51 grams of marijuana
while smuggling the drugs into the jail in
October, 2008. Felix cooperated with po-
lice in the investigation. Terrance Warner,
28, the prisoner who was supposed to
receive the drugs, was sentenced to two
years in prison. Felix was paid thousands
of dollars in bribes for his services.
California: On July 2, 2010, a trans-
port van carrying prisoners from Kings
County to Wasco State Prison collided
with a tractor-trailer. Ten prisoners suf-
fered minor injuries, while the drivers of
the van and tractor-trailer were not hurt.
The van was not equipped with seatbelts
for the prisoners. Apparently, the deputy
driving the vehicle came to a complete
stop in the middle of an intersection as
the tractor-trailer was approaching.
District of Columbia: On July 27,
2010, Quincy Hayes, 32, a guard at the
Corrections Corporation of America-
run Correctional Treatment Facility jail
in DC was sentenced to a year and a day
in prison for accepting a $300 bribe from
an undercover FBI agent in exchange for
smuggling an iPod into the jail. He also
admitted smuggling cigarettes into the
jail as well.
Florida: On August 13, 2010, Casey
Doll, 31, a guard at the Lake County jail,
was arrested on charges of bring oxy-
codone pills into the jail to sell to prisoners.
He had 60 oxycodone pills in his possession
when he was arrested at the jail.
Florida: On August 17, 2010, Mark
Grobmyer, a prisoner at the Sarasota
county jail, was charged with calling in
bomb threats to the jail, claiming he had
placed 350 pounds of explosives at the
jail and would detonate it remotely. Po-
lice traced the call back to the jail, which
records all calls.
Florida: On July 28, 2010, Bradford
Daniels, 24, and Matthew Crawford, 23,
both guards at the Graceville Correctional
Facility, were arrested and charged with
smuggling marijuana and cell phones into
the prison in exchange for $1,000 bribes
from prisoners. An informant notifed
the Jackson county sheriffs offce of the
scheme.
Georgia: On July 27, 2010, Preston
Cooper, 44, a prisoner at a halfway house
in Atlanta, printed sexually explicit pic-
tures of children, concealed them inside
an Easter card and mailed it to a prisoner
at the state prison in Telfair where he
had fnished serving a 15-year sentence.
Prison employees discovered the child
pornography and reported it to federal
law enforcement officials. Cooper was
convicted in federal court and sentenced
to 15 years in federal prison.
Guatemala: On August 11, 2010, a
court issued arrest warrants for former
interior minister Carlos Vielmann, prison
warden Alejandro Giammattei and former
national police director Erwin Sperissen.
The men are charged with murder for
allegedly ordering the murder of seven
prisoners in 2007 after police regained
control of the Pavon prison after a riot,
and the execution murder of three prison-
ers who escaped from another prison in
2005. This represents the frst time govern-
ment offcials in Guatemala have ever been
charged with a crime despite six decades
of genocidal abuse by various US sup-
ported regimes. Whether anything comes
of the charges remains to be seen.
Iowa: On July 29, 2010, prisoners
Martin Dahlke, 29, Richard Martin Jr.,
34, Jeremy McIntosh, 27 and Rolland
Jacobsen, 31, were charged with second
degree murder for allegedly beating Alfred
Myre, 44, to death in the yard of the Clar-
inda Correctional Facility. Prison offcials
claim the attack was gang related and the
defendants are members of a gang called
The Peckerwoods.
Kansas: On August 12, 2010, Laurie
Rowe, 46, a Wyandotte county prisoner
being taken to jail to serve a sentence for
methamphetamine and forgery convic-
tions, was killed when the jail van she was
riding in was rear ended by another car.
The guard driving the van was injured as
was the driver of the car that struck the
van near Kansas City.
Kazakhstan: On August 2, 2010, 80
prisoners at the Akmola prison protesting
poor conditions and torture starting out
cutting themselves; when that did not elicit
an offcial response they built barricades
and threw rocks at prison employees.
Eventually they rioted and seized control
of the prison for three days. Army soldiers
then stormed the prison using batons and
stun grenades. Two prisoners were killed
and 80 injured, including a prisoner who
died after setting himself on fre and jump-
ing off a balcony in the prison. Kazakh
prisons hold over 60,000 prisoners and
are known for their squalid conditions
and brutality.
Mexico: On August 6, 2010, a fght
between rival gangs in the prison in Mata-
moros left 14 prisoners dead before police
and army soldiers regained control of the
prison. The prisoners used homemade
weapons in the battle.
