Exhibit C

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 1 of 65
INSIDE

VOL. 25 No. 4 April 2014 ISSN 1075-7678 Dedicated to Protecting Human Rights

An Interview with Noam Chomsky on 

Criminal Justice and Human Rights

On February , , PRISON LEGAL

News editor Paul Wright interviewed 

Noam Chomsky, 75, at his home in Lexington, Massachusetts. Professor Chomsky 

is the foremost dissident intellectual in the 

United States, and for decades has been 

a prominent critic of U.S. foreign policy, 

human rights abuses, imperialism and the 

media’s facilitation of same. He is also one 

of the world’s eminent linguists and has 

been a professor of linguistics at the Massachusetts Institute of Technology since 

1955. He was arrested and jailed for antiwar activism in the 1960s.

The author of dozens of books on 

politics, media analysis, foreign policy and 

other issues, Professor Chomsky was also 

one of PLN’s earliest subscribers and has 

corresponded with Paul on various topics 

since the early 1990s. However, in his books, 

essays and interviews, Professor Chomsky 

has rarely addressed human rights abuses in 

the United States with respect to policing 

and prisons – until now.

While Professor Chomsky agreed to be 

interviewed by PLN, scheduling was difficult due to his extensive travel and speaking 

schedule. It turned out that the day of the 

interview was also the day a massive snowstorm hit Boston, and he did not come into 

work. He graciously agreed to conduct the 

interview at his home, and Paul and PLN

advertising director Susan Schwartzkopf 

made an adventurous cab ride through the 

snowstorm to his house.

We extend our thanks to Professor 

Chomsky for this interview and to his 

assistant, Beverly Stohl, for making the 

necessary arrangements.

ttt

PAUL WRIGHT: I think one of the 

things that’s interesting is I’ve been reading your work since I was in high school, 

and I would say that for at least 30 years 

now, 30-plus years, I’ve been reading your 

work and all the interviews that you’ve 

done, and very few people ever ask you 

about domestic issues.

NOAM CHOMSKY: Really?

PW: Yes. About domestic stuff, in 

terms of ... you know, they ask you about 

human rights in other countries, but not 

about human rights in this country. I 

think you did one interview in the mid90s which we reprinted in Prison Legal 

News.

NC: There are many. I don’t know what 

happens to them. There are so many, I can’t 

keep track. There’s several a day.

PW: Okay. My first question, Professor Chomsky, is the United States 

talks about human rights abroad but not 

domestically. Why is that? Why aren’t 

Americans deemed to have human rights 

while people overseas are?

NC: Well, first of all, it’s not true that 

people overseas are. We talk about human 

rights in enemy states, but we don’t talk 

about them in our own client states. So, for 

example, compare, say, Eastern Europe and 

Latin America. Eastern Europe was Soviet 

domain in the post-Stalin, post-Second 

World War period, up until 1990. Eastern 

Europe was dominated by the Soviet Union. 

And there’s an enormous amount of discussion about human rights in Eastern Europe. 

Human Rights Watch, the organization, 

pretty much grew out of Helsinki Watch, 

which was concerned specifically with 

Eastern Europe. 

Well, what about the U.S. domains 

during the same period? Say, roughly 1960 

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Book Review: The Redbook 43

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Prison Legal News

Noam Chomsky

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 2 of 65
April 2014 2 Prison Legal News

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 3 of 65
Prison Legal News 3 April 2014

to 1990? You take a look at the scholarly 

literature, it’s quite straight. Human rights 

in the U.S. domains of Latin America were 

under vastly greater attack than in Eastern 

Europe. It’s true whether you look at the 

murders, torture, incarceration, slaughters 

the U.S. was carrying out, including a 

major war against the Church. The story 

after Vatican II, really, there were lots of 

religious martyrs.

So in 1989, the Berlin Wall falls. A lot 

of, you know, justified excitement; there’s 

liberation in Eastern Europe. And what 

happens in Central America at that time? 

Well, shortly after the Berlin Wall fell, a 

Salvadoran brigade, the Atlacatl Brigade, 

U.S.-trained, U.S.-armed, fresh from 

renewed training at the John F. Kennedy 

School of Counter-Insurgency Warfare, 

under the orders of the high command, 

broke into the university and murdered six 

leading Jesuit intellectuals, leading Latin 

American intellectuals. Anything like that 

happen in Eastern Europe? I mean, people 

were, you know, Václav Havel was in prison, 

but he didn’t have his head blown off. And 

this is the record all the way through. Is it 

discussed? No.

PW: And I think it’s interesting that 

you use the example of Eastern Europe 

because we can note that since the collapse of the Soviet Union and Eastern 

bloc countries, I think it’s no coincidence 

that we now learn that Eastern European 

countries, like Poland, Lithuania and 

elsewhere, are leading rendition states 

for the United States to set up its secret 

torture prisons where people can be 

kidnapped and tortured with impunity, 

which, arguably, did not happen under 

the Soviet Union.

NC: That’s very interesting, in fact, because there was a study by the Open Society 

Forum of countries that had been involved 

in the U.S. rendition programs, and these, 

as you say, are kind of at the extreme end 

of commitment to torture. Taking suspects 

and sending them to countries like Syria 

or Egypt or Libya, where you know they’re 

going to be tortured. Who participated? 

Well, of course, European countries mostly 

participated. The formerEastern European 

domains and Soviet Union did. The Middle 

East, of course, participated. That’s where 

they were sending them to be tortured. One 

region of the world didn’t participate.

PW: Latin America.

NC: Latin America. What happened 

is in the past 10 years, roughly 10-15 years, 

Latin America has pretty much extricated 

itself from U.S. domination. Not entirely, 

but substantially. This is a dramatic example 

of it. It’s kind of doubly interesting because 

during the period when Latin America 

was pretty much controlled by the United 

States, it was one of the world centers of 

torture. And now that it’s somewhat, pretty 

much liberated itself, it didn’t participate 

in the massive U.S. torture programs. And 

actually it shows up in other ways, too. 

The U.N. Economic Commission for 

Latin America [recently] published a report 

on poverty reduction in Latin America. I 

don’t think it was reported here. But it’s 

striking. What it basically shows is the 

usual. The more countries that were free of 

U.S. control, free to carry out reforms, the 

more they carried out extensive poverty 

reduction. So Venezuela, Brazil, other countries had a very sharp reduction in poverty. 

You get closer to home, say, Guatemala 

and Honduras, poverty remains extreme. 

Now the interesting case is Mexico. A 

rich country, relatively speaking, under 

the NAFTA umbrella, and practically the 

only country where poverty substantially 

increased last year.

These are very systematic properties. 

But are they discussed? No. So it’s not just 

human rights in the United States that 

aren’t discussed, it’s in U.S. domains even 

when it is really dramatic. Like, for example, 

Central America.

As you know, the huge increase in 

incarceration in the United States was 

mostly since around 1980, and during those 

years Central America was subjected to 

really massive atrocities, all backed by the 

United States or carried out by the United 

States. Hundreds of thousands of people 

slaughtered. All kinds of torture. The murder atrocities. I mentioned one case, but it’s 

vastly greater. Now you take a look at, say, 

immigration today; there’s a big immigration problem in the United States. So, for 

example, people are coming to the United 

States illegally, undocumented aliens from 

the Mayan highlands in Guatemala. Why? 

Because they were practically wiped out in 

the early ‘80s by a really genocidal attack 

backed by President Reagan, who assured 

us that the general in charge was a nice 

guy committed to democracy and so on. So 

Noam Chomsky Interview (cont.)

a publication of the 

Human Rights Defense Center

www.humanrightsdefensecenter.org

EDITOR

Paul Wright

MANAGING EDITOR

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COLUMNISTS

Michael Cohen, Kent Russell, 

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 4 of 65
April 2014 4 Prison Legal News

Noam Chomsky Interview (cont.)

now the people in the areas that we helped 

destroy are fleeing for refuge to the United 

States, and President Obama has sent back 

[deported] two million, not just from there 

but from other places. None of this gets 

discussed except kind of at the margins.

PW: One of the things, too, is what I 

think of as a discussion of human rights 

and slaughters, and I think one of the 

things that’s interesting with Guantanamo seems to be almost a quantitative 

departure. For over 60 years the United 

States ran a very successful counterinsurgency program around the world 

which consisted of kidnapping people, 

torturing whatever information they 

had out of them, murdering them and 

disappearing the bodies. They did this 

very successfully in the Philippines and 

Central America, as you know, with less 

success in Southeast Asia. 

NC: Oh, there was plenty of success 

in Southeast Asia. Tiger cages in South 

Vietnam were major torture chambers.

PW: Sure. Exactly. But at some point, 

one of the things I find interesting is that 

with Guantanamo they’ve publicly acknowledged capturing people, though not 

always, hence the secret rendition prisons. But at least in Guantanamo they’re 

publicly acknowledging that they’ve 

kidnapped people. They’ve pretty much 

publicly acknowledged that they tortured 

them extensively. And continue to torture 

them. But they aren’t killing them and 

dumping the bodies, as they did for decades before that. Do you have any idea 

why that changed?

NC: Well, there is a difference. Some of 

the major scholarly work done on torture is 

done by Alfred McCoy, a historian.

PW: Yes. We’ve published his work.

NC: He’s pointed out that there is a 

difference. The U.S. used to delegate torture 

to subsidiaries. It was sometimes carried 

out by U.S. operatives, but usually it was 

kind of delegated. The last couple of years 

it’s been carried out by the U.S. It’s pretty 

much the same thing, as you say, but there’s 

a difference in direct participation. And in 

fact, he also points out that you could make 

a case that George Bush’s resort to extensive 

torture is not illegal by U.S. law.

PW: No. It isn’t. 

NC: The U.S. never really signed or 

ratified the torture convention. There is a 

U.N. torture convention which the U.S. 

technically ratified, but after rewriting it 

to exclude the methods that are used by 

the CIA.

PW: Actually, the second question 

I was going to ask you was that the U.S. 

routinely signs international treaties on 

issues like torture and prisoners’ rights. 

Then it holds there’s no private causes of 

action for them and, of course, as you’re 

noting right now, it doesn’t fully ratify 

them or creates critical exemptions that 

prevent enforcement. So my question is, 

why sign them?

NC: Well, there are two steps. Signing and ratifying. Ratifying is what counts, 

otherwise nothing happens. But the U.S. 

has ratified very few international conventions. I mean, even ones like the rights of a 

child and things like that; I think the U.S. 

and Somalia are the only countries that 

didn’t ratify it. And in the very rare cases 

where the U.S. ratifies a convention, there’s 

a reservation attached. It’s called “non selfexecuting,” which means, “inapplicable to 

the United States.” So, for example, the U.S. 

did finally sign the genocide convention 

after 40 years, but with a condition: “not 

applicable to the United States.” 

That’s actually been upheld by the 

World Court. Because under the Court 

rules, a country can be prosecuted only if 

it’s accepted the jurisdiction of the Court. 

When Yugoslavia brought a case against 

NATO after the bombing in 1999, the 

United States withdrew from the case. And 

the Court accepted that because one of the 

charges was genocide and the U.S. is not 

susceptible to charges of genocide.

And this runs right through the record. 

In fact, even in 1946, when the U.S. pretty 

much led the establishment of the International Court of Justice, the World Court, 

it added a condition that the U.S. is not 

subject to any charges under international 

treaties such as the OAS Charter and the 

U.N. Charter. And the foundation of the 

U.N. Charter, of course, bars threats or use 

of force in international affairs. But the U.S. 

is not susceptible to that rule. And, in fact, 

that’s kind of tacitly understood. So, for 

example, President Obama, high officials 

and others are constantly threatening force 

against Iran. That’s what it means to say “All 

options are open.”

	


	


		

	

	




		

		

		

			

		
	


	





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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 5 of 65
Prison Legal News 5 April 2014

PW: Sure. And every other country 

in the world, too. 

NC: Well, they can do what they want, 

but if the U.S. were brought to the Court 

under that charge, they would appeal that 

it’s not applicable. And, in fact, that was 

done. Nicaragua brought the United States 

to the World Court.

PW: For the mining of its harbors.

NC: Well, that was what the final 

charge was, because the main charges were 

thrown out by the World Court since they 

were charges of violations of the Organization of American States treaty against 

intervention. But the Court pointed out 

you can’t charge [under the OAS treaty]. 

The U.S. is free from that.

PW: And, obviously, I think for 

Prison Legal News readers sitting in prison 

the idea that you’re only susceptible to a 

criminal court’s jurisdiction if you agree 

to it sounds like a pretty good deal.

NC: A pretty good deal. But, of course, 

if we go back to Guantanamo, the torture 

at Guantanamo was horrible. But it’s kind 

of standard in American prisons.

PW: Actually, it is. When Abu Ghraib 

first happened, one of the things I’ve noticed over the many years of publishing 

Prison Legal News is that human rights 

abuses that occur overseas will get a lot 

of American media attention. But when 

the same abuse occurs in American prisons, being done by American officials to 

Americans, it gets very little attention or 

is largely ignored.

NC: It gets nothing. Take isolation. The 

U.N. and other authorities consider that 

torture. And, in fact, as is known, a short 

amount of [solitary confinement] drives 

people completely crazy.

PW: And we’ve done this for several 

hundred years.

NC: Yes. But that’s standard in America, in American prisons. Almost total 

isolation for prisoners if they want to, and 

other treatment, too. There’s a general 

principle that if we carry out a crime, it 

doesn’t happen.

PW: Or it’s not a crime.

NC: Either it’s not a crime, or it doesn’t 

happen. It literally doesn’t happen. And 

that’s true of the media. It’s largely true of 

scholarship.

PW: Do you believe that Americans 

have fewer or more rights vis-à-vis state 

power than the citizens of other industrialized countries?

NC: We do, in fact. It’s an unusually 

free country. Despite all of these crimes, 

which are real, it is nevertheless quite a 

free country for people who are relatively 

privileged. Not if you’re a black kid in the 

slums of Boston. But if you’re, say, living 

where we’re talking now, you’ve got lots 

of rights. In many respects, more so than 

other countries. For example, freedom of 

speech, which is after all a crucial right, is 

protected in the United States to an extent 

beyond maybe any other country. Certainly 

other western countries.

PW: I find it ironic that you say that 

because our organization is involved right 

now, for example, ... we’re going to trial 

in Georgia to protect our right to send 

prisoners letters where the jail bans all 

books and magazines. They only allow 

prisoners to send and receive postcards. 

And it’s ironic in the age of the Internet, 

we’re defending a 15th century means of 

communication.

NC: Yes, well, life is complex. Both 

things are true. The U.S. has set formally 

high standards for protection of freedom 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 6 of 65
April 2014 6 Prison Legal News

of speech, and they are pretty well implemented to the extent that you have a degree 

of privilege. Prisoners in Georgia are down 

at the opposite end. They don’t gain the 

rights. 

PW: Okay. The past 40 years have 

seen a massive increase in the U.S. prison 

population. The U.S. now imprisons 

more people than any other country in 

the world ever has, even including, you 

know, the Soviet Union at the height of 

the collectivization in the 1930s, even 

Nazi Germany. In your view, what has led 

to the rise of mass imprisonment in the 

United States?

NC: Primarily the drug war. Ronald 

Reagan, who was an extreme racist, barely 

concealed it under his administration. There 

had been a drug war but it was reconstituted 

and restructured so it became basically a 

race war. Take a look at the procedures of 

the drug war beginning from police actions. 

Who do you arrest? All the way through the 

prison system, the sentencing system, even 

to the post-release system.

And, here, Clinton was involved. 

Taking away rights of former prisoners, 

say, to live in public housing and so on. 

The lack of any kind of rehabilitation. 

The impossibility of getting back into 

your own community, into a job, essentially it demands recidivism. So there’s a 

system in place, mostly directed against 

black males – although by now it’s also 

African-American women, Hispanics and 

so on – but it’s overwhelmingly been black 

males, which essentially criminalizes black 

life. And it has led to a huge increase in 

incarceration and essentially no way out. 

It started with the Reagan years and goes 

on right up to the present.

PW: And what do you think is the 

basis for that?

NC: Well, it’s kind of striking. First 

of all, it has a historical parallel which is 

worth thinking about. After the Civil War 

there were Constitutional amendments that 

freed slaves. And there was a brief period, 

roughly ten years, in which freed slaves had 

formal rights.

PW: Right, Reconstruction.

NC: The Reconstruction period. And 

it was not insignificant, like you had black 

legislators and so on. After the Reconstruction period, roughly a decade, there was a 

north-south compact which effectively 

permitted the former slave states to do 

essentially what they liked, and what they 

did was they criminalized black life. So, for 

example, if a black man was standing on 

a corner he could be accused of vagrancy 

and charged some fee which he couldn’t 

pay, so he went to jail. If he was looking 

at a white woman the wrong way, somebody claimed attempted rape, you know. 

A bigger fine. Pretty soon they had a very 

large part of the black population – black 

male, mainly – in jail. And they became a 

slave labor force. 

A large part of the American Industrial 

Revolution was based on slave labor in the 

post-Civil War period. And for U.S. steel 

and mining corporations and others, it was a 

wonderful labor force. I mean, much better 

than slavery. Slavery is a capital investment; 

you’ve got to keep your slave alive. [But] 

you can pick them up from the state system 

for nothing. They’re docile. They’re obedient. They can’t unionize. They can’t ask for 

anything. I mean, we’re familiar with the 

chain gangs, but that’s only the agricultural 

aspect of it. There was also an industrial aspect. This went on almost until the Second 

World War when there was a demand for 

free labor for the war industry. And we’re 

essentially reconstituting it.

PW: Well, we’ve reported extensively 

on prison slavery in both the former, the 

older types as well as the modern ones. 

Prison Legal News has broken some of the 

major stories on that, but I think one of 

the bigger impacts now isn’t the prisoners working. It’s not the 5,000 prisoners 

working for private corporations or the 

60,000 working for prison industries. It’s 

the 2.3 million who aren’t working at all. 

That’s the impact on labor markets.

NC: Yes. But that’s the difference between now and the latter part of the 19th 

century. The latter part of the 19th century 

was a period of the Industrial Revolution. 

Now it’s quite different. It’s industrial antirevolution.

PW: Or devolution.

NC: In fact, what’s really happening 

is this is a superfluous population. A lot of 

the working class is basically superfluous at 

a time when multi-national corporations 

can shift their production operations to 

northern Mexico or Vietnam or somewhere. 

And the black population has never escaped 

the effects of slavery; I mean, the first slaves 

came to the United States in the early 17th 

century. By 1620, there were slaves. And the 

effect of slavery has never been overcome, 

in all sorts of ways, so the most superfluous 

population is the black male population. 

Fine. So we stick them in prison. Get rid 

of them.

PW: One of the things, too, as you say 

this, there’s obviously a number of black, 

racial minority political organizations in 

this country, and for the most part they’ve 

all been pretty silent about criminal justice policies over the past 40 years. If you 

Noam Chomsky Interview (cont.)

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 7 of 65
Prison Legal News 7 April 2014

look at a lot of the major organizations 

like the NAACP, the Urban League, 

folks like that, they’ve been pretty silent 

on criminal justice issues, and today we 

have President Obama, who obviously is 

black. So is our Attorney General. And, 

you know, while the Attorney General 

has made some noises on criminal justice 

issues, if you look at actual practices, 

nothing’s really changed. So to an extent it 

seems that the political black community 

has largely been silent or supportive of 

mass incarceration.

NC: Well, yes. They have their own 

reasons. But there has been progress in civil 

rights which for the more privileged sector 

of the black community has meant more 

rights. And while I don’t like to criticize 

them – as I said, they have their own reasons – I can see why they might want to try 

to expand the range of rights that they’ve 

achieved and not take on issues that would 

be unacceptable to the ruling groups. 

Take a look at what happened to Martin Luther King, for example. It was very 

striking. When you listen to the oratory 

on Martin Luther King Day, it typically 

ends with his “I have a dream” speech in 

Washington, in 1963. But he didn’t stop 

there. He went on to the north. He went 

on to northern racism, to class issues, 

urban problems in Chicago, then he was 

assassinated supporting a public workers’ 

strike. That part of his life has been kind 

of wiped out. In fact, he lost his northern 

liberal popularity at that point. As long as 

he was attacking racist sheriffs in Alabama 

it was acceptable. When he started talking 

about racist and class-based oppression in 

the north, that was beyond the limits.

After all, when he was killed he was 

on his way to organizing a party of the 

poor. Not of the blacks. Of the poor. And 

that’s beyond the pale when you do that. 

So, how much this kind of understanding 

resonates in the minds of black leadership 

I don’t know, but they can’t be oblivious to 

the phenomenon.

PW: And I guess one of the things, 

too, it’s not just the black leadership of 

civil organizations, but we pretty much 

have a bipartisan consensus on mass 

imprisonment. I think it’s like U.S. foreign policy, just like it has a bipartisan 

consensus. And we can see that over the 

past 40 years, to use your slavery analogy, 

looking back to recent modern history 

of 1980 or so, no one law at a time but 

thousands of laws every year around the 

country have led to mass imprisonment. 

There’s never been one sweeping law, 

for example. But within mainstream 

political parties there’s been no opposition to mass incarceration, whether it’s 

mandatory minimums, draconian prison 

conditions or whatever. And why is there, 

for lack of a better term, mass consensus 

within the political elite and within the 

legislative bodies of this country on mass 

imprisonment?

NC: We’re talking about a period of 

kind of a major neoliberal assault on the 

population which had all kinds of effects. 

One of them is that both political parties 

drifted to the right. There used to be a quip 

that the United States is a one-party state, 

the business party, which has two factions, 

the Democrats and the Republicans. It’s 

not really true anymore. It’s still a oneparty state, the business party. But it has 

only one faction, and it’s not Democrats. 

It’s moderate Republicans. The contemporary Democrats are what used to be called 

moderate Republicans. 

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 8 of 65
April 2014 8 Prison Legal News

Meanwhile, the Republican Party 

has just drifted off the spectrum. The 

distinguished political conservative analyst, Norman Ornstein of the American 

Enterprise Institute, speaking from the 

right, describes the contemporary Republican Party as just what he calls a radical 

insurgency which has abandoned any commitment to functioning as a parliamentary 

party. It’s just dedicated to extreme wealth 

and power. Period. And it’s had to kind of 

mobilize popular forces of the kind that 

hadn’t been politically mobilized much in 

the past, which is why you see what you do. 

But as both parties drifted to the right, yes, 

you get the consensus on rightwing policies. 

As I mentioned, Clinton’s policies just made 

the incarceration system even harsher.

PW: Well, Clinton remains, I think, 

the worst thing that’s happened to American prisoners not just in living memory 

but in American history. The laws that he 

passed, the Prison Litigation Reform Act, 

the Anti-terrorism and Effective Death 

Penalty Act among them. The elimination of Pell Grants for prisoners to get 

an education in prison. And, you know, 

again, it’s all happened with bipartisan 

consensus.

NC: I wouldn’t call it bipartisan because we’ve lost the concept of [two parties]. 

There was a narrow spectrum of bipartisan 

division under the framework of the business party, and that’s pretty much gone. The 

only question is, how rightwing are you? 

And somebody like Richard Nixon would 

be regarded as a liberal today.

PW: You know, he had some pretty 

good ideas, like the Environmental 

Protection Agency. I wouldn’t see that 

passing today.

NC: In fact, they’re attacking it now. 

The earned income tax credit, OSHA, you 

know. Nixon’s reforms would be considered 

way off the spectrum now.

PW: In your view, what’s the Obama 

administration’s track record on domestic 

human rights issues?

NC: Well, I never frankly expected 

much of Obama.

PW: Neither did I.

NC: I wrote about him before the primaries even, in 2008, just using his own web 

page. But there was one thing that surprised 

me, and that’s his attack on civil liberties. 

I don’t understand it. It’s gone way beyond 

anything I expected, and I don’t even think 

he gets any political gain from it. I just don’t 

understand what’s driving it.

PW: Well, he did campaign as being 

a better technocratic manager.

NC: Yes, but why the attack on civil 

liberties? I mean, some of these attacks 

aren’t even discussed much.

PW: Well, I think if you look at the 

rise of militarized policing, and that in 

this country the ruling class is fully geared 

up for a full-blown counter-insurgency. 

They barely have protests, much less 

resistance. It seems like they’re just not 

taking any chances.

NC: That I can understand. But take 

something like one of the most extreme 

attacks, which barely gets discussed – the 

Humanitarian Law Project case. Here’s 

a case where the Obama administration 

brought it to the courts, went up to the 

Supreme Court. They won. And what it 

does is expand the concept of material assistance to terrorism. Like if you’re on the 

terrorist list and I give you a gun, so, okay, 

I’m complicit. The Obama administration 

expanded that to advice. To talk. The case 

in question [involved] a group that was 

giving legal advice to some group that’s 

on the terrorist list, but the colloquy in the 

court extends it way beyond that.... That’s a 

tremendous attack on civil liberties.

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Noam Chomsky Interview (cont.)

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 9 of 65
Prison Legal News 9 April 2014

PW: And the right to free speech or 

the notion of....

NC: Of free speech. Yes. But it’s barely 

even discussed. Incidentally, the whole concept of the terrorist list is a scandal which 

should never be accepted. The terrorist list 

is by executive order. No recourse.

PW: And no due process right as to 

how you get on or how you get off.

NC: Nothing. If you look at the record, 

it’s appalling. Like, for example, Nelson 

Mandela was on it until a couple of years 

ago. And Saddam Hussein was taken off 

it because Reagan wanted to support him 

during the Iraq invasion of Iran. 

PW: One of the things you’ve written extensively about is the impunity of 

American client state torturers in other 

countries, specifically like in East Timor 

and Indonesia and Central America. And 

yet here in the United States human rights 

abusers such as policemen kill unarmed, 

innocent civilians. In Prison Legal News, 

we report routinely in every issue of our 

magazine about prisoners who are just 

outright murdered, directly through use 

of excessive force by prison and jail staff, 

as well as much more commonly through 

medical neglect, through the withholding of adequate medical care. And yet the 

government officials who do this enjoy 

virtual impunity. Occasionally there are 

a few criminal prosecutions. There are 

civil suits, but government officials have 

a broad range of immunities. And, again, 

those only seek money damages and, 

statistically, are not very successful. So in 

your view, what accounts for this virtual 

impunity for American and domestic human rights abusers?

NC: In part, impunity is automatic if 

it’s not discussed. It’s barely even discussed. 

Who talks about it?

PW: No one. Well, Prison Legal News

does, but....

NC: Yes, I know, but anywhere near the 

mainstream there’s just no discussion of it. 

The number of people in the country who 

even know about it outside the prisoners’ 

families is very slight. And if things are 

not even a topic of discussion, sure, there’s 

going to be impunity. And all of this reflects 

the fact that it’s simply accepted in the elite 

culture.

We want to protect ourselves – privileged white people. What happens to the 

rest, this is not our business. You know, 

Guantanamo itself is pretty remarkable. 

So, for example, the first case that came up 

under Obama was the Omar Khadr case. 

He was kidnapped in Afghanistan. He happened to be a Canadian citizen, [and] was a 

15-year-old kid who was in a village which 

was attacked by American troops.

PW: And, also, it was interesting 

since when are soldiers on the battlefield 

deemed to be war criminals when defending themselves on the battlefield?

NC: This is a 15-year-old child. Foreign soldiers are attacking his village. And 

he’s accused of defending it. So he was 

taken, he was kidnapped. He was put in 

Bagram, which is worse than Guantanamo, 

I think, for several years. Then he was moved 

to Guantanamo. More torture. Finally, he 

came to trial where he was given a choice. 

Of course, his lawyers have to make the 

choice. The choice was, plead innocent and 

you’ll stay in Guantanamo forever, or worse. 

Or plead guilty and you’ll only have to stay 

for eight more years. And it was public. Did 

you see any outcry about it? I mean, the very 

idea of kidnapping a child for the crime of 

defending his village from aggression, it’s 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 10 of 65
April 2014 10 Prison Legal News

so scandalous you don’t know what to say 

about it. 

PW: Well, we follow Guantanamo 

fairly closely, and one of the things I 

think is interesting now is that as soon 

as the prisoners start talking about being 

tortured or how they’ve been tortured, 

the judges immediately cut off the sound 

system. And so they can’t even talk about 

the torture they’ve endured, so it’s not 

even ... you know, we’ve got multiple layers 

of impunity.

NC: It goes beyond that. So, for example, there’s one Australian citizen, David 

Hill, who was kidnapped in Afghanistan, 

sold by bounty hunters to the American 

army. He was held in prison for years in 

Afghanistan, Bagram and other prisons, 

and finally Guantanamo. Horrible prison 

story. Finally, after a lot of negotiations, the 

Australian government began to intervene 

slightly. They hadn’t done much. And he 

was released. 

He wrote a book about it – a detailed 

book describing his years of torture, humiliation, how it worked in Afghanistan, what 

it was like in Guantanamo. Did you read 

a review of it? It’s more than the judges 

cutting off testimony. It’s when material 

is published in our open, free society, it 

is deep-sixed. This is not the only case by 

any means.

PW: This is in the context, as you’re 

mentioning atrocities that are occurring 

today, that if you look at The New York 

Times, for example, books that are being published, I was recently reading a 

review not too long ago, by, I think, Applebaum, about human rights violations 

under Stalin. And it’s like, okay, so The

New York Times is still mulling over human rights violations that happened 70 

years ago in the Soviet Union, but nary 

a word or very little about what’s actually occurring today by the American 

government.

NC: And again, I think maybe one of 

the most striking cases is just the comparison 

of post-Stalin Eastern Europe with U.S. 

domains in the same period, like Central 

America or South America. It’s almost not 

discussed. I mean, some of the things that 

happened are kind of mind-boggling. Like, 

for example, right after the murder of the 

Jesuit intellectuals, something which never 

happened in Eastern Europe post-Stalin....

PW: Even under Stalin, I don’t think 

they were....

NC: Well, not that way. I mean, there 

were plenty of purges and monstrosities.

PW: They weren’t doing it openly.

NC: Yes, but remember, this is under 

the orders of the high command, very close 

to the American Embassy. The troops had 

just returned from further training in the 

United States and they carried out this 

atrocity. Okay. A couple of days after that, 

there was a visit to the United States by 

Václav Havel, a Czech dissident who suffered under....

PW: And became president.

NC: Yes. And he addressed a joint 

session of Congress, and he received massive applause, standing ovations when he 

praised the United States as the defender 

of freedom – the defender of freedom that 

was just responsible for the slaughter of 

half a dozen of his counterparts in Central 

America. You take a look at the press after 

that; the liberal press was just swooning 

with admiration. Why can’t we have wonderful intellectuals like this who praise us 

for being defenders of freedom, and we’ve 

just carried out huge atrocities? Anthony 

Lewis wrote about how we’re in a romantic 

age, you know, and there’s no comment on 

this. It just passes as if it’s normal. 

I mean, it’s happening right at this 

moment. Take the crimes going on in Iraq, 

especially in Fallujah. In Fallujah, there’s 

an insurgent force being attacked by the 

Iraqi army. There are many laments here 

in the press about “the pain we suffer after 

American boys fought to liberate Fallujah. 

Look what’s happening.” How did American boys fight to liberate Fallujah? It’s one 

of the major war crimes of the 21st century. 

You take a look at the record, even as it was 

just reported in the press.

PW: Yes. They flattened the city.

NC: They surrounded the city. They cut 

off food. They allowed people to escape but 

kept the male population inside, and then 

they went in and mostly slaughtered them. 

We don’t know how many because we don’t 

count our crimes.

PW: And the U.S. has been doing that 

since at least the 1850s.

Somers, CT.)

(Void in New York)

Noam Chomsky Interview (cont.)

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 11 of 65
Prison Legal News 11 April 2014

NC: Well, you know, but now we suffer 

pain because the American boys fought to 

liberate it. I mean, there’s no comment on 

this. And, in fact, people here don’t know 

what happened. Or in England, incidentally. 

There was just a poll in England recently, 

people were asked how many Iraqis they 

thought had died during the war. The mean 

answer was 10,000. 

PW: If you ask them how many Jews 

died in the Holocaust, everyone knows 

those numbers.

NC: Yes, I mean, that’s like you know 

probably 5% of the number. There were 

some efforts to get the British press to 

publish something about it. Most were 

rejected.

PW: Let me ask you this while we’re 

on the subject of people dying. Why are 

the U.S. and Japan the only industrialized 

countries that judicially execute their own 

citizens through use of the death penalty? 

And notice I didn’t say “kill” because 

we’re going to leave out the extra-judicial 

murders and death squads which most 

governments engage in when they’re 

threatened.

NC: That’s true that most countries 

have abandoned the death penalty.

PW: Formally.

NC: The United States is different, 

sometimes in interesting ways. I happened 

to be in Norway a couple of times last year. 

I was there fortuitously, you remember the 

Anders Breivik massacre?

PW: Yes.

NC: So I was there just at the time 

when he was captured and identified. And 

then I was there again at the time when he 

was sentenced. And it was very interesting 

to see just the attitudes of the population. 

The question of the death penalty never 

arose. He was treated as a human being who 

had carried out a horrible crime, but he’s a 

human being. At the court proceedings he 

was permitted to rave and rant on as long 

as he wanted. The sentence finally was, I 

think, 21 years.

PW: Which was the maximum allowed under Norwegian law.

NC: Which was the maximum, with 

the possibility of rehabilitation. The circumstances of his imprisonment would 

seem like a luxury hotel by U.S. standards. 

And this was accepted, you know? It wasn’t 

bitterly denounced. The attitude was, well, 

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yes, we have to treat people humanely even 

when they’ve carried out a shocking massacre. He killed, I think, what, 70 children? 

Can you imagine what would have happened here?

PW: I don’t know. It’s interesting 

because I was imprisoned in Washington 

State, and you have Gary Ridgway who 

ultimately pleaded guilty to kidnapping, 

raping and murdering, I think it was 51 

women, mostly prostitutes, and ultimately he was sentenced to life without 

parole. And yet at the same time you 

have people in Washington State, which 

has the three-strikes law, on their third 

offense they’re sticking their finger in 

their pocket, pretending it’s a gun and 

robbing an espresso stand. And they get 

life without parole. So you can say that 

the equivalency of the punishment for 

sticking your finger in your pocket and 

pretending it’s a gun to rob someone is 

the same whether you’re doing that or if 

you’re killing 51 people. 

NC: Well, as soon as you have any 

contact with the prison system, what you 

discover is appalling. I don’t have to tell 

you. For example, in one of the demonstraCase 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 12 of 65
April 2014 12 Prison Legal News

tions in the early ‘60s in the south, I was 

with Howard Zinn. We went to Jackson, 

Mississippi for a demonstration and at one 

point we were able to get the police chief to 

take us through the Jackson prison, which, 

I should say, by the standards of northern 

prisons, wasn’t too bad. I’ve been in worse 

ones. Just, you know, under civil disobedience arrests.

But as we were walking through the 

halls, of course they were all black men, you 

know, a child tapped on the bars. He was in 

the prison and he asked me if he could have 

a drink of water. So I asked the police chief, 

“Can I get him a drink of water?” He said, 

“Okay.” When we got back to his office, I 

asked did he know why that child was in the 

jail? So he asked some secretary who looked 

it up, and it turned out that the child had 

been found in the streets and they didn’t 

know who he was, and they had nothing 

special to do with him, so they put him in 

jail.... How much of this goes on?

PW: Actually, it still goes on. Prison 

Legal News has reported cases of mentally 

ill children in Florida who, for lack of any 

place to care for them, they wind up in the 

prison system.

NC: This kid wasn’t even mentally 

ill. They just didn’t know what happened. 

Maybe he got lost, or whatever it might 

have been. If it had been a white kid, he 

wouldn’t have been put in jail.

PW: Yes. And I think that one of the 

things we’ve seen increasingly in the last 

30 years – it goes back to what you talk 

about as a system of class and race control – is that the solution for everything 

in this country domestically seems to be 

prison. We may not have public housing 

for the poor, but we’ve got prisons. I think 

it goes back to Governor Cuomo using 

HUD funds for low-income housing to 

build prisons, which, in a grotesque way, 

is low-income housing. 

NC: Unfortunately true. A lot of it. 

And the racism is really severe and can’t 

be overlooked. The whole record of white 

supremacy in the United States is beyond 

anything that was known.

PW: Well, one of the things that I 

find interesting is that Prison Legal News

has sued a number of jails around the 

country, and when you go to jurisdictions 

like the District of Columbia, Atlanta 

and places like Birmingham, we find 

that the prisoners are still mostly black 

but the elected officials, the sheriffs, the 

prosecutors, the mayors, the judges, huge 

portions of the police force and most of 

the guards, they’re all black too, and the 

conditions are as bad if not worse than 

they were under Bull Connor, their white 

counterparts, 40 or 50 years ago.

NC: That’s pretty common. If you go to 

South Africa, remember, the worst crimes 

were carried out by black forces mobilized 

by the white government. It’s the way coercive systems operate.

PW: So, basically, what’s more important is who’s doing it rather than the color 

of who’s doing it.

NC: There are all kinds of reasons why 

people, individuals do what they do, but it’s 

very standard to co-opt oppressed people 

to carry out crimes and atrocities for the 

government. I mean, take, say, England 

and India. Some of the worst crimes were 

carried out by Indian troops, Indian Sikh 

police. In fact, England sent them all over 

the world to impose imperial rule.

PW: One of the things you’ve talked 

about is race, and yet we’ve got two-anda-half million people in prison and even 

when we talk about race, no one is claiming that wealthy black people or Hispanics 

are being herded into prison in significant 

numbers. So what accounts for the virtual absence of the wealthy from the U.S. 

prison population?

NC: The virtual absence of....

PW: Of the wealthy from the prison 

population? That should be an easy question. Well, they’re rich.

NC: Do I even have to answer? I’ll 

give you an anecdote. We’re living in a 

pretty well-to-do suburb, right? You can 

see that when you walk around. Once we 

were away, the neighbors called and told us 

there was a broken window in the house. 

So we came back and took a look, and it 

turned out somebody had broken in. We 

called the local police and they came and 

the first thing they asked us was, “is there a 

pillowcase missing?” So we looked upstairs, 

and yes, there was a pillowcase missing. 

Then they said, “We want you to take a look 

in your medicine cabinet.” So we looked, 

and yes, somebody had rummaged through 

the cabinet. And they said, “Well, we know 

who’s doing this. This is teenage kids who 

live here, and they’re going sort of house 

to house, and if they find one that’s easy to 

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Noam Chomsky Interview (cont.)

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 13 of 65
Prison Legal News 13 April 2014

break into, they’ll go in and see if they can 

get drugs.” They said, “We know who they 

are, and we could arrest them. But it’s no 

use. Their parents will have them out of jail 

tomorrow.” That’s a typical example. 

Or, say, let’s go way high up. Last week 

there were news reports about the fact that 

Jamie Dimon, CEO of JPMorgan Chase, 

just had his salary almost doubled. Why? It 

was in gratitude because he had saved the 

bank directors from going to prison and 

they were only fined $20 billion for criminal 

activities. Well, $20 billion, first of all, a lot 

of it’s tax deductible and the rest is kind of a 

statistical error on their accounts. Now here’s 

a guy who was supervising criminal activities 

serious enough to cause a $20 billion fine. Is 

anybody in jail? What would have happened 

if this was a kid who robbed a store?

PW: Yes, that’s the joke. Rob the 7-11 

for $20 and get 20 years. And, you know, 

rob other people of $20 billion and you 

get a raise.

NC: That’s class-based justice.

PW: Do you see the criminal justice 

system, police and prisons, as a tool of 

class war domestically?

NC: Class war and race war. It’s been 

very clearly, especially since Reagan; it’s very 

hard to see it as anything other than a kind 

of race war. There is kind of a reasonably 

close class-race correlation in the United 

States, to some extent you can’t....

PW: The racial minorities are disproportionately poor.

NC: Yes. But it goes beyond that. I 

mean, as I said, from police practices up 

till post-sentencing, it’s sharply racially 

discriminatory. But, you know, it’s a racist 

country since its origins. I mean, it’s even 

familiar in scholarship. There’s a major 

study of white supremacy by George 

Frederickson, a well-known historian. He 

basically compares South Africa and the 

United States, but it’s really a comparative 

study. His conclusion is there is nothing 

anywhere in South Africa or anywhere 

else to compare with the horror of white 

supremacy in the United States. Actually, it 

is so deeply ingrained that none of us even 

notice it. I mean, for example, take President Obama. He’s called a black president. 

In Latin America he wouldn’t be called a 

black president.

PW: Right.

NC: He’d be called one of the various 

gradations of mixed race. But the United 

States still has kind of tacitly, not formally, 

the principle of one drop of black blood. 

That’s deep-seated racism.

PW: I have a black Cuban friend. We 

were in prison together, and he once told 

me that he didn’t know he was black until 

he came to the United States. He said in 

Cuba he was just Cuban. And then he 

comes here and....

NC: Or mulatto. There’s a whole bunch 

of gradations of mixed race, but here the 

racism is extreme. You can see it coming 

back to Reagan. So he opened his 1980 

campaign in Philadelphia, Mississippi. A 

tiny little town. Why pick that? Nobody 

knows anything about it except one thing. 

They murdered civil rights workers there. 

Did that affect the campaign?

PW: Yes. Arguably, that’s what led to 

him winning the Presidency.

NC: It leads to Obama calling him a 

great transformative figure, you know.

PW: My final question is at this 

point, after 40 years of mass incarceration 

with militarization of the police, we’ve 

had a massively expanding prison and 

jail system. We’ve seen some small dips 

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DUE TO TREMENDOUS TIME AND COST ANSWERING LETTERS, UNLESS YOU ARE PLACING AN ORDER OR A QUESTION REGARDING YOUR ORDER, WE WILL NOT REPLY TO ANY OTHER QUESTIONS. SASE ARE REQUIRED FOR ANY INQURIES OR CONCERNS! 

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KNOW YOUR INSTITUTIONS POLICIES AS TO WHAT IMAGE CONTENT IS ALLOWED. RETURNED 

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REGARDING HOW MANY PICTURES CAN BE SENT IN ONE 

ENVELOPE, OUR POLICY IS AS FOLLOWS: 

01 - 5 PHOTOS----$1.00 PER ENVELOPE 

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 14 of 65
April 2014 14 Prison Legal News

in [prison population] numbers in the 

last year or two in the United States. It’s 

too soon to tell if that’s just a statistical 

anomaly.

NC: I don’t think it’s an anomaly. I 

think it’s just gotten to a point where it’s 

kind of economically unfeasible to maintain it.

PW: My question is, do you see any 

prospect of permanent change in U.S. 

prison and criminal justice policies and 

practices in the near future?

NC: Sure. I mean, if you went back 

60 years, you couldn’t have predicted the 

achievements of the Civil Rights Movement.... You couldn’t have predicted the 

women’s movement, which completely 

changed things for half the population. 

After all, if you go back to the early days 

of the Republic, under law, women were 

not persons. They were property. A woman 

was the property of her father, transferred 

to her husband. 

And in fact it wasn’t until 1975 – not 

that long ago – that the Supreme Court 

recognized that women were peers. They 

had a legal right to serve on federal juries. 

Prior to that they weren’t peers. And that’s 

sort of the core of being a person under 

law. You couldn’t have predicted it. And you 

can’t predict what will happen in the future; 

it depends how people act. If they become 

organized, militant, active, the system of 

coercion is pretty fragile and I think it can 

crack very quickly.

PW: Do you know who Thomas Mathiesen is? The Norwegian criminologist?

NC: Yes.

PW: One of his quotes that I’ve 

always thought about, and this is in the 

context that I recall when the Soviet 

Union collapsed and I have a degree in 

Soviet history, is that no one predicted 

that one coming.

NC: One of the people who didn’t 

predict it was [former CIA director] Robert 

Gates, who was a Soviet specialist. He didn’t 

predict it even after it was happening.

PW: And, you know, Mathiesen’s 

comment is that systems of repression 

appear to be stable right up until the moment they collapse.

NC: That’s right.

PW: And so do you think that’s possible?

NC: This is a very fragile system here. 

I think it can crack very easily.

PW: Why do you say it’s fragile?

NC: Because there is very little coercive 

force behind it. By comparative standards, 

the state in the United States has quite limited capacity for violent repression. I mean, 

what happens is unacceptable, but again, by 

comparative standards it is not high.

PW: By comparative standards, are 

you referring to....

NC: Western countries.

PW: So you would say, for example, in 

England, that their police and military has 

more domestic repressive capacity?

NC: I think so. And, in fact, they have 

much harsher constraints on even things 

like freedom of speech.

PW: Yes. The libel laws are pretty 

outrageous.

NC: Horrifying. And how fragile 

it is, let’s take Norway again, which you 

mentioned. The famous Norwegian criminologist Nils Christie wrote a history of 

punishment. 

PW: I’ve read it. It’s one of my favorite books.

NC: Right. And if you remember, in 

the early 19th century, Norway was outlandish.

PW: All the Scandinavian countries 

were.

NC: Horrifying, horrifying crimes. 

And now they’re remarkably humane. 

Things can change.

PW: Okay. Well, this is one of the few 

times we end anything on an optimistic 

note in Prison Legal News. Thank you 

very much.

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 15 of 65
Prison Legal News 15 April 2014

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 16 of 65
April 2014 16 Prison Legal News

From the Editor

by Paul Wright

This month’s interview with Noam 

Chomsky is part of PLN’s ongoing 

series of interviews with notable people 

who have diverse views of the U.S. criminal 

justice system. Prior interviews have been 

conducted with well-known actor Danny 

Trejo, media mogul and millionaire Conrad 

Black, and wrongfully convicted former 

prisoner Jeff Deskovic. We hope that these 

interviews serve to further what passes for 

discussion and debate on this country’s 

criminal justice system in general and 

prisons in particular.

We still need to expand our circulation 

in order to keep our subscription rates as 

low as possible; since most publishingrelated costs are fixed, the higher our 

circulation the lower our per-issue expenses 

for things like printing, postage and layout, 

which helps keep our costs – and thus our 

subscription rates – low. 

How can you help? First, you can subscribe to PLN for four years and get a copy 

of The Habeas Citebook: Ineffective Assistance 

of Counsel for free! This $49.95 value is yours 

if you subscribe for four years or extend your 

existing subscription for four years. Second, if 

you know someone who would benefit from 

PLN, purchase a gift subscription for them. 

PLN makes a great gift, especially for friends 

or family members who are incarcerated.

If you write to PLN, please try to be 

as concise as possible as our office staff is 

limited and it saves time if you can let us 

know the purpose of your letter in the opening paragraph. We are always interested in 

reporting lawsuit wins by prisoners, including verdicts, settlements and judgments, 

so let us know when you prevail in a case. 

Informing us that you have filed a lawsuit 

is not useful until there has been a ruling 

on the merits, at a minimum.

Lastly, look in this issue of PLN for 

full-page ads for the Washington Prison 

Phone Justice Campaign and how you can 

take action on prison phone contracts in 

other states that are up for renewal or rebids. PLN and our parent organization, the 

Human Rights Defense Center, continue to 

advocate for lower phone rates and reform 

of the prison phone industry.

Enjoy this issue of PLN and please consider renewing your subscription or purchasing 

gift subscriptions for others who are interested 

in criminal justice-related issues. 

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$2.25 Million Jury Verdict against 

LCS in Texas Prisoner Death Suit

by Matt Clarke

On October , , a federal jury 

in Texas awarded $2.25 million to the 

estate and survivors of a prisoner who died at 

a facility operated by LCS Corrections Services 

(LCS), after finding the company was 100% at 

fault. The district court subsequently reversed 

its dismissal of § 1983 claims against LCS and 

granted a new trial as to those claims.

Mario A. Garcia was incarcerated at the 

Brooks County Detention Center (BCDC) 

in Falfurrias, Texas, owned and operated by 

LCS, when he died of a seizure on January 12, 

2009. After Garcia was booked into BCDC, 

his wife delivered a supply of clonazepam, a 

prescription anti-anxiety medication he had 

been using for years, to the facility. BCDC 

officials received the medication but did not 

give it to Garcia because they allegedly had a 

policy of refusing to allow prisoners to take 

any controlled substances, even bona fide 

prescription medications.

Garcia began shaking badly later that 

day. He was taken to the emergency room, 

treated and returned to BCDC. The prison’s 

contract physician, Dr. Michael Pendleton, 

saw Garcia twice – the last time on January 8, 2009. After the second visit with Dr. 

Pendleton, Garcia’s condition deteriorated 

rapidly; he was admitted to the prison’s 

medical unit with uncontrollable shaking 

on January 10 and remained there until he 

had a seizure and died two days later.

Garcia’s estate, widow, son and parents 

filed a civil rights action pursuant to 42 

U.S.C. § 1983 in federal court that alleged 

failure to provide adequate medical care 

plus state law claims of wrongful death and 

gross negligence. Garcia’s father died a few 

months prior to trial, after which his mother 

agreed to a confidential settlement.

The district court had previously 

dismissed the § 1983 claims against LCS, 

finding that because Garcia was a federal 

prisoner the company was acting under 

color of federal law – and § 1983 claims 

only apply to deprivations of rights under 

color of state law.

At trial on the plaintiffs’ remaining 

claims, experts testified that Garcia could 

have been saved had he been taken to a 

hospital on January 10, and might not have 

had the seizure at all had he not been denied 

his medication. LCS named Dr. Pendleton 

as a responsible third party and claimed 

he was 75% at fault. The jury found that 

neither Pendleton nor Garcia was at fault, 

but rather LCS was 100% responsible for 

Garcia’s death.

The jury awarded Garcia’s estate 

$500,000 for personal injury and past pain 

and suffering. His widow received a total of 

$500,000 in damages, and the jury awarded 

Garcia’s son $1.25 million for loss of companionship and mental anguish. The total 

award against LCS was $2.25 million plus 

prejudgment interest at a rate of 5%.

On March 25, 2013, Garcia’s widow filed 

a motion for a new trial on the § 1983 claims 

that had been dismissed, noting that another 

federal court in the Southern District of Texas 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 17 of 65
Prison Legal News 17 April 2014

 	

	






	


	






	


	
	





  	

	


	


 


	









	


	







 


  

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had found LCS was a state actor because it 

derived its authority to operate a prison from 

the State of Texas, even though the facility 

housed federal prisoners.

The district court agreed, reversing its 

dismissal of the § 1983 claims and granting the motion for a new trial as to those 

claims against LCS. The new trial remains 

pending; the plaintiffs are represented by 

Corpus Christi attorneys Craig Henderson 

and Kathryn A. Snapka. See: Garcia v. LCS 

Corrections Services, U.S.D.C. (S.D. Tex.), 

Case No. 2:11-cv-00004. 

Additional source: www.verdictsearch.com

Ohio: Attorney General May Not Increase 

Sex Offender’s Registration Requirements

I

n April , an Ohio appellate 

court ruled that a sex offender, who was 

required by virtue of a California conviction to register his address annually for ten 

years, could not subsequently be indicted, 

after moving to Ohio and being reclassified 

under the Adam Walsh Act, for failing to 

register every 90 days.

Ansuri Ameem was convicted in 

California of sexual assault and pandering. 

Classified as a sexually-oriented offender 

under the former Megan’s Law, Ameem 

was required to register his address annually 

for ten years.

In July 2007, after moving to Ohio, 

that state’s attorney general reclassified 

Ameem as a Tier III offender under the 

Adam Walsh Act. The reclassification subjected Ameem to an increased obligation to 

register – specifically, every 90 days for life. 

Ameem failed to register as required and 

was indicted in July 2010.

After unsuccessfully moving to have 

the indictment dismissed on grounds that 

the Ohio attorney general’s reclassification 

was unconstitutional, Ameem pleaded no 

contest to failing to register.

On appeal, the Eighth Appellate 

District of the Court of Appeals held that 

the attorney general’s reclassification of 

Ameem from Megan’s Law to the Adam 

Walsh Act was invalid. Relying on Ohio 

Supreme Court precedent, the appellate 

court found that the reclassification violated 

the separation of powers doctrine because it 

would allow the executive branch to review 

or overrule a decision made by the judicial 

branch.

The Court of Appeals further noted 

that Ameem’s case was not affected by the 

Ohio Supreme Court’s decision in State v. 

Brunning, 2012 Ohio 5752, 983 N.E.2d 

316 (Ohio 2012), which held that “despite 

an offender who was originally classified 

under Megan’s Law being wrongly reclassified under the Adam Walsh Act, the state 

could still maintain a prosecution for a 

violation of the reporting requirements as 

long as the alleged violation also constituted 

a violation of Megan’s Law.”

Accordingly, Ameem’s conviction for 

failure to register was reversed. See: State 

v. Ameem, 2013 Ohio 1555 (Ohio Ct. App. 

2013); 2013 Ohio App. LEXIS 1448. 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 18 of 65
April 2014 18 Prison Legal News

The Inadequacy of Prison Food Allergy Policies

by Jamie Longazel and Rachel Archer

Michael Saffioti was arrested on 

a misdemeanor marijuana charge and 

held at the Snohomish County Jail (SCJ) 

in Washington State. On the morning of 

July 2, 2012, he arrived at the center of his 

module where breakfast was being served. 

Because he had a severe dairy allergy, 

Saffioti examined very closely the pancake 

and oatmeal he was given. Video footage 

obtained by local news agency KIRO-7 

showed him discussing his food with 

guards, servers and fellow prisoners. This 

was not the first time Saffioti was held at 

the SCJ, so his allergy was on record. Yet 

jail staff had brought no special diet trays 

to his module that morning; they instead 

simply removed the pancake from his tray 

and assured him the oatmeal would be safe 

to eat. 

After taking just a few bites, Saffioti 

began to experience shortness of breath. 

Video footage showed him approaching 

a guard’s desk, where reports say he asked 

for his inhaler and to see a nurse. He was 

given the inhaler but his request for a nurse 

was denied, and shortly afterwards he was 

sent back to his cell. Once there, according 

to a subsequent lawsuit, he pressed his call 

button and repeatedly asked when the nurse 

would arrive. By looking closely at the video 

footage, one can see how he later began 

jumping up and down in his cell, seeking 

assistance. Thirty-five minutes later a guard 

found Saffioti unconscious. After attempts 

to perform CPR were unsuccessful, he was 

rushed to a nearby hospital where he was 

pronounced dead. 

Saffioti’s tragic death raises many 

important questions about food allergy 

policies in U.S. prisons and jails – a subject that has been relatively overlooked, 

likely to the detriment of many prisoners. 

The federal Bureau of Prisons (BOP) estimates that 0.2% to 3.5% of all prisoners 

suffer from food allergies. And a recent 

study by the Centers for Disease Control 

and Prevention reported a 50% increase in 

food allergies among children since 1997. 

With approximately 2.2 million people 

confined in U.S. prisons and jails today, 

this means prison food allergy policies 

impact as many as 77,000 prisoners and 

likely many more in years to come, including some like Saffioti whose allergies are 

so severe that meal choices can literally 

mean life or death.

As far as we can tell, there is no reliable 

data on how common it is for prisoners 

with food allergies to die or otherwise suffer 

from unmet dietary needs. We do know that 

prisoners file a fair number of lawsuits pertaining to food allergies each year. Given the 

many legal obstacles confronted by those 

challenging the conditions of their confinement, these cases are likely just the tip of the 

iceberg. In an effort to shine more light on 

the issue, we sent public records requests to 

all fifty states (we received responses from 

39), asking about the food allergy policies 

used in their prison systems. 