New York: On August 10, 2010, police
charged Robert Howard, 25, his father
Craig Howard, 47, and a 16-year-old boy
with second degree criminal nuisance and
third degree falsely reporting an incident.
The charges stem from one of the defen-
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dants running through a park near the
state prison in Cape Vincent wearing an
orange jumpsuit while handcuffed and be-
ing chased by the other two. A call to 911
led to a manhunt for an escaped prisoner
and a lockdown at the state prison while
prison offcials tried to determine if an es-
cape had in fact occurred. The three were
camping when the hoax occurred.
North Dakota: On August 11, 2010,
William Demery, 42, a prisoner at the Bur-
leigh county detention center, was charged
with taking another prisoners eyeglasses
and eating them when he was not allowed
to speak to the jail chaplain. He ate both
the lenses and the frame. Local media had
a feld day with puns, with lead-ins about
Demery making a spectacle of himself
and the sheriff promising to look for
the report.
Texas: On August 5, 2010, Allen
Ward, 47, a prison guard in Palestine, was
arrested by the Texas attorney generals
cyber crimes unit on charges of possessing
child pornography.
Texas: On August 7, 2010, Joel De La
Rosa, 18, a prisoner in the Edinburg jail,
killed himself by swallowing wet toilet
paper three hours after entering the jail
on drug possession and evading arrest
charges. De La Rosa had previously been
jailed at the same facility a month earlier
and had tried to hang himself but jail
guards rescued him that time. He was
not on suicide watch at the time of his
death.
Texas: On July 26, 2010, Lt. Steven
Gentry, an 18-year employee, was fred
by the Dallas county jail because he
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Other Resources
ACLU National Prison Project
Handles state and federal conditions of con-
fnement claims affecting large numbers of
prisoners, as well as sexual assaults against
prisoners. Publishes the bi-annual NPP Journal
and the online Prisoners Assistance Directory.
Contact: ACLU NPP, 915 15th St. NW, 7th Fl.,
Washington, DC 20005 (202) 393-4930. www.
aclu.org/prisons
Amnesty International
Compiles information about prisoner torture,
beatings, rape, etc. to include in reports about
U.S. prison conditions; also works on death
penalty issues. Contact: Amnesty International,
5 Penn Plaza, New York NY 10001 (212) 807-
8400. www.amnestyusa.org
Center for Health Justice
Formerly CorrectHELP. Provides information
related to HIV contact them if you are not
receiving proper HIV medication or are denied
access to programs due to HIV status. Contact:
CHJ, 8235 Santa Monica Blvd. #214, West
Hollywood, CA 90046. HIV Hotline: (323)
822-3838 (collect calls from prisoners OK).
www.healthjustice.net
Children of Incarcerated Parents
Works to stop intergenerational incarceration.
Provides resources in three areas: education,
family reunifcation, and services for incarcer-
ated parents and their children. Contact: CCIP,
P.O. Box 41-286, Eagle Rock, CA 90041 (626)
449-2470. www.e-ccip.org
Critical Resistance
Seeks to build an international movement to
abolish the Prison Industrial Complex, with of-
fces in California, New York and New Orleans.
Publishes The Abolitionist newsletter. Contact:
Critical Resistance, 1904 Franklin Street #504,
Oakland, CA 94612 (510) 444-0484. www.
criticalresistance.org
Family & Corrections Network
Primarily provides online resources for families
of prisoners related to parenting, children of pris-
oners, prison visitation, mothers and fathers in
prison, etc. Contact: F&CN, 93 Old York Road,
Suite 1 #510, Jenkintown, PA 19046 (215) 576-
1110. www.fcnetwork.org
FAMM-gram
Quarterly magazine of FAMM (Families Against
Mandatory Minimums), which includes info
about injustices resulting from mandatory mini-
mum laws with an emphasis on federal laws. $10
yr for prisoners. Contact: FAMM, 1612 K Street
NW #700, Washington, DC 20006 (202) 822-
6700). www.famm.org
The Fortune Society
Provides post-release services and programs
for prisoners in the New York City area and
publishes Fortune News, a free publication for
prisoners that deals with criminal justice issues.
Contact: The Fortune Society, 29-76 Northern
Blvd., Long Island City, NY 11101 (212) 691-
7554. www.fortunesociety.org
Innocence Project
Provides advocacy for wrongly convicted prison-
ers whose cases involve DNA evidence and are
at the post-conviction appeal stage. Maintains an
online list of state-by-state innocence projects.