Three observations become apparent 

after analyzing these policies. The first 

is that many are lacking – in some cases, 

substantially. The implication is that some 

prisoners likely suffer from food allergies that the facilities at which they are 

confined do not recognize. An official in 

Kansas responded to our inquiry by noting 

that they “do not have a procedure in place 

on this subject.” California – whose prison 

system houses more than 117,000 people 

(as many as 4,000 with food allergies, if 

the BOP’s estimate is accurate) – has a 

very vague policy that places limits on the 

therapeutic diets that physicians are able to 

order for prisoners. Neighboring Oregon 

only recognizes food allergies that are “life 

threatening.” This policy thus excludes 

prisoners who suffer from soy allergies, for 

example, a condition that the Mayo Clinic 

notes is “rarely ... life threatening” but could 

nonetheless cause substantial discomfort 

with symptoms that include tingling in 

the mouth, hives, swelling, abdominal pain, 

diarrhea, nausea or vomiting. 

New Hampshire’s policy identifies only 

certain allergies as “acceptable” – specifically, 

the “main food allergies (i.e. onion, tomato, 

egg, and peanut).” Saffioti’s severe dairy allergy would not have been recognized under 

this policy, nor would someone suffering 

from a wheat or gluten allergy, among many 

others. Georgia draws a slightly different 

line between allergies that are acknowledged and those that are not. They “honor 

the following Food Allergies: Milk, Egg, 

Wheat, Gluten, Fish/Shellfish, Peanut/Nut, 

Chocolate, and Tomato.” 

The second observation is that even 

among states that do acknowledge an array of allergies, prisoners face a substantial 

burden in becoming eligible for alternative 

diets. Many states require that an allergy 

be “verifiable and documented,” and that 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 19 of 65
Prison Legal News 19 April 2014

“written medical proof ” be provided. This 

means either that prisoners must have had 

access to allergy tests before their confinement – which for the uninsured can cost 

hundreds of dollars – or that they be tested 

while behind bars. In the latter case, the 

trouble is that some states impose limits on 

who can be tested for food allergies. 

For example, Arizona’s policy stipulates: “Inmates should only be allergy tested 

when there is sufficient evidence to do so.” 

This raises concern for those who suffer 

from allergies where physical symptoms 

are absent, such as celiac disease. As the 

National Digestive Diseases Information 

Clearinghouse points out, “People with 

celiac disease may have no symptoms but 

can still develop complications of the disease over time. Long-term complications 

include malnutrition – which can lead 

to anemia, osteoporosis, and miscarriage, 

among other problems – liver diseases, and 

cancers of the intestine.” In other words, 

a diet can be doing substantial harm to a 

prisoner’s body and some existing food allergy policies provide no means by which 

that harm can be avoided. 

At least one state has a policy in place 

that actually deters prisoners from being 

tested for food allergies. Kentucky’s policy 

permits prisoners to take an allergy test, 

but stipulates that prisoners will be charged 

for tests that come up negative. One can 

assume that this is an attempt to root out 

false claims, but even if it succeeds in doing 

so, the policy may disaffect those who really 

do suffer from allergies. As Food Allergy 

Research and Education points out, allergy 

tests “do not always provide clear-cut answers” and patients “may have to take more 

than one test before receiving [a] diagnosis.” 

Even under the circumstances when all the 

hoops are jumped through and prisoners 

do manage to furnish acceptable “proof ” 

of their allergy, a number of states require 

continual renewal of such proof, usually 

every 90 days. 

A final observation is that the burden 

is often on the prisoner to make choices 

about their food. This is not to say that 

prisoners with food allergies should not 

be well aware of their condition and have 

a firm understanding of how to respond in 

the event of an allergic reaction, but rather 

to point out the lack of institutional support for food allergy issues. Choices about 

what to eat and what to avoid are especially 

difficult to make when prisoners are served 

food they did not prepare. Yet some institutions tell prisoners to fend for themselves, 

often without recognizing how difficult 

doing so can be. 

Take Oregon’s policy, for example: 

“We encourage inmates to self-select from 

the line. For example, if an inmate has a 

peanut allergy and we are serving peanut 

butter & jelly sandwiches, they may select 

the meal alternative tray which consists of 

beans, rice, vegetables, fruits, and bread.” 

South Carolina’s policy similarly states 

little more than the obvious: “If an inmate 

notifies medical staff of a food allergy, the 

medical staff will instruct the inmate to 

avoid that allergy in his/her food choices.” 

Georgia’s policy is that once a prisoner 

receives a food tray, they are considered 

compliant. This policy also brings Saffioti’s 

case to mind, for technically after servers 

handed him the pancake and oatmeal 

breakfast tray, he would have been considered compliant and his desperate attempts 

to learn the contents of the food would 

have been irrelevant in a lawsuit.

In conclusion, our content analysis of 

prison food allergy policies provides cause 

for alarm. Granted, it is possible that prison 

staff go beyond what is listed on policy 

forms in helping prisoners meet their dietary needs. However, given the conditions 

of confinement that have characterized our 

nation’s overcrowded prisons in this era of 

mass imprisonment, we have little reason 

to be so optimistic. Consider that in the 

realm of health care, containment has taken 

precedent over healing, as was recently 

exposed in California’s sweeping Brown v. 

Plata class-action lawsuit. 

Along similar lines, cost cutting rather 

than nutritional adequacy seems to be 

increasingly emphasized in the realm of 

prison food. A recent Prison Legal News article, for example, detailed the great lengths 

that Aramark – a company that contracts 

with more than 600 correctional facilities 

– goes through to cut costs. A class-action 

lawsuit filed by prisoners in Illinois protesting the high amounts of soy in their diet is 

another example of providing prison food 

“on the cheap” to the detriment of prisoners’ 

health. The likelihood that prisoners with 

food allergies have their needs met is thus 

diminished as they confront not just a set 

of inadequate policies, but also a system 

whose main concern is not their health and 

well-being. 

Jamie Longazel is an Assistant Professor of Sociology at the University of Dayton, Ohio. He 

is co-author (with Benjamin Fleury-Steiner) 

of the book, The Pains of Mass Imprisonment 

(Routledge, 2013). Rachel Archer is a Criminal Justice Studies major at the University 

of Dayton who has research interests in the 

areas of food allergies, law and prison conditions. They provided this article exclusively for 

Prison Legal News.

MARILEE MARSHALL & ASSOCIATES, ATTORNEYS AT LAW

California State Bar Board of Specialization

Certified Criminal Law and 

Appellate Law Specialist

If you have a California case 

you need a California lawyer!

(213) 489-7715

State and Federal Appeals and Writs, 

Lifer Parole Hearings and Related Writs

29 years of success

523 West Sixth Street, Suite1109 

Los Angeles, CA. 90014

marileemarshallandassociates.com

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 20 of 65
April 2014 20 Prison Legal News

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561-360-2523,

Kitchen Supervisor Gets Prison Time for 

Sexually Abusing Two Prisoners 

A civilian prison employee’s sexual 

abuse of two prisoners at a federal facility in Phoenix, Arizona was made public after 

an FBI surveillance camera captured the 

lascivious details of their ménage à trois.

According to a rather explicit criminal 

complaint filed on August 29, 2012 in U.S. 

District Court, Carl David Evans, the 

kitchen supervisor at FCI-Phoenix, traded 

packs of cigarettes for oral sex with two 

male prisoners identified only as “J.I.” and 

“E.D.” Evans was charged with two counts 

of sexual abuse of a ward and one count of 

providing contraband.

Prison officials learned in June 2012 

that Evans was “engaged in a sexual 

relationship” with at least one prisoner, 

according to FBI Agent Tyler Woods. Investigators hid a video camera in the food 

storage area in the kitchen where the alleged 

sex acts were taking place, and recorded 

Evans’ work shifts for an entire week.

Woods then reviewed the video and 

discovered footage showing Evans, J.I. and 

E.D. entering the storage area. E.D. was 

heard asking Evans and J.I. if they were 

“ready to suck some dick.” Evans locked the 

door, and the trio then had mutual fellatio 

on top of some food sacks.

E.D., who worked as a cook, told FBI 

investigators that beginning in April 2012, 

Evans gave him a pack of cigarettes every 

two weeks that he sold to other prisoners for 

as much as $150 each. Evans exacerbated 

the relationship when he became “aggressive physically,” according to E.D., asking 

him to take off his shirt and then proceeding to play with his nipples.

E.D. estimated that Evans performed 

oral sex on him 15-20 times. Once, E.D. 

alleged, Evans brought K-Y gel and placed 

a condom on him, and the men briefly engaged in anal sex before E.D. had a change 

of heart. 

J.I. told investigators that he engaged 

in oral sex with Evans and E.D. three times, 

only because he knew that E.D. had access 

to food and “benefited from his relationship 

with Evans,” according to the complaint.

Evans pleaded guilty to five of the 

federal charges in February 2013, and 

seven other charges were dropped. He was 

sentenced on July 3, 2013 to 36 months in 

prison, three years of supervised release and 

a $5,000 fine. Evans has since appealed his 

sentence to the Ninth Circuit. See: United 

States v. Evans, U.S.D.C. (D. Ariz.), Case 

No. 2:12-cr-01634-SRB. 

Additional sources: Arizona Republic, www.

thesmokinggun.com

$15.5 Million Settlement for Mentally Ill 

Jail Detainee Held in Solitary Confinement

A mentally ill detainee who was 

placed in solitary confinement in a New 

Mexico county jail for nearly two years, 

without adequate medical or mental health 

care, accepted a $15.5 million settlement for 

violations of his civil rights.

Stephen Slevin, 59, served almost 22 

months in solitary confinement between 

2005 and 2007 at the Doña Ana County 

Detention Center in Las Cruces, New 

Mexico. On January 24, 2012, a federal 

jury awarded him $22 million. The award 

was upheld by a federal judge after county 

officials challenged it as being excessive, but 

Slevin decided in February 2013 to accept a 

$15.5 million settlement and end the legal 

battle without further appeals.

“It has been a long and hard fight to 

bring Mr. Slevin justice,” said one of his attorneys, Matthew Coyte. “This settlement, 

although very large, does not give back to 

Mr. Slevin what was taken from him, but 

if it prevents others from enduring the pain 

and suffering he was subjected to, then the 

fight has been worthwhile.”

Slevin’s ordeal began on August 24, 

2005, when he was booked into the jail on 

charges of driving while intoxicated and 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 21 of 65
Prison Legal News 21 April 2014

Law Offices of Elmer Robert Keach, III, PC

One Pine West Plaza, Suite 109

Washington Avenue Extension

Albany, NY 12205-5531

518.434.1718

www.keachlawfirm.com

Attorney Bob Keach

NITA Master Advocate

Member, Multi-Million Dollar Advocates Forum

Outside Counsel, Prison Legal News

National Practice

Experienced Civil Rights Attorney dedicated to seeking 

justice for those who are incarcerated

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WHEN YOU OR A LOVED ONE HAVE BEEN WRONGED, 

YOU HAVE A VOICE.

Attorney Keach prefers all inquiries by mail to be typed, and limited to five pages. 

DO NOT SEND ORIGINAL DOCUMENTS OR ORIGINAL MEDICAL RECORDS. 

Make sure to exhaust your administrative remedies and comply with state law notice 

requirements, if applicable, to preserve state law intentional tort/negligence claims. 

receiving or transferring a stolen vehicle.

“He was driving through New Mexico 

and arrested for a DWI, and he allegedly 

was in a stolen vehicle. Well, it was a car he 

had borrowed from a friend; a friend had 

given him a car to drive across the country,” 

said Coyte.

Slevin had a lifelong history of mental 

illness. He was found to have suicidal tendencies by former Doña Ana County Detention 

Center medical director Daniel Zemek. As 

a result, Slevin was placed alone in a bare, 

padded cell for a few days, then moved to 

the medical center and finally transferred to 

solitary confinement in October 2005. He 

remained there for the next 18 months.

When he entered the jail, Slevin “was 

a well-nourished, physically healthy, adult 

male with a mental illness.” On May 8, 

2007, he was transferred to the New Mexico 

Behavioral Health Institute (NMBHI) for 

a psychiatric review.

According to Slevin’s civil rights complaint, when he was admitted to NMBHI 

he smelled, his beard and hair were overgrown and he had a fungal skin infection. 

He was also malnourished, weighed only 

133 pounds and complained of paranoia, 

hallucinations, bed sores and untreated 

dental problems. He was disoriented and 

clueless to the fact that he had spent the last 

18 months in solitary confinement.

Slevin received mental health care at 

NMBHI, and the reintroduction to human interaction and socialization brought 

back his alertness and awareness. After 

only 14 days of treatment, however, Slevin 

was returned to the Doña Ana Detention 

Center where he was again placed in solitary 

confinement.

As before, his mental health began to 

deteriorate. The failure of jail officials to act 

on his requests for dental care forced Slevin 

to pull his own tooth while in his cell. His 

toenails “grew so long they curled under his 

toes,” the Albuquerque Journal reported.

Slevin was finally released on June 25, 

2007 after the charges against him were 

dismissed. He claimed he had never seen a 

judge and was placed in solitary confinement 

with no explanation from jail officials.

Slevin sued for deprivation of his civil 

rights. At trial, Zemek admitted that he 

couldn’t remember ever having visited 

Slevin in solitary confinement during the 

time he worked as the jail’s medical director, and accepted responsibility for being 

the person who was supposed to oversee 

Slevin’s health care.

“There were circumstances beyond my 

control that contributed to that, my failure. 

I take the blame, yes,” he testified. Zemek 

also said he had informed county officials 

that he felt the jail did not have enough 

medical staffing.

At the conclusion of the six-day trial, 

the jury found Doña Ana County Detention Center director Christopher Barela 

liable for depriving Slevin of his constitutional rights to humane conditions of 

confinement, adequate medical care and 

procedural due process, awarding Slevin $3 

million in punitive damages.

The jury found Zemek liable for $3.5 

million in punitive damages for the same 

types of violations, and also found that a 

municipal policy, implemented by the Board 

of Commissioners for the County of Doña 

Ana, resulted in violations of Slevin’s rights 

under the Americans with Disabilities 

Act as well as various torts, including false 

imprisonment. The jury awarded $15.5 

million in compensatory damages against 

the defendants.

The Las Cruces Sun-News reported in 

early 2013 that the County of Doña Ana 

is responsible for paying $9.5 million of 

the settlement, while the county’s insurance provider will cover the remaining 

$6 million. See: Slevin v. Board of County 

Commissioners for the County of Doña Ana, 

U.S.D.C. (D. NM), Case No. 1:08-cv01185-MV-SMV. 

Sources: www.huffingtonpost.com, Las Cruces 

Sun-News, Santa Fe Reporter, Albuquerque 

Journal

APPEALS, POST-CONVICTION, 

HABEAS, § 2255, PAROLE 

IDAHO ONLY 

Craig H. Durham, Attorney at Law 

910 W. Main Street, Suite 328 

Boise, ID 83702 

chdlawoffice.com 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 22 of 65
April 2014 22 Prison Legal News

U.S. Supreme Court: District Courts Can 

Make Federal Sentences Consecutive or 

Concurrent to Future State Sentences

EXECUTIVE CLEMENCY 

For Info. On Sentence Reduction through 

 Executive Clemency: 

NATIONAL CLEMENCY PROJECT 

8624 CAMP COLUMBUS ROAD 

HIXSON, TENNESSEE, 37343 

(423) 843-2235 

(35-Years of Clemency & Parole Assistance) 

(Transfers Under The Int’l Prisoner Treaty) 

3907 N. Federal Highway, # 151

Pompano Beach, FL 33064

954-271-2304

Colorado Prisoner who Murdered Guard 

Gets Life Without Parole

Last month, PRISON LEGAL NEWS

reported that the parents of a slain 

Colorado prison guard did not want the 

prisoner who murdered him to face the 

death penalty. Edward Montour, who beat 

Lima Correctional Facility guard Eric Autobee to death in October 2002, was initially 

sentenced to death but that sentence was 

overturned in 2007. 

Montour faced the death penalty again 

in a retrial, but Eric Autobee’s parents, Bob 

and Lola, who now oppose capital punishment, wanted to provide a victim impact 

statement to the jury urging them not to 

impose a death sentence.

“A lot of people think because I forgave 

him [Montour], I don’t want to hold him 

accountable or have him punished,” Bob 

Autobee stated. “That’s not true. People 

that do these things have to be punished, 

but death is not the answer.”

Eighteenth Judicial District Attorney 

George Brauchler objected to the Autobees’ 

request to provide a victim impact statement, arguing that such statements could 

only be for punitive and not mitigating 

purposes. [See: PLN, March 2014, p.24].

Before murdering Eric Autobee, 

Montour was serving a life sentence for 

killing his 11-week-old daughter, Taylor, 

which he claimed was an accident when 

she fell and hit her head. On February 27, 

2014, the El Paso County coroner’s office 

changed the cause of Taylor’s death from 

homicide to undetermined, and a group 

of experts retained by Montour’s defense 

counsel said her injuries were consistent 

with an accident.

Defense attorneys had intended to 

argue at trial that Montour’s mental illness became worse after he was wrongfully 

convicted of killing his daughter, culminating in his fatal attack on Eric Autobee 

in the kitchen at the Lima Correctional 

Facility.

However, on March 6, 2014, Montour 

pleaded guilty to murdering Autobee in 

exchange for a sentence of life without parole; he said he owed the plea to Autobees’ 

parents. Even if he is eventually exonerated 

in his daughter’s death, he still must serve a 

life sentence for killing Eric Autobee.

“I had to get as much justice out of 

this situation as I could,” Brauchler said 

in reference to offering the plea bargain to 

Montour. 

Sources: www.kdvr.com, Denver Post

On March , , the U.S. 

Supreme Court held that a federal 

district court may impose a federal prison 

term that is consecutive to an anticipated 

future state court sentence. In February 

2014, the Third Circuit ruled that a district 

court’s ability to impose such a sentence 

only applies at the time when the federal 

sentence is imposed.

Monroe Ace Setser was on probation 

for a drug charge when he was arrested in 

Texas on a new charge of possession with 

intent to deliver a controlled substance. 

After Setser was indicted on the new drug 

charge, the state moved to revoke his probation. A federal grand jury then indicted 

him on the federal offense of possession 

with intent to distribute 50 grams or more 

of methamphetamine, based on the same 

incident that had resulted in the new state 

drug charge.

This did not constitute double jeopardy 

based on the legal fiction that it is permissible to pursue state and federal charges for 

the same criminal conduct under the “dual 

sovereignty” doctrine.

Setser pleaded guilty to the federal 

charge and was sentenced to 151 months 

in prison. The federal judge made Setser’s 

sentence consecutive to the sentence he 

would receive in the probation revocation 

proceedings, but concurrent with the sentence he would receive for the new state 

drug charge.

Setser appealed. While his appeal was 

pending, the state sentenced him to five 

years in prison for the probation revocation and 10 years for the new drug charge, 

with both sentences to run concurrent. 

This made it impossible to implement 

the federal sentence as ordered by the 

district court. 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 23 of 65
Prison Legal News 23 April 2014

Regardless, the Fifth Circuit Court 

of Appeals affirmed his federal sentence, 

holding that the district court had the authority to run a sentence consecutive to a 

future state sentence that had not yet been 

imposed, and that the sentence was reasonable even if “partially foiled” by the state 

court’s decision to make the state sentences 

concurrent. Setser filed a petition for writ 

of certiorari in the U.S. Supreme Court, 

which was granted.

The Supreme Court held that the traditional broad discretion that federal judges 

enjoy when imposing sentences includes the 

ability to make a sentence consecutive to an 

anticipated state sentence, and that such a 

determination is not left for the Bureau of 

Prisons to decide. However, in this case the 

sentence pronounced by the federal judge 

could not be carried out because the state 

court had made the probation revocation 

and new drug charge sentences concurrent. 

In such a case, the Supreme Court held 

that the Bureau of Prisons “ultimately has 

to determine how long the District Court’s 

sentence authorizes it to continue Setser’s 

confinement. Setser is free to urge the Bureau to credit his time served in state court 

based on the District Court’s judgment 

that the federal sentence run concurrently 

with the state sentence for the new drug 

charges. If the Bureau initially declines to 

do so, he may raise his claim through the 

Bureau’s Administrative Remedy Program. 

See 28 CFR § 542.10 et seq. (2011). And if 

that does not work, he may seek a writ of 

habeas corpus.” 

The judgment of the Fifth Circuit 

upholding Setser’s federal prison sentence 

was therefore affirmed. See: Setser v. United 

States, 132 S.Ct. 1463 (2012).

On February 12, 2014, the Third Circuit Court of Appeals applied the ruling in 

Setser to find that while a district court can 

decide whether to run a federal sentence 

concurrent or consecutive to a future state 

sentence that has not yet been imposed, it 

can do so only at the time of sentencing on 

the federal charges.

Defendant Michael Sharpe was 

sentenced to 144 months in federal 

prison in 2004; he expired his sentence 

in May 2013 and was remanded to 

Pennsylvania officials for a parole violation. He then filed a motion in the 

district court seeking reconsideration 

of his federal sentence, requesting that 

the court run it concurrent with his 

subsequently-imposed Pennsylvania 

state sentence.

The district court held it did not have 

jurisdiction to modify Sharpe’s sentence, 

which was affirmed on appeal. The Third 

Circuit found that Setser “holds merely that 

district courts have such authority” at the 

time the federal sentence is imposed when 

deciding whether federal sentences are to 

be made concurrent or consecutive to future 

state sentences.

The appellate court further noted that 

“even if the District Court had been authorized to modify Sharpe’s federal sentence, 

that is not really what he was asking the 

court to do. Sharpe’s federal sentence has 

expired and he is now serving a state-court 

sentence. Thus, Sharpe is really seeking to 

modify his state sentence on the ground 

that it should (or should have) run concurrently with his federal sentence. That is a 

matter for Pennsylvania authorities, not the 

federal courts.” See: United States v. Sharpe, 

2014 U.S. App. LEXIS 2653 (3d Cir. 2014) 

(unpublished). 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 24 of 65
April 2014 24 Prison Legal News

Lowering Recidivism through Family Communication

by Alex Friedmann

There are currently . million 

people held in prisons and jails in the 

United States,1

 and an estimated 95% of 

prisoners currently in custody will one day 

be released. Based on 2012 data, around 

637,400 people are released annually from 

state and federal prisons.2

According to an April 2011 report by 

the Pew Center on the States, the average 

national recidivism rate is 43.3%.3

 Based 

on that average rate, an estimated 276,000 

released prisoners can be expected to recidivate each year, many committing new 

crimes and returning to prison.

This negatively impacts our communities in several ways, including the societal 

costs of more crime and victimization as 

well as the fiscal costs of reincarcerating 

ex-prisoners who commit new offenses – 

at an average annual cost of $31,286 per 

prisoner, according to a 2012 report by the 

Vera Institute.4

Studies have consistently found that 

prisoners who maintain close contact with 

their family members while incarcerated 

have better post-release outcomes and lower 

recidivism rates.

These findings represent a body of 

research stretching back over 40 years. 

For example, according to “Explorations 

in Inmate-Family Relationships,” a 1972 

study: “The central finding of this research 

is the strong and consistent positive relationship that exists between parole success 

and maintaining strong family ties while in 

prison. Only 50 percent of the ‘no contact’ 

inmates completed their first year on parole 

without being arrested, while 70 percent of 

those with three visitors were ‘arrest free’ 

during this period. In addition, the ‘loners’ 

were six times more likely to wind up back 

in prison during the first year (12 percent 

returned compared to 2 percent for those 

with three or more visitors). For all Base 

Expectancy levels, we found that those 

who maintained closer ties performed more 

satisfactorily on parole.”5

These findings still ring true. An article 

published in August 2012 in Corrections 

Today, a publication of the American Correctional Association, titled “The Role of Family 

and Pro-Social Relationships in Reducing 

Recidivism,” noted that “Family can be a 

critical component in assisting individuals 

transitioning from incarceration because 

family members provide both social control 

and social support, which inhibit criminal 

activity.... In contrast, those without positive 

supportive relationships are more likely to 

engage in criminal behavior.”6

Further, a Vera Institute study, published 

in October 2012, found that “Incarcerated 

men and women who maintain contact with 

supportive family members are more likely 

to succeed after their release.... Research on 

people returning from prison shows that 

family members can be valuable sources 

of support during incarceration and after 

release. For example, prison inmates who 

had more contact with their families and 

who reported positive relationships overall 

are less likely to be re-incarcerated.”7

Another Vera Institute report, published in 2011, stated: “Research shows that 

incarcerated people who maintain supportive relationships with family members have 

better outcomes – such as stable housing 

and employment – when they return to the 

community. Many corrections practitioners 

and policy makers intuitively understand 

the positive role families can play in the 

reentry process, but they often do not know 

how to help people in prison draw on these 

social supports.”8

According to research published in 

Western Criminology Review in 2006, “a 

remarkably consistent association has been 

found between family contact during incarceration and lower recidivism rates.”9

Correctional practices that “facilitate 

and strengthen family connections during 

incarceration” can “reduce the strain of parental separation, reduce recidivism rates, 

and increase the likelihood of successful 

re-entry,” according to a 2005 report by the 

Re-Entry Policy Council.10

A 2003 study by the Washington, 

D.C.-based Urban Institute, “Families Left 

Behind: The Hidden Costs of Incarceration 

and Reentry,” as revised in 2005, noted: 

“Research findings highlight the importance of contact among family members 

during incarceration. Facilitating contact 

has been shown to reduce the strain of 

separation and increase the likelihood of 

successful reunification. Studies comparing 

the outcomes of prisoners who maintained 

family connections during prison through 

letters and personal visits with those who 

did not suggest that maintaining family ties 

reduces recidivism rates.”11

Also, a 2004 study by the Urban 

Institute stated, “Our analysis found that 

[released prisoners] with closer family 

relationships, stronger family support, and 

fewer negative dynamics in relationships 

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Written from a prisoner’s perspective, this book is 

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 25 of 65
Prison Legal News 25 April 2014

with intimate partners were more likely to 

have worked after release and were less likely to have used drugs.” The study authors, 

Christy Visher, Vera Kachnowski, Nancy 

La Vigne and Jeremy Travis, concluded, “It 

is evident that family support, when it exists, 

is a strong asset that can be brought to the 

table in the reentry planning process.”12

It is thus abundantly clear that maintaining close family relationships during 

incarceration results in lower recidivism 

rates and therefore less crime, which benefits society as a whole. Yet in spite of this 

clear correlation, corrections officials often 

do little to encourage contact between prisoners and their family members.

There are three primary forms of communication available to prisoners: letters, 

visits and phone calls.

With respect to letters, many prisoners are illiterate or functionally illiterate, 

which frustrates correspondence. A 2007 

report by the National Center for Education Statistics found that 39% of prisoners 

scored “below basic” for quantitative literacy 

testing, while another 39% scored at only 

a “basic” level.13

Other studies likewise have found high 

levels of illiteracy or poor written communication skills among prisoners, which 

makes letter-writing as a means of regular 

contact between prisoners and their families 

problematic. 

Further, an increasing number of jails 

are adopting postcard-only policies, whereby 

prisoners can only receive, and sometimes 

send, mail in the form of postcards – a very 

limited means of correspondence. [See: 

PLN, Nov. 2010, p.22]. Such policies place 

additional burdens on communication 

between prisoners and their families; PLN 

and other organizations have challenged 

postcard-only policies in various jurisdictions, including Florida, Tennessee, Oregon, 

Washington and Michigan. [See: PLN, Jan. 

2014, p.42; Nov. 2013, p.24;June 2013, p.42; 

Jan. 2012, p.30; Sept. 2011, p.19].

In regard to visitation, a November 

2011 study by the Minnesota Department 

of Corrections examined recidivism rates 

for 16,420 ex-prisoners over a five-year 

period, comparing rates for those who 

received visits while incarcerated and those 

who didn’t. The study found that “Any visit 

reduced the risk of recidivism by 13 percent 

for felony reconvictions and 25 percent 

for technical violation revocations, which 

reflects the fact that visitation generally 

had a greater impact on revocations. The 

findings further showed that more frequent 

and recent visits were associated with a 

decreased risk of recidivism.”14 [See: PLN, 

May 2013, p.1].

However, prison officials often make 

visitation an unpleasant process, including 

lengthy waits, onerous searches, restricted 

visitation times and rigid enforcement of 

often petty rules. For example, one female 

attorney said she was told by prison officials 

that she could not visit a prisoner because 

her underwire bra set off the metal detector. 

After leaving, removing her bra and then 

returning, she was told she could not visit 

because she wasn’t wearing a bra.

According to the 2011 Vera Institute 

study, “Many family members also indicated 

that prison rules and practices – including 

searches, long waits, and inconsistent interpretations of dress codes for visitors – can be 

unclear, unpleasant, too restrictive, and even 

keep people from visiting again.”

Due to such problematic issues with 

visitation, and because prisoners are frequently housed at facilities located far from 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 26 of 65
April 2014 26 Prison Legal News

their families which makes in-person visits 

difficult (federal prisoners, for example, may 

be held at any federal prison in the United 

States), phone calls are a primary means of 

maintaining family contact.

As acknowledged by the largest prison 

phone company in the nation, Global 

Tel*Link: “Studies and reports continue 

to support that recidivism can be significantly reduced by regular connection and 

communications between inmates, families 

and friends – [a] 13% reduction in felony 

reconviction and a 25% reduction in technical violations.”15

Kevin O’Neil, president of Telmate, 

another phone service provider, agreed, 

stating, “The more inmates connect with 

their friends and family members the less 

likely they are to be rearrested after they’re 

released.”16

When the Federal Communications 

Commission voted in August 2013 to 

reduce the cost of interstate prison phone 

calls nationwide, the issue of rehabilitation 

and recidivism played a contributing role in 

the FCC’s decision.

As stated by FCC Commissioner 

Mignon Cylburn: “Studies have shown 

that having meaningful contact beyond 

prison walls can make a real difference in 

maintaining community ties, promoting 

rehabilitation, and reducing recidivism. 

Making these calls more affordable can facilitate all of these objectives and more.”17

The FCC’s order imposing rate caps 

on interstate prison phone calls went into 

effect on February 11, 2014, though other 

parts of the order have been stayed by the 

D.C. Circuit Court of Appeals. [See: PLN, 

Feb. 2014, p.10].

Notably, numerous corrections officials filed objections to the FCC’s plan to 

impose rate caps, and intrastate (in-state) 

prison phone rates, which were not affected by the FCC’s order, remain high. 

Meanwhile, prisons and jails nationwide 

have received hundreds of millions of dollars in “commission” kickbacks from prison 

phone companies, and such kickbacks have 

long resulted in inflated phone rates that 

create financial barriers to communication between prisoners and their family 

members. [See: PLN, Dec. 2013, p.1; April 

2011, p.1].

In conclusion, although research has 

consistently found that regular contact 

between prisoners and their families results in better post-release outcomes and 

lower recidivism rates, corrections officials 

have done little to facilitate – and have 

sometimes deliberately frustrated – such 

communication with respect to written correspondence, visitation and phone calls.

Investments in prison-based literacy 

programs and less restrictive mail policies, 

revising visitation policies to encourage 

visits by family members, and reducing 

intrastate prison and jail phone rates would 

provide prisoners with greater opportunities 

to maintain close relationships with their 

families, leading to lower recidivism rates 

and less crime in our communities.

Few corrections officials seem willing 

to take such actions, though, which is a 

strong indicator that reducing recidivism – 

thus reducing the size of our nation’s prison 

population and the associated costs – is not 

one of their priorities. 

ENDNOTES

1 http://www.bjs.gov/content/pub/pdf/cpus12.pdf

2 http://www.bjs.gov/content/pub/pdf/

p12tar9112.pdf

3 http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/sentencing_and_corrections/

State_Recidivism_Revolving_Door_America_Prisons%20.pdf

4 www.vera.org/sites/default/files/

resources/downloads/Price_of_Prisons_updated_

version_072512.pdf

5 http://www.fcnetwork.org/reading/holt-miller/

holt-millersum.html

6 https://www.aca.org/fileupload/177/ahaidar/

Flower.pdf

7 http://www.vera.org/files/the-family-andrecidivism.pdf

8 http://www.vera.org/sites/default/files/resources/

downloads/Piloting-a-Tool-for-Reentry-Updated.pdf

9 http://wcr.sonoma.edu/v07n2/20-naser/naser.

pdf (citing other sources)

10 http://csgjusticecenter.org/wp-content/

uploads/2013/03/Report-of-the-Reentry-Council.pdf

11 http://www.urban.org/UploadedPDF/ 

310882_families_left_behind.pdf

12 http://www.urban.org/UploadedPDF/ 

310946_BaltimorePrisoners.pdf

13 http://nces.ed.gov/pubs2007/2007473.pdf

14 http://www.doc.state.mn.us/pages/files/largefiles/Publications/11-11MNPrisonVisitationStudy.pdf

15 Petitioners’ Opposition to Petition for Stay of 

Report and Order Pending Appeal, FCC WC Docket 

No. 12-375, Exhibit D, page 6 (October 29, 2013)

16 www.telmate.com/oregon-doc-installatio

17 http://transition.fcc.gov/Daily_Releases/

Daily_Business/2013/db0926/FCC-13-113A2.txt

Iowa: Parole Agreement Does Not 

Constitute Voluntary Consent that 

Justifies Warrantless Search

Last year the Supreme Court of 

Iowa reversed a parolee’s conviction on 

drug charges, holding that his acceptance 

of a search condition in a parole agreement 

did not constitute voluntary consent, and 

therefore a warrantless, suspicionless search 

of his car was unreasonable and violative 

of his rights under the search and seizure 

clause of the state constitution.

While on parole in 2009, Isaac A. 

Baldon III was subjected to a search of 

his person, the motel room where he 

was staying and his car, all pursuant to a 

consent-to-search provision in the parole 

agreement that Baldon, like all Iowa parolees, was required to sign as a prerequisite to 

being released on parole. The police found 

a large quantity of marijuana in Baldon’s 

car and charged him with drug-related 

offenses.

Baldon moved to suppress the marijuana from the search of his vehicle, arguing 

that his signing of the parole agreement did 

not constitute voluntary consent to searches 

of his person or property. The district court 

denied the motion and found him guilty 

of the charges.

On appeal, the Iowa Supreme Court 

reversed the judgment. Analyzing the issue 

of consent on state constitutional grounds, 

the Court concluded, in a thoughtful 

opinion, that the standard search provision 

contained in Baldon’s parole agreement did 

not represent a voluntary grant of consent 

to searches. Notably, this finding rested on 

provisions in the Iowa constitution, and the 

Supreme Court noted that many courts in 

other jurisdictions “have concluded that 

consent-search provisions in probation 

agreements constitute a waiver of searchand-seizure rights.” See: State v. Baldon, 829 

N.W.2d 785 (Iowa 2013). 

Lowering Recidivism (cont.)

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 27 of 65
Prison Legal News 27 April 2014

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 28 of 65
April 2014 28 Prison Legal News

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Update on Missouri Incarceration 

Reimbursement Act Case

P RISON LEGAL NEWS previously 

reported a decision by the Bankruptcy 

Appellate Panel for the Eighth Circuit, 

which held that a Missouri bankruptcy 

court was correct in concluding that state 

prison officials did not violate a discharge 

injunction by collecting money from a prisoner’s account for incarceration costs that 

accrued after the injunction was filed.

In 2009, Missouri prisoner Zachary A. Smith was initially ordered to pay 

$87,830.13 to cover the costs of his incarceration through March 2007 under the 

Missouri Incarceration Reimbursement Act 

(MIRA), plus future costs that accrued until 

his release from custody. He filed a Chapter 

7 bankruptcy petition in 2010 and received 

a discharge in March 2011, effectively voiding the MIRA judgment. 

In September 2012, however, prison 

officials seized funds deposited into Smith’s 

prison account for costs that had accrued 

after he filed for bankruptcy. Smith sought a 

contempt ruling from the bankruptcy court, 

alleging the state had violated the discharge 

injunction. The bankruptcy court agreed 

that the MIRA judgment was void with 

respect to costs accrued as of the date of the 

bankruptcy filing, but held the judgment 

remained valid as to future incarceration 

reimbursement costs. The Eighth Circuit 

affirmed on February 5, 2013. [See: PLN, 

Feb. 2014, p.11].

Smith then filed a Rule 74.06(b) 

motion in circuit court, arguing that the 

state could not seize assets from his prison 

account for MIRA judgments that were 

unknown at the time of the MIRA hearing, citing State ex rel. Koster v. Cowin, 390 

S.W.3d 239 (Mo. Ct. App. 2013) and State 

ex rel. Koster v. Wadlow, 398 S.W.3d 591 

(Mo. Ct. App. 2013).

In a March 6, 2014 letter to PLN, 

Smith wrote: “The Chapter 7 [bankruptcy] 

was necessary to discharge the MIRA debt, 

but I had to argue that the AG’s office 

could not be reimbursed with assets that 

were not identified and not known at the 

time of the MIRA hearing – meaning the 

AG could not impose future costs for incarceration against me unless it was shown 

to come from a current stream of income” 

that existed when the MIRA judgment 

was entered.

The state conceded, filing a satisfaction of judgment in the circuit court on 

October 16, 2013, and the MIRA liens 

against Smith were subsequently removed. 

Smith, who handled the litigation pro se, 

noted that Missouri prisoners facing MIRA 

judgments can successfully challenge them. 

See: State of Missouri v. Smith, Cole County 

Circuit Court (MO), Case No. 07ACCC00109-01. 

No Discipline for Oregon Prosecutor and 

Defense Counsel for Illegal Confinement 

of Mentally Ill Defendant

Although the Oregon State Bar 

initially decided to pursue disciplinary 

charges against the district attorney for Washington County and a criminal defense attorney 

who represented a mentally ill defendant, for 

causing the defendant’s illegal confinement, 

the charges were later dropped.

Donn Thomas Spinosa stabbed his 

wife to death on May 10, 1997, reportedly 

because she wouldn’t give him money to 

play video poker. He was found unable to 

aid and assist in his defense and sent to the 

Oregon State Hospital (OSH) for mental 

health treatment.

Under Oregon law, Spinosa could be 

held at OSH for no more than three years. 

When he was still not competent to stand trial 

in 2000, the criminal charges against him were 

dismissed and he was civilly committed.

The civil commitment order was renewed 

annually until 2010, when Washington 

County District Attorney Bob Hermann 

claimed that OSH officials told him they 

were considering discharging Spinosa. An 

OSH official denied his claim.

In October 2010, Hermann refiled 

aggravated murder charges against Spinosa, 

who was again found unable to aid and assist in his defense and returned to OSH. 

Hermann and Spinosa’s defense counsel, 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 29 of 65
Prison Legal News 29 April 2014

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Robert B. Axford, then filed a joint motion 

asking Washington County Circuit Court 

Judge Thomas Kohl to issue a permanent 

“magistrate mental illness hold” requiring 

Spinosa’s indefinite confinement at OSH 

and prohibiting his release without approval 

by the court. This was unusual because Oregon law does not recognize, or allow for, a 

“magistrate mental illness hold.”

Nevertheless, Hermann argued that 

the hold was necessary due to the “woeful 

inadequacy of Oregon law” with respect 

to dangerous mentally ill defendants. He 

admitted that he and other prosecutors dislike the civil commitment process because it 

removes mentally ill offenders like Spinosa 

from the criminal justice system.

Neither Hermann nor Axford offered 

authority for the legality of a magistrate 

mental illness hold, because no such authority exists. Regardless, Judge Kohl signed 

the order and dismissed Spinosa’s murder 

charges. The order cited no legal authority 

for the hold and simply referred to Hermann’s memorandum.

In December 2011, retired Circuit 

Court Judge Jim Hargreaves filed complaints with the Oregon State Bar (OSB) 

against Hermann and Axford, as well as a 

judicial complaint against Judge Kohl.

Hargreaves noted in the OSB complaints that state law does not allow for a 

magistrate mental health hold. “Such an 

order is entirely without legal foundation 

in Oregon and stripped Mr. Spinosa of all 

his rights and protections,” he wrote. Hermann, Axford and Kohl had agreed to an 

“undeniably invalid order” to sidestep the 

law, he alleged.

An unrepentant Hermann called the 

OSB complaint a “cruel irony” given that 

he, Axford and Judge Kohl had agreed on 

a solution that they felt best for the public 

and for Spinosa – even though that solution 

was unsupported by state law.

Hermann and Axford told the OSB that 

they believed the order was valid and did 

not intentionally violate the law. The OSB 

evidently disagreed, as it voted in September 

2012 to pursue disciplinary charges against 

the two attorneys for unmeritorious legal positions and engaging in conduct prejudicial 

to the administration of justice.

Meanwhile, Judge Kohl granted OSH’s 

request to dismiss the questionable magistrate mental illness hold, and Spinosa 

remained at the hospital under a regular 

civil commitment order.

Disability Rights Oregon (DRO) 

launched its own investigation following 

news reports about Spinosa’s situation, according to Bob Joondeph, the organization’s 

executive director.

Upon completion of that investigation, 

DRO issued a report in July 2012 that 

found Hermann, Axford and Kohl had 

acted outside the law in creating and imposing the magistrate mental illness hold. The 

legislature makes the law, the report noted, 

but in Spinosa’s case the attorneys and judge 

“essentially created a new law that allows for 

a person with mental illness to be detained 

without the elements of due process.”

In September 2013, the Oregon State 

Bar rescinded the charges against Hermann 

and Axford. “Most notably, the OSB’s case 

rested on a belief that Hermann and Axford crafted an order essentially to bypass 

Oregon’s civil commitment process in order 

to permanently institutionalize a criminal 

defendant without due process of law,” the 

agency said in a statement. However, the 

OSB concluded that the attorneys had 

tried to initiate, rather than circumvent, 

civil commitment proceedings.

Hermann said the OSB had made 

the right decision, and noted the case had 

prompted the state legislature to pass Senate Bill 421 in July 2013, which created new 

civil commitment procedures for people 

who are mentally ill and deemed “extremely 

dangerous.” 

In other words, the legislature created 

the law that did not exist when Hermann, 

Axford and Judge Kohl ordered Spinosa to 

be held indefinitely at OSH. 

Source: The Oregonian

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 30 of 65
April 2014 30 Prison Legal News

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Montana: Hospitalized Prisoner Entitled 

to Continuance in Divorce Case

The Montana Supreme Court held 

on March 5, 2013 that refusing to 

grant a hospitalized prisoner’s motion for 

continuance of a divorce trial was an abuse 

of discretion.

David and Lori Eslick were married 

on August 15, 2005. In December 2010, 

David began serving a sentence in the 

Montana State Prison (MSP), and Lori 

filed for divorce.

David was unrepresented and appeared 

telephonically at all court hearings. A June 

12, 2012 pretrial conference and June 25, 

2012 trial were scheduled. David failed to 

appear at the pretrial conference, which was 

rescheduled for June 19, 2012.

David’s failure to appear or communicate with opposing counsel and the court 

was due to an unexpected medical emergency. On May 5, 2012, he was hospitalized 

for amputation of septic toes and part of his 

foot as a result of diabetes. Due to complications he remained hospitalized until June 

11, 2012, then was confined in the MSP 

infirmary for the following week.

David did not receive his mail and 

could not attend court proceedings during 

this time, or schedule phone calls with the 

trial court. On June 18, 2012 he mailed 

a motion to the court seeking a 60-day 

continuance.

When David did not appear at the June 

19, 2012 pretrial hearing, the court entered 

a default judgment against him on June 

26, 2012, dissolving the marriage, despite 

having received his motion requesting a 

continuance.

The Montana Supreme Court reversed, 

concluding that “David has demonstrated 

good cause for granting his motion for a 

continuance. David’s unexpected medical emergency and the conditions of his 

incarceration were circumstances beyond 

his control that prevented his appearance 

at the final pretrial conference.” 

The Court also concluded that David 

had suffered prejudice, as the trial court had 

“entered its findings of fact, conclusions of 

law, and default decree of dissolution without the benefit of David’s arguments.” The 

case was therefore reversed and remanded 

for a new pretrial conference and trial. See: 

In re Marriage of Eslick, 2013 MT 53, 304 

P.3d 372 (Mont. 2013). 

Arkansas Suing Prisoners 

for Incarceration Costs

Arkansas officials are suing prisoners under the State Prison Inmate 

Care and Custody Reimbursement Act 

(Act), seeking reimbursement for the costs 

of their incarceration by obtaining court 

orders and seizing money from their prison 

trust accounts.

For example, a state court entered 

an order requiring prisoner Michael R. 

MacKool to pay reimbursement costs, and 

the state sought a similar judgment against 

prisoner Deral Plunk. Both were subject to 

orders that confiscated the funds in their 

accounts for placement in a court account 

pending the outcome of the litigation. 

MacKool is serving a cumulative 60-

year sentence for first-degree murder and 

theft of property. In October 2010, Arkansas filed a petition against him in state court 

under the Act. Following a show-cause 

hearing, $5,016.61 in MacKool’s prison 

account was ordered deposited into the 

state treasury; he appealed that judgment, 

which was affirmed. See: MacKool v. State, 

2012 Ark. 287 (Ark. 2012).

On rehearing, he argued the court 

had incorrectly held that his lack-of-dueprocess argument had not been presented 

to the circuit court. Next, he claimed money 

he had received from his mother was not 

part of his “estate” as that term is used in the 

Act. Finally, he argued his equal protection 

rights had been violated.

The due process claim was based on 

the funds in MacKool’s prison account 

being ordered confiscated on October 18, 

2010, but the court did not provide him 

with notice until over two weeks later. The 

Arkansas Supreme Court found the only 

time that MacKool pointed to this issue 

was during opening statements, which the 

Court held is not an occasion for argument; 

an opening statement is an outline of the 

evidence to be introduced and the nature of 

the issues to be tried. Thus, MacKool had 

failed to properly present the due process 

argument before the circuit court and could 

not raise it on appeal.

As to the definition of “estate,” the 

Supreme Court held the plain language of 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 31 of 65
Prison Legal News 31 April 2014

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the Act “reflects that any money received 

by an inmate, including a gift from a family 

member, is part of his ‘estate’ for purposes 

of this statute.” Finally, the Court refused 

to hear the equal protection claim because 

MacKool had failed to raise it in his original 

briefs. See: MacKool v. State, 2012 Ark. 341 

(Ark. 2012).

The state also filed a petition under 

the Act to seek reimbursement of incarceration costs from prisoner Deral Plunk. 

It secured an order to confiscate $7,007.47 

from his prison account to hold in a court 

account until the litigation was concluded. 

Plunk moved to dismiss the action, and the 

state moved to transfer the case to another 

circuit court.

That court denied Plunk’s motion but 

granted the state’s motion. Plunk appealed. 

The Arkansas Supreme Court held that 

because neither part of the order constituted a final order, it was unappealable. As 

a result, Plunk’s motion to proceed in forma 

pauperis on appeal was denied. See: Plunk 

v. State, 2012 Ark. 362 (Ark. 2012).

More recently, on October 31, 2013, 

a U.S. District Court in Arkansas ruled 

against state prisoner Michael Williams, 

who challenged the seizure of funds from 

his prison account that he had received as a 

judgment in a § 1983 lawsuit against jailers 

at the Miller County Detention Center. In 

March 2013, the district court had awarded 

Williams $10,350 in damages and costs 

in the suit. Pursuant to a state court order 

under the Act, however, $8,530.95 was confiscated from the judgment funds after they 

were deposited in his prison account.

Williams moved the district court to 

enjoin the state from seizing the judgment 

awarded in his § 1983 suit, which the court 

construed as a motion under Fed.R.Civ.P. 

69, “invoking the Court’s inherent power 

to enforce its judgments.” However, the 

district court held it did not have jurisdiction to grant the motion after the judgment 

had been satisfied by the payment of funds 

to Williams.

The court noted that the Eighth Circuit “has previously held a state may not 

attach to section 1983 judgment proceeds 

awarded to an inmate for the purpose of 

recouping incarceration costs,” citing Hankins v. Finnel, 964 F.2d 853 (8th Cir. 1992); 

however, “the facts presented here do not 

fit within the narrow parameters of that 

precedent.” The district court found that 

the prohibition against the state’s seizure 

of funds obtained in a § 1983 lawsuit for 

reimbursement of incarceration costs does 

not apply when the judgment in the suit 

was obtained from a non-state party – in 

this case, from Miller County. 

“Therefore, the entity paying Williams’s judgment proceeds and the entity 

seeking to attach to the judgment proceeds 

are entirely distinct, thus, eliminating 

any Hankins type concerns over the deterrent effect of a section 1983 award,” the 

district court concluded. See: Williams v. 

Rambo, U.S.D.C. (W.D. Ark.), Case No. 

4:09-cv-4088; 2013 U.S. Dist. LEXIS 

156458 (W.D. Ark. 2013). 

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 32 of 65
April 2014 32 Prison Legal News

Texas: False Arrest and Malicious Prosecution 

Result in $411,865.18 Recovery

ATexas probationer subjected to 

false arrest and malicious prosecution 

has been awarded $169,000 in damages plus 

attorneys’ fees and costs.

Thomas Hannon, 37, unemployed and 

on probation, had an outstanding arrest 

warrant for probation revocation. Dallas 

police knew he was at a local hotel, and 

on August 1, 2007, police officers arrested 

several people, including Hannon, at the 

hotel in connection with a black bag that 

contained drugs, a .357 revolver and materials related to identity theft. Hannon 

was jailed on gun, drug and identity theft 

charges. He was exonerated and released 

more than 10 months later.

Hannon sued several police officers, 

but only his claims against officers Jerry 

Dodd, David Nevitt and Randy Sundquist 

survived to reach trial. The evidence showed 

that when the officers arrived at the hotel, 

Hannon had been waiting for a ride. He 

was not part of the initial arrest and began 

walking down the highway.

Police officers were notified that Hannon was walking away, and pursued and 

arrested him. Prior to the arrest, Hannon 

had been with a friend. The friend was 

carrying the black bag with the gun and 

drugs, but Hannon contended he was never 

in possession of the bag or knew what it 

contained.

The police report prepared by Dodd 

indicated that Nevitt saw Hannon with the 

bag before the arrest; Nevitt never indicated 

in the report that he saw Hannon possess 

the bag, but he later testified to that fact. 

Nevitt further testified that he never dealt 

with the hotel clerk.

It was proven that Nevitt lied. Surveillance video showed Hannon’s friend had the 

bag and Hannon was never in possession 

of it. The clerk testified that Nevitt had in 

fact requested a copy of the surveillance 

video from him. Hannon contended that 

Dodd and Nevitt falsified the police report 

to maliciously prosecute him; he also noted 

that Dodd failed to inform federal officials, 

who were investigating the identify theft, 

that he had been exonerated.

With respect to injuries, Hannon 

conceded he would have been arrested in 

any event and required to serve a month 

on the probation revocation, but said he 

remained jailed for 10 months as a result 

of the false arrest and malicious prosecution, which caused him severe depression 

and anxiety.

On February 3, 2012, a federal jury 

found that Hannon did not possess the 

bag and Dodd and Nevitt had violated his 

rights. Hannon was awarded $93,500 for 

mental anguish and wrongful confinement 

against Nevitt and Dodd jointly and severally, $500 in punitive damages against Dodd 

and $75,000 in punitive damages against 

Nevitt, for a total of $169,000.

On March 14, 2013, the district court 

denied the defendants’ motions for a new 

trial and judgment as a matter of law. 

The court also awarded attorneys’ fees to 

Hannon in the amount of $241,042.73, 

plus $1,591.81 in attorneys’ costs and 

$4,414.16 in Hannon’s costs. The court 

further awarded $2,591.71 in costs against 

Hannon in favor of defendant Sundquist, 

who prevailed at trial.

On May 8, 2013, pursuant to a joint 

motion filed by the parties, the district 

court vacated the judgment and dismissed 

the case after a settlement was reached in 

which the City of Dallas agreed to pay a 

total of $411,865.18 in combined damages, attorneys’ fees and costs. Hannon 

was represented by Dallas attorneys Scott 

Palmer and John E. Wall, Jr. See: Hannon 

v. Nevitt, U.S.D.C. (N.D. Tex.), Case No. 

3:09-cv-00066-N. 

California Supreme Court: Challenge 

to Booking Fee Order Forfeited Due 

to Failure to Object in Trial Court

On April , , the Supreme 

Court of California, resolving a conflict among lower state courts, held that a 

defendant who fails to contest a jail booking 

fee order when it is imposed forfeits the 

right to challenge the order on appeal.

After pleading no contest to being a 

convicted felon in possession of a firearm, 

Antoine J. McCullough was sentenced to 

a state prison term of four years. When 

imposing the sentence, the trial court also 

ordered McCullough to pay a jail booking 

fee of $270.17.

On appeal, McCullough argued that 

although he had not objected when the 

trial court imposed the booking fee, he was 

entitled to challenge it for the first time on 

appeal because the evidence was insufficient 

to support a finding that he was able to pay 

the fee.

The Court of Appeal affirmed the 

booking fee order, holding that McCullough’s failure to object in the trial 

court meant he had forfeited his right to 

challenge the imposition of the fee on appeal. The California Supreme Court granted 

review to resolve a split among the appellate 

courts on this question.

The Supreme Court initially held, as a 

matter of statutory construction, that the 

state law which authorizes the imposition 

of a booking fee – Government Code § 

29550.2, subd. (a) – requires the trial court, 

before ordering payment, to determine the 

defendant’s ability to pay. The Court then 

cited the general rule that a right may be 

forfeited if the defendant fails to timely 

assert it, and found no reason to deviate 

from that rule with respect to McCullough’s 

challenge to the booking fee order. 

Accordingly, the judgment of the 

Court of Appeal was affirmed. See: People 

v. McCullough, 56 Cal. 4th 589, 298 P.3d 

860 (Cal. 2013). 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 33 of 65
Prison Legal News 33 April 2014

State of Washington 

Prison Phone Justice Campaign!

Prison Phone Justice Project needs your help for statewide campaign!

While much progress has been made in reducing the costs of long distance prison calls, we are 

still fighting to reduce the high costs of in-state prison and jail calls at the local level. In January 2014, the Human Rights Defense Center (HRDC), the parent organization of Prison Legal News, 

reopened its Seattle office to launch the Washington Prison Phone Justice Campaign.

This is our first statewide phone justice campaign, and we’re excited to have people involved on both 

the local and national levels who are dedicated to ending the exorbitant phone rates and kickbacks 

associated with the prison phone industry. David Ganim, HRDC’s national Prison Phone Justice Director, has already been obtaining the phone contracts and rates for all 39 county jails in Washington, 

as well as data from the Washington Department of Corrections.

We recently hired a local campaign director, Carrie Wilkinson, who will manage our office in Seattle 

and coordinate the statewide campaign. Washington prisoners and their families pay some of the 

highest phone rates in the nation, and we need your help to win this battle!