Contact: Innocence Project, 100 Fifth Avenue,
3rd Fl., New York, NY 10011 (212) 364-5340.
www.innocenceproject.org
Just Detention International
(formerly Stop Prisoner Rape)
Seeks to end sexual violence against prisoners.
Provides counseling resources for imprisoned
and released rape survivors and activists for
almost every state. Specify state with request.
Contact: Stop Prisoner Rape, 3325 Wilshire
Blvd. #340, Los Angeles, CA 90010 (213) 384-
1400. www.justdetention.org
Justice Denied
Only magazine dedicated to exposing wrong-
ful convictions, and how and why they occur.
Six issues: $10 for prisoners, $20 all others, $3
for sample issue or a frst class stamp for more
info. Contact: Justice Denied, P.O. Box 68911,
Seattle, WA 98168 (202) 335-4254. www.
justicedenied.org
National CURE
Citizens United for Rehabilitation of Errants
(CURE) is a national organization with state
and special interest chapters that advocates for
rehabilitative opportunities for prisoners and less
reliance on incarceration. Publishes the CURE
Newsletter. Contact: CURE, P.O. Box 2310,
National Capitol Station, Washington, DC 20013
(202) 789-2126. www.curenational.org
November Coalition
Publishes the Razor Wire newsletter four times
a year, which reports on drug war-related is-
sues, releasing prisoners of the drug war, and
restoring civil rights. Yr sub: $6 for prisoners,
$25 all others. Contact: November Coalition,
282 West Astor, Colville, WA 99114 (509) 684-
1550. www.november.org
Partnership for Safety and Justice
Publishes Justice Matters, a quarterly newsletter
that reports on criminal justice issues in OR,
WA, ID, MT, UT, NV and WY. $7 yr prisoner,
$15 all others. Contact: PSJ, P.O. Box 40085,
Portland, OR 97240 (503) 335-8449. www.
safetyandjustice.org
was using jail cameras to watch female
prisoners shower. Until May 2010, he
was the instructor at the sheriffs training
academy for a course called Ethics in a
Correctional Setting.
Vermont: In early August 2010, Barry
Mulcahy, 49, a 27-year employee of the
Vermont Department of Corrections,
pleaded guilty to two misdemeanor charges
stemming from becoming belligerent with
Brandon police during a drunk driving
stop during which he was tasered into
submission. Mulcahy was fred by the DOC
from his job as the agencys top trainer.
Vietnam: On May 30, 2010, 578 pris-
oners at a Haiphong drug rehabilitation
camp overpowered security guards and
escaped. The uprising and escape began
when a prisoner called on others to fee
while they were having dinner. We were
completely overwhelmed, an offcial said.
Forty of us were not able to prevent
them, many with canes and bricks, from
escaping. Vietnams strict drug laws allow
the government to order addicts held for
up to two years in rehabilitation centers,
many of them boot camp-type facilities
that include hard labor and communist
ideological education. Several major
escapes have been reported following a
government order to increase the period
of mandatory rehabilitation treatment
from one to two years.
Virginia: In late June 2010, Grant R.
Sleeper, 54, died at a Richmond hospital
due to environmental heat exposure he
suffered during two days in the citys jail.
The sheriff, C.T. Woody, Jr., admitted that
the heat inside the facility likely caused
Sleepers death. The jail is overcrowded
and does not have air conditioning.
Washington: In June 2010, Ben-
ton County jail guard Gregory Andre
Brown, 38, lost his job; he now faces a
misdemeanor charge for allegedly having
sexual contact with a 29-year-old female
prisoner. The woman, whose name was
not released, told sheriffs detectives she
was cleaning a rest room during a work
crew assignment in January 2009 when
Brown stepped into the bathroom and
made fattering remarks, culminating in
sexual activity. The incident remained
unreported until May, when the prisoner
revealed details of what had happened in
a letter to a friend. The letter was returned
and read by jail offcials, who discovered
the information incriminating Brown. He
was placed on leave and then terminated
after charges were fled.
News in Brief (cont.)
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Spanish-English/English-Spanish Dictionary, Random House. $8.95. Two
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Writing to Win: The Legal Writer, by Steven D. Stark, Broadway Books/Random
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Actual Innocence: When Justice Goes Wrong and How to Make it Right,
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10 Insider Secrets to a Winning Job Search, by Todd Bermont, 216
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September 2010 1 Prison Legal News

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