Here’s how you can help – first, please visit the Washington campaign website:

www.wappj.org

There you can see all the ways you can make a difference. The site allows you to sign up for the campaign and upload videos and share blog entries about how high prison phone rates make it difficult 

for you to stay in touch with your incarcerated loved ones. You can also upload an audio message, 

and even call in your story to 1-877-410-4863, toll-free 24 hours a day, seven days a week! We need 

to hear how you and your family have been affected by high prison phone rates. If you don’t have 

Internet access, you can mail us a letter describing your experiences and we’ll post it. Send letters to 

HRDC’s main office at: HRDC, Attn: WA Phone Justice Campaign, P.O. Box 1151, Lake Worth, FL 

33460. Washington state prisoners can mail us letters and send a copy of this notice to their family 

members so they can get involved.

By choosing to participate in the Washington Prison Phone Justice Campaign, you will be playing 

a key role in ending the unfair phone rates that prisoners’ families have to pay. We cannot win this 

battle without your help, so please visit the campaign website and share your experiences! Donations 

are also welcome and greatly appreciated, and can be mailed to the above address or made online 

via the campaign site. Thank you for your support!

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 34 of 65
April 2014 34 Prison Legal News

Study: TASER Shocks May Cause Fatal Heart Attacks 

by Matt Clarke

Astudy involving eight people who 

lost consciousness immediately after 

being shocked by a TASER X26 – the most 

common electronic control device (ECD) 

used by police, corrections agencies and the 

military – concluded that ECD shocks can 

induce fatal cardiac arrest by causing cardiac “capture” and ventricular tachycardia/

ventricular fibrillation (VT/VF). Seven 

of the eight persons profiled in the study 

died while the eighth suffered memory 

impairment after receiving a near-fatal 

shock, according to an article published in 

Circulation, the journal of the American 

Heart Association.

The eight subjects of the peer-reviewed 

study were all male, ranging from 16 to 44 

years old. Six were under the age of 25. All 

were struck in the chest with barbs from a 

TASER X26, a handgun-shaped weapon 

that fires the barbs with attached conductive wires using compressed nitrogen. The 

device delivers an initial 5,000-volt shock, 

followed by rapid micro-pulsing that is 

designed to mimic the electrical signals 

used by the brain to communicate with the 

muscles. The standard shock cycle lasts five 

seconds but can be shortened or repeated 

by the user.

The study found that a TASER shock 

“can cause cardiac electric capture and 

provoke cardiac arrest” resulting from an 

abnormal, rapid heart rate and uncontrolled, fluttering heart contractions. The 

journal article on the study’s findings was 

authored by Dr. Douglas Zipes, with the 

Krannert Institute of Cardiology at Indiana 

University.

Scottsdale, Arizona-based TASER 

International, Inc., which manufactures 

the ECD devices, strongly defended its 

products. Company spokesman Steve Tuttle 

noted that with only eight subjects in the 

study, “broader conclusions shouldn’t be 

drawn based on such a limited sample.”

“There have been 3 million uses of 

TASER devices worldwide, with this case 

series reporting eight of concern,” he added. 

“This article does not support a cause-effect 

association and fails to accurately evaluate 

the risks versus the benefits of the thousands of lives saved by police with TASER 

devices.”

The company’s website boasts that 

TASERs have saved nearly 125,000 lives, 

and that “Every Day TASER CEWs 

[Conducted Electrical Weapons] are 

Used 904 Times, Saving a Life from 

Potential Death or Serious Injury Every 

30 Minutes.” The site also quotes a Wake 

Forest University study which found 

that “in 1,201 cases, 99.75% [of ] people 

subjected to a TASER CEW had no 

significant injuries.”

Research published by USA Today

in May 2012 indicated that the use of 

TASERs by police has saved lives because 

officers are less likely to kill someone using a TASER than by shooting them. The 

research also found that TASERs reduced 

the number of injuries suffered by police 

officers when apprehending suspects. 

Tuttle questioned whether Dr. Zipes 

might have possible bias because he had 

testified as an expert witness in lawsuits 

against TASER. “There are key facts that 

contradict the role of the TASER device in 

all of these cited cases, and Dr. Zipes has 

conveniently omitted all facts that contradict his opinion,” Tuttle said.

However, Amnesty International reported in February 2012 that more than 500 

post-ECD-shock deaths occurred following TASER deployments between 2001 and 

2008. Further, a report from a commission 

of inquiry into the death of a man at the 

Vancouver airport in Canada concluded 

there was evidence “that the electric current 

from a conducted energy weapon is capable 

of triggering ventricular capture ... and that 

the risk of ventricular fibrillation increases 

as the tips of the probes get closer to the 

walls of the heart.” 

Other studies, including a 2011 report 

by the ACLU of Arizona, have also identified problems with the use of TASERs 

by law enforcement agencies. [See: PLN, 

April 2012, p.26]. Prior to Dr. Zipes’ research, though, no peer-reviewed study had 

concluded that ECD shocks can induce 

ventricular fibrillation leading to sudden 

cardiac arrest and death.

TASER published an eight-page warning in March 2013 that stated, “exposure 

in the chest area near the heart has a low 

probability of inducing extra heart beats 

(cardiac capture). In rare circumstances, 

cardiac capture could lead to cardiac arrest. 

When possible, avoid targeting the frontal 

chest area near the heart to reduce the risk 

of potential serious injury or death.” 

In November 2013, TASER submitted a statement to the U.S. Securities and 

Exchange Commission (SEC) indicating 

that the company would pay a total of $2.3 

million in settlements in product liability 

lawsuits. The statement said the settlements 

were intended to end legal battles over 

TASER-related “suspect injury or death.”

TASER also changed the warning 

labels on its ECD products. The company used to tout TASERs as delivering 

“non-lethal” shocks, but following several 

TASER-related deaths the language was 

changed in 2009 to read “less lethal.” 

Company training manuals now state that 

“exposure in the chest area near the heart 

... could lead to cardiac arrest.”

The eight subjects in the study authored 

by Dr. Zipes were all clinically healthy. They 

were hit with one or both TASER barbs in 

the anterior chest wall near the heart, and 

all lost consciousness during or immediately 

after being shocked. In six cases, the first 

recorded heart rhythms were VT/VF. One 

had no heart rhythm, and in the eighth 

subject an external defibrillator reported a 

shockable rhythm but did not record it.

Two of the subjects had structural 

heart disease, two had elevated blood alcohol levels and two had both. The study 

concluded, however, that those conditions 

were considered unlikely to be the cause 

of the sudden loss of consciousness that 

occurred at the time or immediately after 

they received TASER shocks, although the 

conditions may have increased the likelihood of ECD-induced VT/VF.

The study also concluded it was unlikely that other known causes of in-custody 

death, such as “excited delirium” or restraint 

asphyxia, were factors in the deaths of seven 

of the eight subjects due to the proximity 

of the TASER shock to the loss of consciousness.

Dr. Zipes’ research noted that studies 

in pigs, sheep and humans established that 

shocks across the chest from the TASER 

X26 and a new prototype ECD could cause 

cardiac capture. The pig studies also repeatedly showed that the TASER X26 could 

induce VT/VF at normal or higher-thanCase 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 35 of 65
Prison Legal News 35 April 2014

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normal outputs. Similar studies attempting 

to induce VT/VF by placing the barbs 

in the anterior chest and using strong, 

multiple and/or lengthy shocks could not 

be conducted on humans due to ethical 

considerations.

Of course, such considerations do not 

prevent police officers from using TASERs 

on suspects, or prison and jail guards from 

deploying TASERs against prisoners. 

Sources: “Sudden Cardiac Arrest and Death 

Associated with Application of Shocks from a 

TASER Electronic Control Device,” by Douglas P. Zipes, M.D. (May 2012); www.taser.

com; USA Today, www.theverge.com

Texas Court Holds CCA is a “Governmental 

Body” for Purposes of Public Records Law

On March , , a state district 

court in Travis County, Texas held 

that Corrections Corporation of America 

(CCA), the nation’s largest for-profit prison 

company, is considered a “governmental 

body” for purposes of the state’s Public 

Information Act and therefore subject to 

the Act’s “obligations to disclose public 

information.”

The court entered its ruling on a motion for summary judgment filed by Prison 

Legal News, which had brought suit against 

CCA in May 2013 after the company 

refused to produce records related to the 

now-closed Dawson State Jail in Dallas – 

including reports, investigations and audits 

regarding CCA’s operation of the facility. 

[See: PLN, June 2013, p.46]. Such records 

would have been made public had the jail 

been operated by a government agency.

“This is one of the many failings of 

private prisons,” said PLN managing editor Alex Friedmann. “By contracting with 

private companies, corrections officials 

interfere with the public’s right to know 

what is happening in prisons and jails, 

even though the contracts are funded with 

taxpayer money. This lack of transparency 

contributes to abuses and misconduct by 

for-profit companies like CCA, which prefer secrecy over public accountability.”

CCA currently operates nine facilities 

in Texas, including four that house state 

prisoners. 

“The conditions of Texas prisons have 

been the focus of intense public scrutiny for 

nearly 40 years,” stated Brian McGiverin, 

an attorney with the Texas Civil Rights 

Project. “Today’s ruling is a victory for 

transparency and responsible government. 

Texans have a right to know what their 

government is doing, even when a private 

company is hired to do it.”

In its summary judgment motion, PLN 

argued that CCA meets the definition of a 

governmental body under the state’s Public 

Information Act, Section 552.003 of the 

Texas Government Code, because, among 

other factors, the company “shares a common 

purpose and objective to that of the government” and performs services “traditionally 

performed by governmental bodies.”

In the latter regard, PLN noted that 

“Incarceration is inherently a power of government. By using public money to perform 

a public function, CCA is a governmental 

body for purposes” of the Public Information Act. CCA’s argument to the contrary 

– that it is not a governmental body and 

therefore does not have to comply with 

public records requests – was rejected by 

the district court.

CCA had also argued that the taxpayer 

funds it receives from the State of Texas 

“are not necessarily used specifically for 

operating Texas facilities,” and that such 

payments “are used generally to support 

CCA’s corporate allocations throughout 

the United States.”

PLN previously prevailed in a similar 

public records lawsuit against CCA in Tennessee, where the firm is headquartered; 

another records suit filed by PLN is pending 

against CCA in Vermont. The company has 

vigorously opposed lawsuits requiring it to 

comply with public records laws. [See: PLN, 

July 2013, p.42; June 2013, p.14].

“CCA and other private prison companies should not be able to hide behind 

closed corporate doors when they contract 

with government agencies to perform 

public services using taxpayer money,” said 

PLN editor Paul Wright.

PLN was ably represented by attorneys 

Cindy Saiter Connolly with Scott, Douglass 

& McConnico, LLP and Brian McGiverin 

with the Texas Civil Rights Project. See: 

Prison Legal News v. CCA, Travis County 

District Court (TX), Cause No. D-1-GN13-001445. 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 36 of 65
April 2014 36 Prison Legal News

Mass Incarceration: The Whole Pie

A Prison Policy Initiative briefing

by Peter Wagner and Leah Sakala

Wait, does the United States have 

1.4 million or more than 2 million 

people in prison? And do the 688,000 people released every year include those getting 

out of local jails? Frustrating questions like 

these abound because our systems of federal, 

state, local and other types of confinement 

– and the data collectors that keep track of 

them – are so fragmented. There is a lot of 

interesting and valuable research out there, 

but definitional issues and incompatibilities 

make it hard to get the big picture for both 

people new to criminal justice and for experienced policy wonks.

On the other hand, piecing together 

the available information offers some clarity. 

This briefing presents the first graphic we’re 

aware of that aggregates the disparate systems of confinement in this country, which 

hold more than 2.4 million people in 1,719 

state prisons, 102 federal prisons, 2,259 

juvenile correctional facilities, 3,283 local 

jails and 79 Indian Country jails as well as 

in military prisons, immigration detention 

facilities, civil commitment centers and 

prisons in U.S. territories.1

While the numbers in each slice of this 

pie chart represent a snapshot cross section 

of our correctional system, the enormous 

churn in and out of confinement facilities 

underscores how naive it is to conceive of 

prisons as separate from the rest of our 

society. In addition to the 688,000 people 

released from prisons each year,2

 almost 

12 million people cycle through local jails 

annually.3

 Jail churn is particularly high 

because at any given moment most of the 

722,000 people in local jails have not been 

convicted and are incarcerated because they 

are either too poor to make bail and are 

being held before trial, or because they’ve 

just been arrested and will make bail in the 

next few hours or days. The remainder of the 

people in jail – almost 300,000 – are serving 

time for minor offenses, generally misdemeanors with sentences under a year. 

So now that we have a sense of the 

bigger picture, a natural follow-up question 

might be something like: how many people 

are locked up in any kind of facility for a 

drug offense? While the data don’t give us 

a complete answer, we do know that it’s 

237,000 people in state prison, 95,000 in 

federal prison and 5,000 in juvenile facilities, plus some unknowable portion of the 

population confined in military prisons, 

territorial prisons and local jails.

Offense figures for categories such 

as “drugs” carry an important caveat here, 

however: all cases are reported only under 

the most serious offense. For example, 

a person who is serving prison time for 

both murder and a drug offense would 

be reported only in the murder portion of 

the chart. This methodology exposes some 

disturbing facts, particularly about our juvenile justice system. For example, there are 

nearly 15,000 children behind bars whose 

“most serious offense” wasn’t anything that 

most people would consider a crime. Almost 12,000 children are behind bars for 

“technical violations” of the requirements 

of their probation or parole, rather than 

for a new criminal offense, and more than 

3,000 children are behind bars for “status” 

offenses, which are, as the U.S. Department 

of Justice explains, “behaviors that are not 

law violations for adults, such as running 

away, truancy, and incorrigibility.”4

Turning finally to the people who are 

locked up because of immigration-related 

issues, more than 22,000 are in federal 

prison for criminal convictions of violating federal immigration laws. A separate 

34,000 are technically not in the criminal 

justice system but rather are detained by 

U.S. Immigration and Customs Enforcement (ICE), undergoing the process of 

deportation, and are physically confined 

in immigration detention facilities or in 

one of hundreds of individual jails that 

contract with ICE.5

 (Notably, those two 

categories do not include the people 

represented in other pie slices who are in 

some early stage of the deportation process 

due to non-immigration-related criminal 

convictions).

Now that we can, for the first time, 

see the big picture of how many people are 

locked up in the United States in the various 

types of facilities, we can see that something 

needs to change. Looking at the big picture 

requires us to ask if it really makes sense to 

imprison 2.4 million people on any given 

day, giving us the dubious distinction of 

having the highest incarceration rate in the 

world. Both policy makers and the public 

have the responsibility to carefully consider each individual slice of the pie chart 

in turn, to ask whether legitimate social 

goals are served by putting each category 

behind bars and whether any benefit really 

outweighs the social and fiscal costs. We’re 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 37 of 65
Prison Legal News 37 April 2014

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optimistic that this whole-pie approach6

can give Americans, who seem increasingly ready for a fresh look at the criminal 

justice system, some of the tools they need 

to demand meaningful changes to how we 

do justice.

Notes on the Data

This briefing draws the most recent data 

available as of March 13, 2014 from:

t +BJMT: Bureau of Justice Statistics, 

Jail Inmates at Midyear 2012 - Statistical 

Tables, page 1 and Table 3, reporting data 

for June 30, 2012. 

t*NNJHSBUJPOEFUFOUJPO: “Congress 

Mandates Jail Beds for 34,000 Immigrants 

as Private Prisons Profit,” Bloomberg News, 

Sept. 24, 2013. 

t'FEFSBM: Bureau of Justice Statistics, 

Prisoners in 2011, page 1 and Table 11, 

from data as of December 31, 2011. 

t4UBUF1SJTPOT: Bureau of Justice Statistics, Prisoners in 2011, Table 9, reporting 

data as of December 31, 2010. 

t.JMJUBSZ: Bureau of Justice Statistics, 

Correctional Populations in the United 

States, 2012, Appendix Table 2, reporting 

data for December 31, 2012. 

t5FSSJUPSJBM1SJTPOT, Prisons in U.S. 

territories (American Samoa, Guam and 

the U.S. Virgin Islands) and U.S. commonwealths (Northern Mariana Islands 

and Puerto Rico): Correctional Populations 

in the United States, 2012, Appendix Table 

2, reporting data for 2012 – includes both 

territorial prisons and jails. 

t+VWFOJMFT: Office of Juvenile Justice 

and Delinquency Prevention, Census of 

Juveniles in Residential Placement, 2010, 

reporting data for February 24, 2010. 

t $JWJM $PNNJUNFOU: Deidre 

D’Orazio, Ph.D., Sex Offender Civil 

Commitment Programs Network Annual 

Survey of Sex Offender Civil Commitment 

Programs, 2013. 

t*OEJBO$PVOUSZ (correctional facilities operated by tribal authorities or the 

Bureau of Indian Affairs): Bureau of Justice 

Statistics, Correctional Populations in the 

United States, 2012, Appendix Table 2, 

reporting data for June 29, 2012.

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 38 of 65
April 2014 38 Prison Legal News

Several data definitions and clarifications may be helpful to researchers reusing 

this data in new ways: 

tThe state prison offense category of 

“public order” includes weapons, drunk 

driving, court offenses, commercialized vice, 

morals and decency offenses, liquor law 

violations and other public-order offenses.

tThe state prison “other” category 

includes offenses labeled “other/unspecified” (7,900), manslaughter (21,500), rape 

(70,200), “other sexual assault” (90,600), 

“other violent” (43,400), larceny (45,900), 

motor vehicle theft (15,000), fraud (30,800) 

and “other property” (27,700).

tThe federal prison “other” category includes people who have not been convicted 

or are serving sentences of under 1 year 

(19,312), homicide (2,800), robbery (8,100), 

“other violent” (4,000), burglary (400), 

fraud (7,700), “other property” (2,500), 

“other public order offenses” (17,100) and 

a remaining 7,850 records that could not 

be put into specific offense types because 

the “2011 data included individuals committing drug and public-order crimes that 

could not be separated from valid unspecified records.” 

tThe juvenile prison “other” category 

includes criminal homicide (924), sexual 

assault (4,638), simple assault (5,445), 

“other person” (1,910), theft (3,759), auto 

theft (2,469), arson (533), “other property” 

(3,029), weapons (3,013) and “other public 

order” (5,126). 

tTo minimize the risk of anyone in 

immigration detention being counted twice, 

we removed the 22,870 people – cited in 

Table 8 of Jail Inmates at Midyear 2012 – 

confined in local jails under contract with 

ICE from the total jail population and 

from the numbers we calculated for those 

in local jails that have not been convicted. 

(Table 3 reports the percentage of the jail 

population that is convicted (60.6%) and 

unconvicted (39.4%), with the latter category also including immigration detainees 

held in local jails).

tAt least 17 states and the federal government operate facilities for the purposes 

of detaining people convicted of sexual 

crimes after their sentences are complete. 

These facilities and the confinement there 

are technically civil, but in reality are quite 

like prisons. They are often run by state 

prison systems, are often located on prison 

grounds and, most importantly, the people 

confined there are not allowed to leave. 

Acknowledgements

Thanks especially to Drew Kukorowski for 

collecting the original data for this project 

and to [PLN managing editor] Alex Friedmann for both identifying ways to update 

the data and for locating the civil commitment data. We thank Tracy Velázquez and 

Josh Begley for their insights on how to 

use color to tell this story. Thanks to Holly 

Cooper, Cody Mason and Judy Greene for 

helping untangle the immigration-related 

statistics. Thanks also to Arielle Sharma 

and Sarah Hertel-Fernandez for their copy 

editing assistance. 

This briefing was published by the Prison Policy 

Initiative (www.prisonpolicy.org) on March 

12, 2014; it is reprinted with permission.

ENDNOTES

1 The number of state and federal facilities is from 

Census of State and Federal Correctional Facilities, 

2005; the number of juvenile facilities from Census of 

Juveniles in Residential Placement, 2010; the number of 

jails from Census of Jail Facilities, 2006 and the number 

of Indian Country jails from Jails in Indian Country, 

2012. We aren’t currently aware of a good source of data 

on the number of the other types of facilities.

2 U.S. Department of Justice, Prisoners in 2011, 

page 1, reporting that 688,384 people were released 

from state and federal prisons in 2011. [Ed. note – the 

number of releases dropped to 637,400 in 2012]

3 See page 3 of Bureau of Justice Statistics, Jail 

Inmates at Midyear 2012 - Statistical Tables for this 

shocking figure of 11.6 million.

4 See Office of Juvenile Justice and Delinquency 

Prevention, Census of Juveniles in Residential Placement, 2010, page 3.

5 Of all of the confinement systems discussed 

in this report, the immigration system is the most 

fragmented and the hardest to get comprehensive data 

on. We used “Congress Mandates Jail Beds for 34,000 

Immigrants as Private Prisons Profit,” Bloomberg 

News, Sept. 24, 2013. Other helpful resources include 

Privately Operated Federal Prisons for Immigrants: 

Expensive. Unsafe. Unnecessary; Dollars and Detainees: 

The Growth of For-Profit Detention; and The Math of 

Immigration Detention.

6 It is important to remember that the correctional system pie is far larger than just prisons and 

includes another 3,981,090 adults on probation and 

851,662 adults on parole. See Bureau of Justice Statistics, Probation and Parole in the United States, 2012, 

Appendix Tables 2 and 4.

New York Prisoner Secures Court Order 

for Visitation with Child

The New York Court of Appeals 

upheld a lower court’s ruling that granted an incarcerated father visitation rights 

with his three-year-old child. The Court 

held the lower court had properly applied 

a legal standard that presumes in favor of 

visitation and considers whether that presumption is rebutted by evidence showing 

visits would be harmful to the child.

The petitioner, New York state prisoner 

Shawn G. Granger, acknowledged paternity of a child prior to his imprisonment. 

He sought an order under the Family 

Court Act allowing visitation after the 

mother refused to bring the child to see 

him in prison.

The family court noted that state law 

presumes a child’s best interest is served 

by visits with a non-custodial parent, and 

“the fact that such parent is incarcerated 

is not an automatic reason for blocking 

visitation.” The court found that Granger 

had been involved in the child’s life prior to 

incarceration and had acted to maintain the 

relationship after he went to prison. Further, 

the court determined the child would not 

be harmed by travel to the prison and thus 

ordered periodic four-hour visits. The Appellate Division affirmed.

The Court of Appeals rejected the 

mother’s argument that the family court 

had applied the wrong standard of law. It 

reaffirmed that “substantial proof ” must be 

presented to overcome the presumption in 

favor of visitation, including when a parent 

is incarcerated. Visits should be denied to a 

non-custodial parent upon a showing they 

would be harmful to the child, which was 

not demonstrated in this case.

The Court declined to consider the 

impact of Granger’s subsequent transfer to 

a more distant facility, as that issue should 

have been the subject of a modification 

petition and not presented as an issue of 

first impression on appeal. The lower court’s 

order was affirmed. See: Matter of Granger 

v. Misercola, 21 N.Y.3d 86, 990 N.E.2d 110 

(N.Y. 2013). 

Mass Incarceration (cont.)

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 39 of 65
Prison Legal News 39 April 2014

States Renewing Their Prison Phone Contracts 

As state DOCs renew or rebid their prison phone contracts, you can help urge them 

to eliminate commission kickbacks and lower intrastate phone rates. 

The Campaign for Prison Phone Justice needs your help in 

 ***** Kentucky, Alaska and Georgia! *****

The Departments of Corrections in the above states are in the process of re-bidding or renewing their 

prison phone contracts. Most DOCs receive a commission (kickback) on revenue generated from calls 

made by prisoners, which results in excessively high phone rates. Although the FCC voted last year 

to cap the costs of interstate (long distance) prison calls, which went into effect on February 11, 2014, 

the order does not apply to intrastate (in-state) calls; an estimated 85% of prison phone calls are instate. This is an opportunity to ask DOCs to forgo commissions and ensure their new prison phone 

contracts are based on the lowest cost to those who pay for the calls – mostly prisoners’ families. 

Take Action NOW! Here’s What YOU Can Do! 

Ask your family members and friends to write, email, call and fax the DOC and the governor’s office 

(addresses and contacts are listed below), requesting that the DOC: 1) forgo commission payments 

when re-bidding or renewing its prison phone contract, and 2) base the new contract on the lowest 

calling cost. Lower prison phone rates should apply not just to long distance calls but also to in-state 

calls. For a sample letter or to easily send an email, visit the Campaign for Prison Phone Justice’s 

website and click on the “Take Action” tab: 

www.phonejustice.org

Prison phone contract information & Contacts:

Kentucky: Receives a 54% kickback; existing contract expires on 5-31-2014. The DOC charges 

$4.50 for a 15-minute collect intrastate call and $1.85 for a collect local call. Contacts: Kentucky

DOC, Commissioner LaDonna Thompson, 275 East Main Street, Frankfort, KY 40602; ph: 502-564-

4726, fax: 502-564-5037, email: ladonna.thompson@ky.gov. Governor Steve Beshear, 700 State 

Capitol, Frankfort, KY 40601; ph: 502-564-2611, fax: 502-564-2517, email: governor@ky.gov 

Alaska: Receives a 7 to 32.1% kickback; existing contract expires on 6-30-2014. The DOC charges 

$2.63 to $7.61 for a 15-minute collect intrastate call (local calls are free). Contacts: Alaska DOC, 

Commissioner Joseph Schmidt, 550 W. 7th Ave., Suite 860, Anchorage, AK 99501; ph: 907-465-4652, 

fax: 907-465-3390, email: joseph.schmidt@alaska.gov. Governor Sean Parnell, State Capitol, P.O. 

Box 110001, Juneau, AK 99811; ph: 907-465-3500, fax: 907-465-3532, email: governor@alaska.gov 

Georgia: Receives a 60% kickback; existing contract expires on 6-30-2014. The DOC charges $4.85 

for a 15-minute collect intrastate call and $2.70 for a collect local call. Contacts: Georgia DOC Comm. 

Brian Owens, 300 Patrol Road, Forsyth, GA 31029; ph: 478-992-5261, fax: 478-992-5259, email: 

gdccommish@dcor.state.ga.us. Governor Nathan Deal, 203 State Capitol, Atlanta, GA 30334; ph: 

404-656-1776, fax: 404-657-7332, email: khorne@georgia.gov or georgia.governor@gov.state.ga.us 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 40 of 65
April 2014 40 Prison Legal News

Placing Rival Gang Members in Same 

Cell Not Per Se Unconstitutional

The Ninth Circuit Court of Appeals applied the harmless error test 

in finding that a district court’s late Rand 

summary judgment notice did not deprive a 

prisoner of substantial rights. Additionally, 

the appellate court held prison officials were 

not deliberately indifferent to a substantial 

risk of violence by placing two rival gang 

members in the same cell.

This case involved the appeal of a 

Hawaii federal district court’s grant of summary judgment to Corrections Corporation 

of America and CCA guards at the Saguaro 

Correctional Center (SCC) in Arizona. The 

suit was brought by Hawaii state prisoner 

Keone Labatad, who was housed at SCC 

and assaulted by another prisoner on July 

23, 2009.

Three days earlier, Labatad, a member 

of the La Familia gang, got into a fight 

with Howard Giddeons, a member of the 

USO Family gang. Both told guards that 

the fight was not gang-related and they 

had shook hands afterwards. Following 

procedure, both were placed in administrative segregation.

Labatad was put in a cell with Shane 

Mara, a USO Family gang member. On 

the day of the assault, Mara waited until 

Labatad was in hand restraints in preparation for leaving the cell; he then hit Labatad 

in the head and back, causing a welt and a 

bloody nose.

Labatad filed a civil rights action alleging his Eighth Amendment rights were 

violated by a general policy at SCC that 

allowed rival gang members to be housed 

in the same cell, as well as the specific 

decision to place him in a cell with Mara. 

He sought damages and injunctive relief, 

and the defendants moved for summary 

judgment.

The day after Labatad filed a detailed 

response to the motion, the district court 

sent him the summary judgment notice 

required under Rand v. Rowland, 154 F.3d 

952 (9th Cir. 1998) [PLN, April 1999, p.19]. 

The purpose of the Rand notice is to provide 

a pro se prisoner litigant “fair notice” of his 

“rights and obligations under Rule 56,” his 

“right to file counter-affidavits or other 

responsive evidentiary materials and be 

alerted to the fact that failure to do so might 

result in the entry of summary judgment 

against” him, and “the effect of losing on 

summary judgment.” The court granted the 

defendants’ motion and Labatad appealed.

The Ninth Circuit held the district 

court’s delay in sending the Rand notice 

was error, but held this was “one of the 

unusual cases” where the error was harmless because “the record, viewed objectively, 

shows that Labatad knew and understood 

the information in the Rand notice before 

he received it.”

The district court found that SCC’s 

policy of permitting members of different 

gangs to be housed together in the same cell 

was not itself an Eighth Amendment violation. At oral argument, Labatad clarified 

he was not asserting a per se constitutional 

violation; instead, he was alleging the defendants were deliberately indifferent to the 

risk of harm resulting from his cell assignment with Mara, a rival gang member.

Viewing the record objectively and 

subjectively, the Ninth Circuit found the 

evidence was insufficient to preclude summary judgment on that claim. Mara and 

Labatad had been in general population for 

an extended period of time without threats 

or problems between them, they were not 

listed as “separatees,” and prison officials 

had been assured the fight between Labatad and Giddeons was resolved and not 

gang-related. In sum, there were no facts to 

suggest that Labatad was at substantial risk 

of harm when he was housed with Mara.

The district court’s order granting 

summary judgment to the defendants was 

affirmed. See: Labatad v. CCA, 714 F.3d 

1155 (9th Cir. 2013). 

GPS Monitoring System in Los Angeles 

Plagued by False Alerts, Ignored Alarms

by Christopher Zoukis

Los Angeles County’s GPS monitoring system, designed to keep track of 

high-risk probationers, has overwhelmed 

probation officers with thousands of false 

alerts each day – so many that some officers 

simply ignore them. As a result, dozens 

of probationers have been able to roam 

unmonitored. In some cases, even when 

probationers removed their monitoring 

devices, the removal was not discovered for 

lengthy periods of time.

GPS monitors are used to track the highest-risk probationers and parolees, including 

sex offenders. A massive shift of prisoners 

from state prisons to county jails under 

California’s “realignment” legislation has led 

some counties to release hundreds of low-level 

offenders on electronic monitoring as a way to 

cut costs and reduce jail overcrowding.

The GPS system in Los Angeles 

County picks up satellite signals and transmits the data over cellular networks to a 

central computer. The system is designed to 

send an alert to a probation officer under a 

variety of circumstances; for example, if a 

probationer tries to remove the monitor or 

enter a designated prohibited area, or if the 

GPS batteries run down. The GPS devices 

send alerts for a number of routine reasons, 

too, such as when the signal is blocked by a 

building or if the monitor has a loose strap 

or damaged case.

According to probation officers, there 

is no easy way to distinguish the cause of 

the alert. Thus, a prolonged lost monitoring signal might mean the probationer has 

absconded or simply that the signal is being 

blocked due to a building’s structure.

County officials say they have been 

“overwhelmed” with thousands of alarms 

each day. Most are relatively meaningless, 

for low battery warnings or blocked signals, 

and are ignored or deleted by probation 

officers. Others are more serious; 80 probationers removed their GPS devices in 

2013, and in one case an offender went 

unmonitored for 45 days.

“If a person’s not being properly monitored or supervised, then what’s going to 

stop them from taking it off and leaving?” 

asked Dwight Thompson, a representative 

for the union that represents Los Angeles 

County probation officers. “If they take it 

off, what was the point of putting it on?”

A field test in 2011 found that GPS 

devices used to monitor California sex ofCase 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 41 of 65
Prison Legal News 41 April 2014

	


	
	








	

	
		
		
	
			

	


	
		

	


 	
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You wouldn’t hire a heart surgeon to perform brain surgery. Don’t hire a trial 

attorney to handle your appeal. Hire someone who focuses on criminal appeals. 

Hire the Law Offi ce of Matthew S. Pinix, attorneys with more than 10-years’ 

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fenders transmitted no signal 55 percent 

of the time, and PLN previously reported 

that thousands of sex offenders in the state 

had removed their GPS monitors or committed monitoring violations, as there were 

few repercussions for doing so. [See: PLN, 

April 2013, p.18].

A November 13, 2013 corrective action notice sent by the Los Angeles County 

Probation Department to Sentinel Offender 

Services, the company that provides the 

county’s GPS system, indicated that one in 

four GPS devices were faulty – they generated 

too many false alarms or had defective batteries. Sentinel blamed poorly-trained probation 

officers and probationers who didn’t follow 

instructions for properly charging their GPS 

monitors. [See: PLN, Jan. 2014, p.18]. The 

company has increased training and replaced 

the monitors with more recent models.

Private companies that provide GPS 

monitoring services may be more interested 

in generating profit than ensuring public 

safety – one of several concerns related to 

the increased use of electronic monitoring. 

[See: PLN, March 2012, p.20].

While faulty equipment doesn’t help 

matters, Los Angeles County also has the 

GPS system set up to send an email alert 

to a probation officer when a probationer 

passes through, or travels close to, a prohibited area – such as when sex offenders 

are near schools or parks. There are some 

4,900 prohibited areas in the county, about 

one every square mile. This makes it almost 

impossible for a probationer to go anywhere 

without triggering alerts, and thousands of 

those alarms are generated each month.

“Just riding the Red Line [public transportation] would set off 10 alerts, passing 

schools on the way,” noted John Tuchek, 

a vice-president for 

the Association of 

Probation Supervisors who also works 

as a probation officer. 

“If we keep getting 

false positives, we’re 

not going to know 

the real ones that 

mean danger.”

“ When these 

alerts are in the 

tens of thousands, it 

seems like an unwinnable situation,” said 

Matthew DeMichele, a former researcher 

for the American Probation and Parole 

Association, and coauthor of the Justice 

Department’s guide on electronic monitoring. GPS monitoring systems simply 

don’t provide the level of accountability and 

security that they claim, he added: “In some 

ways, GPS vendors are selling law enforcement agencies, politicians, the public a false 

bag of goods.” 

Sources: Associated Press, www.latimes.com, 

www.utsandiego.com, http://arstechnica.com

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 42 of 65
April 2014 42 Prison Legal News

No Death Penalty for Maine Prisoner

by Lance Tapley

I

n , within a supposedly highsecurity prison in the giant federal 

correctional complex in Florence, Colorado, 

Gary Watland, a “boarder” from Maine, 

murdered another prisoner, white supremacist Mark Baker.

After five and a half years – and after, 

probably, millions in taxpayer-paid legal 

costs, including for his defense team – 

Watland, the only Maine prisoner facing a 

possible death penalty, saw federal prosecutors in Denver on February 5, 2014 accept 

his offer to spend life behind bars without 

the possibility of parole.

However, Watland, 51, already had 

accumulated enough time to spend life in 

prison. He had been placed in the federal 

system after being sentenced to 35 years for 

a 2006 escape attempt at the Maine State 

Prison, in Warren, where he was serving 25 

years for killing a drinking buddy in 2004.

At Warren, Watland had plotted with 

his wife to have her smuggle a gun behind 

her belt buckle into the prison visitors’ 

room, where he allegedly planned to kill 

guards and anyone else in his way during 

the breakout. After a prisoner tipped off authorities, Susan Watland was apprehended 

with the loaded gun in the parking lot.

In Colorado, Watland snuck up on 

Baker while he was playing poker and 

stabbed him in the neck with a homemade 

knife. The plea agreement states: “One blow 

was to the carotid artery and a second blow 

severed the brain stem. Mr. Baker fell to the 

floor dead.” Watland maintained he was in 

a “kill or be killed” situation. Baker’s prison 

gang, the Nazi Low Riders, was allegedly 

harassing gays. Defending his life, Watland 

came out of the closet.

The feds had wanted to use the arguments that Watland was still dangerous and 

had a low chance of rehabilitation to obtain 

a death sentence from a jury, but a judge 

ruled them out. Shortly after the ruling, 

prosecutors accepted the plea bargain.

Watland’s case recently stimulated the 

Maine Prisoner Advocacy Coalition to urge 

the state Department of Corrections to ban 

sending Maine prisoners to jurisdictions 

with the death penalty. Maine doesn’t have 

capital punishment; the federal government does.

“He’s a classic example of why the 

death penalty shouldn’t be used,” commented a prisoner who knew him at Warren. 

“I believe that Gary Watland is mentally 

ill.” In 2007 his mother told The Portland 

Phoenix he suffered from bipolar disorder. 

He denies any mental illness.

Originally from California, Watland 

re-established his relationship with his parents and teenage daughter during his years 

awaiting trial in the solitary-confinement 

ADX prison, which also is in the federal 

complex in Florence.

“He’s grown as a person over the time I’ve 

known him,” defense attorney Patrick Burke 

told the Phoenix. “I think he’ll continue to make 

a contribution to his family and friends.”

Any future contribution Watland 

makes will likely be from the austere 

isolation of the most dreaded supermax 

in America. Although the U.S. Bureau of 

Prisons will decide where Watland will be 

kept, expectations are he will continue to 

be held at ADX. If he were allowed into a 

prison’s general population, he would risk 

being killed in gang revenge. 

This article was originally published by The 

Portland Phoenix (http://portland.thephoenix.

com) on February 12, 2014; it is reprinted 

with permission of the author.

Qualified Immunity Denied to 

Michigan Guard for Improper 

Strip Search of Amputee Prisoner

The Sixth Circuit Court of Appeals 

affirmed the denial of qualified immunity to a Michigan prison guard who 

allegedly strip searched a prisoner without 

a legitimate penological reason for doing 

so. The appellate court also vacated the 

denial of qualified immunity to a warden 

who sanctioned the prisoner’s placement 

in isolation, remanding for consideration of 

the warden’s qualified immunity defense.

When Martinique Stoudemire entered 

Michigan’s prison system at the age of 23 in 

July 2002, she had a lengthy documented 

history of health problems. Absent proper 

care, she was at significant risk of experiencing kidney and liver damage, heart 

attacks, amputations and chronic pain. 

After arriving at the Huron Valley Women’s 

Correctional Facility (Huron), her health 

quickly deteriorated.

By the time she was paroled in 2007, 

Stoudemire had undergone three amputations, eventually losing both legs below the 

knee. She attributed her health complications to the failure of prison staff, nurses and 

associated doctors to provide adequate medical care. The appeal in her lawsuit focused 

on her final amputation in December 2007, 

when she contracted a MRSA infection and 

was quarantined in Huron’s segregation unit. 

[See: PLN, May 2007, p.1].

Michigan Department of Corrections 

(MDOC) policy provides for prisoners with 

MRSA to be quarantined, and the warden 

at Huron, Susan Davis, designated the 

facility’s segregation unit as a quarantine location. Pursuant to that policy, Stoudemire 

spent two weeks in segregation.

While there she received “extremely poor” 

medical care: The cell was not equipped for 

disabled prisoners, and she was not provided 

with assistive devices to safely move between 

her bed, wheelchair, toilet and shower. Medical staff treated her with contempt, accused 

her of malingering and responded with 

hostility when she sought assistance. She was 

once forced to urinate in a bowl, defecated on 

herself once, received only one shower in the 

two weeks she spent in segregation and had 

to dress her own wounds.

Warden Davis argued that she was entitled to qualified immunity on Stoudemire’s 

claim that the segregation conditions 

amounted to deliberate indifference to her 

serious medical needs. The Sixth Circuit 

found the district court did not make factual 

findings pertaining to Davis or her mental 

state or knowledge of the facts alleged by 

Stoudemire, and remanded that issue to the 

lower court to make such findings and rule 

on Davis’ qualified immunity defense.

The Court of Appeals then addressed 

a claim against prison guard Ariel N. Dunagan, who strip searched Stoudemire on 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 43 of 65
Prison Legal News 43 April 2014

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February 10, 2007. An MDOC reprimand 

noted that “other persons could have observed” Stoudemire during the strip search 

because Dunagan failed to block a window 

in the cell door, and Dunagan admitted that 

such “visual contact” was possible.

Stoudemire alleged the search was 

“undertaken to harass or humiliate” her. The 

appellate court wrote that prisoners have a 

diminished right to be secure in their persons 

against unreasonable searches, but “a strip 

search is a particularly extreme invasion 

of that right.” The Sixth Circuit said such 

searches require exigent circumstances.

Three facts, the Court of Appeals found, 

indicated that the search was invasive. First, 

the location allowed people in the hall outside Stoudemire’s cell to view the search. 

Next, Dunagan refused to tell Stoudemire 

the reasons for the strip search. Dunagan 

also smirked during the search, which may 

suggest “personal animus and implicate the 

dignitary interest ‘inherent in the privacy 

component of the Fourth Amendment’s proscription against unreasonable searches.’”

The Court emphasized it was not 

reviewing MDOC policy, but rather considering the acts of a guard who violated 

that policy and was sued in her individual 

capacity. It found the right at issue was 

clearly established, precluding qualified 

immunity. The district court’s order was 

vacated in part, affirmed in part, and remanded for a determination of Warden 

Davis’ qualified immunity defense and of 

Davis and Dunagan’s immunity defense to 

Stoudemire’s state law claims. See: Stoudemire v. Michigan Dept. of Corrections, 705 

F.3d 560 (6th Cir. 2013).

Following remand, on September 

25, 2013 the district court granted Stoudemire’s motion to reopen the record to 

obtain “new evidence in opposition to the 

MDOC Defendants’ motion to dismiss and 

for summary judgment.” The case remains 

pending. 

The Redbook – A Manual on Legal Style, by 

Bryan Garner (Thomson West, 2nd Ed., 2006). 

510 pages (spiral bound), $15.00. 

Book review by John E. Dannenberg

The REDBOOK is a comprehensive 

reference manual that provides guidance 

with every facet of preparing legal documents. Reviewed by judges and attorneys, 

the Redbook authoritatively instructs litigants 

in the mechanics of writing (e.g., punctuation, spelling, citations, footnotes); grammar 

(all parts of speech, “legalese,” troublesome 

words); and preparing specific documents 

such as business letters, case briefs, affidavits, 

pleadings and motions. The detailed table of 

contents – 24 pages, not included in the 510 

page count – is thoroughly indexed to help 

locate answers to your questions without 

time-consuming searches.

The Redbook is much more than a reference tool, though. Its bold-faced head notes 

draw your eye quickly to important subjects. 

Short tutorial paragraphs follow, educating you 

about each sub-category within a given topic. 

This tutorial design provides a superb selfinstruction course on English language writing, 

independent of its focus on legal writing. This 

text is recommended as the single reference 

book (beyond a dictionary or thesaurus) necessary for any serious incarcerated writer.

Have you ever stopped to ponder whether you’re inaptly (or ineptly) using an incorrect 

word? Is it “insidious” or “invidious”? Did you 

mean “insoluble” or “insolvable”? The Redbook

expends an impressive 100 pages reviewing 

troublesome words that we all stumble over 

– offering refreshing distinctions among 

choices with concise explanations of their 

differences. If you are not sure where to begin 

to find a word that’s troubling you, a separate 

index includes 3,600 such words with page 

number references.

For jailhouse lawyers, the 55-page 

chapter on appellate briefs will prove useful 

in creating an effective presentation style 

beyond the legal points of your argument. 

Separate chapters guide you through pleadings and motions; additional chapters cover 

business letters and contracts. Each of the 

eleven chapters in Part 3 of the manual, 

“Preparing Legal Documents,” contains 

printed examples that depict format and 

style as well as content.

The Redbook is an invaluable (i.e., 

“priceless” versus merely “valuable”) reference and educational tool for people who 

want to prepare legal documents and concurrently improve their English language 

writing skills.

The 3rd edition of the Redbook was published in August 2013 and is priced around 

$45.00. Both editions are available from online booksellers such as Amazon, Alibris and 

Barnes & Noble. Note that the spiral binding 

of this book (2nd and 3rd editions) is made of 

metal wire, which may not be allowed in some 

prisons and jails. If removed, the wire can be 

easily replaced with a shoelace. 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 44 of 65
April 2014 44 Prison Legal News

Court Awards $802,176 in Fees, Costs in PLN 

Censorship Suit Against Oregon County

I

n March , a U.S. District Court 

ordered Columbia County, Oregon to 

pay $763,803.45 in attorney’s fees and 

$38,373.01 in costs in a lawsuit raising 

claims of illegal censorship at the Columbia 

County Jail.

Prison Legal News had filed suit 

against Columbia County and Sheriff Jeff 

Dickerson in January 2012 after jail employees rejected PLN’s monthly publication 

and letters mailed to prisoners at the facility. 

Further, the jail refused to provide notice or 

an opportunity to appeal the censorship of 

PLN’s correspondence. [See: PLN, March 

2013, p.50].

The Columbia County Jail rejected 

PLN’s publication and letters pursuant to 

a policy that only allowed prisoners to send 

and receive mail in the form of postcards. 

Further, the jail did not allow magazines. In 

April 2013, following a bench trial, the district court entered judgment for PLN and 

prohibited enforcement of the policy – the 

first time that a jail’s postcard-only policy 

has been struck down as unconstitutional 

following a trial on the merits. [See: PLN, 

June 2013, p.42].

During the litigation, the county 

admitted “that inmates have a First Amendment right to receive magazines and 

inmates and their correspondents have a 

Fourteenth Amendment right to procedural 

due process.” However, the jail defended 

its postcard-only policy and claimed there 

was no official policy banning magazines 

at the facility.

 Following the trial, the district court 

found that the defendants’ purported 

reasons for adopting the postcard-only 

policy – preventing the introduction of 

contraband and saving time during mail 

inspection – were not supported by the 

evidence. Columbia County subsequently 

agreed to pay $15,000 to resolve PLN’s 

claim for monetary damages.

In its March 24, 2014 order awarding 

$802,176.46 in attorney’s fees and costs to 

PLN, the district court rejected the county’s 

arguments and objections to the award.

Jesse Wing, lead counsel for PLN, 

praised the court for recognizing that the 

case had advanced the public interest and 

the rights of many other people. “In his 

ruling today, Judge Michael H. Simon remarked that, ‘This action brought specific 

injunctive relief not only to PLN but also to 

all inmates at the Jail and their family and 

friends and others who wish to correspond 

with them...,’” Wing noted.

“The court’s award of over $802,000 

in attorney’s fees and expenses in this case 

represents the cost of failing to comply with 

the Constitution of the United States,” said 

PLN editor Paul Wright. “When county 

officials willingly violate the Constitution 

and refuse to remedy those violations, 

instead choosing to engage in protracted 

litigation, ultimately there is a greater cost 

to the taxpayers.”

Columbia County has appealed the 

district court’s judgment and injunction 

prohibiting enforcement of the jail’s postcard-only policy, and the appeal remains 

pending before the Ninth Circuit.

PLN was ably represented by Jesse 

Wing and Katie Chamberlain with the 

Seattle law firm of MacDonald Hoague & 

Bayless; by the late Marc D. Blackman with 

the Portland law firm of Ransom Blackman, 

LLP, who passed away on January 1, 2014; 

and by Human Rights Defense Center 

general counsel Lance Weber. See: Prison 

Legal News v. Columbia County, U.S.D.C. 

(D. Ore.), Case No. 3:12-cv-00071-SI. 

Oregon Appellate Court Declines to 

Correct Unpreserved Sentencing 

Error Related to Restitution

by Mark Wilson

I

n May , the Oregon Court of 

Appeals agreed that a trial court had 

committed plain error when it recommended that a defendant pay restitution 

in an amount to be determined by the 

Board of Parole and Post-Prison Supervision (Board). The appellate court refused 

to correct the error, however, because the 

defendant did not object before the trial 

court.

Ramon E. Coronado was convicted 

of three assault charges. At a January 25, 

2010 sentencing hearing on two of the 

convictions, the state requested restitution 

of $5,931.79 to the victim and $38,676.90 

to the victim’s insurance company. Coronado’s attorney said “No objection.” During 

sentencing on the remaining conviction 

the following month, the court stated, “I’m 

going to recommend ... that [defendant] 

make restitution to the victim in this case 

in an amount to be determined by the 

[Board].”

Despite having failed to object to the 

second restitution order, Coronado argued 

that the Court of Appeals should exercise 

its discretion to review the order as plain 

error under Oregon Rule of Appellate 

Procedure 5.45(1).

The appellate court recognized that 

Coronado “correctly points out – and 

the state concedes – that no statute 

authorizes the court to recommend that 

[the Board] determine the amount of 

restitution.”

The Court of Appeals declined to 

correct the error, however, finding that 

Coronado had failed to object before the 

trial court, which would have made this 

“an easy error for the court to fix.” That 

is, if he “had brought it to the court’s 

attention, the court could have imposed 

the restitution instead of recommending 

[the Board] do so. Now, defendant asks 

this court not to remand to correct the 

error, but to strike the portion of the 

judgment relating to restitution.” The 

appellate court refused to do so, as “that 

could result in a windfall” for Coronado 

by vacating any restitution as to his third 

assault charge. See: State v. Coronado, 

256 Ore. App. 780, 302 P.3d 477 (Or. 

Ct. App. 2013).

However, the Court of Appeals’ refusal to correct the error may still result in 

a “windfall” for Coronado, given that the 

Board only has the power bestowed upon 

it by the legislature. As that authority does 

not include the power to impose restitution 

in criminal cases, any order from the Board 

purporting to do so presumably would be 

ultra vires and thus invalid. 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 45 of 65
Prison Legal News 45 April 2014

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New York Prison Officials Can Force-Feed 

Hunger Striking Prisoner

The New York Court of Appeals, 

the state’s highest court, held that a 

hunger striking prisoner’s rights were not 

violated by a judicial order allowing the 

state to feed him by nasogastric tube to 

preserve his life.

The Court’s decision labeled New York 

state prisoner Leroy Dorsey a “serial hunger 

striker.” Indeed, Dorsey went on a hunger 

strike three times in 2010, in an effort to 

obtain a transfer to another facility and 

bring attention to his claims of abuse and 

mistreatment.

Dorsey began one of the hunger strikes 

in October 2010; a month later he had lost 

11.6% of his body weight. The New York 

Department of Corrections and Community Supervision (DOCCS) sought an order 

to insert a nasogastric tube and take other 

steps to hydrate him.

At a hearing on the petition, the 

DOCCS submitted testimony indicating that Dorsey was at imminent risk of 

starving to death or experiencing “a fatal 

cardiac arrhythmia due to electrolyte and 

fluid imbalance.” Dorsey opposed the petition, arguing he was not suicidal and the 

DOCCS had no authority to interfere with 

his hunger strike protest.

The Supreme Court granted the 

DOCCS’ petition. Following that decision, 

Dorsey voluntarily consumed a nutritional 

supplement and ate solid food. The Appellate Division deemed Dorsey’s appeal 

moot but still ruled on the merits with 

respect to one issue, holding that when 

“an inmate’s refusal to eat has placed that 

inmate at risk of serious injury and death ... 

the State’s interest in protecting the health 

and welfare of persons in its custody outweighs an individual inmate’s right to make 

personal choices about what nourishment 

to accept.”

The Court of Appeals applied the 

four-part test set forth in Turner v. Safley, 

482 U.S. 78 (1987). It agreed the state 

has a significant interest in preserving 

life and preventing suicidal acts, and had 

been found liable in the past for failing 

to do so. The Court also noted a hunger 

strike can have a “significant destabilizing impact” on a prison. Further, other 

means were available for Dorsey to protest his treatment, such as grievances or 

litigation, and the Court distinguished 

previous cases in which it held that a 

competent adult may refuse medical 

treatment.

“In some circumstances we do not 

doubt that the right to refuse medical treatment is a prerogative that is compatible with 

incarceration,” the Court of Appeals wrote. 

“But, even if we assume that some permutation of that right was implicated here, its 

invocation as part of a strategy to strongarm DOCCS into granting a privilege to 

which Dorsey was not otherwise entitled 

is obviously not.”

Accordingly, the lower courts’ orders 

were affirmed. See: Matter of Bezio v. 

Dorsey, 21 N.Y.3d 93, 989 N.E.2d 942 

(N.Y. 2013). 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 46 of 65
April 2014 46 Prison Legal News

Ninth Circuit: Delay in Providing Dental Care 

May Constitute Deliberate Indifference

I

n an unpublished ruling, a Ninth 

Circuit Court of Appeals panel reversed 

in part a district court’s grant of summary 

judgment to prison officials who, a prisoner 

alleged, were deliberately indifferent to his 

serious medical needs.

In 2008, Nevada prisoner Martinez 

Aytch filed numerous requests for dental 

treatment for a “rotten” tooth that was 

causing him “awful” and “unbearable” pain. 

Nearly six weeks after filing an informal 

grievance alerting prison officials to his 

submission of five medical “kites,” Aytch 

received pain medication and antibiotics 

but still had not seen a dentist. His informal 

grievance was denied.

Aytch then filed a § 1983 complaint 

alleging that prison officials had been deliberately indifferent to his dental needs; he 

also alleged they were deliberately indifferent to his vision problems. The district court 

granted summary judgment in favor of the 

prison officials, and Aytch appealed.

Noting that Aytch’s vision problems 

had been addressed when he received 

eyeglasses, the Ninth Circuit affirmed the 

grant of summary judgment with respect 

to that issue.

Relying on precedent, however, such as 

Hunt v. Dental Dep’t, 865 F.2d 198 (9th Cir. 

1989), the appellate court held that Aytch 

had raised a triable issue as to whether or 

not the delay in providing dental care – 

when considered in light of the pain he had 

to endure as a result of that delay – constituted deliberate indifference to his serious 

medical needs. 

The Court of Appeals noted that budgetary constraints do not absolve prison 

officials from liability for such indifference, and remanded the case to the district 

court for further proceedings. See: Aytch v. 

Sablica, 498 Fed.Appx. 703 (9th Cir. 2012) 

(unpublished).

Following remand, and after Aytch 

filed numerous motions related to discovery 

issues and his ability to access the prison law 

library and obtain legal copies, the case went 

to trial in November 2013. The jury found 

in favor of the defendants and Aytch filed a 

notice of appeal. In January 2014 the district 

court denied his motion for transcripts at 

the government’s expense, as it would not 

certify that the appeal was not frivolous 

pursuant to 28 U.S.C. § 753(f ). Aytch 

litigated the case, including the trial, pro 

se. See: Aytch v. Sablica, U.S.D.C. (D. Nev.), 

Case No. 2:08-cv-01773-VCF-VCF.

On March 6, 2014, in another case 

involving a prisoner alleging inadequate 

dental care, the Ninth Circuit held in an en 

banc decision that prison officials sued for 

money damages may raise a defense of lack 

of available resources to justify the failure 

to provide adequate medical care. This is 

contrary to the appellate ruling in Aytch and 

other established precedent, and PLN will 

report the en banc decision in greater detail 

in a future issue. See: Peralta v. Dillard, 2014 

U.S. App. LEXIS 4226 (9th Cir. 2014). 

Burden-Shifting Jury Instruction Requires 

New Trial in Prisoner’s Lawsuit

The Seventh Circuit Court of 

Appeals has ordered a new trial in a 

civil rights action that alleges a prisoner 

was subjected to improper strip searches 

to humiliate him, then was subjected to 

an “especially protracted, gratuitous and 

humiliating strip search” in retaliation for 

having filed grievances complaining about 

the earlier searches.

The Court of Appeals had previously 

reversed an Illinois district court’s grant of 

judgment as a matter of law to the defendants. See: Mays v. Springborn, 575 F.3d 

643 (7th Cir. 2009). Following remand, the 

case went to trial and the jury returned 

a verdict in favor of the defendants. The 

plaintiff, Tiberius Mays, formerly incarcerated at the Illinois state prison at Stateville, 

filed another appeal arguing that he was 

prejudiced by the instructions and special 

interrogatories submitted to the jury.

Mays’ attorney had failed to object to 

the instructions and interrogatories. As 

such, the appellate court said it could reverse 

only if there was “plain error” – meaning error that was both indisputable and likely to 

have influenced the outcome of the case.

The appellate court found misleading an interrogatory related to an Eighth 

Amendment claim that asked the jury to 

state whether each defendant did or did not 

“have a valid penological reason for the group 

search conducted [in a specified month or 

on a specified date].” As the Seventh Circuit 

held in the previous reversal in this case, 

even if there was a valid penological reason 

for the strip searches, “the manner in which 

the searches were conducted must itself pass 

constitutional muster.”

The evidence showed the group searches had gratuitously exposed the nudity 

of each prisoner being searched, and the 

guards conducted the searches while wearing dirty gloves in a freezing basement and 

uttering demeaning comments about the 

prisoners’ genitals.

In instructing the jury on Mays’ First 

Amendment claim, the district court placed 

the burden of proof regarding causation 

on the wrong party by requiring Mays to 

negate the possibility that the retaliatory 

strip searches would have occurred even if 

there had been no retaliatory motive.

The Court of Appeals held the jury 

should have been instructed that Mays had 

the burden of proving retaliation was the 

motivating factor for the strip search, but 

even if he presented such proof, the defendants could still prevail if they persuaded 

the jury that it was more likely than not that 

the strip search would have occurred even 

had there been no retaliatory motive.

The failure to give such an instruction 

was found to be plain error, and that error 

was compounded by the special interrogatories submitted to the jury by the district 

court, which asked four times whether 

retaliation was “the sole motivating factor” 

for the strip search. Therefore, the judgment 

was reversed and the case remanded for 

another trial. See: Mays v. Springborn, 719 

F.3d 631 (7th Cir. 2013).

Mays obtained new counsel following 

remand and a jury trial has been scheduled 

for May 20, 2014. This civil rights action, 

initially filed in 2001, has been pending for 

13 years. 

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 47 of 65
Prison Legal News 47 April 2014

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Eighth Circuit: Federal Sentence Consecutive to 

Later-Imposed State Sentence

by Mark Wilson

On June , , the Eighth Circuit 

Court of Appeals held that a prisoner was 

not entitled to credit toward his federal sentence for time already served on state charges.

In March 2007, Charles Lee Elwell 

was arrested in Iowa. A federal indictment 

was issued against him several days later; 

Elwell was transferred to federal custody 

and the state court stayed its prosecution 

until the federal charges were resolved.

Elwell pleaded guilty to the federal 

charges and was sentenced to 66 months in 

prison in November 2007. The district court 

did not address whether the federal sentence would run concurrent or consecutive 

to any yet-to-be-imposed state sentence, 

as permitted by Setser v. United States, 132 

S.Ct. 1463 (2012). [See related article in 

this issue of PLN].

Elwell was then returned to Iowa’s 

custody and sentenced to two concurrent 

five-year prison terms. The state court 

expressed its intent to impose the state sentence concurrent with the already-imposed 

federal sentence.

Later discovering that Elwell’s state 

and federal sentences were not concurrent, 

however, the state court resentenced Elwell to 

time served on February 6, 2009. As a result, 

Elwell’s state sentence ended that day and he 

was transferred to the federal prison system.

The Bureau of Prisons (BOP) subsequently denied Elwell’s request for credit 

for time served toward his federal sentence 

and for a nunc pro tunc designation pursuant to 18 U.S.C. § 3621. Elwell then filed 

a habeas corpus petition, which was denied 

by the district court.

On appeal, the Eighth Circuit first 

applied the primary jurisdiction doctrine, 

finding that Iowa, not the federal government, had primary jurisdiction of Elwell 

from March 2007 to February 6, 2009. 

“Pursuant to the doctrine of primary 

jurisdiction, service of a federal sentence 

generally commences when the United 

States takes primary jurisdiction and a 

prisoner is presented to serve his federal 

sentence, not when the United States merely takes physical custody of a prisoner who 

is subject to another sovereign’s primary 

jurisdiction,” the Court of Appeals wrote.

Under 18 U.S.C. § 3584(a), “multiple 

terms of imprisonment imposed at different times run consecutively unless the court 

orders that the terms are to run concurrently.” As such, the appellate court found 

that “Elwell’s federal sentence must run 

consecutive to his state sentence.”

Given the express bar on double 

credit imposed by 18 U.S.C. § 3585(b), 

the Court of Appeals also rejected Elwell’s 

challenge to the BOP’s denial of federal 

credit for time served while he was in state 

custody between March 2007 and February 6, 2009.

Finally, the Eighth Circuit held the 

BOP did not abuse its discretion in denying 

Elwell’s request for a nunc pro tunc designation of the various facilities where he was 

incarcerated prior to February 6, 2009 as 

the locations for serving his federal sentence 

under 18 U.S.C. § 3621. See: Elwell v. 

Fisher, 716 F.3d 477 (8th Cir. 2013). 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 48 of 65
April 2014 48 Prison Legal News

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Sexual Abuse by Oregon Jail Guard Nets Probation; 

Defense Attorney Blames Victim

Aformer Oregon jail guard was sentenced to probation for sexually abusing 

a female prisoner after pleading guilty to a 

misdemeanor charge; his defense attorney 

blamed the incarcerated victim while the 

prosecutor defended the light sentence. The 

guard, Eddie James Miller, 60, was later accused of sexually harassing a co-worker.

As previously reported in PLN, Miller’s 

21-year career at the Inverness Jail in Portland, Oregon came to an end when he was 

accused of walking in on a 34-year-old 

female prisoner as she was using the bathroom in the jail’s medical unit and forcing 

her to perform oral sex on him on January 

9, 2012 [See: PLN, April 2012, p.1].

The distraught prisoner immediately 

reported the incident to detectives, according to Mike Schults, a chief deputy with the 

Multnomah County Sheriff ’s Office.

Authorities said the woman’s DNA was 

found on Miller, and she testified before a 

grand jury. On February 29, 2012, Miller 

was indicted on charges of official misconduct in the first degree and custodial sexual 

misconduct in the first degree.

The latter offense is a felony when an 

Oregon corrections employee or contractor engages in sexual intercourse with a 

prisoner; all other sexual contact constitutes 

the misdemeanor offense of custodial sexual 

misconduct in the second degree. Prisoners 

are not subject to prosecution, and consent 

is not a defense due to the power imbalance 

between guards and prisoners.

Miller entered a not guilty plea through 

his attorney, Lisa Ludwig. He was fingerprinted, photographed and booked into jail but 

released on pretrial supervision pending trial.

“We take these things very seriously,” 

said Schults. During the investigation, Miller 

was initially put on paid leave but later placed 

on unpaid leave following the indictment. 

He resigned in April 2012. Schults said the 

female prisoner was transferred to the nearby 

Washington County Jail for her safety.

Miller was allowed to plead guilty to a 

misdemeanor charge of official misconduct 

in the first degree and sentenced to two 

years’ probation on September 25, 2012. 

Multnomah County Deputy District Attorney Don Rees defended the plea agreement 

by claiming that Miller may in fact have 

been the victim of a 

scheme to obtain a 

cash settlement from 

the county.

No t i n g t h a t 

the prisoner has a 

15-year criminal 

history, including 

fraud and forgery 

convictions, investigators said they 

became suspicious 

of her intentions 

when her boyfriend 

and another prisoner 

reported that she had 

told them she was 

using Miller to get 

rich off the county. 

Several prisoners at 

the Washington County Jail also informed 

officials that Miller told them of a plan to 

trap another guard in a similar scheme – as 

if jail guards are somehow unable to resist 

having sex with prisoners.

When Miller was sentenced, Ludwig 

called the victim a “con artist” but conceded 

that Miller was guilty of official misconduct. 

In addition to probation, Miller was ordered to 

pay a $2,500 compensatory fine to the victim 

and forfeit his law enforcement certification.

Meantime, Portland attorney Jennifer 

Palmquist notified the county of the prisoner’s intent to file suit. She said Ludwig’s 

reference to her client as a con artist was 

nothing more than “blaming the victim.” 

Palmquist stated her client wants to fix a 

broken system, noting that jail staff did not 

offer her medical treatment or counseling 

when she reported the sexual abuse.

Meantime, after Miller was placed on 

leave, a former co-worker at the Inverness Jail 

came forward to report that he had kissed 

and touched her in a sexually aggressive, 

inappropriate and non-consensual manner.

In January 2013, the former co-worker, 

Shireela Kennedy, filed a $900,000 lawsuit 

against Miller, Multnomah County and 

Aramark Correctional Services, which 

contracts with the jail. The suit claimed 

that Miller began making inappropriate 

comments shortly after she began working 

at the facility in September 2011.

According to her lawsuit, Kennedy’s 

supervisors destroyed a written sexual harassment complaint she had filed against 

Miller and ignored her numerous verbal 

complaints. The suit also alleged that Aramark employee Eddie Climer brushed off 

her reports of sexual harassment.

Kennedy said she began having panic 

attacks, depression and difficulty sleeping 

following Miller’s inappropriate actions. She 

was terminated from her job in February 

2012; since then, according to her complaint, 

she has suffered loss of earnings, job opportunities and other employment benefits.

Kennedy’s lawsuit was resolved in 

October 2013 under undisclosed terms. 

See: Kennedy v. Aramark, Multnomah 

County Circuit Court (OR), Case No. 

130101276. 

Source: www.oregonlive.com

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 49 of 65
Prison Legal News 49 April 2014

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 50 of 65
April 2014 50 Prison Legal News

Federal Court Must Give Reasons for Special 

Conditions of Supervised Release

by David Reutter

The Sixth Circuit Court of Appeals 

has reversed a district court’s imposition 

of four special conditions of supervised 

release, due to the court’s failure to explain 

its reasons for imposing them.

Rashan R. Doyle was convicted in New 

York of attempted sexual abuse in the first 

degree; as a result of that qualifying felony 

conviction, the Sex Offender Registration 

and Notification Act required him to register as a sex offender. When Doyle moved to 

Tennessee, however, he failed to register.

Doyle pleaded guilty to a charge of failure to register as a sex offender in violation 

of 18 U.S.C. § 2250(a). A federal district 

court in Tennessee sentenced him to 37 

months in prison followed by ten years of 

supervised release, plus a $3,000 fine.

The term of supervised release included 

four special conditions that prohibited 

Doyle from possessing any pornography, 

even legal pornography; having direct or 

indirect contact with any child under eighteen, including loitering near school yards, 

playgrounds, swimming pools, arcades or 

other places frequented by children; using 

sexually-oriented telephone or computerbased services; and possessing or using 

a computer with access to any “on-line 

service” or other forms of wireless communication without the approval of his 

probation officer.

Because Doyle did not object to the 

special conditions at sentencing, the Sixth 

Circuit analyzed them under the plain-error 

standard. The appellate court held that “a 

district court errs if it fails, at the time of sentencing, to state in open court its rationale for 

mandating a special condition of supervised 

release.” In this case, the district court had 

erred procedurally because it failed to explain 

its reasoning for the special conditions at 

issue; the Court of Appeals found the error 

was clear because the record did not show 

why the conditions were imposed.

Further, the district court’s failure to 

explain its rationale for the special conditions 

“may have had a substantial influence on the 

outcome of the proceedings.” The Sixth Circuit wrote, “there is a reasonable probability 

that the court may not have imposed the 

special conditions if it had fulfilled its obligations to explain the basis for the conditions 

or at least made sure the record illuminated 

the basis for the conditions.” Finally, as the 

special conditions were “likely more severe 

than the ones the district court would have 

imposed had it fulfilled its obligation to 

explain its reasoning,” the error was not 

harmless and affected the fairness, integrity 

or public reputation of the proceedings.

The four special conditions of Doyle’s 

supervised release were vacated and the 

case remanded for resentencing. The district 

court was reminded that if it does impose 

special conditions, they “‘must be tailored 

to the specific case before the court.’” The 

Sixth Circuit noted that it did not see how 

some of the special conditions related to 

the nature and circumstance of Doyle’s 

offense of failure to register; the one exception was contact with children or being in 

places where children congregate, but that 

provision should not apply to Doyle’s own 

children. See: United States v. Doyle, 711 

F.3d 729 (6th Cir. 2013).

Following remand, Doyle was resentenced on August 30, 2013 to 37 months in 

prison and five years of supervised release, 

plus a $3,000 fine. 

Idaho Supreme Court Upholds Dismissal 

of § 1983 Claims in Jail Suicide Case

by Mark Wilson

The Idaho Supreme Court has affirmed a lower court’s dismissal of § 

1983 claims stemming from the death of a 

detainee who committed suicide at the Ada 

County Jail (ACJ).

On September 28, 2008, Bradley 

Munroe was arrested for robbery. He was 

hospitalized because he was intoxicated, 

uncooperative and exhibiting odd behavior. 

Munroe claimed he would commit suicide 

if released, but the hospital cleared him and 

he was transported to ACJ.

During the booking process, Munroe 

was screaming, being rowdy and not making 

sense. Given his bizarre behavior, booking was 

suspended until the next morning and he was 

placed in a holding cell for observation.

James Johnson, a psychiatric social 

worker at the jail, assessed Munroe’s suicide 

risk. Johnson concluded that Munroe’s risk 

level was insufficient to justify admitting him 

to ACJ’s Health Services Unit (HSU).

After Johnson’s assessment, Munroe 

answered some suicide risk questions in 

the affirmative during the booking process. 

Guards did not contact staff in the HSU, 

however, based on Johnson’s evaluation.

Upon his request, Munroe was held in a single 

cell in protective custody. Guards were required to 

conduct well-being checks every 30 minutes.

At around 9 a.m. on September 29, 

2008, Munroe’s mother, Rita Hoagland, 

called ACJ to express concerns that her 

son was suicidal. Hoagland’s concerns were 

reported to Johnson, but he did not alter his 

initial assessment.

That evening, Munroe was found hanging by a bed sheet from the top bunk in his 

cell. Efforts to revive him were unsuccessful.

On January 23, 2009, Hoagland filed 

suit in state court, in her personal capacity 

and as the representative of Munroe’s estate, 

claiming that guards were watching football 

when her son committed suicide. The initial 

complaint alleged § 1983 claims, state law 

torts and wrongful death claims.

When the defendants moved for summary judgment, Hoagland withdrew all of 

her state law claims and proceeded with 

only the § 1983 claims.

The trial court granted qualified immunity to Johnson and dismissed Hoagland’s 

claims against the other defendants. It 

awarded $15,815.31 to the defendants in 

costs as a matter of right and $77,438.12 in 

discretionary costs, but not attorneys’ fees.

On appeal, the Idaho Supreme Court 

found “the district court properly held 

that Munroe’s estate is not a valid § 1983 

plaintiff,” because “Munroe’s § 1983 claim 

abated with his death.”

“This Court has clearly held that 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 51 of 65
Prison Legal News 51 April 2014

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§ 1983 is a personal cause of action. Furthermore, there is no federal law governing 

the issue of abatement. Therefore, the law 

of Idaho governs to the extent that it is not 

inconsistent with federal law. At common 

law in Idaho, a personal tort cause of action 

abates with the death of the plaintiff.”

The state Supreme Court also held that 

Hoagland had “failed to establish a violation of her constitutional rights underlying 

her § 1983 claim,” as she did not prove the 

defendants intentionally interfered with her 

relationship with Munroe.

Given Hoagland’s waiver of her state 

law wrongful death claim, the Court found 

that judicial estoppel barred her from asserting “that her § 1983 claim incorporates 

the wrongful death claim.”

The Supreme Court upheld the trial 

court’s denial of attorneys’ fees but reversed 

the discretionary award of costs to the 

defendants, noting that “the district court 

failed to make adequate findings.” On 

remand, the lower court was directed to 

reconsider the discretionary costs and make 

“express findings justifying the award.” The 

Court also reduced to $14,897.31 the costs 

awarded to the defendants as a matter of 

right. See: Hoagland v. Ada County, 154 

Idaho 900, 303 P.3d 587 (Idaho 2013). 

Washington PRA Violations Result in Costs and Penalties

by Mark Wilson

The Washington Court of Appeals, 

Division Two, held on July 30, 2013 that 

a state agency violated Washington’s Public 

Records Act (PRA) by failing to respond 

to a prisoner’s request within the statutory 

time limit and by redacting information not 

exempt from disclosure. The appellate court 

instructed the lower court to determine on 

remand the amount of costs and penalties to 

be awarded as a result of the violations.

On July 20, 2009, Monroe Correctional 

Complex prisoner Derek E. Gronquist sent 

a PRA request to the Washington State 

Department of Licensing (DOL) for the 

master business license application of a 

specified company.

The DOL failed to respond within five 

days in violation of the PRA. When the 

agency responded to Gronquist’s request 

on July 31, 2009, it provided the requested 

document but “redacted much of the application without providing a statutory basis 

for the redactions.”

Gronquist filed suit in state court, 

alleging that the DOL had violated the 

PRA by providing a redacted copy of the 

application. Following an inspection of the 

redacted information, the trial court granted 

summary judgment to the DOL, holding 

that the redacted material was not subject 

to disclosure but protected as confidential 

under Washington law.

The Court of Appeals reversed, holding 

that: 1) the DOL did not respond within 

the statutory time frame; 2) none of the 

redacted information was exempt when it 

was requested; 3) the DOL failed to provide timely or adequate justification for the 

redactions; and 4) the trial court improperly 

refused to file the deposition transcripts offered by Gronquist in support of his motion 

for sanctions and in response to the DOL’s 

summary judgment motion.

Due to a 2011 change that transferred 

the responsibility for master business 

licenses from the DOL to another state 

agency, the appellate court declined to order 

disclosure of the unredacted application 

requested by Gronquist. It remanded, however, instructing “the trial court to consider 

the imposition of costs and penalties after 

consideration of the entire record, including the depositions to be filed by the trial 

court.” Gronquist was also awarded his 

costs on appeal. 

The Court of Appeals did not address 

the applicability of RCW § 42.56.565(1), 

effective July 22, 2011, which specifies that 

a court shall not award penalties for violations of the PRA “to a person who was 

serving a criminal sentence in a state, local, 

or privately operated correctional facility on 

the date the request for public records was 

made, unless the court finds that the agency 

acted in bad faith in denying the person 

the opportunity to inspect or copy a public 

record.” See: Gronquist v. Washington State 

Department of Licensing, 175 Wn. App. 729, 

309 P.3d 538 (Wash. Ct. App. 2013). 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 52 of 65
April 2014 52 Prison Legal News

Prisoner Organ Transplants, Donations Create Controversy

Prison officials in several states are 

mulling over two sides of the same 

coin with respect to organ transplants 

for prisoners: first, the eligibility and cost 

of such medical procedures, and second, 

whether prisoners should be allowed to 

donate their organs.

Prisoners in Need of 

Organ Transplants

In Rhode Island, a liver transplant 

performed on a 27-year-old prisoner left 

officials defending the cost of the life-saving 

operation.

A spokeswoman for the Rhode Island 

Department of Corrections (RI DOC) said 

Jose Pacheco, who is serving a 61⁄2-year sentence for robbery, became the first prisoner 

in the state to receive a liver transplant. The 

August 1, 2012 operation was performed 

in Boston because Rhode Island hospitals 

don’t currently perform such transplants.

The procedure can cost up to almost 

$1 million, with the state required to pick 

up 40% of the bill, according to court 

precedent.

But the RI DOC said in a statement 

that it was unclear how much of Pacheco’s 

hospital bills the state will actually pay 

because it’s possible he qualified for Social 

Security benefits before he was incarcerated. 

In that case, Medicaid would cover about 

50% of the cost.

“To date, the Department has paid 

only for the inmate’s supervision in the 

hospital under an interagency agreement 

with the [Massachusetts Department of 

Corrections],” said RI DOC spokeswoman 

Tracey Zeckhausen. “That totaled just over 

$110,000” as of June 2012, she added.

“It is a sort of lose-lose situation for 

the taxpayer,” said state Senator Dawson 

Hodgson. “It can amount to torture if you 

let someone die without healthcare. At 

the same time, $1 million is a tremendous 

amount of taxpayer resources, whether it 

is coming from the state or federal government, put into any person’s healthcare 

– never mind someone who is a drug dealer 

and a thief.”

Pacheco’s case is not the first to generate controversy about prisoners receiving 

organ transplants, of course. 

A California prisoner received a heart 

transplant in January 2002 at a cost of $1 

million – which included follow-up care – 

according to Russ Heimerich, a spokesman 

for the California Department of Corrections and Rehabilitation (CDCR). At 

the time, Heimerich said the 32-year-old 

prisoner was suffering from a fatal heart 

condition. [See: PLN, Sept. 2002, p.12].

Less than a year later the heart transplant recipient had died, the victim of what 

prison officials called a failure to adhere 

to the demanding medical protocols that 

follow such an operation. [See: PLN, Oct. 

2003, p.28]. Transplant patients typically 

require close monitoring and a wide range 

of daily medications to prevent organ rejection and fight infections.

In 2004, a California federal court 

ordered the CDCR to contact transplant 

centers in the state to determine whether 

they would accept a prisoner as a candidate 

for a liver transplant. See: Rosado v. Alameida, 

359 F.Supp.2d 1341 (S.D. Cal. 2004).

New York state prisoner Wilfredo Rodriguez received a $400,000 liver transplant in 

November 2005. [See: PLN, Feb. 2006, p.40]. 

When another New York prisoner, convicted 

of rape, was being evaluated in 2011 for a 

heart transplant, state lawmakers demanded 

a review of the policies that permitted such 

operations at taxpayers’ expense.

“These reports raise a multitude of 

questions that demand and deserve answers 

for New York taxpayers, potential organ 

donors, and law-abiding families who are 

still waiting for life-saving transplants,” said 

state Senator Michael Nozzolio. “We cannot allow law-abiding citizens to be denied 

transplants in favor of dangerous violent 

offenders, convicted of heinous crimes, who 

may never leave prison.”

Apparently, Nozzolio was unaware 

that the provision of adequate healthcare 

by prison officials – including organ transplants when needed – is a Constitutional 

requirement. The U.S. Supreme Court ruled 

in Estelle v. Gamble, 429 U.S. 97 (1976) that 

denying necessary medical care to prisoners 

constitutes cruel and unusual punishment in 

violation of the Eighth Amendment.

“You get a liver transplant because you 

meet the very strict criteria, not because we 

like you,” remarked Dr. David Kaufman, the 

medical director at Strong Memorial Hospital, which performed the liver transplant 

for Rodriguez.

The New York prisoner seeking a heart 

transplant, Kenneth Pike, was screened for 

the operation but later declined the transplant for reasons that were not reported.

Meanwhile, the United Network for 

Organ Sharing (UNOS), a non-profit 

organization that manages the organ transplant system in the United States under a 

contract with the federal government, has 

taken the position that prisoners should not 

be precluded by their carceral status from 

receiving transplants, and should be eligible 

for such procedures to the same extent as 

non-incarcerated citizens. 

People usually receive organ transplants according to their position on the 

waiting list, which is based on the severity of 

their medical condition. There are currently 

over 121,000 people on organ waiting lists 

nationwide.

When Prisoners Want 

to Donate Organs

At the opposite end of the spectrum, 

controversy has erupted in several states 

about the ability of prisoners – including 

those on death row – to donate their organs, 

and the appropriateness of such donations.

In Mississippi, Governor Haley Barbour 

commuted the life sentences of sisters Gladys 

and Jamie Scott in December 2010, on the 

condition that Gladys donate one of her 

kidneys to Jamie. Both prisoners, who had 

served 16 years for an $11 armed robbery, 

were released in January 2011; Barbour’s 

decision may have been partly motivated by 

fiscal concerns, as Jamie’s dialysis was reportedly costing the state prison system around 

$190,000 per year. It is unclear whether the 

post-release kidney transplant occurred, as it 

was initially postponed for medical reasons. 

[See: PLN, May 2011, p.34].

Utah enacted the Inmate Medical 

Donation Act in March 2013, which allows 

voluntary organ donations from prisoners who die “while in the custody” of the 

Department of Corrections. The law states 

that prison officials may “release to an organ 

procurement organization ... the names and 

addresses of all inmates who complete and 

sign the document of gift form indicating 

they intend to make an anatomical gift.”

In Ohio, Governor John R. Kasich 

placed the November 2013 execution of 

death row prisoner Ronald Phillips on hold 

in order to study the feasibility of allowing 

Phillips and other condemned prisoners to 

donate their organs. Phillips was sentenced 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 53 of 65
Prison Legal News 53 April 2014

to die for the 1993 rape and beating death 

of his girlfriend’s 3-year-old daughter.

“Ronald Phillips committed a heinous 

crime for which he will face the death penalty,” the governor said in a statement. “I 

realize this is a bit of uncharted territory for 

Ohio, but if another life can be saved by his 

willingness to donate his organs and tissues 

then we should allow for that to happen.”

Phillips’ request to donate his organs 

to sick relatives or others who need them 

was initially rejected by state prison officials. 

According to the governor’s office, Phillips’ 

non-vital organs, such as a kidney, would be 

removed and he would then be returned to 

death row pending his execution, which was 

re-scheduled for July 2014.

On March 21, 2014, Ohio Department of Rehabilitation and Correction 

chief counsel Stephen Gray said Phillips 

would not be able to donate his organs, as 

he could not to do so in time to allow for 

a 100-day recuperation period prior to his 

new execution date.

Some people worry about the ethics 

of allowing death row prisoners to donate 

their organs. Jeff Orlowski, who heads Life 

Share Transplant Services, compared the 

process to organ harvesting – a practice 

that has been condemned in China, which 

until only recently harvested organs from 

executed prisoners. [See: PLN, March 2013, 

p.27; Sept. 2009, p.35; Jan. 2008, p.16; Sept. 

2007, p.24].

Life Share Transplant Services keeps 

track of the organ donation registry in 

Oklahoma, where one state lawmaker predicted widespread support for his proposal 

to allow death row prisoners to donate 

their organs.

“I don’t think it will be a tough sell,” 

state Rep. Joe Dorman said in November 

2013. “I think with the strong stance that 

we have with members of the legislature 

being pro-life, I certainly see this as a prolife idea because you’re saving lives with the 

actions of that prisoner seeking redemption” 

by donating his organs.

“You can’t put a price on life,” he added, 

apparently without irony.

Rep. Dorman said organs donated by 

willing prisoners would benefit people waiting 

for transplants – especially for organs that are 

difficult to find, The Oklahoman reported. His 

proposed legislation would allow prisoners to 

be anesthetized, have their organs removed 

and then be placed on life support until their 

executions can be carried out. Oklahoma uses 

lethal injection, which renders organs useless 

for post-execution transplants.

“The only options for executing someone to obtain vital organs is to either shoot 

them in the head or chop their head off 

and have a team of doctors ready to step in 

immediately,” noted Arthur Caplan, professor of medical ethics at NYU Langone 

Medical Center.

Oregon death row prisoner Christian 

Longo has pushed the issue of organ donation for several years. “If I donated all 

of my organs today, I could clear nearly 1 

percent of my state’s organ waiting list. I 

am 37 years old and healthy; throwing my 

organs away after I am executed is nothing 

but a waste,” he wrote in a New York Times

editorial on March 5, 2011. Prison officials 

denied his request.

Longo, who founded an organization 

called Gifts of Anatomical Value from 

Everyone (GAVE), renewed his efforts 

to donate his organs in March 2014, offering to give a kidney to Kevin Gray, an 

Oregon resident with kidney failure who 

is on dialysis.

“I don’t care if you’re incarcerated, 

if you’re my neighbor – if you’re willing 

to donate an organ to save a life it’s very 

breathtaking and I’m very grateful,” Gray 

said, although he later rejected the offer after learning that Longo was on death row.

“The department looks at organ donation on a case-by-case basis,” stated Oregon 

Department of Corrections spokeswoman 

Jennifer Black. “If someone needs a bone 

marrow transplant or their mother needs a 

kidney and there’s a match, then there’s no 

reason that can’t go forward,” she said. “But 

it’s not just a blanket ‘yes.’ All offenders can 

give part of their body away to somebody 

else. It has to be for the right reasons and 

the right person and all that.”

Policies related to organ donations by 

prisoners, including those on death row, 

vary from state to state.

“There have been several instances in 

the United States within the last 20 years 

where condemned prisoners have requested 

to become organ donors, either upon their 

execution as a deceased donor or prior to 

execution as a living donor,” UNOS said in 

a November 14, 2013 statement posted on 

the organization’s website. “Ultimately the 

correctional authority must decide whether 

to allow any inmate to be evaluated for 

donation, and an organ procurement organization and/or transplant center must 

make medical decisions whether to accept 

any person as a donor and allow a transplant 

to proceed.”

UNOS noted that organ donations from 

prisoners “present special concerns and vulnerabilities, and appropriate precautions are 

necessary to prevent the potential for coercion” – such as offering early release or other 

incentives in exchange for prisoners’ organs. 

Sources: www.630wpro.com, Providence 

Journal, www.osv.com, CBS News, NBC 

News, United Press International, www.

waynepost.com, Associated Press, The New 

York Times, www.kgw.com, www.wamc.org, 

New York Daily News, NBC News, www.

unos.org, The Oklahoman, www.gavelife.org, 

Statesman Journal 

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 54 of 65
April 2014 54 Prison Legal News

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Oklahoma Jailers Not Immune 

from Excessive Force Claims

The Oklahoma Supreme Court has 

held that jail officials are not immune 

from liability for excessive force claims 

under the Oklahoma Governmental Tort 

Claims Act (OGTCA).

On May 17, 2011, Daniel Bosh was 

detained at the Cherokee County Detention Center for failure to pay a traffic ticket. 

Video surveillance showed him standing 

at the booking desk with his hands cuffed 

behind his back.

Bosh reportedly complained to guard 

Gordon Chronister, Jr. that his handcuffs 

were too tight; in response, Chronister 

grabbed him from behind and slammed 

his head onto the booking desk. He then 

placed Bosh’s head under his arm and fell 

backwards, causing Bosh to strike the top 

of his head on the floor.

According to the video footage, other 

guards quickly joined the attack. They 

moved Bosh to a shower area outside the 

camera’s view, where they continued to 

assault him for an undisclosed period of 

time.

“The video speaks for itself,” said Bosh’s 

attorney, Mitchell Garrett.

Guards then left Bosh to languish in 

a cell without medical treatment for two 

days before taking him to a local hospital. 

Having suffered fractured vertebrae, Bosh 

required surgery to fuse several discs along 

his spinal cord.

Chronister later claimed that he 

thought Bosh was going to spit on him; 

based on that assertion, and the fact 

that Bosh had a long criminal history 

that damaged his credibility, prosecutors 

did not pursue criminal charges against 

Chronister or other guards involved in 

the incident.

On September 29, 2011, Bosh filed 

a 42 U.S.C. § 1983 action in state court 

against the Cherokee County Governmental Building Authority (“Authority”), which 

operates the jail, and against Assistant Jail 

Administrator T.J. Girdner and the guards 

who had assaulted him. The defendants 

removed the case to federal court.

The federal district court dismissed 

Bosh’s state tort claims as being barred 

by the OGTCA, 51 O.S. 2011 §§ 151

et seq., which “appears to allow the state, 

or, in this case the Authority, to elude 

tort liability when its employees beat and 

injure a citizen who is detained at one of 

its facilities.” 

Nevertheless, the district court allowed 

Bosh “to amend his complaint to assert a 

claim of excessive force” under Article 2, 

§ 30 of the Oklahoma Constitution. The 

defendants moved to dismiss the constitutional claim, arguing that it too was barred 

by the OGTCA. On August 30, 2012, 

the federal court certified three questions 

of law to the Oklahoma Supreme Court 

related to the scope and application of the 

OGTCA.

In answering those questions, the 

Supreme Court first found that Article 

2, § 30 “provides a private cause of action for excessive force, notwithstanding 

the requirements and limitations of the 

OGTCA.” Construing the OGTCA “as 

providing blanket immunity ... would ... 

render the Constitutional protections 

afforded the citizens of this State as ineffective, and a nullity,” the Court explained. 

Thus, excessive force claims brought under Article 2, § 30 are not barred by the 

OGTCA.

The Supreme Court then held that the 

cause of action it recognized with respect 

to excessive force claims under Article 2, 

§ 30 applies retroactively “to all matters 

which were in the litigation pipeline, state 

and federal, when Bryson v. Oklahoma 

County, 2011 OK CIV APP 98, 261 P.3d 

627 [(Okla. Ct. App. 2011)] was decided as 

well as any claims which arose when Bryson

was decided.”

Finally, the Court found that in regard 

to such claims under Article 2, § 30 of the 

Oklahoma Constitution, “respondeat superior applies to hold municipal corporations 

liable for the actions of their employees 

where those employees are acting within 

the scope of their employment.” 

Although the ruling was superficially 

amended and corrected on June 28, 2013, 

the outcome remained the same. See: Bosh 

v. Cherokee County Governmental Building 

Authority, 2013 OK 9, 305 P.3d 994 (Okla. 

2013), rehearing denied.

Bosh’s suit alleging excessive force 

claims remains pending before the federal 

district court, though it is now being litigated by his estate. On March 17, 2014, Bosh’s 

wife notified the court that he had died. 

See: Bosh v. Cherokee County Governmental 

Building Authority, U.S.D.C. (E.D. Okla.), 

Case No. 6:11-cv-00376-JHP. 

Additional source: www.kjrh.com

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 55 of 65
Prison Legal News 55 April 2014

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łłōōōōġŐġŐŇŇġŐġŐŖŖœœġŏġŏŐŐœœŎŎłłōōġőġőŐŐōōŊŊńńŊŊņņŔŔġłġłőőőőōōŚŚ

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April 2014 56 Prison Legal News

News in Brief

Alabama: Carbon Hill Mayor James 

“Pee Wee” Richardson, 61, was arrested on 

September 19, 2013 on multiple charges 

related to sexually abusing four prisoners 

at the city’s municipal jail; he was released 

eight days later after posting a $250,000 

property bond. In addition to the criminal 

charges, Richardson faces a civil lawsuit 

filed by a former prisoner who claims he 

took her into his office and groped her. 

The civil suit includes 11 counts of alleged 

wrongdoing by Richardson or the city, and 

seeks compensatory, statutory and punitive 

damages as well as attorney’s fees.

Angola: A cell phone video, which 

went viral on the Internet, showed several 

Angola prison guards kicking prisoners and 

beating them with sticks, then laughing as 

they left them bleeding and crying on the 

floor. Amnesty International called the incident shocking and urged the government to 

prosecute the guards. In a rare reaction from 

one of Africa’s most authoritarian governments, on September 27, 2013, Angola 

officials suspended 16 prison guards and 

firemen in connection with the brutal attack. The prison’s director was among those 

suspended, and the Interior Ministry said 

criminal charges would likely follow.

Arizona: A Maricopa County jail 

employee was murdered in his driveway by 

a 15-year-old boy who police said was motivated by gangs, drugs and guns. The teen, 

identified on September 25, 2013 as Leonard Moreno, will be tried as an adult for the 

random shooting of Jorge Vargas, 27. Vargas 

was an eight-year employee of the sheriff ’s 

Custody Support Bureau. Moreno’s mother 

and a friend also were arrested, accused of 

trying to dispose of evidence and helping 

him elude police.

Arkansas: On September 25, 2013, a 

man who escaped from a California prison 

in 1977 was taken into custody at his home 

in Jessieville, Arkansas, where he had been 

residing under an assumed name. Michael 

Ray Morrow scaled a fence at the California Institute for Men in Chino some 36 

years earlier and was living as Carl Frank 

Wilson, a church-going grandfather. New 

technology was able to match Morrow’s 

fingerprints to those of his alias from a 1984 

arrest. Morrow, now 70, was extradited to 

California.

Australia: A report issued on September 26, 2013 by the Independent 

Commission Against Corruption recommended prosecution for a Long Bay prison 

guard who showed up for tower duty while 

high on ecstasy, sold steroids to both prisoners and fellow guards, and lied to the 

commission about his conduct. Robert DiBona worked at the Special Programmes 

Centre at the prison. The commission also 

recommended that Di-Bona be fired.

California: Danne Desbrow will remember September 17, 2013 as a day with 

both good and bad news. First the bad: he 

was sentenced to 53 years to life in prison 

after being convicted of murder. Then the 

good: he got married ... by the same judge 

who had just sentenced him. Plus he got to 

eat a slice of wedding cake baked by San Diego Superior Court Judge Patricia Cookson, 

though there was no honeymoon. Desbrow 

intends to appeal his murder conviction.

Canada: Canada’s most notorious 

prison, Kingston Penitentiary, officially 

closed its doors on September 30, 2013 

after 178 years in operation. The shutdown 

was a money-saving measure. The prisoners 

at Kingston were all transferred to other 

facilities and the prison will begin offering 

guided tours as a fundraiser for the United 

Way. Sometimes called Canada’s Alcatraz, 

Kingston Penitentiary opened in 1835, 

before Canada was formed as a country.

Colorado: On September 25, 2013, a 

Pitkin County jailer obtained a restraining 

order against a prisoner who threatened her 

family. Deputy Deborah Kendrick sought 

the order to prevent Robert Rice from contacting her, her husband – who is a Pitkin 

County sheriff ’s deputy – and one of their 

family members. Kendrick said Rice had 

told her, “When I get out of here, I’m going 

to hurt your family.” The order specified that 

Rice could have limited contact with Kendrick while he is incarcerated at the jail.

El Salvador: Six Mara Salvatrucha 

(MS-13) gang members were hanged during a riot at a juvenile rehabilitation center 

in Tonacatepeque on September 24, 2013 

– El Salvador’s Prisoners’ Day. Two of the 

dead were minors and four were adults who 

had been sentenced at a younger age. Police 

believe the murders were carefully calculated gang killings. Prisons in El Salvador 

are notoriously overcrowded and violent 

as thousands of members of the country’s 

notorious MS-13 and 18th Street gangs 

await trial or serve their sentences. The two 

rival gangs signed a truce in March 2012 

but there is fear it may be crumbling, with 

gang-related murders on the rise.

Florida: On September 26, 2013, Boyd 

Wallace Higginbotham, Jr. was sentenced to 

life in prison for the March 2008 stabbing 

death of fellow prisoner Steven Pritchard 

in the mess hall at FCC Coleman in 

Drug Policy Alliance, the nation’s 

leading organization working to end the 

war on drugs, is looking for cases that might 

be eligible for executive clemency in NYS. 

If you know of any cases please contact 

Anthony Papa at tpapa@drugpolicy.org or 

212-613-8037 or write him at Drug Policy 

Alliance/131 West 33rd Street/15th Floor /NY, 

NY 10001/Attn: Clemency Cases NYS

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 57 of 65
Prison Legal News 57 April 2014

Airway Heights, WA.)

(Void in New York)

Sumter County. A federal jury found Higginbotham guilty of first-degree murder. 

The men had been involved in an argument 

that escalated over several days until Higginbotham grabbed Pritchard around the 

neck and repeatedly stabbed him.

Florida: Tomoka Correctional Facility 

Major Shannon Wiggins, 44, was arrested 

on grand theft charges in September 2013. 

Wiggins, who worked part-time as a security guard at the Daytona International 

Speedway, was charged with stealing more 

than $100,000 worth of Speedway merchandise and selling it on eBay. A friend 

who was helping him sell the merchandise 

has not yet been arrested but is under investigation. Wiggins was placed on leave by the 

Florida Department of Corrections.

France: On September 25, 2013, 

Sabrina Bonner, 25, and her boyfriend, 

prisoner Lionel Barthelemy, 31, each 

received 20-year sentences for raping Bonner’s 4-year-old son in 2010 in the visiting 

area of the Toul detention center. Behind 

visitation room windows covered with black 

trash bags, as is standard practice in French 

prisons for privacy, Bonner blindfolded the 

boy, made him kneel on a chair and held 

him by the arms as Barthelemy raped him. 

Bonner then returned with her son for a 

second visit, knowing that he would be 

raped again. A lawyer representing the child 

said he intends to initiate legal proceedings 

against the prison.

Hawaii: Two Oahu Community Correctional Center guards, Kevin Ignacio and 

Ismael Castro, face trial over allegations 

that they beat prisoner Jeffrey Diaz bloody 

in October 2012. Ignacio is accused of 

repeatedly punching Diaz in the head and 

face, while Castro was caught on surveillance video kicking him in the head. On 

September 17, 2013, Judge Patrick Border 

expressed his displeasure when the two 

guards failed to appear with their attorneys 

at a hearing to combine their criminal 

cases.

Illinois: When Cook County jail 

guards told prisoner Jeremiah Harris to 

pack up to go home on September 16, 2013, 

he told them to “quit playin’.” Harris, 25, 

who had been serving a 12-year sentence 

as a habitual criminal and was being held 

at the Cook County jail for a court appearance, became the third person in 2013 to be 

mistakenly released. Earlier that year, prisoners Steven Robbins and Steven Derkits 

were erroneously released by jailers.

Indiana: Prisoners at the Delaware 

County Jail are adjusting to frosted windows in their cells, which let sunlight in 

but prevent unauthorized communication 

with the outside world. The windows have 

been a source of concern in the decades 

since the jail was built, because prisoners 

sometimes expose themselves or make 

obscene gestures to passersby on the street. 

Sheriff Mike Scroggins told reporters on 

September 3, 2013 that the “fix,” a coating 

of paint applied to the windows, had cost 

around $91.

Kansas: Ness County Jail escapee 

Benito Cardenas, Jr., 38, apologized to his 

victims and law enforcement officials before 

being sentenced in back-to-back hearings 

for a two-day crime spree that occurred 

after he cut through four bars at the jail 

in August 2012. After escaping, Cardenas 

stole a van, burglarized a residence and accosted two women before surrendering to 

officers. He was sentenced on September 

24, 2013 to 151 months in prison on two 

counts of aggravated burglary and a single 

count of aggravated escape, to be served 

consecutive to his life sentence on unrelated 

charges.

Kentucky: Prisoner Ashley Marler, 

four months pregnant, escaped twice in 

the same week. She failed to return to the 

Fayette County Detention Center from a 

medical pass on September 16, 2013, and 

was arrested the next day and charged with 

escape. On September 24, 2013, Marler 

was taken to the same medical clinic. She 

reportedly left her clothing behind, climbed 

into the ceiling and fled wearing only a 

towel and white t-shirt. She was recaptured 

two days later.

Kentucky: Former FCI Ashland 

guard James Lewis and Cindy Gates, the 

girlfriend of a prisoner at the facility, both 

pleaded not guilty in September 2013 to 

charges related to smuggling contraband 

into the prison. Gates’ boyfriend, prisoner 

Gary Musick, was accused of participating 

in the scheme by telling Gates and Lewis 

what items to procure and directing other 

prisoners to sell the items. The contraband 

included marijuana, tobacco, cell phones 

and sexually explicit photos.

Louisiana: On September 19, 2013, 

Floyd Tillman, 26, pleaded not guilty to 

attempted second-degree murder after 

ramming the gates of the state penitenCase 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 58 of 65
April 2014 58 Prison Legal News

tiary at Angola with his car, while guards 

opened fire on him. Tillman had taken his 

daughters, ages 8 months and 2 years, from 

Terrebonne Parish. He then drove to the 

prison and argued with guards about taking 

a tour. After being told many times there 

were no tours that day, he began ramming 

the gate. It is anticipated that Tillman’s 

defense attorney will seek a mental health 

evaluation for his client.

Michigan: An attorney representing 

Oakland County jail guard Garry Jackson 

told a judge on September 16, 2013 that 

Jackson vehemently denied having sexual 

contact with a female prisoner in a broom 

closet while on duty at the jail. The incident was discovered after other prisoners 

started talking about a sexual relationship 

between Jackson and a 24-year-old prisoner. 

Although the investigation revealed that the 

sex was consensual, Jackson was charged 

with three felony counts of criminal sexual 

conduct; he was released on $10,000 personal bond and ordered not to have contact 

with the female prisoner.

Myanmar: On September 13, 2013, 

a riot at Nine Mile Prison in Kawthaung 

Township resulted in the death of one 

prisoner and injuries to seven others. The 

incident was sparked after Warden Saw Hla 

Chit ordered prison staff to beat and kick 

prisoners Ye Ko Hlaing and Htun Htun in 

retaliation for their participation in a fight. 

Officials cut the power lines to the facility 

in an attempt to disperse the rioters, but 

gunfire broke out shortly after the prison 

went dark. The prisoner who died, identified as Htay Nge, and the other casualties 

suffered gunshot wounds.

New Jersey: Bobby Singletary, 55, a 

former guard, was convicted on September 

27, 2013 of smuggling heroin and marijuana 

into the Adult Diagnostic and Treatment 

Center in Avenel, a facility for sex offenders. A prisoner who was tried with him 

was acquitted of all charges. Jurors heard 

how Singletary had prisoners pay for drugs 

by wiring money to outside accomplices; 

he was found guilty of conspiracy, official 

misconduct and bribery.

New Mexico: Former Columbus Police 

Chief Angelo Vega was on the payroll of the 

local Juarez Cartel at the same time he collected a $40,000 annual salary for his public 

position, according to testimony in federal 

court on September 25, 2013. A witness 

stated that Vega received $2,000 a month 

plus bonuses from the cartel for performing 

background and license plate checks, buying 

military gear and allowing cartel members to 

use official vehicles. Vega’s wife is Assistant 

U.S. Attorney Paula Burnett; she has not 

been charged with any crime.

New York: As part of a September 30, 

2013 plea bargain, prison guard Aaron A. 

Netto, 36, agreed to resign from his posiNews In Brief (cont.)

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Prison Legal News 59 April 2014

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stolen from several construction sites. In 

addition to resigning, he faces up to three 

years’ probation and will pay $1,600 in 

restitution. Netto entered an Alford plea, 

meaning he did not admit to the allegations 

but pled guilty to avoid the possibility of 

being convicted at trial.

Ohio: On September 18, 2013, three 

Ohio Department of Youth Services guards 

were arraigned on charges of assaulting a 

teenager at the Scioto Juvenile Correctional 

Facility. Though details of the incident 

were at first sketchy, guards Laurel Jeffreys, 

Nathaniel Strong and Antonio Keith were 

identified as the suspects who allegedly beat 

the unnamed 15-year-old. The state’s Youth 

Services agency was recently named in a 

U.S. Bureau of Justice Statistics report as 

among the worst in the nation for rape and 

sexual assaults of juvenile prisoners.

Oklahoma: According to court documents, Shealane Fields, a corporal who was 

fired from her job at the Logan County 

Detention Center on September 24, 2013, 

is accused of committing several felonies 

for prisoner Daniel Clark, with whom she 

developed a relationship. Fields allegedly 

smuggled contraband into the jail for Clark, 

including tobacco, a lighter, a flat blade 

screwdriver, crazy glue and a cell phone. 

Investigators also found 49 love letters, 

including one where the couple planned a 

tryst in a medical cell and another where 

they talked about a plan for Clark to walk 

out of the jail.

Oklahoma: Tulsa County jail guard 

Cory Laddel Jones, 22, was arrested on 

September 21, 2013 on charges of bringing 

contraband into the facility for a $100 payment. The arrest report said a prisoner told 

jail officials that Jones was paid to smuggle 

packages he obtained from a woman he arranged to meet at a convenience store. Jones 

was jailed on more than $25,000 bond.

Pennsylvania: On September 17, 2013, 

Warden John Walton of the Westmoreland 

County Prison announced a new policy instituted by the facility’s contract healthcare 

provider that requires all female prisoners 

to submit to pregnancy tests. The policy 

was created after an unidentified prisoner 

lied about not being pregnant and not being addicted to drugs. In order to protect 

the well-being of their unborn children, 

pregnant prisoners will receive obstetrics 

care and be weaned off drugs. Four percent 

of female prisoners at the Westmoreland 

County Prison were pregnant in the first 

nine months of 2013.

Pennsylvania: During a preliminary 

hearing on September 27, 2013, details 

emerged about why a Bucks County prison 

guard fired two gunshots in the direction of 

an acquaintance, Pearson Crosby, following 

an early morning altercation in June 2013. 

Anthony Pekarski, 26, free on $50,000 

unsecured bail, was charged with simple 

assault, reckless endangering, disorderly 

conduct and possession of a weapon. He 

admitted firing the shots because his girlfriend, who had been sitting beside Crosby 

in the backseat of Pekarski’s car, had an 

“uncomfortable look” and he wanted to 

scare Crosby away.

Saudi Arabia: On September 25, 2013, 

a prisoner returned after a 24-hour family 

visit wearing an explosive belt and threatened 

to detonate it, taking 200 prisoners hostage 

in the process. Prison officials in Madinah 

said the man was not mentally ill and made 

no demands during the six-hour standoff. 

According to a prison source, Saudi media 

reports about the incident were not accurate; 

the man had a gun as well as explosives. There 

were no reports of damage or casualties.

South Carolina: Tyheem Henry, 

convicted as the ringleader of a 2011 mob 

beating, was serving a 15-year sentence at 

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 60 of 65
April 2014 60 Prison Legal News

News In Brief (cont.)

Criminal Justice Resources

ACLU National Prison Project

Handles state and federal conditions of confinement claims affecting large numbers of prisoners. 

Publishes the NPP Journal (available online) 

and the Prisoners’ Assistance Directory (write for 

more information). Contact: ACLU NPP, 915 15th 

Street NW, 7th Fl., Washington, DC 20005 (202) 

393-4930. www.aclu.org/prisoners-rights/aclunational-prison-project 

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 in prison – contact them if you 

are not receiving proper HIV medication or are 

denied access to programs due to your HIV status. Contact: CHJ, 900 Avila Street, Suite 301, Los 

Angeles, CA 90012 (213) 229-0985; HIV Hotline: 

(213) 229-0979 (collect calls from prisoners OK). 

www.centerforhealthjustice.org

Centurion Ministries

Works to exonerate the wrongfully convicted, in 

both cases involving DNA evidence and those that 

do not. Centurion only takes 1-2 new cases a year 

involving actual innocence. They do not consider 

accidental death or self-defense murder cases, he 

said/she said rape cases, or child abuse or child sex 

abuse cases unless there is physical evidence. All 

case inquiries must be from the prisoner involved, 

in writing. Contact: Centurion Ministries, 1000 

Herrontown Road, Princeton, NJ 08540 (609) 921-

0334. www.centurionministries.org

Critical Resistance

Seeks to build an international movement to 

abolish the Prison Industrial Complex, with offices in Florida, California, New York, Texas and 

Louisiana. Publishes The Abolitionist newsletter.

Contact: Critical Resistance, 1904 Franklin Street 

#504, Oakland, CA 94612 (510) 444-0484. www.

criticalresistance.org

The Exoneration Project

The Exoneration Project is a non-profit organization dedicated to working to free prisoners who 

were wrongfully convicted. The Project represents 

innocent individuals in post-conviction legal 

proceedings; typical cases involve DNA testing, 

coerced confessions, police misconduct, the use 

of faulty evidence, junk science, faulty eyewitness 

testimony and ineffective assistance of counsel 

claims. Contact: The Exoneration Project, 312 North 

May Street, Suite 100, Chicago, Illinois 60607 (312) 

789-4955. www.exonerationproject.org

Family & Corrections Network

Primarily provides online resources for families 

of prisoners related to parenting, children of 

prisoners, 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

FAMM (Families Against Mandatory Minimums) 

advocates against mandatory minimum sentencing laws with an emphasis on federal laws, and 

works to “shift resources from excessive incarceration to law enforcement and other programs 

proven to reduce crime and recidivism.” Contact: 

FAMM, 1100 H Street, NW #1000, Washington, DC 

20005 (202) 822-6700). www.famm.org

The Fortune Society

Provides post-release services and programs for 

prisoners in the New York City area and occasionally publishes Fortune News, a free publication for 

prisoners that deals with criminal justice issues, 

primarily in New York. Contact: The Fortune 

Society, 29-76 Northern Blvd., Long Island City, NY 

11101 (212) 691-7554. www.fortunesociety.org

Innocence Project

Provides advocacy for wrongfully convicted 

prisoners 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, 40 Worth St., Suite 

701, New York, NY 10013 (212) 364-5340. www.

innocenceproject.org

Just Detention International

Formerly Stop Prisoner Rape, JDI seeks to end 

sexual violence against prisoners. Provides 

resources for imprisoned and released rape survivors and activists for almost every state. Contact: 

JDI, 3325 Wilshire Blvd. #340, Los Angeles, CA 

90010 (213) 384-1400. www.justdetention.org

Justice Denied

Although no longer publishing a print magazine, 

Justice Denied continues to provide the most 

comprehensive coverage of wrongful convictions and how and why they occur. Their content 

is available online, which includes all back issues 

of the Justice Denied magazine and a database 

of more than 4,500 wrongfully convicted people. 

Contact: Justice Denied, P.O. Box 68911, Seattle, 

WA 98168 (206) 335-4254. www.justicedenied.org

National CURE

Citizens United for Rehabilitation of Errants (CURE) 

is a national organization with state and special 

interest chapters (such as federal prisoners and 

sex offenders) that advocates for rehabilitative 

opportunities for prisoners and less reliance on 

incarceration. Publishes the CURE Newsletter, $2 

annual membership for prisoners. Contact: CURE, 

P.O. Box 2310, Washington, DC 20013-2310 (202) 

789-2126. www.curenational.org

November Coalition

Advocates against the war on drugs and previously published the Razor Wire, a bi-annual 

newsletter on drug war-related issues, releasing 

drug war prisoners and restoring civil rights. No 

longer regularly published, back issues are available online. Contact: November Coalition, 282 

West Astor, Colville, WA 99114 (509) 684-1550. 

www.november.org

Prison Activist Resource Center

PARC is a prison abolitionist group committed to 

exposing and challenging all forms of institutionalized racism, sexism, able-ism, heterosexism and 

classism, specifically within the Prison Industrial Complex. PARC produces a free resource 

directory for prisoners. Contact: PARC, P.O. Box 

70447, Oakland, CA 94612 (510) 893-4648. www.

prisonactivist.org

the Lee Correctional Institute. On September 8, 2013, the website Charleston Thug 

Life published Facebook postings Henry 

had made using a contraband cell phone, 

prompting a shakedown at the prison. 

Henry was charged with disciplinary violations, placed in segregation and lost good 

time credits and canteen, telephone and 

visitation privileges.

South Dakota: Robert Corsini was 

serving a seven-day jail term with work 

release after being caught in two separate online prostitution stings. In court 

on September 10, 2013, a judge found it 

“implausible” that Corsini had invited yet 

another prostitute he found online to meet 

him at his home while he was on work 

release. Judge John Schlimgen sentenced 

Corsini to 90 more days in jail – this time 

without the option of work release.

Tennessee: Hawkins County jail guard 

Scott Winkle “laid hands” on a prisoner 

while walking him back to a cell following a disturbance. Although the physical 

contact did not rise to the level of assault 

and no criminal charges were filed, Winkle 

was fired on September 19, 2013 for violating county regulations. He had recently 

attended a training session on appropriate 

physical contact in response to a February 

2013 staff-on-prisoner assault incident. 

In that case, jailer Roy Junior Mathes was 

charged with misdemeanor assault. 

Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 61 of 65
Prison Legal News 61 April 2014

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Case 2:15-cv-02245-ROS Document 220-1 Filed 04/13/18 Page 65 of 65